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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/35760-8.txt b/35760-8.txt new file mode 100644 index 0000000..78bd74a --- /dev/null +++ b/35760-8.txt @@ -0,0 +1,10270 @@ +The Project Gutenberg EBook of Marriage and Divorce Laws of the World, by +Hyacinthe Ringrose + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Marriage and Divorce Laws of the World + +Author: Hyacinthe Ringrose + +Release Date: April 3, 2011 [EBook #35760] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK MARRIAGE/DIVORCE LAWS OF WORLD *** + + + + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + + + + + + + + + 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 + + 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. + + + + +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 may take place at a Roman Catholic place of worship, a +Nonconformist chapel, or at the office of the registrar of marriages. The +parties must have resided in the district at least seven days preceding +the date of the notice, which must be given to the superintendent +registrar, or, if they live in different districts, then notice must be +given to the superintendent registrar of each district, and it must be +exhibited in his office for twenty-one days. If no valid objection to the +marriage is made the superintendent registrar issues his certificate and +the marriage may take place within three months. The cost, including +certificate, is 9s. 7d. + +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: + + 1 Grandfather. + + 2 Grandmother's Husband. + + 3 Husband's Grandfather. + + 4-5 Father's Brother, Mother's Brother (uncle by blood). + + 6-7 Father's Sister's Husband, Mother's Sister's Husband, (Aunt's + Husband, _i.e._, uncle by affinity). + + 8-9 Husband's Father's Brother, Husband's Mother's Brother (husband's + uncle). + + 10 Father. + + 11 Stepfather. + + 12 Husband's Father (father-in-law). + + 13 Son. + + 14 Husband's Son (stepson). + + 15 Daughter's Husband (son-in-law). + + 16 Brother. + + 17-18 Husband's Brother, Sister's Husband (brother-in-law). + + 19-20 Son's Son, Daughter's Son (grandson). + + 21 Son's Daughter's Husband (son's son-in-law). + + 22 Daughter's Daughter's Husband (daughter's son-in-law). + + 23 Husband's Son's Son (stepson's son). + + 24 Husband's Daughter's Son (stepdaughter's son). + + 25-26 Brother's Son, Sister's Son (nephew). + + 27-28 Brother's Daughter's Husband, Sister's Daughter's Husband + (niece's husband). + + 29-30 Husband's Brother's Son, Husband's Sister's Son (nephew by + affinity). + +GROUNDS OR CAUSES FOR DIVORCE.--A husband is entitled to a divorce if his +wife has committed adultery, but a wife is not so entitled unless her +husband has committed incestuous adultery, bigamy, rape, sodomy, +bestiality, adultery coupled with cruelty, or adultery coupled with +desertion without reasonable excuse for two years or more. Incestuous +adultery is adultery with a woman within the prohibited degrees. + +A wife will not be granted a decree of divorce on the ground of her +husband's adultery coupled with cruelty unless the cruelty relied on +consists of bodily hurt or injury to health, or a reasonable danger or +apprehension of one or the other of them. There must be at least two acts +of cruelty on the part of the husband. + +The communication of venereal disease when the husband knows of his +condition is an act of cruelty. + +PROCEDURE.--The application for a divorce is made by a petition to the +Probate, Divorce and Admiralty Division of the High Court of Justice. + +The party seeking relief is called the petitioner, and the party against +whom the petition is brought is called the respondent. The party with whom +a husband alleges his wife has committed adultery is called the +co-respondent. The person with whom a wife alleges her husband has +committed adultery is not a party to the suit. However, a woman implicated +in a divorce suit may, upon proper application, secure an order permitting +her to attend the proceedings as an intervener. + +Divorce proceedings in England are very expensive; the costs in an +ordinary uncontested suit amount to from thirty to forty pounds sterling. + +A petitioner or respondent who is not worth twenty-five pounds after +payment of his or her debts, exclusive of wearing apparel, may sue or +defend in _forma pauperis_. A person whose income exceeds one pound a week +cannot, except in special cases, sue or defend in _forma pauperis_. A +party desiring to sue or defend in _forma pauperis_ must as a preliminary +measure prepare a written statement of his or her case, setting forth the +facts relied upon as a cause of action or defence, and obtain thereon an +endorsed opinion of a barrister-at-law setting forth his professional +opinion that the cause of action or defence as stated is good in law. The +applicant must then make an affidavit, attaching the statement and the +barrister's opinion. This affidavit is then filed in the Divorce Registry +of Somerset House, where two days later, if a proper case is made out, an +order is issued granting the applicant leave to sue or defend in _forma +pauperis_. No fees are charged in respect to this application nor upon the +subsequent proceedings in court. No solicitor or barrister is assigned to +the party proceeding in this form. + +JURISDICTION.--The Court will only entertain jurisdiction when the husband +is domiciled in England. If the husband is temporarily residing abroad an +action by him or his wife for divorce must be instituted in England. + +The English Courts do not recognize a change of domicile which is obtained +simply to enable the parties to obtain a divorce in another country, the +laws of which offer greater facilities. + +If the domicile of the husband is in England, and either the husband or +the wife obtains a decree of divorce in the United States of America or +elsewhere, the English courts will treat such a divorce as a nullity. A +person's domicile is his or her permanent home. An Englishman who lives in +America for twenty-five years is not domiciled there unless by all the +facts his conduct shows that he has abandoned his English domicile. + +CONDONATION.--A matrimonial offence which is a sufficient cause for +divorce may be condoned or forgiven by the spouse aggrieved, and such +condonation is a good defence to the action. But subsequent misconduct +will revive the offence as if there had been no condonation. + +CONNIVANCE.--It is a sufficient defence to an action for divorce for the +respondent to show that the adultery complained of was committed by the +connivance or active consent of the petitioner. + +COLLUSION.--Collusion is the illegal agreement and co-operation between +the petitioner and the respondent in a divorce action to obtain a judicial +dissolution of the marriage. + +FORM OF DIVORCE DECREES.--An English decree of divorce is in the first +instance _nisi_, or provisional. If after six months it is unaffected by +any intervention by the King's Proctor, or any other person, it can be +made absolute upon proper application. + +KING'S PROCTOR.--This is the proctor or solicitor representing the Crown +in the Probate, Divorce and Admiralty Division of the High Court of +Justice in matrimonial causes. + +In his official capacity he can only intervene in a divorce suit on the +ground of collusion. + +Sir James Hannen, discussing the powers of this officer, said in a leading +case: "If, then, the information given to the King's Proctor before the +decree _nisi_ does not rise to a suspicion of collusion, but only brings +to his knowledge matters material to the due decision of the case, he is +not entitled to take any step, and the direction of the Attorney-General +would probably be that he should watch the case to see if these material +facts are brought to the notice of the court. If at the trial they should +be, there will be no need for the King's Proctor to do anything more, for +he would not be entitled to have the same charges tried over again unless +material facts were not brought to the notice of the court. + +"If, however, those material facts are not so brought to the notice of the +court by the parties, he will then be entitled as one of the public, but +still acting under the direction of the Attorney-General, to show cause +against the decree being made absolute." + +In special cases the court has power to make the decree absolute before +the expiration of six months after the decree _nisi_. + +Until the decree is made absolute neither party can lawfully contract +another marriage; and in the event of the suit being contested the parties +must further wait until the time for an appeal has passed. + +ALIMONY, TEMPORARY AND PERMANENT.--During the pendency of the suit the +husband is liable to provide his wife with alimony or maintenance. The +amount granted is within the court's discretion, but generally it is about +twenty-five per centum of the husband's income. Upon the granting of a +decree in the wife's favour the court has power to grant the wife +permanent alimony, the amount of which depends on all the facts, such as +the husband's income, the wife's means and the social status of the +parties. If a wife secures an order for alimony against her husband, he +being a man of property, the court may require him to give security for +its payment or direct him to make a transfer of money to a trustee or +trustees for the convenient payment to the wife. Permanent alimony is +usually smaller than temporary alimony, or alimony _pendente lite_, but no +rule as to the amount can be safely stated, it resting in the discretion +of the Court. + +If a husband has no considerable property he will be directed to pay the +alimony awarded against him in monthly or weekly instalments. + +INSANITY.--Insanity is neither a cause nor a bar to divorce. If an insane +wife commits adultery, or if an insane husband commits adultery coupled +with the other offences which make out a cause of action against him, the +innocent party is entitled to a decree of divorce. So an insane party may +be a petitioner for divorce, but can only appear by his or her committee +in lunacy. + +HUSBAND'S NAME.--A divorced wife is entitled to continue to use her former +husband's surname. + +ANNULMENT OF MARRIAGE.--An action for the annulment of marriage has for +its purpose the setting aside of the marriage contract on the theory that +proper consent to the marriage has never been given by both the parties. + +The following are the causes or grounds for such annulment: + +1. A prior and existing marriage of one of the parties; + +2. Impotency, or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse; + +3. Relationship within the prohibited degrees; + +4. Marriage procured by fraud, violence or mistake; + +5. Insanity of one of the parties at the time of the marriage; + +6. Marriage performed without legal license, or without the required +publication of banns. + +JUDICIAL SEPARATION.--By the Matrimonial Causes Act a decree of judicial +separation, which is equivalent in effect to a divorce _a mensa et thoro_ +under the old law, may be obtained either by the husband or wife on the +ground of adultery, or cruelty, or desertion without legal cause for two +years and upwards. + +The defences which may be set up by the respondent vary according to the +cause relied upon by the petitioner, but there is one absolute bar in +suits for judicial separations brought on any ground, and that is that the +petitioner has committed adultery since the date of the marriage. + +SEPARATION ORDERS.--Besides the ordinary suit to obtain a judicial +separation which must be prosecuted in the High Court a wife can obtain +speedy and inexpensive relief by making an application to a police +magistrate, or a board of magistrates, for a separation order. This remedy +is limited to married women whose husbands are domiciled in England or +Wales. + +Such separation orders are intended to furnish summary relief to the wives +of workingmen, and the amount awarded for the wife's support to be paid by +her husband cannot exceed two pounds a week, no matter what the husband's +income may be. + +The following are the causes for which, upon application, a magistrate or +board of magistrates is authorized to grant a separation order: + +1. Habitual drunkenness of the husband, which renders him at times +dangerous to himself or others, or incapable of managing himself or his +affairs; + +2. When the husband has been convicted of an aggravated assault upon his +wife, or has been convicted by an Assize or Quarter Sessions Court of an +assault and has been sentenced to a fine of more than five pounds or to +imprisonment for more than two months; + +3. Desertion by the husband of his wife; + +4. Persistent cruelty of the husband toward his wife; + +5. Neglect to provide reasonable maintenance for wife or infant children. + +By the Licensing Act of 1902 a husband is entitled to a separation order +by a magistrate or board of magistrates if his wife is an habitual +drunkard. + +RESTITUTION OF CONJUGAL RIGHTS.--Husbands and wives are entitled to each +other's society, and if, without sufficient reason, either of them +neglects to perform his or her obligations the injured party may institute +what is known as a suit for restitution of conjugal rights, in which the +court will grant a decree directing the offending party to render conjugal +rights to the other party. If the decree is not complied with, such +non-compliance is equivalent to desertion, and a suit for judicial +separation may be instituted immediately. If the husband is the offending +party, and if he has been guilty of adultery, a suit for divorce may at +once be instituted; or if he commits adultery subsequently to the date of +the decree for restitution, proceedings for divorce may be taken. +Furthermore, if the suit for restitution is brought by the wife, the +husband may be directed to make such periodical payments for her benefit +as the court may think just. If the suit for restitution is brought by the +husband, and if the wife is entitled to any property, the court may order +a settlement for the whole or part of it for the benefit of the husband +and children of the marriage, or either or any of them, or may order the +wife to pay a portion of her earnings to the husband for his own benefit, +or to some other person for the benefit of the children of the marriage. A +husband cannot compel his wife to live with him by force, and if he seizes +and retains possession of her, she or her relatives can obtain a _habeas +corpus_ to compel him to release her, but persons who wrongfully induce a +wife to leave her husband, or who detain her from his society by improper +means, are liable to an action for damages by him. If a husband declines +to live with his wife because he discovers that she has been unchaste +before marriage she cannot obtain a decree for restitution of conjugal +rights unless he knew of the fact before the marriage took place. If a +husband has been guilty of cruelty he cannot obtain a decree for +restitution. + +FOREIGN MARRIAGES.--The Foreign Marriage Act of 1892 (55 and 56 Vict. c. +23) forms a complete code upon the subject of the marriage of British +subjects abroad. + +Its chief requirement is that one at least of the parties to the marriage +must be a British subject. + +Notice of the proposed marriage must be given fourteen days before the +ceremony, and it must be performed before one of the following officials, +who is termed in the Act a "marriage officer": the British ambassador, +minister or chargé-d'affaires, accredited to the country where the +marriage takes place; the British consul, governor, high commissioner, or +official resident. The term consul in the Act includes a consul-general, a +vice-consul, pro-consul, or consular agent. + +If the woman is a British subject, and the man is a subject or citizen of +another country, the marriage officer must be satisfied that the intended +marriage would be recognized by the laws of the country where the man to +be married belongs. + +In 1896 there was passed the Marriage with Foreigners Act (6 Edw. 7, 3. +40), which is intended to protect British subjects who contract marriages +with subjects or citizens of other countries, either at home or abroad, +and to run the risk of having their marriages treated as invalid by the +law of the country of the foreign contracting party. It provides for the +granting of certificates by competent authority in the country to which +the foreign party to the marriage owes allegiance, stating that there is +no lawful impediment to the proposed marriage. + +CONFLICT OF LAWS.--English courts do not recognize a decree of divorce +granted by the courts of a foreign country as having any effect outside of +the country where granted, unless at the time of the beginning of the +action which resulted in the decree both parties were domiciled within the +jurisdiction of the court which granted it. + +This rule applies to divorce decrees obtained in Scotland because for all +the purposes of private international law Scotland is a foreign country. + +The English courts will, however, recognize as possessing +extra-territorial validity a decree of divorce which is recognized as +valid by the courts of the country where the parties were actually +domiciled at the time of its being granted. + +In the case of Gillig v. Gillig, decided in 1906, the English High Court +recognized as valid in England a divorce granted in South Dakota, U. S. +A., of parties domiciled in New York, because the decree in question was +recognized as valid by the courts of the State of New York. It is the +doctrine of English courts that an honest adherence to the principle that +domicile alone gives jurisdiction in a divorce action will preclude the +scandal which arises when a man and woman are held to be husband and wife +in one country and strangers in another. + + + + +CHAPTER III. + +SCOTLAND. + + +The Act of Union between England and Scotland, A. D. 1707 (6 Anne, c. 2), +which made one legislature, the present British Parliament, for the two +countries, expressly provided that the existing law and judicial procedure +of each kingdom should be continued, except so far as they might be +repealed by the Act, or by subsequent legislation. The foundation of +Scottish jurisprudence is the Roman law, and the canon law which is +derived from it, consequently the law of marriage and divorce in Scotland +differs from that of England. The status of marriage by Scottish law may +be created in any one of three ways: First, by regular or public marriage +celebrated in a church or private house by a minister of religion; second, +by an irregular or clandestine marriage entered into without the +assistance of a clergyman or any other third party, and, third, by +declaration, or declarator, wherein the parties make a declaration +confessing an irregular union, and are fined for the "offence," and obtain +an extract of the "sentence" which answers to the purpose of a certificate +of marriage. + +The Scottish definition of marriage is given by Lord Penzance as follows: +"The voluntary union of one man and one woman to the exclusion of all +others." + +IMPEDIMENTS.--Males under fourteen and females under twelve cannot marry, +but if persons under age, called in the Scottish law "pupils," live +together and continue to do so after both have passed their nonage they +are considered married, on the ground that there is evidence of a +contract after the impediment has ceased to exist. + +INSANITY.--An insane person cannot give a valid consent and therefore the +insanity of either party is an impediment. + +INTOXICATION.--There can be no marriage if one of the parties at the time +of the formal union was so intoxicated as to be bereft of reason, but a +marriage voidable on the ground of either insanity or intoxication may be +validated by the consent of both parties after a return to sanity or +sobriety. + +CONSANGUINITY AND AFFINITY.--As to the impediments which arise from blood +and marriage, the 18th Chapter of the Book of Leviticus is practically the +law of Scotland. Marriage is forbidden between ascendants and descendants +_ad infinitum_, and in the collateral line between brothers and sisters, +consanguinian or uterine, and between all collaterals, one of whom stands +in _loco parentis_ to the other. It is still an academic question whether +or not the marriage of a brother and sister both born illegitimate is +prohibited. + +Of course, a previous marriage still subsisting is an impediment. + +GRETNA GREEN MARRIAGES.--In order to put a stop to the Gretna Green +marriages which have furnished material for much romance in books and much +sorrow in actual life, it was enacted by 19 and 20 Vict., c. 96, that "no +irregular marriage contracted in Scotland by declaration, acknowledgment +or ceremony (after 31 Dec., 1856) shall be valid unless one of the parties +had at the date thereof his or her usual place of residence there, or had +lived in Scotland for twenty-one days next preceding such marriage." + +It is manifest from all the decisions that in the absence of impediments, +marriage in Scotland is constituted by interchange of consent. No formal +expression of such consent is necessary. If the court is satisfied, from +the whole circumstances and the conduct of the parties before and after, +that they have given genuine consent to present marriage, it will be held +that the marriage has been validly constituted. + +HUSBAND AND WIFE.--By the common law of Scotland the legal status of a +married woman is so merged in that of her husband as to leave her +incapable of independent legal action. Recent legislation has, however, +modified this doctrine. + +DIVORCE.--The term divorce as used in this chapter means an absolute +dissolution and setting aside of a legal marriage. + +The Scottish courts recognize two grounds for divorce, adultery and +desertion. These grounds are open to either husband or wife. The action +can only be maintained by the innocent party. + +ADULTERY.--The evidence must be such as would "lead the guarded discretion +of a reasonable and just man to the conclusion that adultery has been +committed." + +If the court has jurisdiction it does not matter that the offence was +committed out of Scotland. + +DEFENCES.--Besides the denial of the allegation of adultery, the following +are sufficient defences: 1, collusion; 2, condonation; 3, long delay in +bringing the action; 4, connivance or lenocinium of the plaintiff, who is +called a pursuer in Scottish procedure; 5, the honest belief that the +intercourse alleged to be adultery was lawful, as when a wife enters into +a second marriage in the reasonable belief that her first husband is dead. + +DESERTION.--Desertion or, as the Scottish lawyers put it, "non-adherence," +for a period of four years, against the will of the party deserted, is the +second ground for divorce. Mere separation, as, for example, the absence +of the husband on necessary business or his imprisonment, is not such +non-adherence as will entitle the pursuer to a decree. The desertion must +be a deliberate and obstinate withdrawal from cohabitation and +companionship. If a wife refused to accompany her husband abroad, and he +went alone, her refusal, and not his going away, would constitute +desertion. + +FOREIGN DIVORCE.--If a native of Scotland acquires a foreign domicile, and +obtains a divorce while abroad, the divorce would be recognized in +Scotland if granted for either of the two causes sufficient by Scottish +law. + +EFFECTS OF DIVORCE.--The judgment of divorce completely sets aside the +marriage, and both parties are free to marry again. On divorce the +innocent party also comes into the immediate enjoyment of all the rights +in the estate of the guilty spouse, or the funds settled by the marriage +contract, as if the offending party had died at the date of the decree. + +Conversely, the guilty spouse loses all claim to such legal rights as he +or she would have had on the death of the innocent party but for the +divorce. + + + + +CHAPTER IV. + +IRELAND. + + +Ireland like Scotland has its separate judicial system, and many of its +laws differ from those of all other parts of the British Empire. + +The Irish law relating to marriage and matrimonial controversies is +administered under the Matrimonial Causes and Marriage Law (Ireland) +Amendment Act of 1870. It is practically the same as the English law as it +existed before 1857. + +The Irish Act of 1870 transferred the exercise by the Ecclesiastical +Courts prior to the disestablishment of the Church of Ireland to a court +for matrimonial causes and assigned the trial of such causes to the judge +of the Court of Probate. + +Under the Irish Judicature Act of 1877 this jurisdiction is now vested in +the Supreme Court of Judicature and is exercised by the probate and +matrimonial judge. + +It is impossible to obtain a decree of divorce from the bonds of matrimony +in the courts of Ireland. The only divorce decree granted is from bed and +board, and amounts in effect to what is termed a judicial separation in +England. + +The grounds for the limited form of divorce granted by the courts are +adultery, cruelty or unnatural practices. + +In order to obtain a decree of complete divorce the petitioner must +promote a bill in the House of Lords to dissolve the marriage and allow +the petitioner to marry again, which bill must be founded upon and follow +a divorce from bed and board obtained in the Irish courts. + +When a petition is presented to the House of Lords a wife must prove her +husband's adultery coupled with cruelty and a husband must prove his +wife's adultery and must, if possible, make his wife's paramour a party by +instituting proceedings against him for criminal conversation in the Irish +courts. + +NULLITY.--An action for nullity of marriage can be maintained on the +following grounds: 1. Impuberty. 2. Relationship of the parties within the +prohibited degrees. 3. An existing prior marriage of one of the parties. +4. Incapacity of the parties to conclude the marriage contract, as in the +event of one being a lunatic. 5. Non-compliance with marriage laws. 6. +Fraud in procuring the marriage. 7. Impotency. + + + + +CHAPTER V. + +THE FRENCH LAW OF MARRIAGE AND DIVORCE. + + +MARRIAGE.--A man cannot contract a marriage before he has completed his +eighteenth year and a woman until she has completed her fifteenth year. +However, the President of the Republic may grant a dispensation as to age +upon good cause appearing. + +A son who has not reached the age of twenty-five, or a daughter who has +not reached the age of twenty-one, cannot marry without the consent of +their parents; but if the parents disagree between themselves the consent +of the father is sufficient. + +If both the father and the mother are dead or unable to give consent the +grandparents take their place. + +Sons or daughters less than twenty-one years of age, who have no parents +or grandparents, or only such as are in a condition which renders them +incapable of giving consent, cannot marry without the consent of a family +council. + +IMPEDIMENTS.--Marriage is prohibited between all legitimate ascendants and +descendants in the direct line and between persons who are connected by +marriage and related in the same degree. Marriage is also prohibited +between uncle and niece and aunt and nephew. The President of the Republic +may, nevertheless, on good cause being shown, dispense with the +prohibitions contained in the Civil Code forbidding the marriage of a +brother-in-law with a sister-in-law, and the marriage between uncle and +niece, and aunt and nephew. + +FORMALITIES.--A marriage must be celebrated publicly before the civil +status officer of the civil domicile of one of the parties. The officer +of the civil status before celebrating a marriage must publish the banns +twice before the door of the Maison Commune, at an interval of eight days. +The President of the Republic, and also the official whom he entrusts with +this power, may dispense, for good cause, with the second publication of +the banns. + +FOREIGN MARRIAGES.--A marriage celebrated in a foreign country between +French citizens or between a French citizen and a foreigner is valid if it +is performed according to the forms customary in such country, provided +always that the marriage has been preceded by the publications of the +banns pursuant to the code. + +The record of a marriage contracted in a foreign country must be +transcribed within three months of the return of the French citizen to the +territory of the Republic in the public marriage registers of his civil +domicile. + +VOIDABLE MARRIAGES.--The validity of a marriage which has been contracted +without the free consent of both parties, or without the free consent of +one of them, can only be impugned by the parties themselves or by the +party whose consent was not freely given. + +When there has been an honest mistake as to the personality of one of the +parties the validity of the marriage can only be impugned by the person +who was misled. + +Such mistakes as to personality include mistakes as to quality as well as +to identity. For example, the Court of Cassation held in 1861 that where a +woman had been misled into marrying an ex-convict by ignorance of the +fact, the marriage was annulable. + +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 passed 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 assailed 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 pronounced 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 +entitled 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 constitute 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 +assistance. 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 document 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 pronounced 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 entitled to a divorce on the ground of +the adultery of the other. + +2. Either party is entitled 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 assaults. 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, entitles 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 institute a proceeding for +divorce must present the petition personally to the President of the Court +or to the judge who is acting in that capacity. If it appears that the +petitioner 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 petitioner. + +The judge, upon seeing and hearing the petitioner and after having made +such comment as he may deem proper, will affix his order to the end of the +petition, 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 petitioner to reside separate during the pendency of the action from +the defendant. If the petitioner 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 petitioner 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 +Ministère Public being heard. The Ministère Public is an official who +performs similar duties to those of a King's Proctor in England. + +The petitioner can at any stage of the case change the petition for a +divorce into a petition 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 petition 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 pronounced, unless the court +in the interests of the children, upon the application of the family or +the Ministère Public, directs that they be entrusted to the other party or +to a third person. + +Whoever may become entitled 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 entitle 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. + +As in France, civil marriage is the only form of marriage recognized by +the State. + +IMPEDIMENTS.--1. Age. A man may not contract marriage before completing +his eighteenth year or a woman before completing her fifteenth. The King +may, however, grant a dispensation permitting a man to marry after +attaining the age of fourteen and a woman after attaining the age of +twelve. + +2. Existing previous marriage. As in France. + +3. Period of delay. A woman cannot contract a new marriage until ten +months after the dissolution or annulment of a former marriage, unless the +marriage was annulled on the ground of impotence. But this prohibition +ceases from the day the woman has given birth to a child. + +4. Consanguinity and affinity. As in France. The King has a right of +dispensation similar to that possessed by the President in France. + +5. Relationship by adoption. As in France. + +6. Mental incapacity. Marriage may not be contracted by one who has been +legally adjudged of unsound mind. If an action on this ground is pending +against either party to a contemplated marriage the marriage must be +suspended until final judgment is given. + +7. Homicide. A person who has been legally convicted as a principal or +accomplice in a voluntary homicide committed or attempted upon any person +may not be married to the latter's consort. As in the case of the +preceding impediment, a contemplated marriage must be suspended if an +action on this ground is pending against either party. + +8. Consent of parents. The age under which the consent of parents or next +of kin is required is 25 for males and 21 for females. An adopted child +requires the consent of both its natural and adopted parents. If the +consent is refused the Italian Code provides for an appeal to the court. + +Foreigners desiring to be married in Italy must present a certificate from +the competent authority of their own country that they satisfy the +requirements of the laws of that country. Foreigners ordinarily residing +in Italy must also satisfy the requirements of the Italian law. + +PRELIMINARIES.--The preliminary formalities to marriage are essentially +the same in both the French and the Italian Codes. + +LEGAL OPPOSITION.--Legal opposition to the marriage may be made by the +parents or, in want of them, by the grandparents of either party, if they +are cognizant of the existence of any legal impediment, even if the +parties are of age. In default of ascendants, opposition can also be made +by a brother, sister, uncle, aunt, or cousin german, as well as by the +guardian or curator duly authorized by the family council, on the ground +of lack of the required consent or the infirmity of mind of one of the +parties to the marriage. Anyone may oppose the remarriage of his former +consort. + +The public prosecutor is required to oppose the marriage officially when +he is cognizant of any impediment, and to facilitate his accomplishment of +this duty the registrar is bound to inform him of any impediment that +appears to exist. + +The effect of a legal opposition is to suspend the celebration of the +marriage until the case has been determined in court. If the opposition +proves to be without legal ground the one filing it, unless one of the +ascendants or the public prosecutor, may be held responsible for any +damage occasioned by him. + +CELEBRATION.--Marriage must be celebrated publicly in the communal house +and before the registrar of the commune where one of the parties has his +or her domicile. Two witnesses are required. + +RECORD OF MARRIAGE.--The registrar must inscribe a record of the marriage +in the civil register giving all the necessary details and must deliver an +authenticated abstract of the record to the parties, who without this +cannot legally claim to be married or to enjoy any of the legal +consequences of marriage. + +ILLEGITIMATE CHILDREN.--Such children are legitimatized by the subsequent +marriage of their parents, although in order to acquire the legal rights +of legitimate children they must be formally recognized by their parents. + +These legal rights are acquired at the time of marriage only if the +illegitimate children are legally recognized by their parents in the +marriage record or have been legally recognized at some time prior to the +marriage; otherwise they date only from the day when such recognition is +given subsequent to the marriage. Children of adulterous connections and +of persons between whom exists the impediment of relationship by blood or +marriage in the direct line, or of relationship by blood in the collateral +line up to the second degree, cannot be legitimatized. + +FOREIGN MARRIAGES.--In order that marriage may be valid in Italy an +Italian citizen entering into a marriage in a foreign country must be free +to marry under the Italian law and must make publication in the commune in +Italy of which he is a resident, or if he is no longer a resident of +Italy, in the one in which he last resided. The marriage is valid if +celebrated according to the form prescribed by the laws of the country in +which it takes place. Within three months after his return to Italy he +must have the marriage recorded in the civil register of the commune where +he permanently resides. + +ANNULMENT.--Marriage may be annulled if contracted in contravention of the +impediments as to age, existing previous marriage, relationship or +homicide. It may also be declared null if it was celebrated before an +incompetent official or without the necessary witnesses; in the former +case, however, the action cannot be instituted more than a year after the +date of celebration. Actions on the foregoing grounds may be brought by +the parties themselves, by the nearest ascendants, by the public +prosecutor or by any one who has a legitimate or actual interest in the +marriage. + +The validity of a marriage may also be attacked by the party whose consent +thereto was not free or who was under error as to the person married; but +actions on these grounds are no longer admissible when cohabitation has +lasted for a month after the removal of the constraint or the discovery of +the error. Impotence, when anterior to marriage, may be put forward as a +ground for annulment by either party. Marriage performed without the +required legal consent may be attacked by the person whose consent was +necessary or by the party to whom it was necessary; but in the former case +it cannot be attacked later than six months after marriage, and in the +latter, six months after the party in question has attained his majority. +Moreover, in cases where only one of the parties has attained the required +age it cannot be attacked when the wife, although not yet of age, has +become pregnant. The marriage of one who has been legally adjudged of +unsound mind can be attacked either by the party himself, his guardian, +the family council, or the public prosecutor, if the judgment had already +been passed when the marriage was celebrated, or if the infirmity for +which the judgment was pronounced was existent at the time of marriage. + +Marriage cannot, however, be attacked on this ground if cohabitation has +endured for three months after the party has been legally adjudged to be +once more of sound mind. + +The public prosecutor is obliged to intervene in all matrimonial causes, +even if they were not instituted by him. + +SEPARATION.--There is no divorce in Italy, and marriage is only dissolved +by the death of one of the parties. Personal separation is, however, +permitted on the following grounds: + +1. Adultery of the wife, or of the husband if he maintains a concubine in +his house or openly in another place or when such circumstances concur +that the act constitutes a grave indignity (_ingiuria grave_) to the wife. +The latter provision is intended to apply particularly to cases where the +wife has discovered the husband in _flagrante delicto_. + +2. Voluntary abandonment. + +3. Violence endangering the life or health, cruelty, threats, or grave +mental indignities. + +4. Sentence to punishment for crime, except when the conviction was prior +to the marriage and the other party was cognizant of it. + +5. The wife can ask for a separation when the husband, without any just +reason, does not set up an abode, or, having the means, refuses to set one +up in a manner suited to his condition. + +6. Mutual agreement. Separation on this ground is not valid unless +ratified by the court after an attempt at reconciliation has been made. + +LIMITATIONS TO RIGHT OF ACTION.--The right to obtain a separation is +extinguished by condonation, express or tacit. + +PROCEDURE.--Actions for separations must be brought before the court under +whose jurisdiction the defendant is resident or domiciled. Service is +ordinarily personal, but if the residence of the defendant is unknown it +may be made by a judicial edict giving notice of the action, of which one +copy must be posted at the door of the building where the court holds its +sessions, while a copy is published in the newspaper designated for the +official notices of the court, and another copy is transmitted to the +public prosecutor for the district in which the action is brought. + +Before the case is tried the parties are obliged to appear in person and +without attorneys before the President of the Court which has jurisdiction +over the case, who hears each party separately and makes such +representations as he considers calculated to effect a reconciliation. If +a reconciliation is accomplished the fact is noted on the court records +and the case dismissed; otherwise the case is sent back to the court for +trial. + +The trial is ordinarily in accordance with the rules of summary +procedure. + +EFFECTS OF DECREE.--The party for whose fault the separation was +pronounced incurs the loss of the marriage remainders; of all the uses +which the other party had granted in the marriage contract, and also of +the legal usufruct. The other party preserves the right to the remainders +and to every other use dependent on the marriage contract, even if +stipulated as reciprocal. In case both parties are equally at fault each +incurs the losses above indicated, the right of support in case of +necessity always being preserved. + +CUSTODY OF CHILDREN.--The tribunal which pronounces the separation also +orders which of the parties shall retain the children. For grave reasons +it may commit the children to an educational institution or to the charge +of a third party. Whatever the disposition of the children, however, both +parents retain the right of supervising their education. + +FOREIGN DIVORCES.--Decrees of divorce granted by foreign courts are not +recognized in Italy so far as Italian subjects are concerned. + + + + +CHAPTER VII. + +BELGIUM. + + +REQUIREMENTS FOR MARRIAGE.--A man who has not completed his eighteenth +year and a woman who has not completed her fifteenth year cannot contract +marriage. + +Nevertheless, it is within the power of the sovereign to grant a +dispensation setting aside this requirement for good and sufficient +causes. + +There can be no marriage in Belgium without mutual consent. It is +forbidden to contract a second marriage before the dissolution of the +first. + +A son or a daughter who has not reached the age of twenty-one years cannot +contract a marriage without the consent of his or her father and mother. +In case of disagreement between the father and mother on this subject the +consent of the father is sufficient. + +A disagreement between a father and a mother as to giving consent to the +marriage of their child can be established by a notarial record, by a +summons served by a process server, by minutes of a hearing held on the +subject, or by a letter stating the mother's objection to the marriage +written by her to a civil officer of the State. + +If the father or the mother is dead, if either of them is absent or +incapable of expressing consent, the consent of the other parent is +sufficient. + +The incapacity of a father or a mother to express consent may be proven by +a declaration made by the future spouse whose ascendant is incapable and +by four witnesses of full age, of either sex. + +If the father and the mother are dead, or both are incapable of +manifesting their wishes, the grandfathers and the grandmothers take their +places. + +PROHIBITIONS.--In direct line marriage is forbidden between all legitimate +or illegitimate ascendants and descendants and their spouses. + +In the indirect or collateral line marriage is forbidden between brother +and sister, legitimate or illegitimate, and their spouses of the same +degree. + +Marriage is forbidden between uncle and niece and aunt and nephew. + +It is, however, possible for good reasons to obtain a dispensation from +the sovereign permitting a marriage within these prohibited degrees. + +FORMALITIES.--Marriage must be celebrated publicly before a civil officer +of the State of the commune and in the commune where one of the +contracting parties has his, or her, residence. + +OBJECTIONS BY THIRD PERSONS.--Of course, a husband or wife of an existing +marriage has the right to object formally to his or her spouse contracting +another marriage. + +The father, and, in default of the father, the mother, and, in default of +the mother, the grandparents have the right to oppose a marriage of a +child or grandchild who has not reached the age of twenty-five years. + +ANNULMENT.--A marriage which has been contracted without the free consent +of the parties, or one of them, may be annulled in the courts, but only on +the application of either of the parties when neither of them have given +free consent, or on the application of the party whose free consent was +not obtained. + +When there has been an error concerning the identity of either of the +parties to the contract the marriage can only be annulled at the instance +of the party who has been misled or imposed upon. + +A marriage which has been contracted without the consent of the father or +mother, the ascendants, or the family council, where such consent was a +necessary condition precedent, can only be annulled on the application of +the person or persons whose consent was wanting. + +A marriage which has been declared null continues in operation, +nevertheless, all the civil effects both for the parents and the children, +when the contract was concluded in good faith. + +OBLIGATIONS OF MARRIAGE.--The parties to a marriage are bound to mutual +fidelity, protection and assistance. + +The husband owes protection to his wife and a wife obedience to her +husband. + +A wife is obliged to live with her husband at whatever residence he may +judge to be proper. The husband is obliged to receive his wife and to +furnish her with the necessaries of life, according to his ability and +social condition. + +A husband and wife contract together by the fact of marriage itself to +nourish, educate and properly care for their children. + +A wife whose property is mixed with that of her husband, or who keeps her +property separate, cannot give, sell, pledge, mortgage, or acquire title +to property, with or without a valuable consideration, except on the +written consent of her husband. + +DISSOLUTION OF MARRIAGE.--A marriage is dissolved: + +1. By the death of one of the parties; + +2. By legal divorce; + +3. Abrogation by Article 13 of the Constitution. + +SECOND MARRIAGE.--A woman cannot conclude a new marriage until ten months +after the dissolution of the one precedent. + +DIVORCE.--A husband is entitled to a divorce because of the adultery of +his wife. + +A wife can only obtain a divorce because of her husband's adultery, when +the husband has brought his paramour or concubine into the home he has +established for himself and wife. + +Either party to a marriage is entitled to a divorce because of excessive +ill-usage or grievous bodily injuries committed by one against the other. + +The conviction of one of the parties for an infamous offence entitles the +other to institute an action for a divorce. + +MUTUAL CONSENT.--The mutual and persistent agreement of the parties to be +divorced, expressed in the manner provided by law, and after certain +formalities and proofs showing that a continuance of the marriage relation +is unbearable, and that there exists by agreement of both parties +peremptory reasons for a divorcement, is sufficient ground for a decree of +divorce. At a meeting of the International Law Association, held at the +Guildhall, London, on August 4th, 1910, Dr. Gaston de Leval, legal adviser +to the British legation at Brussels, pleaded in favour of the Belgian +system of divorce by mutual consent. Extremely few cases, he said, of such +divorces took place, the proportion not being more than three per cent. on +the average of Belgian divorces. He argued that such a divorce was at +least as moral and difficult to obtain as any other kind of divorce, and +in most of the cases the most difficult to obtain. + + + + +CHAPTER VIII. + +SWITZERLAND. + + +The marriage and divorce laws of the Swiss Republic are federal--that is, +operating throughout all the cantons of the confederation. Prior to +January 1, 1876, when the present federal law went into effect, the +different cantons had individual laws regulating divorce. + +QUALIFICATIONS FOR MARRIAGE.--1. Age. A man must be at least eighteen +years of age and a woman at least sixteen in order to contract a valid +marriage. + +2. Mental capacity. Lunatics and idiots are prohibited from marrying. + +3. Free consent. No marriage is valid without the free consent of the +parties. Duress, fraud or error in the person precludes the presumption of +consent. + +4. Consent of parents. Parental consent is required of all persons under +twenty years of age. If the parents are dead or incapable of manifesting +their will the consent of a guardian is necessary. If the guardian refuses +consent the parties may appeal from his decision to the courts. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between ascendants and +descendants; between brothers and sisters of the whole or half blood; +between uncles and nieces, or aunts and nephews, whether the relationship +arises from legitimate or illegitimate birth, and between connections by +marriage in the direct line. + +Marriage is also prohibited between adopting parents and adopted children. + +A widow, a divorced woman, or a woman whose marriage has been annulled +cannot contract a new marriage within 300 days after the dissolution of +the former marriage. + +When an absolute divorce has been decreed on the ground of adultery, +attempt on life, cruelty, dishonourable treatment, sentence to an +ignominious punishment, wilful desertion, or incurable mental disease, the +guilty or losing party cannot enter into a new marriage until one year has +elapsed from the date of the divorce. + +PRELIMINARY FORMALITIES.--Before the celebration, publication must be made +in the district of birth and residence of both parties. Fourteen days +after the formal publication of banns the registrar of the domicile of the +intended husband delivers to the parties, provided no valid objection to +the marriage has been served at the registrar's office, a certificate of +publication, which permits the parties to be married in any place in +Switzerland within six months from date of publication. + +CELEBRATION.--The marriage ceremony must be performed by a registrar. The +civil ceremony must precede any religious celebration. The civil marriage +before the registrar must be publicly performed in the presence of not +less than two witnesses. + +ILLEGITIMATE CHILDREN.--Illegitimate children are legitimatized by the +subsequent marriage of their parents. + +FOREIGN MARRIAGES.--A marriage contracted in a foreign country that is +valid according to the laws of that country is valid in Switzerland. + +DIVORCE AND JUDICIAL SEPARATION.--Absolute divorce is granted for the +following causes: + +1. When both husband and wife consent to a divorcement and it appears to +the court from facts presented that to keep the parties bound together by +the marriage bond is incompatible with the true intention of marriage. + +2. Adultery. However, six months must not have passed since the injured +spouse obtained knowledge of the offence. + +3. Attempt upon the life of either spouse. + +4. Cruelty or dishonourable treatment. + +5. Wilful desertion continued for two years, and the absentee has failed +within six months to obey a judicial summons to return. + +6. Incurable insanity or mental disease of three years' existence. + +7. In the absence of the causes above set forth the courts have still +power to grant either an absolute divorce or a judicial separation for not +more than two years if it appears that the parties are grossly +antagonistic to each other. If, upon petition, a judicial separation is +granted and at its stated expiration no reconciliation has taken place, +the court will entertain an application for an absolute divorce. + +EFFECTS OF DIVORCE.--The questions of property, alimony, custody of +children and change of name are determined according to the laws of the +individual cantons. Generally the guilty party must pay damages to the +innocent spouse, either in one payment or by instalments, the amount +depending upon the means of the parties and the nature and degree of the +offence for which the divorce was granted. + + + + +CHAPTER IX. + +GERMAN LAW. + + +The German Empire consists of twenty-six political States. These include +four kingdoms, six grandduchies, five duchies, seven principalities, three +free towns, and Alsace-Lorraine. With the exception of Alsace-Lorraine, +whose affairs are administered by the central imperial government, all are +sovereign States. + +This individual sovereignty of a German State is somewhat analogous to +that of a State in the American Union. However, we must for the purposes +of this chapter notice one important difference. + +The legislative power of the central authority of the German Empire is not +only exclusive on certain imperial matters, but its acts take precedence +in such domestic concerns as domicile, judicial procedure, marriage and +divorce, and the general rights of a German subject. + +The Constitution of the Empire (April 16, 1871) enumerates in detail the +powers, limitations and relations of the different organs of government. + +From the _Germania_ of Tacitus and other authorities we learn that among +the early Germans marriage was largely a matter of bargain and sale. In +the presence of certain relatives or friends the father or guardian of a +female delivered her to the bridegroom on receipt of the purchase price. + +Marriage by abduction was also recognized, but the abducter was obliged to +make compensation to the abducted female's father or guardian, which +compensation amounted in effect to an agreed purchase price. + +Although the consent of the female was never asked or considered on the +question of marriage, we are told by Tacitus that German wives were +remarkable for their fidelity and affection and were treated as friends by +their husbands, who had a high respect for their judgment in all concerns +of life. + +From the mediæval times Christianity has exercised a strong and correcting +influence on the relation of marriage in Germany. At first the Christian +Church recognized the informally declared agreement to marry on the part +of the man and woman, which is called nowadays a betrothal, as all that +was necessary to make them husband and wife. If the agreement referred to +some future time, however, they were not considered as actually married +until cohabitation had taken place. By the decrees of the Council of +Trent, ratified in 1564, the Roman Catholic Church made it a requirement +for the first time that in order to constitute a valid marriage the +declarations of the couple must be made before a priest and witnesses. + +It was not until the eighteenth century that the Protestant Church in +Germany adopted the rule that a marriage is not concluded simply by +betrothal or mutual agreement, but requires a formal religious +celebration. + +The _Personenstandsgesetz_, which became law on January 1, 1876, provided +for the first time governmental regulation of marriage on a non-sectarian +basis for the German Empire. + +It was not, however, until the enactment of the Civil Code that a clear +and methodical statement of the law of marriage and divorce was given to +the German people. + +The German Civil Code (_Bürgerliches Gesetzbuch für das Deutsche Reich_), +which became law on January 1, 1900, has been described by Professor +Maitland as "the most carefully considered statement of a nation's law +that the world has ever seen." It is in the Fourth Book of this scientific +codification, under the general title of Family Law, that we find the +German statutes of to-day on marriage and divorce. A summary of these +statutes follows: + +MARRIAGE.--Religious definitions, dogmas and obligations respecting +marriage are not affected or considered by the German Code. Marriage is +treated as a civil contract to which the State is always an added party. + +A legitimate child requires, before the completion of his twenty-first +year, the approval of his father for concluding a marriage; an +illegitimate child requires, before reaching maturity, the approval of the +mother. A male reaches his majority at twenty-one years of age and a +female at the completion of her sixteenth year, for the purpose of +marriage. + +IMPEDIMENTS TO MARRIAGE.--A marriage cannot be concluded between relatives +by blood in the direct line nor between brothers and sisters of full blood +or half blood, nor between persons one of whom has had sexual intercourse +with the parents, grandparents or descendants of the other. + +Persons in the military service, aliens and officials who by the law +require special permission to become married cannot conclude a marriage +without permission. + +FORM OF MARRIAGE.--A marriage is concluded by the parties appearing +together and declaring before a registrar, in the presence of two +witnesses, their intention to become husband and wife. + +VOIDABLE MARRIAGES.--A marriage may be avoided by a spouse who has been +induced to enter the marriage status by fraud concerning such facts as +would have deterred him or her from concluding the marriage had he or she +been acquainted with the actual state of affairs. A marriage cannot be +avoided on the ground of fraud or misrepresentation as to the pecuniary +means of either party. + +HUSBAND AND WIFE.--The parties are mutually bound to live in conjugal +community. The right to decide in all matters affecting the common +conjugal life belongs to the husband. However, if the decision of the +husband on these matters is an abuse and not a reasonable exercise of his +right the wife is not bound to accept his decision. + +PROPERTY.--A wife has absolute power to deal with her separate property as +if she were a single woman. A wife's separate property includes also that +which she has acquired by her industry or in the course of a separate +business conducted by her. It is presumed in favour of the husband's +creditors that all chattels which are in the possession of either husband +or wife, or in their joint possession, belong to the husband. In regard to +articles intended exclusively for the personal use of the wife, such as +clothing, ornaments and working implements, it is presumed that as between +the spouses and the creditors of either that the articles are the property +of the wife. + +MATRIMONIAL CONTRACTS.--Both spouses may regulate their property relation +by a contract made before or after the marriage. + +DIVORCE.--Grounds or Causes. Either spouse may petition for divorce on the +following grounds: + +A. Adultery of the other spouse; + +B. An attempt by one spouse to kill the other; + +C. Wilful desertion continued for the period of one year; + +D. Offences specified in Sections 171 to 175 inclusive, of the Criminal +Code, including bigamy, incest and certain detestable crimes; + +E. Such a grave breach of marital duty or such dishonest or immoral +conduct which disturbs the conjugal relation to such an extent that the +petitioner cannot reasonably be expected to continue the relation; + +F. Insanity of the respondent continued for three years and of such a +character that the intellectual community between the parties has ceased +and there is no reasonable hope of its renewal. + +Petitions for divorce must be filed within six months of the time when the +petitioner acquires knowledge of the facts constituting a sufficient +ground. + +The petition cannot be allowed in any case if ten years have elapsed since +the happening of the cause for divorce. After divorcement both parties are +free to remarry. + +If a marriage is dissolved for any cause the decree shall declare the +respondent to be the exclusive guilty party. + +PUNISHMENT FOR THE GUILTY.--Adultery is punishable by imprisonment with +labour for a term not exceeding six months in the case of the guilty +married person and the partner in guilt if the marriage is dissolved on +the ground of adultery. Prosecution only takes place, however, on +proposal--that is, at the instance of the aggrieved spouse. + +CONDONATION.--The right to a divorce is lost by condonation of the offence +relied upon as a cause. If a marriage is dissolved for any cause the +decree shall declare the respondents to be the exclusive guilty party. + +EFFECTS OF THE DIVORCE.--A divorced wife retains the surname of her +husband unless specifically prohibited until she remarries. + +If she is the innocent party she may, upon making a declaration before +competent authority, resume her maiden name. If she is the guilty party, +her husband, by making a declaration before competent authority, may +prohibit her calling herself by his surname. After she has thus lost the +surname of her husband she, by operation of law, resumes her maiden name. + +MAINTENANCE.--A husband declared by a decree of divorce or judicial +separation to be the guilty party shall provide maintenance to his +divorced wife suitable to her station in life, in so far as she is unable +to obtain such maintenance out of her earnings and income. + +A wife declared by decree to be the guilty party shall provide maintenance +to her divorced husband suitable to his station in life, in so far as he +is not able to so maintain himself. + +The maintenance above referred to shall be provided by a money annuity +payable quarterly and in advance. + +In some cases the person bound to provide such maintenance is required to +furnish a bond or security for the performance of the duty. + +For sufficient reason the person entitled to the payment of such a money +annuity may demand a complete settlement in a lump sum. + +The duty to provide maintenance is extinguished on the remarriage of the +party entitled to it or on the death of the party bound to make such +provision. + +If a marriage has been dissolved on account of the insanity of one of the +parties the same spouse shall provide maintenance to the unfortunate +respondent. + +If the husband is bound to provide maintenance to a child of the marriage +the wife is also bound to reasonably contribute toward such maintenance +out of her income or earnings. + +JUDICIAL SEPARATION.--The same causes which are sufficient for a divorce +will entitle the petitioner to a judicial separation if that form of +relief is preferred. If such a judicial separation has been granted either +spouse may apply for a divorce by virtue of the decree for separation, +unless the conjugal community has been re-established after the issue of +such decree. + + + + +CHAPTER X. + +AUSTRIA-HUNGARY. + + +The Austria-Hungary Empire comprises five countries, each bearing the name +of kingdom--viz., Hungary, Bohemia, Galicia, Illyria and Dalmatia; one +archduchy, Austria; one principality, Transylvania; one duchy, Styria; one +margraviate, Moravia, and one county, Tyrol. In this chapter we shall deal +with the marriage and divorce laws of Austria, leaving those of Hungary +and Transylvania for the following chapter. + +The regulations governing the marriage relation in Austria and the other +parts of the Empire represented in the Austrian Reichsrath are in general +contained in the Austrian Civil Code, which became law on June 1, 1811, +supplemented by later statutes, court decrees and ministerial edicts. +Perhaps the most curious feature of Austrian law is that an absolute +divorce can, for certain causes, be granted when both the parties are +non-Catholic, but for Roman Catholics the bond of marriage is dissoluble +only by the death of one party. + +DEFINITION OF MARRIAGE.--The Austrian Code defines marriage as follows: +"The foundation of family relations is the marriage contract. In the +marriage contract two persons of different sex legally declare their +intention to live in inseparable union to beget children and to rear them +up and to render each other mutual assistance." + +MARRIAGE QUALIFICATIONS.--1. There must be mental capacity. Insane, +demented, imbecile parties or persons deprived of the free use of their +minds by intoxication or any other cause cannot contract a binding +marriage. + +2. Minors must have completed their fourteenth year of age. + +3. Minors of legitimate birth under 24 years of age require the consent of +their parents or proper guardians. Illegitimate minors under 24 years of +age require the consent not only of their legal guardians but also that of +the court. + +4. There must be free consent of both parties. + +5. Physical capacity. Permanent and incurable impotence is an impediment +to marriage. + +6. Moral impediments. No person who has taken holy orders which involve a +solemn vow to celibacy can contract a valid marriage. Marriages between +Christians and Jews are forbidden. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between ascendants and +descendants, between full or half brothers and sisters, between first +cousins and between uncles and nieces or aunts and nephews. The +relationship may arise from legitimate or illegitimate birth. + +For Jews, however, the impediment of consanguinity extends no further in +the collateral line than to marriage between brother and sister or between +a woman and her nephew or grandnephew. + +A Roman Catholic is expressly forbidden to marry a divorced party until +after the death of the latter's former consort. + +PRELIMINARIES.--A valid marriage can take place only after formal +publication of the banns and the solemn declaration of consent. + +Banns are published by announcing the coming marriage together with the +full names of both parties, their birthplace, status and residence, on +three consecutive Sundays or holidays. In the case of Jews the banns must +be published on three consecutive Saturdays or feast days. + +CELEBRATION.--The solemn declaration of consent must generally be given +before the spiritual pastor of one of the parties or before his +representative. Two witnesses are necessary. + +A civil marriage in which the solemn declaration of consent is given +before the chief administrative official of the district, in the presence +of two witnesses and a sworn secretary, is obligatory if neither party +belongs to a legally recognized religious sect. + +FOREIGN MARRIAGES.--The marriage of an Austrian subject in a foreign +country is treated as valid in Austria if the marriage was concluded +according to the laws of such foreign country, and provided that such +marriage was not in contravention of the Austrian law which accepts the +Roman Catholic dogma of the indissolubility of marriage except by death of +one of the parties. + +ILLEGITIMATE CHILDREN.--Such children are fully legitimatized by the +subsequent marriage of their parents. + +ROMAN CATHOLICS.--As we have noted before between Roman Catholics the bond +of marriage cannot be dissolved by divorce. This rule applies even if one +of the parties is converted after marriage to a non-Catholic sect. + +The Austrian law provides a way by which some Roman Catholic marriages may +be provisionally dissolved after what is termed a "legal declaration of +death." If eighty years have elapsed since the birth of an absent spouse, +and his or her place of residence has been unknown for ten years; if an +absent spouse has not been heard from in thirty years; or if a spouse has +been missing for three years, and was last heard of under circumstances +leaving little doubt as to his or her death, then an action can be +instituted to have the absentee legally declared to be dead. Such a +declaration of death will legally dissolve the marriage, leaving the +spouse of the missing party free to marry again. However, should the +absentee spouse ever reappear, the declaration of death and the new +marriage lose all legal effect. + +DIVORCE.--Non-Catholic Christians may obtain absolute divorce for the +following causes: + +1. Conviction of adultery, or of a crime the penalty for which could be a +prison sentence of five years. + +2. Malicious abandonment. + +3. Severe cruelty. + +4. Conduct endangering the life or health. + +5. Invincible aversion on account of which both parties desire a divorce. +This need not be a mutual aversion, but it must be shown to be actual and +lasting. For this cause an absolute divorce is granted only after a +temporary separation from bed and board has been decreed, and the parties +appear to be irreconciliable. + +EFFECTS OF DIVORCE.--The woman retains the name of her husband, and both +parties may remarry, with the exception that a guilty party may not marry +his or her accomplice. + +The guilty party loses all rights and privileges in the property of the +innocent party. + +As to the custody of children the court has authority to make such order +as the facts and justice may require. + +JEWISH DIVORCES.--Jews in Austria may obtain absolute divorce under +special regulations adapted from the Mosaic law and rabbinical +jurisprudence. + +Marriage may be absolutely dissolved by means of a bill of divorcement +given by the man to the woman, with the mutual agreement of both parties. +This cannot take effect at once, but there must be three attempts at +reconciliation, either by the rabbi or by the court, or by both. + +The Austrian law also permits a divorce among Jews for the proven adultery +of the wife, in which case he can give her a bill of divorcement without +her consent. A Jewish woman cannot obtain a divorce because of the +adultery of her husband. + +JUDICIAL SEPARATION.--A judicial separation may be granted for the +following causes: + +1. By mutual consent. + +2. Conviction of either spouse for adultery or a crime. + +3. Malicious abandonment. + +4. Conduct endangering the life or health of spouse seeking relief. + +5. Incurable disease united with danger of contagion. + +6. Cruel and abusive treatment. + + + + +CHAPTER XI. + +HUNGARIAN MARRIAGE AND DIVORCE LAWS. + + +In Hungary proper and Transylvania, together with Fiume and certain parts +of the Military Boundary, the marriage law of 1894, supplemented by the +Civil Registration Act of the same year, is in operation for all citizens, +without regard to religious sect. + +In Croatia and Slavonia, which, although legally parts of the Kingdom of +Hungary, are autonomous in domestic affairs; three separate systems of +marriage regulation are in force governing, respectively, the Catholics, +the Oriental Greeks, and the Protestants and Jews. + +HUNGARY PROPER AND TRANSYLVANIA.--Civil marriage is the only form +recognized by law. + +MARRIAGE QUALIFICATIONS.--A man cannot marry before the conclusion of his +eighteenth year; a woman, before the conclusion of her sixteenth year. A +minor cannot conclude a marriage without the consent of his or her legal +representative. + +IMPEDIMENTS.--1. Marriage is forbidden between ascendants and descendants. + +2. Between brother and sister. + +3. Between brother or sister and offspring of brother or sister. + +4. Marriage between a person who has been previously married and a blood +relative in direct line of that person's former consort is forbidden. + +5. First cousins may not conclude marriage, except on dispensation from +the Minister of Justice. + +6. No person may conclude a marriage with any one who has been legally +sentenced for a murder or a murderous assault committed on the former's +consort, even if the sentence has not yet entered into effect. + +7. No one may conclude a marriage without the consent of his +ecclesiastical superiors if he has taken ecclesiastical orders or vows +which, according to the law of the church to which he belongs, prevent his +marrying. + +8. So long as the guardianship continues, marriage is prohibited between a +guardian or his offspring and the ward. + +PRELIMINARIES.--Before a marriage can be lawfully celebrated it must be +preceded by the publication of banns. This publication must be made in the +commune or communes where the parties ordinarily reside. Publication is +made by posting an official notice for fourteen days in the office of the +registrar and in a public place in the communal building. + +CELEBRATIONS.--Marriage is, as a rule, to be solemnized before the +registrar of the district in which at least one of the parties has his or +her residence or domicile. At the celebration of marriage the parties are +obliged to appear together before the officiating magistrate, and in the +presence of two competent witnesses declare that they conclude a marriage +with each other. After such declaration the magistrate declares the couple +to be legally married. + +The registrar is required by law to enter a record of the marriage on his +official register and to give a formal marriage certificate to the +parties. + +FOREIGN MARRIAGES.--In general, for a marriage contracted by a Hungarian +citizen in a foreign country to be recognized as valid in Hungary, the +parties to the marriage must satisfy the requirements of their respective +States as to age and legal capacity and must be free from all other +impediments contained in the law of either State. The Hungarian citizen +must comply with the regulations of the Hungarian law regarding +publication. + +Besides this, the foreign marriage must be concluded in accordance with +all the requirements of the country where it was celebrated. + +ILLEGITIMATE CHILDREN.--If at the time such children were born the parents +could legally have married each other then the subsequent marriage of the +parents makes legitimate the children. + +ANNULMENT OF MARRIAGE.--Marriages may be annulled because of the violation +of the various provisions of law regarding marriage impediments or the +formalities necessary to conclude marriage. + +DIVORCE AND SEPARATION.--Marriage can be legally dissolved only by a +judicial decree on certain grounds specified by law. These grounds are of +two classes--absolute and relative. + +The following causes constitute absolute grounds for divorce: + +1. Adultery. + +2. Crime against nature. + +3. Bigamy. + +4. Wilful abandonment without just cause. + +5. Attempt upon the life or wilful and serious maltreatment such as to +endanger bodily safety or health. + +6. Sentence to death or to at least five years in prison or the +penitentiary. + +For all of the above causes the court must grant an absolute divorce if +the allegations are proven. + +Divorce may also be granted on the following "relative grounds" if the +court, after careful consideration of the individuality and +characteristics of the parties, is satisfied that the facts warrant the +desired relief: + +1. Serious violation of marital duties. + +2. Inducing, or attempting to induce, a child belonging to the family to +commission of a criminal act or to an immoral manner of life. + +3. Persistent immoral conduct. + +4. Sentence to prison or the penitentiary for less than five years, or to +jail for an offence involving dishonesty. + +JUDICIAL SEPARATION.--An action for separation from bed and board can be +maintained on any of the grounds enumerated for divorce. + +EFFECTS OF DIVORCE OR SEPARATION.--After a divorce the guilty party is +required to restore to the innocent party all gifts made by the latter +before or during the marriage. The man who is declared guilty is obliged +to maintain the innocent woman in a position in keeping with his estate +and social position, in so far as her income is insufficient. Alimony is +payable as a rule in advance monthly instalments. The right to alimony +continues after the man's death, but on the application of his heirs it +may be reduced to the amount of the net income of the estate. The right to +alimony ceases if the woman marries again. + +Up to their seventh year minor children are entrusted to the care of the +mother; after that time, to the innocent party. If both parties are guilty +the father receives the custody of the boys and the mother that of the +girls. + +The effects of separation are the same as those of divorce in reference to +property, alimony and custody of children. + +FOREIGN DECREES.--In matrimonial causes where one or both of the parties +is a Hungarian citizen the courts of Hungary do not recognize any foreign +judgment or judicial decree. + + + + +CHAPTER XII. + +SWEDEN. + + +MARRIAGE.--Swedish law recognizes marriages which are to take effect in +the future (_sponsalia de futuro_), and the existence of a betrothal that +has been entered into in the presence of four witnesses and the woman's +marriage guardian carries with it the obligation of a final fulfilment of +the marriage promise, which under certain conditions is subject to +enforcement by law. Thus, on the refusal of one of the affianced parties +to proceed to the promised marriage, they can be proclaimed man and wife +by judgment of the court, and the complainant has then the rights of a +legally wedded person. This method of procedure is resorted to +particularly if cohabitation has taken place subsequent to the betrothal, +but in the absence of such cohabitation various causes can render the +promise of marriage invalid. Diseases of a contagious or of an incurable +nature, whether contracted before or after the marriage promise was given, +insanity, ungovernable temper, licentiousness or other vices, and serious +defects are sufficient impediments to the compulsory marriage of betrothed +persons. + +A person who, under false pretenses, entices another to promise marriage, +cannot demand the fulfilment of the promise and is even liable to +punishment. + +A betrothal entered into through force or fear, or during a state of +intoxication or temporary insanity, is not valid. + +IMPEDIMENTS TO MARRIAGE.-- + +1. Lack of free consent. + +2. Epilepsy. Sufferers from epilepsy (_epilepsia idiopathica_) are barred +from marrying. + +3. A heathen or a person who does not belong to any recognized religious +creed cannot contract a lawful marriage. + +4. Non-age. Marriage can be lawfully entered into by males 21 years of age +and over and by females 17 years of age and over. A male Laplander, +however, may marry when 17 years of age and a female when 15 years of age. +A dispensation may be granted from the impediment of non-age, but such +dispensation is not granted a male unless his marriage is approved by his +parents or guardians and unless he is a person of good reputation and able +to support a wife. + +CONSENT OF PARENTS.--A male requires the consent of no third party. Any +female under 21 years of age requires the consent of her marriage +guardian. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between relatives by +blood in the direct line or between two relatives by blood in the +collateral line, one or both of whom are descended in the first degree +from the common ancestor. + +Marriage is also prohibited between relatives by affinity in the direct +line. + +In all cases relationship by illegitimate as well as legitimate birth is +included. + +A divorced person who has been adjudged guilty of adultery cannot contract +a new marriage without the consent of the innocent party, provided the +latter is still living and has not remarried. Under no conditions can the +guilty party marry his or her accomplice. + +No man or woman who is bound by a betrothal or by an undissolved marriage +can marry a third person. + +A widower must not contract a new marriage within six months after the +death of his wife, nor a widow within one year after the death of her +husband. + +PRELIMINARIES.--On three successive Sundays or holy days previous to a +wedding banns must be published from the pulpit of the State church in the +parish in which the prospective bride resides. + +CELEBRATION.--The usual form of marriage is the religious ceremony. This +alone is valid in case the man and woman belong to the same religious +sect. An adherent of the State church who has never been baptized or who +has never been prepared for the rite of the Lord's Supper has recourse +only to a civil marriage. This is also the case in a marriage between a +Christian and a Jew and in a marriage between parties who belong to a +Christian church the clergy of which have not been granted the right to +perform marriages. + +DIVORCE AND JUDICIAL SEPARATION.--Grounds for Judicial Divorce. An +absolute divorce can be granted by court on the following grounds: + +1. Adultery. + +2. Illicit intercourse with a third party after betrothal. + +3. Malicious desertion for at least one year, provided the absentee has +left the Kingdom. + +4. Absence without news for six years. + +5. An attack on the life. + +6. Life imprisonment. + +7. Insanity of at least three years' duration and pronounced incurable by +physicians. + +ROYAL PREROGATIVE.--All the grounds for divorce by royal prerogative are +not definitely determined. The following alone are specifically mentioned +in the law: + +1. Judicial condemnation to death or to civil death, even if a royal +pardon is granted. + +2. Judicial condemnation for a gross offence or an offence incurring +temporary loss of civil rights. + +3. Judicial condemnation to imprisonment for at least two years. + +4. Proof of prodigality, inebriety or a violent disposition. + +5. Opposition of feeling or thought between the husband and wife which +passes over into aversion and hate, provided that a separation from bed +and board has been granted on this ground and lasted for a year without a +reconciliation taking place during the interval. + +LIMITATIONS TO RIGHT OF ACTION.--Collusion, connivance, condonation or +recrimination extinguishes the right to a divorce. + +In a case of adultery divorce will be granted only if the innocent spouse +has instituted proceedings within six months after obtaining knowledge of +the offence, has not condoned it by cohabitation or otherwise and has not +been guilty of a similar offence. + +If the insanity of the defendant in a divorce suit has been caused, or +even accelerated by the cruel treatment of the complainant, divorce will +be refused. + +PROCEDURE.--In a case of desertion, if the whereabouts of the guilty party +is unknown, the court, by means of publication in all the pulpits of the +district, orders him to return within a year and a day. If he does not +present himself within the time mentioned the judge pronounces the +divorce. Where the ground is insanity the judge must give a hearing to the +nearest relatives of the afflicted party and investigate carefully the +married life of the couple, in order to learn whether the insanity was +caused or even accelerated by the plaintiff. + +The State's attorney is not authorized to interfere in a suit for divorce, +nor are attempts at reconciliation required. + +The court can, however, advise a reconciliation, with or without the +adjournment of the case. + +JUDICIAL SEPARATION.--This is often only the preliminary to an absolute +divorce. It can be granted when hate and violent anger arise between +husband and wife and one of them reports the matter to the rector of the +parish. It is the duty of the rector to admonish the couple. If they do +not become reconciled they are to be further admonished by the consistory. +If this admonition also proves fruitless the court grants a separation +from bed and board for one year. The law provides also that this procedure +may be followed in cases of malicious desertion, where the guilty party +remains in the country or where one party drives the other from home. + + + + +CHAPTER XIII. + +DENMARK. + + +Justice is administered in Denmark in the first instance by the judges of +the hundreds in the rural communities and by the city magistrates in the +urban districts. Appeals from such courts lie to the superior courts of +Copenhagen and Viborg, and in the last resort to the Supreme Court, which +consists of a bench of twenty-four judges, at Copenhagen. + +Denmark was one of the first countries in Europe in which the government +established any regulation or control over matrimonial affairs. + +The body of the law on marriage and divorce is found to-day in the Code of +Christian the Fifth (1683), as modified and modernized, and such customs +and precedents of the Danish people as the courts accept as binding. + +BETROTHAL.--A betrothal or engagement to marry carries with it no legal +obligation. The courts of Denmark do not recognize the breach of a promise +to marry as constituting a legal cause of action. + +If, however, a woman, on promise of marriage, permits sexual intercourse, +she can sue to have the marriage specifically performed, provided the man +is at least 25 years of age and the woman herself is of good reputation +and neither a widow nor a domestic servant who has become pregnant by her +employer or one of his relatives. In addition, the betrothal must either +have been public or capable of easy proof. + +QUALIFICATIONS FOR MARRIAGE.--A male cannot legally conclude marriage +before the completion of his twentieth year. A female must have completed +her sixteenth year. The King may grant a dispensation permitting parties +of less age to marry. + +Males and females are minors until the completion of their twenty-fifth +year, and during minority cannot conclude marriage without the consent of +their parents or guardians. If the necessary consent is withheld without +just cause the authorities can furnish the desired permission. + +IMPEDIMENTS.--Marriage is prohibited between relatives in the direct line, +whether by blood or marriage, and between brothers and sisters of the +whole or half blood. + +The royal dispensation is required for marriage between a man and his +brother's widow, his aunt, great-aunt or any feminine relative nearer of +kin to the common ancestor than the man himself. + +Persons convicted of having committed adultery with each other may not +marry without having first obtained permission of the civil authorities. + +Persons divorced by extra-judicial decree are not allowed to contract a +new marriage, without permission to this effect is given in the decree. + +The law prescribes a mourning period of one year for a widow and three +months for a widower, during which time they are not allowed to contract a +new marriage; but under special conditions the mourning period may be +shortened. + +PRELIMINARY FORMALITIES.--If the marriage is solemnized before a clergyman +banns must be published from the pulpit for three consecutive Sundays, and +the marriage must follow within three months. In case of a civil marriage +one publication must be made by the authorities at least three weeks and +not more than three months before the celebration. + +CELEBRATION.--The national church of Denmark is the Lutheran, and in the +case of Protestant Christians a religious marriage must be solemnized +before a clergyman of the Lutheran Church. + +Civil marriages performed at the courthouse by a magistrate are permitted +when the bride and groom are of different religious faith or when neither +of them belong to any recognized religious sect. + +ILLEGITIMATE CHILDREN.--Subsequent marriage of the parents legitimatizes a +child born out of wedlock. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled at the instance of one +of the parties for the following causes: + +1. Want of free consent by one or both parties. + +2. If one of the parties at the time of the marriage was impotent and this +fact was unknown to the other. This impotence must, however, be incurable +and continue for three years. + +3. If one of the parties was at the time of the marriage afflicted with +leprosy, syphilis, epilepsy or a contagious and loathsome disease, and +this fact was concealed and unknown to the other party. The disease must +be incurable. + +DIVORCE.--An absolute divorce upon proper grounds may be obtained by means +of a judicial decree, royal authorization given to the higher civil +authorities, authorization from the Minister of Justice, or a special +royal decree. + +The causes for an absolute divorce are: + +1. The last two causes mentioned above as sufficient for an annulment. + +2. Adultery. + +3. Bigamy. + +4. Wilful abandonment. + +5. Absence for five years or more under circumstances leading a reasonable +person to conclude that the absentee is dead. Exile or deportation from +the country for at least seven years. + +6. Imprisonment for life, if pardon or liberty is not given within seven +years. + +EXTRA-JUDICIAL DIVORCE.--The Mayor of Copenhagen and the superior +magistrate outside of Copenhagen--called the higher civil authorities--may +give a royal authorization for a divorce in cases where the parties have +lived apart for three years in consequence of a separation decree, and +both parties ask for divorcement. + +The Minister of Justice has also authority in some instances to grant +decrees of absolute divorce. + +The conditions under which a divorce can be granted by special royal +decree are not specifically defined, but the decree is seldom granted +except for substantial reasons and according to precedent. + +SEPARATION.--Decrees of separation from bed and board may be obtained upon +mutual consent of the parties or if good reason exists upon the petition +of one of the parties. + +EFFECTS OF DIVORCE.--Usually in the absence of an agreement between the +parties each party receives one-half of the property which during the +marriage relation was held in common. + +The duty of mutual support and assistance ends, but sometimes the man is +directed to pay alimony to the woman. + +The innocent party is generally given custody and control of the children +of the marriage, but the courts favour an agreement between the parties on +this subject. + +Unless the decree of divorce has been brought about by her guilt a +divorced wife is permitted to retain the name and rank of her divorced +husband. + + + + +CHAPTER XIV. + +THE NORWEGIAN LAW. + + +In many respects the laws of marriage and divorce in Norway resemble those +of Denmark. There are, of course, historical and political reasons for the +resemblance. + +MARRIAGE.--The law of Norway fixes 20 years as the minimum marriageable +age for a man and 16 years for a woman. These provisions are often +interpreted, however, by the courts, as having reference to the age of +puberty, and as this age varies with different persons the law is not +always followed literally, particularly as regards the marriageable age of +a woman. Neither male nor female under the age of 18 years is allowed to +marry without the consent of parents or guardians. + +The validity of an objection to the marriage on the part of parents or +guardians can be tested in court, and although causes for such objections +are not specified or limited by statute they are kept within reasonable +grounds through long-established precedent. + +IMPEDIMENTS TO MARRIAGE.--No man or woman may marry a relative by blood in +the direct line. No man can many his full or half sister. + +Persons convicted of having committed adultery with each other may not +marry without first obtaining permission of the civil authorities. + +A person bound by a marriage not dissolved through natural or legal causes +is not allowed to enter into any other matrimonial alliance. + +After the death of her husband a widow must wait nine months before she +can contract a new marriage, but this waiting period can be shortened by +dispensation, especially if she proves that she is not pregnant. + +PRELIMINARIES.--In case of religious marriage one publication of banns is +sufficient, and even this can be dispensed with in some instances. For a +civil marriage no publication of banns is required. + +CELEBRATION.--Marriages must be solemnized before a minister of the +Lutheran Church or by some person authorized by the State to officiate, +and in the presence of two competent witnesses. The wedding celebration +may take place either in church or in a private house. + +All notaries have legal authority to perform civil marriages, but only +between persons at least one of whom does not belong to the State church. + +ANNULMENT OF MARRIAGE.--Nullity is of two kinds--absolute and relative. In +the case of the latter the marriage is considered as valid until declared +otherwise, generally on the application of one of the parties. A marriage +is absolutely null if at its celebration there was no declaration of the +clergyman or of the civil official that the couple were man and wife, or +if proof exists of bigamy or of relationship within the prohibited +degrees. + +DIVORCE AND SEPARATION.--An absolute divorce may be obtained for +sufficient cause either by royal decree or by judicial determination. The +most usual form is by royal decree, which is granted in the following +cases: + +1. When one at least of the causes prescribed by law is proven. + +2. After a separation from bed and board has lasted three years. In such a +case the royal decree is granted either on the petition of both parties, +or, if circumstances justify, on the petition of one of the parties. + +3. It may be granted by royal decree without any preceding separation. +This form of divorce is granted either when legal cause for divorce exists +or when the ground is otherwise considered sufficient. + +A judicial decree of absolute divorce is obtainable for the following +causes: + +1. Adultery. + +2. Bigamy. + +3. Wilful desertion for at least three years. + +4. Assault and cruel treatment endangering the life of the complainant. + +5. Absence for seven years, especially if no information has been received +of the absentee during that period. + +If the facts as shown leave little or no doubt as to the death of the +absent party, a divorce can be granted after three years' absence. + +6. Imprisonment for life, after the innocent party has waited seven years. + +In addition to these grounds a divorce by royal decree can be obtained +when one of the parties has become incurably insane or has been sentenced +to prison for at least three years; or when the parties, by mutual +agreement, have lived entirely apart for fully six years, and the facts +show that domestic peace and the well-being of the parties are not +promoted by their continuing as husband and wife. + +LIMITATIONS.--If the act complained of was committed by the consent or +procurement of the complainant, or if the latter has voluntarily cohabited +with the offender after discovery of his or her guilt, or if the +complainant has been guilty of a similar offence, divorce will be refused. + +EFFECTS OF DIVORCEMENT.--Each of the parties receives one-half of the +common property, but agreements are permitted by which the man retains +all such property on condition of paying the woman an annual allowance. + +The duty of mutual assistance ceases, although if justice demands the man +may be ordered to pay alimony to the woman. The Norwegian law contains no +hard-and-fast rule as to the custody of the children of divorced parents. +When no agreement exists between the parties the innocent party is +generally given custody of all the children. + +A woman who obtains a decree of divorce against her husband is allowed to +retain the name and rank of her ex-husband. + +SEPARATION.--A separation from bed and board may be granted either on the +mutual consent of both parties, or by royal decree on the petition of one +of the parties if reasonable grounds exist. + + + + +CHAPTER XV. + +THE RUSSIAN EMPIRE. + + +There have always been plenty of laws in Russia, the chief difficulty +being not with the quantity but the quality. Another perplexing feature of +Muscovite laws is the uncertainty of this patchwork of royal decrees, +undefined traditions, changing customs and priestly superstitions. + +If Peter the Great had lived long enough he would probably have given +Russia a regular code such as Napoleon bequeathed to France, but he was +too busy during his career with wars, travels and social reforms. + +The Emperor Nicholas I. is entitled to the credit of being the first +Russian sovereign to direct the compilation of anything approaching a +classified legal code, and under his authority the jurist Speransky +collected together some forty volumes. This code, as revised from time to +time, is the best exposition obtainable of the law of the Empire. Its +first article, however, qualifies the entire code by recognizing the +Tsar's privilege of altering or setting aside any law of the realm at +will. + +Until recently the first lesson for the Russian law student to learn was +expressed in the doctrine: _Quod principi placuit, legis habet vigorem_. +"The sovereign's pleasure has the force of law." + +Many reforms have of late years been worked in Russian law and judicial +procedure, but in these matters Russia is still a long way off from +justifying the belief expressed by Count Mouravieff, that this country has +a civilizing mission such as no other nation of the world, not only in +Asia, but also in Europe. + +Such benefits as can be derived from the law are still more for the +privileged classes than for the great body of the people, and the point +has not yet been reached of substituting judicial trials for +ecclesiastical in matrimonial causes. + +The regulations concerning marriage and divorce fall within the province +of the clergy and the ecclesiastical courts, except that the civil +tribunals have jurisdiction over annulment and divorce for the +_Raskolniken_, or "Old Believers," and for the Baptists and some other +dissenters from the State Church of Russia. + +With the exceptions noted, the regulations of each form of religious +belief, including Mohammedanism and other non-Christian beliefs, are +endorsed by the State as the law for the adherents of that belief. The +civil courts, however, have jurisdiction over the civil effects of +marriage and divorce, and the State law contains certain provisions +binding on the adherents of all religious confessions. + +The regulations governing the Roman Catholics are, in general, those of +the canon law and those governing the German Lutherans are those of the +old Protestant common law of Germany. + +We shall consider the special regulations affecting the Jews in a separate +division of this chapter. + +MARRIAGE.--A man reaches marriageable age upon the completion of his +eighteenth year and a woman upon the completion of her sixteenth year; +natives of Transcaucasia, however, may marry at the completion of the +fifteenth and thirteenth years, respectively. + +A marriage cannot take place without the free and mutual consent of the +principals. The exercise of any kind of compulsion is forbidden to +parents or guardians. + +Without regard to their age children require the consent of their parents. +In most parts of Russia there is no appeal in case a parent withholds +consent. Marriage without parental consent is not invalid, but the guilty +person is liable to a penalty of from four to eight months' imprisonment, +on petition of the parent, and to the loss of his right of inheritance in +the property of the parent. + +Persons who are under guardianship or curatorship require the consent of +their guardian or curator. + +CONSANGUINITY AND AFFINITY.--The prohibited degrees of consanguinity are +determined according to the principles of the religious body to which the +parties belong. Marriage is, however, universally prohibited between +persons who are related in the first or second degree. + +DIFFERENCE OF RELIGION.--Marriage between Christians and non-Christians is +prohibited, except between Lutherans, adherents of the Reformed Church, +and other Protestants on the one hand, and Jews and Mohammedans on the +other. + +INSANITY.--Marriage is absolutely prohibited to insane persons. + +OFFICIAL PERMISSION.--Civil officials require the consent of their +superiors in order to marry. + +HOLY ORDERS.--Marriage is prohibited to the clergy of the State Church, +but if a secular priest is already married before ordination he may +continue in that relation. The practice is for the majority of men who +intend to enter the secular priesthood to marry before ordination. + +ADVANCED AGE.--Persons who have attained the age of eighty years may not +marry. + +FOURTH MARRIAGE.--The contracting of a fourth marriage is unconditionally +forbidden. + +PRELIMINARY FORMALITIES.--A male member of the Russian Church, or an "Old +Believer," who intends marriage, must, from one to three weeks before the +date of celebration, announce the fact to the clergyman in whose parish he +resides, and bring to him the certificates of baptism of himself and his +intended bride, certificates of their social status, proofs of identity +and a certificate that both parties have been to confession and received +holy communion. With these documents and proofs at hand the clergyman +announces the names of the betrothed parties on three successive Sundays +or feast days. The marriage cannot be concluded without a certificate +showing that all the formalities have been complied with. + +CELEBRATION.--A marriage may be solemnized in accordance with the rules of +the religious sect of the parties, before one of its clergymen, with the +personal participation of the contracting parties and in the presence of +competent witnesses. For members of the Russian Church the solemn +betrothal, which formerly took place some time previous to the marriage, +now introduces the wedding ceremony. The latter must follow the prescribed +ritual exactly. The wedding must take place in church, during the daytime, +before adult witnesses, and the contracting parties must be actually +present. + +ILLEGITIMATE CHILDREN.--The subsequent marriage of the parents does not in +itself legitimatize such offspring. After their marriage the parents must +petition the court for an order of legitimacy. + +ANNULMENT OF MARRIAGE.--Any marriage is null that was not solemnized by a +clergyman of the religious sect of which one of the contracting parties is +an adherent, except those solemnized before a priest of the Russian +Church, because of the absence of a clergyman of the proper religious +sect. A marriage is also null in case of bigamy, difference of religion +and violation of the rules concerning consanguinity and affinity. + +DIVORCE.--It is impossible for an adherent of the Russian Church or for an +"Old Believer" to obtain a decree of absolute divorce. + +The grounds for an absolute divorce for other persons except Jews are: + +1. Adultery. + +2. Bigamy. + +3. Impotence existing at time of marriage. + +4. Absence without news for five years. + +5. Condemnation to the loss of all civil rights. + +6. Banishment to Siberia with the loss of all special rights. Either party +may petition for divorce on this ground. + +7. Entrance of both spouses into a religious order, provided they have no +children who need their support and care. + +8. Conversion of a non-Christian to the Russian Church, provided he or his +consort desires such divorcement. + +PROCEDURE.--In the case of a Christian who is not an "Old Believer" or a +member of the Russian Church, the petition for divorce is filed in the +ecclesiastical court. After this the bishop designates a clergyman, who is +to make an attempt to reconcile the parties. Not until this attempt has +failed is notice served on the defendant and the day set for a hearing of +the cause. If the court decides in favour of a divorce, the decree must be +submitted to the Synod for revision. In case of condemnation to the loss +of civil rights, a divorce is granted immediately. + +If the ground relied on is the conversion of a non-Christian to the +Russian Church, the divorce is granted merely on the formal declaration +of one of the spouses that he or she does not wish to continue the +marriage. + +EFFECTS OF DIVORCE.--The adjustment of the personal and property rights +and the custody of the children are matters entirely for the discretion of +the tribunal. + +LAW FOR LUTHERANS.--Members of the Lutheran Church outside of Finland are +governed by special regulations concerning the grounds for divorce. These +grounds are: + +1. Adultery. + +2. Unlawful relation with a third party before the marriage, though in the +case of the husband only such relations subsequent to the betrothal are +considered. + +3. Wilful refusal of one party to live with the other. + +4. Unjustified absence for two years without news. + +5. Absence for five years. + +6. Unjustified refusal to perform the marital duty for at least one year. + +7. Wilful prevention of conception. + +8. Impotence existing at time of marriage. + +9. Incurable or loathsome disease existing at time of marriage and +concealed from the other party. + +10. Incurable insanity. + +11. Vicious conduct. + +12. Cruel and abusive treatment. + +13. Design of one spouse to bring dishonour on the other. + +14. Infamous crime. + +FINLAND.--In this country marriage between Christian and non-Christian, +and the marriage of a Lutheran who has not yet been admitted to the rite +of holy communion, are prohibited. + +In case of seduction marriage is prohibited unless the consent of the +parents or of the court is obtained. + +Divorce is permitted in Finland for the following causes: + +1. Adultery. + +2. Illicit intercourse with a third party after betrothal. + +3. Malicious desertion for one year. + +By petition to the Department of Justice of the Imperial Senate a Finn can +obtain, for sufficient cause, a divorce on other grounds. + +RIGHTS OF MARRIED WOMEN.--When we come to consider the rights, or rather, +the lack of rights, of married women in the Muscovite Empire we must +remember that Russia is only geographically in Europe, and only nominally +a Christian State. It is a country standing alone on the map of the world, +five centuries behind in civilization what is really Europe. + +Although among the so-called higher classes woman is often treated +socially--not legally--as the equal of her husband, among the great bulk +of the population she has little more status than that of a domestic +animal. + +There is no other country on earth pretending to be civilized where a +woman, single or married, has so few rights recognized by the State or the +national church. + +A married woman in Russia owns nothing. It is all her husband's. She is, +however, allowed the privilege of saving up a little hoard of her own on +the flax or wool out of which she makes the clothing for her husband and +children. This little hoard is called her _korobka_, and upon her death it +goes to her children. If she dies childless it goes to her mother, and if +her mother is also dead it goes to her single sisters. + +Such a _korobka_, when accumulated by a single woman from her earnings, is +considered as a dowry upon marriage, and it is generally applied by the +bridegroom to pay the wedding expenses. + +Count Mouravieff could not have been thinking of woman's place in his +native land when he said: "We Russians bear upon our shoulders the New +Age; we come to relieve the tired men." It is our opinion that the nation +which is most likely to bear upon the shoulders of its people the New Age +is the country which treats its womankind the best. + +SPECIAL LAWS FOR JEWS.--The law of marriage and divorce which governs the +Jews of Russia differs in many particulars from the rules applicable to +adherents of other sects. This special set of regulations comes from the +people of Israel themselves and is an outgrowth of the ancient Mosaic code +of jurisprudence. In thus permitting the Jews to have a body of rules +founded on the ancient precedents of their race and in agreement with +their consciences we find at least one attitude of wise tolerance for +which the Russian Empire is entitled to credit. + +BETROTHAL.--A Jewish betrothal must take place in the presence of two +competent witnesses. The consent of the parents of either party is not +required. Like marriage the betrothal can be dissolved only by death or by +divorce. It obligates the parties to marry within thirty days from the +date on which either demands marriage. + +A betrothal may be dissolved on the following grounds: + +A. Evil conduct. + +B. Change of religion. + +C. Insanity. + +D. Unchastity of either party or of one of his or her near relatives. + +E. By the man entering a dishonest occupation. + +IMPEDIMENTS.--Besides the impediments which prevent certain people of +other sects from lawfully concluding marriage there are other impediments +specially applicable to Jewish people. Briefly enumerated they are as +follows: + +1. A woman guilty of adultery, or even of secret association, with a man +against her husband's will cannot marry her accomplice. + +2. A marriage between a Jew and an idolator is forbidden. + +3. If a woman's husband has died childless, and is survived by a brother, +she can marry no one else than this brother until the latter has declined +marriage with her in the prescribed form. + +4. After the death of near relatives a marriage may not take place within +thirty days. + +5. A widow or divorced woman may not contract a new marriage within ninety +days from the dissolution of her earlier marriage. + +6. A pregnant woman may not marry before her delivery. + +7. A widower may not marry before three feast days have passed since the +death of his wife, but in case he is childless or his children require a +mother's care he may marry after seven days. + +DIVORCE.--The Jewish law makes no distinction between divorce and +annulment. The grounds for divorce are as follows: + +1. Bigamy. + +2. Difference of religion. + +3. Relationship in the first degree in the direct line, by blood or +marriage. No legal action is necessary for these three causes. + +4. Adultery. + +5. Leprosy of the husband. + +6. Mutual consent of the parties. + +7. Such conduct on the part of the wife as raises a reasonable suspicion +of her adultery. + +8. The cursing by the wife of her father-in-law in her husband's presence. + +9. Wife's desertion of husband. + +10. Wife's refusal for one year to perform marital duty. + +11. Husband's cruelty to wife. + +12. Husband's apostasy from the Jewish religion. + +13. When the husband is a fugitive from justice. + +14. Neglect of husband to support his wife. + +15. Persistent vicious and disorderly manner of life on part of the +husband. + +16. Husband's admission that he is incurably impotent. + +17. The contraction by the husband of a loathsome disease. + +18. The adoption by the husband of a dishonest or disgusting occupation. + +19. Such conduct on the part of the wife as causes her husband, without +deliberation, to violate the ritualistic requirements of the Jewish +religion. + +PROCEDURE.--The rabbi is the judge in the first instance of a divorce +petition. Appeal from his decision lies to the civil authorities. + +In the ordinary divorce case the first action by the rabbi is an attempt +to reconcile the parties. A confession of the guilty party is competent +evidence. + +The divorce becomes effective by the man delivering to the wife, after the +rabbinical decision, a bill of divorcement. This is done even if the wife +is the successful suitor. The husband can be compelled to make such a +delivery. + +EFFECTS OF DIVORCE.--The dowry (_Nedunya_), which was settled on the wife +at the time of the marriage, must be returned to her if she is the +innocent party. The woman retains the name of her divorced husband. Both +parties are free to marry again. + + + + +CHAPTER XVI. + +HOLLAND. + + +MARRIAGE.--A male must be eighteen years or more and a female sixteen +years or more in order to be lawfully married. + +Marriage is forbidden between all descendants and ascendants, legitimate +or otherwise, and in the collateral line marriages are forbidden between +brothers and sisters of the whole or half blood, legitimate or +illegitimate. + +Marriage is also forbidden in Holland between brothers-in-law and +sisters-in-law, between uncle and niece, or granduncle and grandniece, and +between aunt and nephew, grandaunt and grandnephew, legitimate or +otherwise. + +The Queen has power under the law to grant a dispensation for good reasons +relieving any couple from the effect of such prohibitions. She has also +power, for sufficient cause, to permit persons under age to contract +marriage. + +As a preliminary to marriage children must ask the consent thereto of +their parents, but the consent of the father is sufficient. If the father +is dead the consent of the mother suffices. + +If the mother and father are both dead the grandparents take their places. + +Marriage is treated in Holland as a civil contract. + +CELEBRATION.--The ceremony of marriage must take place publicly in the +town hall before a registrar, but not until three days after the +publication of banns. Four male witnesses of full age must be present. If +one of the parties is unable to attend the town hall the marriage may be +solemnized in a private house, but in such a case six male witnesses of +full age are necessary. A religious celebration of the marriage cannot be +performed until the officiating clergyman is shown proof that the civil +marriage has already taken place. + +FOREIGN MARRIAGE.--A marriage concluded in a foreign country between two +Hollanders, or between a Hollander and a foreigner, is recognized as valid +in Holland if celebrated according to the requirements of the foreign +country, and provided the banns were duly published, without opposition, +in the place or places of residence in Holland of the contracting parties, +and provided such marriage is not in contravention of the law of Holland. + +ANNULMENT OF MARRIAGE.--A marriage may be judiciously annulled on the +following grounds: + +1. Previous existing marriage of one of the parties. + +2. Want of free consent on the part of one or both of the parties. + +3. Mistake as to identity of person. + +4. Insanity or deficient mentality of one or both parties. + +5. Lack of marriageable age. + +6. Relationship within prohibited degrees. + +7. Marriage with an accomplice in adultery. + +8. Absence of requisite number of witnesses. + +9. Marriage in spite of an objection raised on publication of the banns, +in case the objection proves to be well founded. + +10. Marriage in violation of any other legal requirement. + +DIVORCE.--In Holland a marriage can be dissolved in one of four different +ways: + +1. By death of one of the parties. + +2. By the absence of one of the spouses for the period of ten years or +more, coupled with the remarriage of the other spouse. + +3. By a divorce pronounced after a judicial separation has been obtained +by one of the spouses. + +4. By a divorce pronounced in the first instance for one of the causes +hereinafter stated. + +The causes for an absolute divorce are: + +1. Adultery. + +2. Malicious abandonment continued for five years. + +3. Judicial condemnation of one of the spouses to prison for an infamous +offence. + +4. Grave bodily harm inflicted by one spouse upon the other. + +PROCEDURE.--The action for divorce must be instituted before the judge of +the district where the husband is domiciled, except when the cause alleged +is malicious abandonment, in which case the suit must be brought before +the judge of the district in which both parties had their last common +domicile. + +Before filing the formal petition the complainant must personally attend +before the district judge and state the facts, after which it is the duty +of the judge to attempt a reconciliation of the parties. The complainant +must appear without counsel or relatives. The judge next orders both +parties to appear before him without counsel or relatives in the further +endeavour to effect a reconciliation. + +If a reconciliation appears to be impossible the formal petition for +divorce is then filed with the court. + +All suits for divorce are heard _in camera_, and the public prosecutor +must attend. + +EFFECTS OF DIVORCE.--In so far as the innocent party is not able to +support himself or herself out of his or her income the guilty party is +bound, if able, to provide support. + +Except when it appears to the court that justice otherwise requires, the +custody of the children is given to the successful suitor. + +The innocent party retains all gifts made to him or her by the other and +the guilty party loses them all. + +Both parties are free to contract a new marriage. + +JUDICIAL SEPARATION.--A separation from bed and board may be granted on +the same grounds as entitle a party to an absolute divorce. Such a +separation may also be judicially granted by consent of both spouses. + +After a judicial separation has existed for five years either of the +parties may petition the court to enlarge the decree of separation into a +decree of absolute divorce. + + + + +CHAPTER XVII. + +THE JAPANESE CIVIL CODE. + + +The East and the West, the Past and the Present, meet in the Japanese +Civil Code, which became law in January, 1893. + +It is the first codification of private law that Japan ever had in her +long history. Up to that time the basis of Japanese laws and institutions +was Chinese moral philosophy, ancestor worship and the old feudal system. + +The Criminal Code of Japan (_Shin-ritsu-koryo_), enacted in 1870, was the +last legal code founded on Chinese philosophy, customs and traditions, and +the Revised Criminal Code (_Kaitei-Ritsurei_) is the first group of +Japanese laws based upon European jurisprudence and civilization. + +Three periods may be marked in the history of Japan with regard to the +legal aspect of the marriage relation. The first was the ancient Japanese +period, the second the Chinese period, and the third, the present, that of +modern Japan. + +The Chinese doctrine of the perpetual obedience of woman to man is +expressed in the "Three Obediences": Obedience, while yet unmarried, to +the father; obedience, when married, to the husband; obedience, when +widowed, to the son. + +Buddhism regards woman as an unclean creature, a temptation, and an +obstacle to peace and holiness. + +The great revolution in the legal position of woman in Japan which the new +Civil Code has brought about is as impressive as all the other changes for +the better which have of late years taken place in the land of the Cherry +Blossoms. The Chinese and Buddhistic theories concerning womankind have +but little influence on modern Japanese law. + +Under the Civil Code husband and wife are now on an equal footing, except +when consideration for their common domestic life requires some +modifications. + +Persons who are about to marry are permitted to make any contract with +regard to their individual property, and a woman is capable of owning and +controlling her separate property all during marriage. + +When Japanese law belonged to the Chinese system of jurisprudence there +were seven causes for divorce, namely: + +1. Sterility. + +2. Lewdness. + +3. Disobedience to father-in-law or mother-in-law. + +4. Loquacity. + +5. Larceny. + +6. Jealousy. + +7. Bad disease. + +As under the Mosaic law, these causes were invented only for the advantage +of the husband. A wife had no right even to desire a divorce from her +husband. + +An examination of the seven causes shows that a woman could be divorced +practically at her husband's pleasure. The New Civil Code has changed all +this. A wife has equal rights with her husband to the benefits of the +divorce law. + +The New Civil Code of Japan is divided into five books, but it is only +with Book IV., which deals with the "Family," that we are at present +concerned. + +A summary of the present marriage and divorce law of Japan, as translated +from Book IV., follows: + +REQUISITES OF MARRIAGE.--A man cannot marry before the completion of his +seventeenth year or a woman before the completion of her fifteenth year. + +A person already married cannot contract another marriage. + +A woman cannot contract another marriage within six months from the +dissolution or cancellation of her former marriage. + +If a woman is pregnant at the time of the dissolution or cancellation of +her former marriage this provision does not apply after the day of her +delivery. + +A person who is judicially divorced or punished because of adultery cannot +contract a marriage with the other party to the adultery. + +Lineal relatives by blood or collateral relatives by blood up to the third +degree cannot intermarry; but this does not apply as between an adopted +child and his collateral relatives by adoption. + +Lineal relatives by affinity cannot intermarry. This applies even after +the relationship by affinity has ceased because of marriage or divorce. + +An adopted child, his or her husband or wife, his descendants and the +husband or wife of one of his descendants on the one hand, and the adopter +and his ascendants on the other hand, cannot intermarry, even after the +relationship has ceased. + +For contracting a marriage a child must have the consent of his parents, +being in the same house. This, however, does not apply if the man has +completed his thirtieth year or the woman her twenty-fifth year. + +If one of the parents is unknown, is dead, has quit the house, or is +unable to express consent, the consent of the other parent is sufficient. + +If both parents are unknown, dead, have quit the house, or are unable to +express consent, a minor must obtain the consent of his guardian and of +the family council. + +This by way of parenthesis: The members of a house comprise such relatives +of the head of the house as are in his house and the husbands and wives of +such relatives. + +The head and the members of a house bear the name of the house. + +The head of the house is bound to support its members. A marriage takes +effect upon its notification to the registrar. A wedding ceremony is not +legally essential. + +The notification of marriage must be made by the parties concerned and at +least two witnesses of full age, either orally or by a signed document. + +If a Japanese couple in a foreign country contract a marriage between +themselves they may give the notification of their marriage to the +Japanese minister or consul stationed in such country. + +EFFECT OF MARRIAGE.--By marriage the wife enters the house of the husband. +A man who marries a woman who is head of a house, or a _mukoyoshi_, enters +the house of his wife. + +A _mukoyoshi_ is a person who is adopted by another and at the same time +marries the daughter of the house who would be the heir to the headship of +the house. + +A wife is bound to live with her husband. A husband must permit his wife +to live with him. + +A husband and wife are bound to support each other. When the wife is a +minor the husband, if of full age, exercises the functions of a guardian. + +A contract made between husband and wife may be cancelled at any time +during the marriage by either party, but without prejudice to the rights +of third persons. + +DIVORCE BY MUTUAL CONSENT.--The husband and wife may effect a divorce by +mutual consent. No court procedure is necessary. Just as in giving notice +of marriage, the parties consenting to be divorced give notice of such +agreement to the registrar, and they are _ipso facto_ divorced. + +A person who has not reached the age of twenty-five years, in order to +effect a divorce by mutual consent, must obtain the consent of the person +or persons whose consent was necessary for the marriage. + +If a husband and wife have effected a divorce by mutual consent without +arranging as to whom the custody of the children shall belong, it belongs +to the husband. + +JUDICIAL DIVORCE.--A husband or wife, as the case may be, can bring an +action for divorce for the following causes: + +1. If the other party contracts a second marriage. + +2. If the wife commits adultery. + +3. If the husband is sentenced to punishment for an offence specified in +Article 348 _et seq._ of the Criminal Code; such offences involving +criminal carnal sexuality. + +4. If the other party is sentenced to punishment for an offence greater +than misdemeanor, involving forgery, bribery, gross sexual immorality, +theft, robbery, obtaining property by false pretences, embezzlement of +goods deposited, receiving knowingly stolen goods, or any of the offences +specified in Articles 175 and 260 of the Criminal Code, or is sentenced to +a major imprisonment or more. + +5. If one party is so ill-treated or grossly insulted by the other that it +makes further living together of the spouses impracticable. + +6. If one party is deserted by the other. + +7. If one party is ill-treated or grossly insulted by an ascendant of the +other party. + +8. If an ascendant of one party is ill-treated or grossly insulted by the +other party. + +9. If it has been uncertain for three years or more whether or not the +other party is alive or dead. + +10. In the case of the adoption of a _mukoyoshi_, if the adoption is +dissolved, or in the case of a marriage of an adopted son with a daughter +of the house, if the adoption is dissolved or cancelled. + + + + +CHAPTER XVIII. + +SPAIN. + + +Spain is a constitutional and hereditary monarchy, the powers of which are +defined by the fundamental law of June 30, 1876. The legislative authority +is exercised by the sovereign in conjunction with a parliamentary body +called the Cortes, which is composed of two houses, a Senate and a Chamber +of Deputies. + +Spanish law is founded on the Roman law, the Gothic common law, the +National Code of 1501, and the Civil Code of 1888, with its subsequent +amendments and additions. + +Spanish law is binding in the Spanish Peninsula and adjacent islands, the +Canary Islands and such African territory as is subject to Spain. + +MARRIAGE.--The law recognizes two forms of marriage: the canonical, which +all who profess the Catholic religion should contract; and the civil, +which must be celebrated in the manner hereinafter stated. + +Marriage is forbidden to: + +1. Minors who have not obtained parental consent. + +2. To a widow, during the three hundred and one days following the death +of her husband or before childbirth, if she has been left pregnant. + +3. To a guardian and his or her descendants, with respect to persons who +are the wards of such guardian until the ending of the guardianship, and a +proper accounting has been rendered by the guardian. An exception to this +rule exists when the father of the ward has in his will or in a public +instrument expressly authorized such a marriage. + +AGE.--A male cannot marry until he has completed his fourteenth year of +age; a female until she has completed her twelfth year. + +Marriage contracted by persons under puberty shall, nevertheless, be _ipso +facto_ made legal if a day after having arrived at the legal age of +puberty, the parties continue to live together without bringing a suit to +set aside the marriage, or if the female becomes pregnant before the legal +age, or before the institution of a suit for annulment. + +Persons who are not in the full exercise of their reasoning faculties +cannot contract marriage. + +The law forbids the marriage of all those who suffer from absolute or +relative impotency. + +Priests and all other persons bound by a solemn pledge of celibacy in the +approved canonical manner are forbidden to contract marriage, unless they +have first received the necessary canonical dispensation. + +Persons already lawfully married cannot contract a new marriage. + +CONSANGUINITY AND AFFINITY.--The following persons cannot contract +marriage between themselves: + +1. The ascendants and descendants by legitimate or illegitimate blood or +affinity. + +2. Collaterals by legitimate consanguinity up to and including the fourth +degree. + +3. Collaterals by legitimate affinity up to and including the fourth +degree. + +4. Collaterals by natural consanguinity or affinity up to and including +the second degree. + +5. The adopting father or mother and the adopted child; the latter and the +surviving spouse of the adoptees, and the adopters and the surviving +spouse of the adopted. + +6. The legitimate descendants of the adopter with the adopted, while the +relation of adoption continues. + +7. Accomplices in adultery who have been judicially sentenced. + +Those who have been condemned as principals, or principal and accomplice, +in the homicide of the spouse of any of the parties cannot conclude +marriage between themselves. + +The government for sufficient cause will, on petition of a party, grant a +dispensation permitting marriage between collaterals by legitimate +consanguinity within the fourth degree. Other dispensations may also be +granted on a proper petition. + +PARENTAL CONSENT.--The consent of the father is required for the marriage +of a legitimate minor; in his default, or where he cannot consent, the +power to grant it devolves, in this order: upon the mother, the paternal +and maternal grandparents, and in default of all these, upon the family +council. + +Recognized natural children or children legitimatized by royal concession +must ask the consent of those who have recognized or legitimatized them or +of their ascendants, or of the family council. + +Adopted children must ask the consent of the adopting father, and in his +default, of the persons of the natural family upon whom it may devolve. + +Unrecognized illegitimate children must ask the consent of their mother, +when she is known, and in her default consent must be asked of the +maternal grandparents, and in their default, that of the family council. + +Children of age are obliged to ask the advice of the father, and in his +default, of the mother before contracting marriage. In case the advice +given is against the proposed alliance, the marriage cannot be celebrated +until three months after the petition is made. + +Marriage in Spain is dissolved absolutely only by the death of one of the +parties. + +CANONICAL MARRIAGE.--The requisites, form and solemnities for the +celebration of canonical marriage is governed by the laws of the Catholic +Church, and by the decrees of the Holy Council of Trent, which are +accepted as part of the organic law of Spain. Canonical marriage produces +all the civil effects in respect to persons and property of the spouses +and their offspring. A magistrate is required to be present at the +celebration of a canonical marriage simply for the purpose of making a +verified record in the Civil Registry of the marriage. So that he may be +present for the purpose above stated, the magistrate must be given notice +in writing twenty-four hours at least before the intended celebration, +telling him of the day, hour and place of the marriage. + +Persons who contract canonical marriage in _articulo mortis_ may give +notice to the officials in charge of the Civil Registry, at any time +whatever prior to its celebration, and prove in any manner whatever that +such duty has been performed. + +CIVIL MARRIAGE.--A civil marriage must be preceded by a declaration to the +Municipal Judge, stating the names, ages, professions and domiciles of the +contracting parties; also the names, professions and domiciles of the +parents; and proper certificates of the births and status of the +contracting parties; certificates of consent or advice of parents, and +dispensations when required. + +Marriages may be celebrated personally or by a substitute or proxy to whom +a special authorization has been granted. + +Civil marriages must be solemnized by the contracting parties appearing +before the Municipal Judge, or one of them, and the person whom the +absent party may have appointed as proxy must appear before such +magistrate, together with two competent witnesses. + +The Municipal Judge, after reading articles 56 and 57 of the Civil Code to +the parties (which point out the rights and obligations of married life), +must ask each party if they desire to be married to each other, and if +both answer in the affirmative, the judge shall declare the parties to be +husband and wife, and prepare a record of the marriage. + +Consuls and vice-consuls are empowered to exercise the function of +municipal judges in marriages of Spaniards, celebrated in foreign +countries. + +NULLITY OF MARRIAGE.--The following marriages are null and void: + +1. Those concluded between persons related within the prohibited degrees. + +2. Those concluded between persons under the age of puberty. + +3. Marriages between persons, one or both of whom were of incurably +unsound mind. + +4. Incurably impotent persons. + +5. Persons bound by canonical vows to chastity. + +The proceeding to have such marriages judicially declared as null may be +instituted by either spouse, the Public Attorney, or by any interested +person. + +The action lapses, and the marriage will be confirmed in cases based on +abduction, error, force or fear, when the spouses have lived together six +months after the error became known, or after the force or fear has +ceased. + +DIVORCE.--A divorce in Spain only amounts to what in other countries is +called a judicial separation. Accepting the decrees of the Council of +Trent as law for Spain, marriage is treated as a sacramental contract +which can only be dissolved by death. + +The Civil Code, Article 104, states the following causes for divorce: + +1. Adultery on the wife's part. + +2. Adultery on the part of the husband, when public scandal or disgrace of +the wife is a result. + +3. Violence exercised by the husband over the wife in order to force her +to abandon her religious faith. + +4. Cruelty actually inflicted, or grave acts of contumely. + +5. The attempt or proposal of a husband to prostitute his wife. + +6. The attempts of either husband or wife to corrupt the morals of the +sons, or to prostitute the daughters. + +7. Condemnation of either spouse to imprisonment for life. + +EFFECTS OF DIVORCE OR NULLIFICATION.--The civil effects of a divorce or +annulment of marriage are as follows: + +1. Separation of the parties. + +2. To place the custody of the children with one or both of the parties, +as justice may require. + +3. To determine the responsibility for the support of the woman and +children. + +4. To place the woman under the special protection of the law. + +5. To decree the necessary measures to prevent the husband, who may have +given cause for divorce, or against whom the petition for nullity of the +marriage has been instituted, from interfering with the wife in the +administration of her separate property. + +HUSBAND AND WIFE.--The spouses are under mutual obligation to live +together, to be faithful to, and help each other. The husband is bound to +protect his wife and the wife to obey her husband. + +The wife is required to follow her husband wherever he may establish his +residence. The courts, however, will in some cases release her from this +requirement when the husband changes his residence to a foreign land. + +The husband is the manager of the property of the conjugal union, except +when there is a mutual agreement to the contrary. + +The husband is the legal representative of the wife. She cannot, without +his permission, appear in a suit by herself or through an attorney. +However, she does not need such permission to defend herself in a criminal +case or to bring a suit against her husband, or to defend herself in a +suit brought by her husband against her. + +A wife cannot, without her husband's permission, acquire property in trade +or by her labour. Neither can she, without such consent, alienate her +property. + +The wife can, without her husband's permission, perform the following +acts: + +1. Execute a will. + +2. Exercise the rights and perform the duties which pertain to her with +regard to legitimate and recognized illegitimate children, the issue of +herself and another not now her husband. + +FOREIGN MARRIAGES.--The Spanish courts recognize as valid in Spain any +marriage performed in a foreign country in accordance with the laws of +such country, provided such marriage also meets with all the requirements +of the Civil Code of Spain. + + + + +CHAPTER XIX. + +CIVIL CODE OF PORTUGAL. + + +On the third day of October, 1910, King Manuel II. of Portugal was +dethroned and a Republic was proclaimed throughout the country. At the +present time the affairs of the Republic are being administered by a +provisional government. Until this temporary administration is followed by +a permanent government, based on a national constitution, the Civil Code +promulgated in 1867 will continue to be Portuguese law. + +MARRIAGE.--Marriage is defined in the Civil Code as a perpetual contract +between two persons of different sex to live together and establish a +legitimate family. + +Catholics must celebrate marriage according to the rules and form +prescribed by their church. Those who are not Catholics are required to +have their marriage celebrated before a civil officer of the State +according to the rules and form prescribed by the civil law of the land. + +Marriage is forbidden: + +1. Of minors under the age of 21 years, unless with parental consent. + +2. Of persons of adult age who are incapable of properly governing +themselves or their estates, without the authorization of their legal +representatives. + +3. Of an adulterous wife with her accomplice who has been condemned for +the offence. + +4. Of a wife who has been condemned as the principal or accomplice of the +crime of homicide with a principal or accomplice in the same crime. + +5. Of any person bound by solemn vows of religion to a life of chastity. + +The canon law of the Catholic Church defines the religious rules and +spiritual effects of marriage, while the civil law defines the civil rules +and temporal effects of the contract. + +A minister of the church who celebrates a marriage contrary to the +requirements of Article 1058 of the Civil Code incurs criminal penalties. + +Marriage between Portuguese subjects who are non-Catholics is recognized +as producing full civil effects. + +CONSANGUINITY AND AFFINITY.--The following persons are forbidden to marry +each other: + +1. Ascendants and descendants. + +2. Persons related collaterally in the second degree. + +3. Males who have not completed their fourteenth year and females who have +not completed their twelfth year of age. + +4. Persons already bound by marriage. + +Any infraction of these prohibitions makes a marriage voidable. + +MARRIAGE PRELIMINARIES.--Whoever desires to contract marriage according to +the manner provided by the civil law of the land must present to the civil +officer of the State acting in the place of the applicant's domicile a +declaration setting forth: + +1. The full names, ages, occupations and domiciles of the contracting +parties. + +2. The full names, professions and domiciles of the parents. + +Upon receiving this declaration the civil officer publishes a notice of +the intended marriage and informs all interested persons to file their +objections, if any exist, within fifteen days. If at the end of this +period no valid objection to the marriage has been formulated the civil +officer proceeds to the celebration of the marriage. + +CELEBRATION.--For the civil celebration of marriage the contracting +parties, or their duly empowered proxies, appear before the civil officer +of the commune, attended by competent witnesses. If the marriage is +celebrated in the official bureau of the commune two witnesses are +sufficient; if outside of such bureau six witnesses are required. + +Any civil officer celebrating a marriage contrary to these provisions +incurs penal punishment. + +ANNULMENT OF MARRIAGE.--A Catholic marriage--that is, one solemnized +according to the canonical law--can only be annulled by an ecclesiastical +tribunal and according to the laws of the Catholic Church enforceable in +Portugal. + +A sentence of an ecclesiastical tribunal annulling a marriage is executed +by the civil authority of the land. + +A marriage concluded before a civil officer in the form established by the +civil law of the land can only be annulled by a civil court. + +JUDICIAL SEPARATION.--A separation of the person and goods may be had for +the following causes: + +1. Adultery of the wife. + +2. Adultery of the husband, if such adultery creates a public scandal or +if the husband brings his concubine into the home he has established for +his wife. + +3. Sentence of one of the spouses to life imprisonment. + +4. Cruel and abusive treatment. + +DIVORCE.--Under the law of Portugal as it existed down to the day when +King Manuel II. was dethroned and a Republic declared there was no such +thing as divorce recognized. Portugal has been for centuries a Catholic +country, and the decrees of the Council of Trent, as well as all the +other rules and regulations concerning marriage stated by the Catholic +Church, have been accepted by Portugal as part of the law of the land. +However, since December 1, 1910, when the present provisional government +was constituted, certain new laws have been promulgated by government +decree. One of these new laws relates to divorce and is most modern and +radical in its scope. It permits the courts to grant absolute divorces for +a number of reasons, including "mutual consent of the parties." + +Whether such laws, created by proclamation instead of legislation, will be +incorporated into the inevitable new Civil Code of Portugal is a problem +for the future. Our endeavour in this chapter has been to state the +organic law of Portugal as it at present exists, untouched by legislation +on the statute books of that ancient land. + + + + +CHAPTER XX. + +ROUMANIA. + + +Roumania is the name officially adopted by the united kingdom that +comprises the former principalities of Walachia and Moldavia. In its +native form it appears simply as "Roumania," representing the claim to +Roman descent put forward by its inhabitants. + +The Roumanian Civil Code from which we summarize in this chapter the law +of marriage and divorce of Roumania is practically a copy of the French +Civil Code. + +MARRIAGE.--A man must be eighteen years of age and a woman fifteen in +order to contract lawful marriage, except a dispensation is granted by the +King. + +The free consent by both contracting parties is essential. + +Men under twenty-five years of age and women under twenty-one cannot marry +without the parental consent. Men under the age of thirty and women under +the age of twenty-five are obliged to ask the consent of their parents. + +A man or woman is allowed but one spouse at a time. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between relatives, +whether by blood or by marriage, in the direct line, and in the collateral +line to the fourth degree, inclusive, by the Roman method of counting. The +prohibition obtains whether the relationship arises from legitimate or +illegitimate birth. A dispensation from such impediments may, in special +cases, be granted, by the King. + +Marriage is forbidden between relatives by adoption and between +godparents and their godchildren. + +Marriage is forbidden between guardians and wards, or between trustees and +wards, and the father, son or brother of a guardian or trust cannot marry +the ward until the accounts of the guardianship or trust have been +properly audited and settled. + +Soldiers cannot marry without the consent of the military authorities. + +Marriage is expressly forbidden to priests, monks and nuns. + +Divorced persons are forbidden to remarry each other. + +A woman whose marriage has been dissolved by death or divorce may not +marry again until the expiration of ten months after such dissolution. + +MARRIAGE PRELIMINARIES.--A marriage must be preceded by the publication of +the names, occupations and residences of the parties themselves, and of +their parents, on two Sundays before the celebration. Such publication of +banns must be made before the door of the parish church and the door of +the town hall of the commune where the marriage is to be concluded. The +marriage cannot be solemnized until the fourth day after the second +publication of banns. If a year passes after such publication without +marriage a new publication is necessary. If, upon the publication of +banns, the intended marriage is opposed, as it may be, by any person, the +registrar of the commune must defer the celebration of marriage until the +opposition has been withdrawn or overruled. + +CELEBRATION.--The marriage must be celebrated by the registrar in the town +hall of the commune in which one of the parties had had continuous +residence for at least six months. The registrar, in the presence of four +witnesses, reads to the parties that chapter of the Civil Code of +Roumania which defines the rights and duties of marriage. The parties must +then declare to the registrar their intention to marry each other. After +this the officiating registrar pronounces the parties to be husband and +wife. + +If a religious celebration is desired it must in all cases be preceded by +the civil ceremony. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled on any of the following +grounds: + +1. That it was not regularly celebrated before a registrar. + +2. That free consent of one or both parties did not exist. + +3. Lack of proper age. + +4. An existing marriage. + +5. Relationship within prohibited degrees. + +6. Lack of parental consent. + +7. In the case of a soldier, lack of proper consent from the necessary +military authorities. + +Where a marriage has been contracted in good faith the parties thereto and +the issue of the marriage are entitled to all civil rights resulting +therefrom; but if only one party was in good faith, only that party and +the issue of the marriage are entitled to these rights. + +DIVORCE.--The great majority of the people of the kingdom belong to the +Roumanian branch of the Orthodox Greek Church, which in practice does not +hold to the doctrine of the indissolubility of marriage. + +The law of the land permits absolute divorce for the following causes: + +1. By mutual consent of the parties. The parties on such an application +appear before a judge with a written inventory of their goods, showing the +division agreed upon, and with certificates of their birth and marriage, +of the births and deaths of their children, and, when necessary, the +consent of their parents. + +The judge then endeavours to reconcile the parties. If at the end of one +year and fifteen days no reconciliation has been effected a divorce is +granted. + +2. Adultery of husband or wife. + +3. Cruel and abusive treatment of one spouse toward the other. + +4. A judicial condemnation of either party to a prison sentence for an +infamous crime. + +5. An attempt of one party on the life of the other. + +6. Intentional omission of one spouse to warn the other of an attempt by a +third person on the life of the other spouse. + +SEPARATION.--Judicial separations are not granted by the courts of +Roumania. + +EFFECTS OF DIVORCE.--Divorced parties are forbidden to remarry each other. + +A divorced woman may not marry again within ten months after her +divorcement, and the guilty party in a suit for divorce on the ground of +adultery may not marry his or her accomplice in adultery. + +Otherwise divorced parties are free to marry again. + +A divorced woman may not retain her husband's surname. + +All property rights granted by the innocent party to the guilty party are +extinguished by the decree of divorce. The guilty party may be ordered to +contribute to the support of the innocent party. + +The custody of the children is usually given to the successful suitor. The +court may, however, if circumstances require, entrust the children to the +guilty party or to a third person. + + + + +CHAPTER XXI. + +SERVIA. + + +Servia is a kingdom in the northwestern part of the Balkan Peninsula. In +1882 it became a constitutional monarchy. The judiciary is vested in a +High Court of Appeal, a Court of Cassation, a Commercial Court and +twenty-three courts of the first instance. + +The Servian laws of marriage and divorce are substantially the same as +those of the Orthodox Greek Church. All marital suits in which one or both +parties belong to this church are governed by State law, although +jurisdiction lies with the ecclesiastical courts. Matters pertaining to +property settlement are, however, entirely within the jurisdiction of the +civil courts, as are all marital suits in which neither party belongs to +the Greek Church. + +When the parties to a marital suit are Roman Catholics decisions are +rendered according to the canon law; and when both parties are +Protestants, according to the principles of the sect to which the parties +belong. + +In the case of a mixed marriage of others than adherents of the Greek +Church the decision is rendered according to the principles of the church +in which the marriage was celebrated. + +MARRIAGE QUALIFICATIONS.--A man cannot marry until he has completed his +seventeenth year; a woman until she has completed her fifteenth year of +age. By the dispensation of the church, granted by a bishop, a man of +fifteen years or a woman of thirteen years may conclude marriage. + +The free consent of both parties is essential to a valid marriage. + +If both the contracting parties are over eighteen years of age parental +consent to a marriage is not obligatory. Where both parties are under +eighteen years, or the intended bride is under that age and the intended +bridegroom is under twenty-one years, the consent of parents is necessary. + +All persons are forbidden to contract a new marriage until a previous +existing marriage has been dissolved or judicially declared a nullity. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between relatives by +blood in the direct line and in the collateral line as far as the eighth +degree, inclusive--that is to say, as far as the degree of relationship of +third cousins. Relatives in the seventh or eighth degree may marry by +episcopal dispensation. Marriage is prohibited between relatives by +marriage as far as the fifth degree, inclusive. + +Marriage is prohibited between persons spiritually related, as between the +godparent and the godchild or his descendants. + +IMPEDIMENTS.--Persons who have been judicially condemned for adultery are +forbidden to contract marriage with their accomplices in the offence. + +The party declared guilty in a suit for divorce is prohibited from +marrying again during the lifetime of the innocent party. + +A woman may not, as a rule, marry again until nine months after the +dissolution by death or divorce of her previous marriage. + +Insane persons cannot contract a binding marriage. + +Incurable impotence of either party, which existed at the time the +marriage was concluded, is cause for a decree of nullity. + +Marriage is expressly forbidden between Christians and Jews or between +Christians and non-Christians of any sect whatever. + +Marriage is prohibited between two persons one of whom has attempted the +life of the husband or wife of the other. + +A lawful marriage cannot be concluded with a woman who has been abducted +and has not yet been restored to freedom. + +Marriage cannot be concluded by a person who is under sentence to +imprisonment. + +PRELIMINARIES.--Before the marriage the parish priest must, on three +successive holy days, publish banns in the church, and if any member of +the parish knows of any impediment it is his or her duty to inform the +priest. If a priest fails thus to publish banns, and impediments later +appear, he is amenable to punishment. + +CELEBRATION.--The law of Servia does not recognize a civil marriage. If +the parties, or one of them, belong to the Orthodox Greek Church they must +be married according to the rites of that church. Christians of other +sects must be married by their clergy and Jews by their authorized +ministers. + +CHILDREN.--Marriage of the parents subsequent to their birth renders +illegitimate children fully legitimate. + +ANNULMENT OF MARRIAGE.--A marriage may be declared null by a decree of a +court of competent jurisdiction whenever it appears that some essential +qualification to make the marriage valid was absent at the time it was +concluded, or if it appears that the marriage was concluded in disregard +of the impediments stated by law. + +ABSOLUTE DIVORCE.--A complete divorce from the marriage bond is allowed by +the courts for the following causes: + +1. Adultery of either party. + +2. Attempt by either spouse to kill the other. + +3. The concealment by one spouse of information concerning a plot to kill +the other spouse. + +4. Penal servitude incurred by either spouse, under a sentence of at least +eight years. + +5. Apostasy from the Christian religion. + +6. Deliberate desertion persisted in for three years. + +7. Flight from Servia followed by absence of at least four years. + +8. Absence without news for six years. + +A decree of divorce or a decree annulling a marriage must always be +submitted for the approval or disapproval of the ecclesiastical courts. + +EFFECTS OF DIVORCEMENT.--The innocent party to a divorce suit may contract +a new marriage, but the guilty party is forbidden to remarry during the +lifetime of the innocent party. + +Usually each party regains such goods and effects as he or she brought to +the alliance. + +CUSTODY OF CHILDREN.--Boys under four years and girls under seven are +given, as a rule, to the mother's custody. After that they are given to +the custody of the father. + +The divorced woman must not continue to use the surname of her ex-husband. + +JUDICIAL SEPARATION.--A separation from bed and board may be granted by +the court whenever the facts show such a decree to best promote the +interests and well-being of the spouses. + + + + +CHAPTER XXII + +BULGARIA. + + +The national religion of the Bulgarian people is that of the Orthodox +Greek Church, and consequently the laws of that church on the subject of +marriage and divorce is part of the organic law of Bulgaria. + +Upon the political independence of the country the Bulgarian Church, which +had hitherto been under the Patriarchate of Constantinople through an +exarch, declared its independence and established the Bulgarian Exarchate. +The ecclesiastical courts of this Exarchate have general jurisdiction of +matrimonial causes except as concern Mohammedans, Jews, and Christians who +are not adherents of any of the Eastern Orthodox churches. + +Besides the laws of the Church, Bulgaria has a national law of marriage +and divorce dating from 1897. + +The matrimonial concerns of Mohammedans are governed by the law of the +religion of Mohammed. Christians who are dissenters from the Orthodox +Church are permitted to marry according to the rules and regulations of +their sect. + +REQUIREMENTS FOR MARRIAGE.--The marriageable age for men begins with +twenty years, and for women with eighteen years. + +Parental consent is required, but if it is arbitrarily denied the +authorities of the church may give their consent in its stead. + +A man or woman is permitted to have but one spouse at a time. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between ascendants and +descendants. In the collateral line marriage is forbidden between persons +related within the seventh degree. Under this rule a person cannot +lawfully marry the child of his or her second cousin. The ecclesiastical +authorities may upon such grounds as to them may seem sufficient grant a +dispensation permitting a marriage within the prohibited degrees. + +Marriage is also prohibited between godparents and godchildren, and +between godchildren who have the same godparent. Here also the clergy may +remove the impediment by dispensation. + +Persons suffering from idiocy, insanity, epilepsy or syphilis cannot +contract lawful marriage. + +Marriage is forbidden when the parties are of different religious faiths. + +A person under obligation by religious vow to remain celibate or one who +has been sentenced to a state of celibacy by an ecclesiastical court +cannot conclude marriage. + +Accomplices in adultery may not marry each other. Persons in the military +service must obtain the consent of their superiors to contract marriage. + +CELEBRATION.--The law of Bulgaria does not permit a civil marriage. If +both or one of the contracting parties are baptized members of the +Orthodox Greek Church, the marriage service must be in accordance with the +rites of that church. Christians who belong to other churches are +permitted to be married by the ministers of their faith. Three weeks at +least must intervene between the betrothal and the wedding. All marriages +must be preceded by the publication of banns. + +FOREIGN MARRIAGES.--The law of Bulgaria does not recognize the foreign +marriage of Bulgarian subjects unless the following elements are present: + +1. The foreign marriage must comply with all the laws and rules of the +foreign country where it is concluded. + +2. If the parties are baptized members of the Orthodox Greek Church the +marriage must be solemnized by a priest of that church. This rule applies +even though in the country where the marriage was concluded a civil +ceremony is sufficient. + +DIVORCE.--The Church and State both permit absolute divorces. The causes +are: + +1. Adultery of either spouse. + +2. Drunkenness and disorderly conduct. + +3. Cruel and abusive treatment. + +4. Threat to kill. + +5. Incurable impotence. + +6. Absence of the husband for four years coupled with failure to support +wife. + +7. Sentence to prison for an infamous offense. + +8. False accusation of adultery. + +9. Wife's desertion of the husband continued for three years. + +DIVORCE PROCEDURE.--As before stated the suit for divorce must be brought +before the ecclesiastical court. + +EFFECTS OF DIVORCE.--If the guilty party is the wife, her husband has the +right to retain all her dowry which she brought to him, and to retake all +gifts made to her either before or after marriage. + +If the guilty party is the husband, the wife has the right to recover her +dowry, to keep any present she ever received from the husband, and to +exact suitable maintenance from her divorced husband until such time as +she remarries. + +The custody of the children is given to the winning suitor, except that +children under five years remain in the care of their mother. + + + + +CHAPTER XXIII. + +THE KINGDOM OF GREECE. + + +Because of its matchless philosophy, literature and art, ancient Greece is +still the marvel of the modern world, but little credit is given to old +Hellas as one of the principal sources of the jurisprudence of to-day. For +political reasons the Roman law was the overshadowing and dominating +system of ancient law, but the fountain head of the laws of Rome, even of +the Laws of the Twelve Tables, was the land of Demosthenes, Pericles, +Solon and Lycurgus. + +The great jurisconsults of the Roman Empire were not Roman but Greek +lawyers, not the least of whom was Gaius, the legal commentator who was +the Blackstone of his period. + +The Roman Empire was the physical expression of Grecian intellect. Not +only the first lawyers but the first popes of Rome were Greeks. + +The modern Kingdom of Greece has an excellent system of jurisprudence +based on the old Roman law, with modifications drawn from the Bavarian and +French. The commercial law has been adapted from the _Code Napoleon_, the +penal laws are of Bavarian origin, and the laws of marriage and divorce +are derived from the Roman law necessarily modified to harmonize with the +dogmas of the Orthodox Greek Church, which is the national church of the +kingdom. + +The Areopagus existed in Greece as a court of justice before the first +Messenian war, 740 B. C. This court was situated on the Hill of Ares +outside the city of Athens, the very "Hill of Mars" on which St. Paul +preached in the year A. D. 52. We find historical mention of the Court of +Areopagus as late as the year 880 of the Christian Era. It is unlikely +that the Areopagus of to-day, which is the supreme court of appeal in +modern Greece, has any other relationship than the same venerable name +with the court of ancient times. + +Besides the Court of the Areopagus, there are four other inferior courts +of appeal, one for each of the judicial districts of Greece. There are +also four commercial tribunals, seventeen courts of first instance, and +over two hundred justices of the peace. The standard of the Grecian +judiciary is very high, for only men of unblemished reputation who have +received the degree of doctor of law from a reputable European university +are eligible to the bench. + +There is no _habeas corpus_ act in Greece, but no one can be arrested, no +house can be entered, and no letter opened without a judicial warrant. + +The supreme power of the Church of Greece is vested in the Holy Hellenic +Synod which consists of five members, who are appointed annually by the +King, and the majority of whom must be prelates. The Metropolitan +Archbishop of Athens is _ex-officio_ president; two royal commissioners +attend without voting and the Synod's resolutions require to be confirmed +by them in the King's name. In all purely spiritual matters the Synod has +entire independence; but on questions having a civil side, such as +marriage and divorce, it can only act in concert with the civil +authorities. + +The Orthodox Greek Church as a matter of dogma treats marriage as a +sacrament or divine ordinance, but unlike the Latin Church, it holds that +for sufficient cause marriage may be legally dissolved, but not till a +probationary period has elapsed during which a bishop or priest mediates +with the purpose of reconciling the parties. + +MARRIAGE.--Both by the law of the land and the church law, marriage in +Greece is treated as a social status which can only be concluded by a +religious celebration. A civil ceremony has no validity. If both the +parties or one of them are baptized members of the Orthodox Greek church, +the marriage must be celebrated before a priest and in accordance with the +laws and rites of that church. + +When both of the parties are Roman Catholics they must be married by a +priest of their religion. If one of the parties is a Roman Catholic and +the other a member of the Orthodox Greek Church, the marriage must be +solemnized by a priest of the latter church. The rule is that mixed +marriages must be solemnized by a priest of the Greek Church. + +Jews and Protestants may be married by the ministers of their respective +denominations. + +AGE.--The marriageable age of males begins at the completion of their +fourteenth year, and that of females at the completion of their twelfth +year. + +CONSENTS.--The free consent of the contracting parties is essential. For a +man under twenty-one years of age, or a woman under eighteen years of age, +the parental consent is also necessary. + +MONOGAMY.--All persons are forbidden to contract a new marriage until a +previous marriage has been dissolved by death or divorce. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between persons of +whom one is descended in a direct line from the other. Collateral kinsmen +are forbidden to marry within the sixth degree. The degrees are counted +according to the Roman law method of reckoning which counts the number of +descents between the persons on both sides from the common ancestor. The +authorities of the national church may upon such facts as to them seem +proper grant a dispensation allowing a marriage within the forbidden +degrees. + +SPIRITUAL RELATIONSHIP.--Marriage is expressly forbidden between +godparents and their godchildren, and between godchildren who have the +same godparent. A church dispensation is, however, easily obtained, +relieving the parties from the last mentioned impediment. + +SPECIAL PROHIBITIONS.--Persons suffering from defective intellect, +insanity, syphilis or epilepsy are forbidden to conclude marriage. + +Persons under religious vows to remain celibate cannot conclude marriage +unless dispensed from such vows. + +Accomplices in adultery may not marry each other. + +Persons in the military service may not conclude marriage without the +consent of the higher military authority. + +PRIESTS.--A priest of the Orthodox Greek Church is required to marry once, +but he cannot contract a second marriage even after the death of his first +wife. + +FOURTH MARRIAGE.--It is contrary to the law of the land as well as the law +of the church for any person to contract a fourth marriage. + +BANNS.--All marriages must be preceded by the publication of banns. + +FOREIGN MARRIAGES.--The Greek courts will not recognize the foreign +marriage of Greek subjects who are baptized members of the Orthodox Greek +Church unless the marriage was solemnized before a priest of that church. +This is the rule, even though in the country where the marriage was +concluded a civil ceremony is sufficient and obligatory. + +DIVORCE.--Absolute divorces are granted for the following causes: + +1. Adultery of either husband or wife. + +2. Cruel and inhuman treatment, endangering life or health. + +3. An attempt by either spouse to kill the other. + +4. Threat to kill. + +5. The condemnation and imprisonment of either spouse for an infamous or +degrading crime. + +6. Confirmed habits of drunkenness. + +7. Desertion. + +8. Incurable impotence of either party. + +PROCEDURE.--All suits for divorce must be instituted in the ecclesiastical +courts of the Orthodox Greek Church. + +EFFECTS OF DIVORCE.--Both parties are free to remarry, but the wife must +wait until a full year has elapsed from the granting of a decree before +contracting a new marriage. + +The wife must not use the surname of her divorced husband. + +If the wife is the successful suitor, she can recover from the defeated +party the dowry she brought to him at marriage. She has a right also to +retain any gifts she may have received from him either before or after +marriage. + +In some instances the husband is obliged to pay alimony to his divorced +wife during her lifetime, up to the time she contracts a new marriage. + +If the parties have children, such of them as are so young as to need a +mother's care are temporarily awarded to the woman's custody even though +she be the party declared to be guilty in the divorce suit. + + + + +CHAPTER XXIV. + +THE MOHAMMEDAN LAW OF TURKEY, PERSIA, EGYPT, INDIA, MOROCCO AND ALGERIA. + + +The laws of Mohammedanism which are founded on the Koran and the +Traditions of Mohammed to-day constitute the civil and religious code of +many millions of the world's inhabitants. + +A country that is subject to the government of Mohammedans is termed +_Dar-ool-Islam_, or a country of safety and salvation, and a country which +is not subject to such government is termed _Dar-ool-hurb_, or a country +of enmity. Though Mohammedans are no longer under the sway of one prince, +they are so bound together by the common tie of Islam that as between +themselves there is no difference of country, and they may therefore be +said to compose but one _dar_ or commonwealth. + +A Mohammedan is subject to the law of Islam absolutely, that is without +distinction of place or otherwise. + +Every unbeliever in the Mohammedan religion is termed a _kafir_, or +infidel, and infidels who are not in subjection to some Mohammedan state +are generally treated by Islamic lawyers as _hurbees_, or enemies. + +The Mohammedans are taught to believe that their system of jurisprudence +is of divine origin, is incapable of improvement, and can never be changed +in any material particular. The fact is that with all its alleged source, +perfection and immutability Mohammedan law has not been able to escape the +inevitable rule of change which seems to affect everything and everybody +in this world. + +There are certain countries where the entire legal and religious system is +based on the laws of Mohammedanism; such countries are: Turkey, Persia and +Morocco. There are other countries, such as Egypt, India and Algeria, +where the law of Islam operates side by side with other legal systems. + +In India there are four distinct systems of jurisprudence, all in full +operation and effect. These are: + +1. English law created by the British Parliament. + +2. Anglo-Indian law, which is created in India by the Legislative Councils +of the British Government. + +3. Hindu law, which applies to every one in British India who is a Hindu, +and to no one else. + +4. Mohammedan law, which applies to every one in British India who is a +Mohammedan, and to no one else. + +If a Mohammedan in India abandons his religion he ceases to be governed by +Mohammedan law. + +Since the promulgation of the Regulations of Warren Hastings in 1772, all +suits in British India regarding inheritance, marriage, caste and other +religious usages and institutions with respect to Mohammedans have been +decided invariably according to Mohammedan law. + +EGYPT.--There are four kinds of legal tribunals in Egypt, namely: + +1. The Native Courts, which have civil and criminal jurisdiction over +natives. + +2. The Consular Courts, which have jurisdiction over foreigners charged +with crime. + +3. The Mixed Tribunals, which have civil and criminal jurisdiction over +persons of diverse citizenship. + +4. The Mohammedan Courts, which deal with the questions of the personal +rights of the Mohammedan inhabitants according to the laws of Islam. + +As over ninety _per centum_ of the people of Egypt are Mohammedans, the +importance of the Mohammedan Courts is apparent. + +The Mohammedan law of marriage and divorce is also recognized as +controlling and effective when the parties to a marriage are Mohammedans, +in Russia, Roumania, Servia, Bulgaria and Greece. + +MARRIAGE.--Marriage is enjoined on every Mohammedan, and celibacy is +frequently condemned by Mohammed. "When the servant of God marries, he +perfects half of his religion," said the Prophet. Once Mohammed inquired +of a man if he was married, and being answered in the negative, he asked, +"Art thou sound and healthy?" When the man answered that he was the +Prophet angrily said, "Then thou art one of the brothers of the devil." + +VALIDITY OF MARRIAGE.--Marriage, according to Mohammedan law, is simply a +civil contract, and its validity does not depend upon any religious +ceremony. Though the civil contract is not required to be reduced to +writing, its validity depends upon the consent of the parties, which is +called "_ijab_" and "_gabul_," meaning declaration and acceptance; the +presence of two male witnesses (or one male and two female witnesses); and +a dower of not less than ten _dirhams_ to be settled on the woman. The +omission of the settlement does not, however, invalidate the contract, for +under any circumstances, the woman becomes entitled to her dower of ten +_dirhams_ or more. + +It is a recognized principle that the capacity of each of the parties to a +marriage is to be judged of by their respective _lex domicilii_. + +The capacity of a Mussulman domiciled in England will be regulated by the +English law, but the capacity of one who is domiciled in the +_Belâd-ul-Islâm_, or Mohammedan country, by the provisions of Mohammedan +law. + +We are told by the highest authorities on Islamic law that the three +principal conditions which are requisite for a proper marriage are: +understanding, puberty and freedom in the contracting parties. + +The Mohammedan law fixes no arbitrary age at which either male or female +is competent to marry. + +Besides understanding, puberty and freedom, the capacity to marry requires +that there should be no legal disability or bar to the union of the +parties; that in fact they should not be within the prohibited degrees of +relationship. + +LEGAL DISABILITIES.--There are nine prohibitions to marry, namely: + +1. Consanguinity, which includes mother, grandmother, sister, niece and +aunt. + +2. Affinity, which includes mother-in-law, step-grandmother, +daughter-in-law and step-granddaughter. + +3. Fosterage. A man cannot marry his foster-mother, nor foster-sister, +unless the foster-brother and sister were nursed by the same mother at +intervals widely separated. But a man may marry the mother of his +foster-sister, or the foster-mother of his sister. + +4. Sister-in-law. A man may not marry his wife's sister during his wife's +lifetime, unless she be divorced. + +5. A man married to a free woman cannot marry a slave. + +6. It is not lawful for a man to marry the wife or _mu'taddah_ of another, +whether the _'iddah_ be on account of repudiation or death. That is, he +cannot marry until the expiration of the woman's _'iddah_, or period of +probation. + +7. A Mohammedan cannot marry a Polytheist, but he may marry a Christian, +Jewess, or a Sabean. + +8. It is not lawful for a man to marry his own slave, or a woman her +bondsman. + +9. If a man pronounces three divorces upon a wife who is free, or two upon +a slave, she is not lawful to him until she shall have been regularly +espoused by another man, who having duly consummated the marriage, +afterwards divorces her, or dies, and her _'iddah_ from him be +accomplished. + +In the _Korân_ or _El-Kor'an_ we find in the chapter on women (Sura IV.) +the law expressed as to certain prohibitions: + +"Forbidden to you are your mothers, and your daughters, and your sisters, +and your aunts, both on the father's and mother's side, and your nieces on +the brother's and sister's side, and your foster-mothers, and your +foster-sisters, and the mothers of your wives, and your stepdaughters who +are your wards, born of your wives to whom you have gone in: (but if ye +have not gone in unto them, it shall be no sin in you to marry them) and +the wives of your sons who proceed out of your loins; and ye may not have +two sisters; except where it is already done. Verily, God is Indulgent, +Merciful!" + +POLYGAMY.--According to Mohammedanism polygamy is a divine institution, +and has the express sanction of the law. Mohammed restrained the practice +of polygamy by limiting the maximum number of contemporaneous marriages, +and by making absolute equity toward all obligatory on the man. A +Mohammedan may marry four wives but no more. The law is thus stated: "You +may marry two, three, or four wives, but not more." However, all true +believers are enjoined that, "if you cannot deal equitably and justly with +all you shall marry only one." + +In India more than ninety-five _per centum_ of the Mohammedans are at the +present, either by conviction or necessity, monogamists. In Persia only +two _per centum_ of the population enjoy the questionable luxury of +plurality of wives. + +CELEBRATION OF MARRIAGE.--The _Nikah_, or celebration of the marriage +contract, is preceded and followed by festive rejoicings, which have been +variously described by Oriental travellers, but they are not parts of +either the civil or religious ceremonies. The Mohammedan law appoints no +specific religious ceremony, nor are any religious rites necessary for the +contraction of a valid marriage. Legally, a marriage contracted between +two persons possessing the capacity to enter into the contract is valid +and binding, if entered into by mutual consent in the presence of +witnesses. As a matter of practice a Mohammedan marriage is generally +concluded by a formal ceremony which is ended by the _Qazi_ offering the +following prayer: + +"O Great God! grant that mutual love may reign between this couple, as it +existed between Adam and Eve, Abraham and Sarah, Joseph and Zalikha, Moses +and Zipporah, his highness Mohammed and Ayishah, and his highness Ali +al-Murtaza and Fatimatu'z-Zahra." + +HUSBAND AND WIFE.--A husband is not guardian over his wife any further +than respects the rights of marriage, nor does the provision for her rest +upon him any further than with respect to food, clothing and lodging. + +A husband must reside equally with each of his wives, unless one wife +bestow her right upon another wife. + +A wife cannot give evidence in a court of law against her husband. If she +becomes a widow she must observe mourning for the space of four months and +ten days. + +In the event of her husband's death a wife is entitled to a portion of her +husband's estate, in addition to her claim of dower, the claim of dower +taking precedence of all other claims on the estate. + +"The women," says the Koran, "ought to behave toward their husbands in +like manner as their husbands toward them, according to what is just." + +When the husband has left the place of conjugal domicile without making +any arrangements for his wife's support, the judge is authorized by law to +make an order that her maintenance shall be paid out of any fund or +property which the husband may have left in deposit or in trust, or +invested in any trade or business. + +When a woman abandons the conjugal domicile without any valid reason, she +is not entitled to maintenance from her husband. + +The Mohammedan law lays down distinctly that a wife is bound to live with +her husband, and to follow him wherever he wishes to go; and that on her +refusing to do so without sufficient or valid reason, the courts of +justice, on a suit for restitution of conjugal rights by the husband, +would order her to live with her husband. + +The obligation of the wife, however, to live with her husband is not +absolute. The law recognizes circumstances which justify her refusal to +live with him. + +Although the condition of women under Mohammedan law is most +unsatisfactory, it must be admitted that Mohammed effected a vast and +marked improvement in the condition of the female population of Arabia. +Amongst the Arabs who inhabited the peninsula of Arabia the condition of +women was extremely degraded, for amongst the pagan Arabs a woman was a +mere chattel. The Koran created a great reformation in the condition of +women. For the first time in the history of Oriental legislation the +principle of equality between the sexes was approached. + +DIVORCE.--The Mohammedan law of divorce is founded upon express +injunctions contained in the Koran, as well as in the Traditions, and its +rules occupy an important part of all Mohammedan works on jurisprudence. + +These rules may be summarized thus: + +The thing which is lawful but disliked by God is divorce. + +A husband may divorce his wife without any misbehaviour on her part, or +without assigning any cause. + +There is an irregular form of divorce in which the husband repudiates his +wife by three sentences, either express or metaphorical, as for example: +"Thou art divorced! Thou art divorced! Thou art divorced!" The Mohammedan +who thus divorces his wife is held in the _Hidayah_ to violate the law, +but the divorce is legal. + +A sick man may divorce his wife, even though he be on his death-bed. + +An agent or agents may be appointed by a husband to divorce his wife. + +In addition to the will or caprice of the husband, there are also certain +conditions which require a divorce. + +The following are causes for divorce, but generally require to be ratified +by a decree from the _Qazi_ or judge: + +1. _Jubb._ That is, when the husband has been by any cause deprived of his +organ of generation. This condition is called _majbub_, and if it existed +before the marriage the wife can obtain instant divorce. + +2. _Unnah._ Impotence of either husband or wife. + +3. Inequality of race or tribe. + +4. Insufficient dower. (If the stipulated dowry is not given when +demanded.) + +5. Refusal of Islam. If one of the parties embrace Islam, the judge must +offer it to the other three distinct times, and if he or she refuse to +embrace the faith, divorce follows. + +6. Unjust accusation of adultery by a husband against his wife. + +7. If a wife becomes the proprietor of her husband or the husband becomes +the proprietor of his slave wife divorce takes place. + +8. An invalid marriage of any kind, arising from consanguinity or affinity +of parties, or other causes. + +9. The executed vow of a husband not to have sexual intercourse with his +wife for as long as four months. + +10. Difference of country. As, for example, if a husband flee from a +non-Moslem country to a country of Islam and his wife refuses to accompany +him. + +11. Apostasy from Islam. + +The Greek Church holds that marriage is dissoluble in case of adultery, +but not till a probationary period has elapsed during which a bishop or +priest mediates with a view to reconciliation. + +A fourth marriage is unlawful. + +When a man or woman apostatizes from Islam, then an immediate dissolution +of the marriage takes place, whether the apostasy be of the man or of the +woman, without a judicial decree. If both husband and wife apostatize at +the same time, their marriage bond remains; and if at any future time the +parties again return to Islam, no remarriage is necessary to constitute +them man and wife. + +There is a form of divorce known as _khula_ which is when a husband and +wife disagreeing, or for any other cause, the wife on payment of a +compensation or ransom to the husband, is permitted by law to obtain from +him a release from the marriage tie. + +_Mubara'ah_ is a divorce which is effected by mutual release. + +A COMPARISON.--When compared with the Mosaic law it will be seen that by +the latter, divorce was only sanctioned when there was "_some +uncleanness_" in the wife, and whilst in Islam a husband can take back his +divorced wife, in the law of Moses it was not permitted. See Deut. xxiv., +1-4. + +IDDAH OR IDDAT.--This is the term of probation incumbent upon a woman in +consequence of a dissolution of marriage, either by divorce or the death +of her husband. After a divorce the period is three months, and after the +death of her husband four months and ten days, both periods being enjoined +by the Koran. + +EFFECTS OF DIVORCE: + +1. Sexual intercourse between the divorced persons becomes unlawful. + +2. The wife is free to marry another husband after the completion of her +_iddah_; or immediately if the marriage was never consummated. + +3. The husband may complete his legal number of four wives without +counting the divorced one, or may marry a woman who could not be lawfully +joined with the divorced one, for example, her sister, after the +completion of her _iddah_ but not before. + +4. If the marriage has been consummated before the divorce, the whole of +the unpaid dower becomes immediately payable by the husband to the wife, +and is enforceable like any other debt if the marriage had not been +consummated and the amount of dower was specified in the contract, he is +liable for half that amount; if none was specified, he must give the +divorced wife a present suitable to her rank, or their value. But the wife +has no right to anything if the divorce took place by her wish, or in +consequence of any disqualifications on her side, as for instance, her +apostasy. + +5. The wife is entitled to be maintained by her husband during the _iddah_ +on the same scale as before the divorce, conditionally on submitting to +her husband's control as regards her place of residence and general +behaviour. But on completion of her _iddah_ she ceases to have any claim +for maintenance. + + + + +CHAPTER XXV. + +THE UNITED STATES OF AMERICA. + + +The United States as such, that is, in its Federal capacity, has no single +system of marriage and divorce laws applicable to all the States and +Territories. + +The purpose of the Constitution of the United States is to maintain by its +federal structure a strong national government, while recognizing each of +the States which make up the federation to be so far as is consistent with +the motive of the Union, sovereign commonwealth. + +When one considers this wonderful federation of States and Territories, +with nearly half a hundred separate governments each making and +interpreting its domestic laws, and yet all parts of, and working in +harmony with, the central or Federal Government, the justice of +Gladstone's tribute to the American Constitution as "the most wonderful +work ever struck off at a given time by the brain and purpose of man" is +apparent. + +The laws of marriage and divorce in the various States and Territories +cannot therefore be ascertained from a single legislative or judicial +source. The law of the several jurisdictions consists not only of +legislative enactments, but of judicial construction and interpretation of +such legislation. + +Fortunately the tendency is toward uniformity of legislation among the +States, especially on the important subject of marriage and divorce, and +such differences as exist are pointed out substantially in this chapter +when each State or Territory is considered separately. + +The Congress, or national legislature, has power to legislate only upon +such subjects as the Federal Constitution marks out for it, and all powers +not granted to the Federal government remain with the several States. + +The regulation of marriage and divorce is one of the most important +domestic concerns which remains within the jurisdiction of a State. + +Article IV., Section 3, of the Constitution of the United States expressly +grants to Congress exclusive power to prescribe laws for the Territories +of the United States. + +Just as each State has a separate judicial system so the Federal +Government has its separate courts, which have no power to interfere with +the proceedings or judgments of the State courts unless some principle of +the Federal Constitution or a national law is challenged. + +ESSENTIALS TO MARRIAGE.--There are three requisites to a lawful marriage +in all of the States and Territories of the United States. These are: + +1. First, that the marriage is _monogamous_. That is, the Federal courts +and the courts of the several States only recognize as a true marriage one +which in addition to being valid in other respects is a voluntary union of +one man and one woman for life to the exclusion of all others. + +2. The parties must be competent according to the _lex loci contractus_, +or the law where the contract was concluded. + +3. There must be free consent on the part of both of the contracting +parties. + +INTERSTATE COMITY.--As Wharton points out in his "Conflict of Laws," +marriage is not merely a contract but an international institution of +Christendom. + +Often complications arise out of some difference between the law of +marriage and divorce in the State where a marriage is concluded, or a +divorce effected, and the law of the State where one or both of the +parties may after the marriage or divorce acquire a domicile. The guiding +rule in such cases is that if a marriage or divorce is valid in the State +or Territory where it was concluded or effected, it is valid in all of the +States and Territories of the United States. + +PROOF OF MARRIAGE.--There are various methods of proving the existence of +a marriage. + +Where the parties live together ostensibly as husband and wife, demeaning +themselves toward each other as such, and are received into society and +treated by their friends and relations as having and being entitled to +that status, the law will, in favour of morality and decency, presume that +they have been legally married. This is the rule accepted with but slight +qualifications in all of the States. The cohabitation of the parties +coupled with the general reputation of being husband and wife is, however, +at the best _prima facie_ evidence sufficient for the purposes of a civil +suit. In criminal prosecutions for adultery or bigamy, marriage is a +necessary ingredient of the offence, and must be directly established. + +PROOF OF MARRIAGES ABROAD.--In the absence of special statutes requiring a +marriage abroad, or in another State to be proven in a particular manner, +a foreign marriage can only be established by authenticated copies of the +original records, or by proving as a matter of fact what the legal +requirements for marriage are in the other country or State, together with +proof that such requirements have been complied with. Of course, it is +always necessary to identify the parties to any record. + +CONSANGUINITY AND AFFINITY.--By an Act of Congress applicable to all the +Territories marriage within and not including the fourth degree of +consanguinity computed according to the civil law is forbidden. This is +with but slight variation the rule adopted by each of the States. + +SOURCES OF LAW.--The laws of marriage in the several States and +Territories originate from the law on that subject as it existed in +England at the time of the adoption of the Federal Constitution, as +subsequently modified by State legislation and local judicial +interpretation. + +The law of divorce as it exists in the several States is entirely of local +creation. + +In the remainder of this chapter each State and Territory of the United +States and the District of Columbia is considered separately. + + +ALABAMA. + +MARRIAGE.--The marriageable age for males begins at 17 years and for +females at 14 years of age. + +Males under twenty-one years and females under eighteen years require the +consent of their parents to lawfully conclude marriage. + +The essence of marriage which is considered as a civil contract is the +free consent of both parties. + +IMPEDIMENTS.--The son must not marry his mother or stepmother, or the +sister of his father or mother, or the widow of his uncle. The brother +must not marry his sister or half-sister, or the daughter of his brother +or half-brother, or of his sister or half-sister. The father must not +marry his daughter or granddaughter, or the widow of his son. No man shall +marry the daughter of his wife, or the daughter of the son or daughter of +his wife; and all such marriages are declared incestuous. + +FORBIDDEN MARRIAGES.--Bigamous marriages; incestuous marriages; +miscegenation--between blacks and whites; and marriage of a female +compelled by menace, force or duress. Such marriages involve a criminal +prosecution. + +CELEBRATION.--A marriage may be concluded before any regular minister of +religion, any judge of a court of record, or a justice of the peace. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Voluntary abandonment from bed and board for two years. + +4. Imprisonment in the penitentiary for two years, the sentence being for +seven years or longer. + +5. The commission of the crime against nature. + +6. Habitual drunkenness. + +7. In favour of the husband, when the wife was pregnant at the time of +marriage without his knowledge or agency. + +8. In favour of the wife, when the husband has committed actual violence +on her person attended with danger to life or health, or when from his +conduct there is reasonable apprehension of such violence. + +LIMITED DIVORCES.--Decrees of separation from bed and board are granted to +either spouse on the ground of cruelty. + +REMARRIAGE.--On February 13, 1903, an act was approved making it unlawful +for either party to marry again after a decree of divorce has been +granted, until after the expiration of the time allowed for taking an +appeal (sixty days from the date of the decree), as well as during the +pendency of an appeal, if one is taken. + + +ALASKA. + +In the Territory of Alaska marriage is deemed a civil contract. + +Marriages may be solemnized before a qualified clergyman, judge or +magistrate. + +Marriage is forbidden between persons who are related to each other +within, but not including, the fourth degree of consanguinity. These +degrees are computed according to the rules of the Roman Law. + +DIVORCE.--The following are legal causes for an absolute divorce: +Impotency existing at the time of marriage and continuing to the +commencement of the suit; adultery; conviction of felony; wilful desertion +continued for the period of two years, or more; cruel and inhuman +treatment calculated to impair health or endanger life; and gross and +habitual drunkenness. + + +ARIZONA. + +MARRIAGE.--In this newly admitted State marriage is treated as a purely +civil contract. + +A male must be at least eighteen and a female at least fourteen years of +age to lawfully contract marriage. + +The consent of the parents is required in the case of males under 21 and +females under 18. + +CONSANGUINITY AND AFFINITY.--All marriages between parents and children, +including grandparents and grandchildren of every degree; between brothers +and sisters of the half as well as the whole blood; between uncles and +nieces, aunts and nephews; and between first cousins are declared to be +incestuous and void. + +The preceding paragraph extends to illegitimate as well as legitimate +children and relations. + +NEGROES, MONGOLIANS AND INDIANS.--Marriage between whites and negroes, +between whites and Mongolians, or between whites and Indians are +absolutely void. + +PRELIMINARIES.--A marriage license is required. + +CELEBRATION.--Marriage may be concluded before any minister of the Gospel, +judge of a court of record, or justice of the peace. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. When adultery has been committed by either husband or wife. + +2. When one of the parties was physically incompetent at the time of +marriage. + +3. When the husband or wife is guilty of excesses, cruel treatment, or +outrages toward the other. + +4. In favour of the husband, when the wife shall have voluntarily left his +bed or board for the space of six months with the intention of +abandonment. + +5. In favour of the wife, when the husband shall have left her for six +months with the intention of abandonment. + +6. For habitual intemperance. + +7. Wilful neglect to provide for his wife the necessaries and comforts of +life for six months. + +8. When the husband shall have been taken in adultery with another woman. + +9. In favour of either husband or wife, when the other shall have been +convicted, after marriage, of a felony, and imprisonment in any prison. + + +ARKANSAS. + +The minimum age for marriage is 17 for males; 14 for females. + +Parental consent is required for males under 21 years and females under 18 +years of age. + +The prohibited degrees are the same as in Alabama. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Impotency. + +2. Desertion for one year. + +3. Previous existing marriage. + +4. Conviction of felony or infamous crime. + +5. Habitual drunkenness continued for one year. + +6. Cruel and barbarous treatment endangering life. + +7. Indignities which render condition and cohabitation intolerable. + +8. Adultery. + +LIMITED DIVORCE.--Limited divorces are granted for the same causes. + + +CALIFORNIA. + +MARRIAGE.--Marriage is defined as a personal relation arising out of a +civil contract, to which the consent of parties capable of making it is +necessary. Consent alone will not constitute marriage; it must be followed +by a solemnization authorized by the code. A male must be at least +eighteen and a female at least fifteen to conclude marriage. + +Parental consent is required if the male is under twenty-one years or the +female under eighteen years. Such consent is not required if the minor has +been previously lawfully married. + +IMPEDIMENTS.--Marriages between parents and children, ancestors and +descendants of every degree, and between brothers and sisters of the half +as well as the whole blood, and between uncles and nieces or aunts and +nephews are incestuous and void, whether the relationship is legitimate or +illegitimate. + +Marriages between white persons and mulattoes or between white persons and +Mongolians are prohibited. + +CELEBRATION.--Marriages may be celebrated before any justice of the +supreme court, any judge of the superior court, any justice of the peace; +or before a priest or minister of the Gospel of any sect. + +HUSBAND AND WIFE.--A married woman may acquire, hold and control property +of every description the same as a single woman. + +DIVORCE.--The following are legal causes for an absolute divorce: +Adultery; extreme cruelty; wilful desertion; wilful neglect; habitual +intemperance; and conviction by either party of a felony. + +All decrees of divorce are first granted _nisi_, and an absolute or final +decree cannot be secured until one year after the entry of the decree +_nisi_. + +Marriages may be annulled on the following grounds: That the party +petitioning for annulment was under age at the date of marriage; that the +former husband or wife of either party was living and the former marriage +undissolved at the time of the marriage in question; that one of the +parties was of unsound mind when the marriage was concluded; that the +marriage was procured by fraud; that the marriage was procured by +coercion; that at the time of the marriage one of the parties was +impotent, and such physical incapacity continues to the date of bringing +the suit for annulment. + + +COLORADO. + +MARRIAGE.--Marriage is a civil contract. The minimum marriageable age for +males and for females has not been fixed by statute. + +Parental consent is required for males under 21 years or for females under +18 years. + +IMPEDIMENTS.--All marriages between parents and children, including +grandparents and grandchildren, of every degree; between brothers and +sisters of the half as well as of the whole blood; and between uncles and +nieces and aunts and nephews are declared to be incestuous and void. This +provision applies to illegitimate as well as to legitimate children. + +The statute contains a provision that persons living in that portion of +the State acquired from Mexico are permitted to marry according to the +custom of that country. + +No person can lawfully conclude marriage within one year after divorce. + +Marriages are also forbidden between whites and negroes or mulattoes. + +A marriage license is required. + +ABSOLUTE DIVORCE: + +1. Impotency. + +2. A husband or wife living. + +3. Adultery. + +4. Desertion for one year. + +5. Cruelty. + +6. Failure to support for one year. + +7. Habitual drunkenness for one year. + +8. Conviction of felony. + + +DISTRICT OF COLUMBIA. + +MARRIAGE.--A civil contract. The minimum age for males is 16 years, for +females 14 years. + +The consent of the father or mother is necessary in marriages of males +under the age of twenty-one years, and of females under the age of +eighteen years, unless the party under age has been previously lawfully +married. + +IMPEDIMENTS.--A man shall not marry his grandmother, grandfather's wife, +wife's grandmother, father's sister, mother's sister, mother, stepmother, +wife's mother, daughter, wife's daughter, son's wife, sister, son's +daughter, daughter's daughter, son's son's wife, daughter's son's wife, +wife's son's daughter, wife's daughter's daughter, brother's daughter, +sister's daughter. A woman shall not marry her grandfather, grandmother's +husband, husband's grandfather, father's brother, mother's brother, +father, stepfather, husband's father, son, husband's son, daughter's +husband, brother, son's son, daughter's son, son's daughter's husband, +daughter's daughter's husband, husband's son's son, husband's daughter's +son, brother's son, sister's son. + +CELEBRATION.--Marriage may be solemnized before a judge of any court of +record, or any justice of the peace, or by any minister or ordained person +who has furnished proof of his official capacity to the Supreme Court of +the District of Columbia. + +Licenses to marry are issued by the clerk of the Supreme Court upon an +affidavit showing that the contracting parties are competent and that all +the requirements of law have been complied with. + +DIVORCE.--There is only one cause for a divorce, namely, adultery. A +judicial separation or divorce from bed and board may be granted because +of cruelty, unjustifiable desertion or drunkenness. + +Marriages procured by fraud or coercion, or between parties incapable by +reason of insanity or non-age of concluding the contract, can be annulled. + +Petitioners in matrimonial causes must have been bona fide residents of +the District of Columbia before instituting proceedings. + + +CONNECTICUT. + +MARRIAGE.--No age is fixed by statute at which minors are capable of +contracting marriage. + +The parents or guardians must give consent in writing to the registrar +before a license is issued if either party is a minor. + +CONSANGUINITY AND AFFINITY.--No man shall marry his mother, grandmother, +daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter; +no woman shall marry her father, grandfather, son, grandson, brother, +uncle, nephew, stepfather or stepson. All such marriages are declared to +be incestuous. + +CELEBRATION.--Any ordained clergyman of any State, any judge or justice of +the peace may solemnize marriage. No special form of celebration is +required. + +ANNULMENT.--Whenever, from any cause, any marriage is void the superior +court has jurisdiction, upon complaint, to pass a decree declaring it so. + +LEGITIMACY OF CHILDREN.--Children born before marriage whose parents +afterwards intermarry are deemed legitimate and inherit equally with other +children. + +DIVORCE.--The Superior Court has exclusive jurisdiction and may grant +absolute divorce to any man or woman for the following offences committed +by the other: Adultery, fraudulent contract, wilful desertion for three +years with total neglect of duty, seven years' absence unheard from, +habitual intemperance, intolerable cruelty, sentence to imprisonment for +life, or any infamous crime involving a violation of conjugal duty and +punishable by imprisonment in State prison. + +Parties divorced may marry again. + +There is no limited divorce recognized by the laws of Connecticut. + + +DELAWARE. + +MARRIAGE.--While no age is fixed by statute as to when males or females +may conclude marriage, in case of a marriage under the age of 18 years +for males and 16 years for females a divorce can be obtained for fraud for +want of age, in the absence of voluntary ratification after reaching that +age. + +Parental consent is required for males under 21 years and females under 18 +years. + +IMPEDIMENTS.--Degrees of consanguinity: A man may not marry his mother, +father's sister, mother's sister, sister, daughter or the daughter of his +son or daughter. A woman may not marry her father, father's brother, +mother's brother, brother, son, or the son of her son or daughter. Degrees +of affinity: A man may not marry his father's wife, son's wife, son's +daughter, wife's daughter, or the daughter of his wife's son or daughter. +A woman may not marry her mother's husband, daughter's husband, husband's +son, or the son of her husband's son or daughter. + +Marriages between whites and negroes or mulattoes are prohibited. + +CAUSES FOR DIVORCE.--They are adultery, bigamy, desertion for two years, +habitual drunkenness for two years, extreme cruelty, or conviction after +marriage of a crime, followed by continuous imprisonment for two years. + +The causes for divorce from bed and board are the same, with the addition +of one other, namely, hopeless insanity of the husband. + +A marriage may be annulled for any of the following causes, existing at +the time of the marriage: Incurable physical impotency; consanguinity; a +former husband or wife living at the time of the marriage; fraud, force or +coercion; insanity of either party; minority of either party, unless the +marriage be confirmed after reaching proper age, to wit.: wife, 16 years; +husband, 18 years. + + +FLORIDA. + +MARRIAGE.--In order to be valid marriages must be celebrated before a +qualified clergyman, judge, magistrate or notary public. + +Parties must be of sound mind, and the male at least seventeen years of +age and the female at least fourteen years of age. + +DIVORCE.--Absolute divorce dissolving a marriage is granted by the courts +for the following causes: + +1. That the parties are within the degrees prohibited by law. + +2. That the defendant is naturally impotent. + +3. That the defendant has been guilty of adultery. + +4. Extreme cruelty by defendant to complainant. + +5. Habitual indulgence by defendant in violent and ungovernable temper. + +6. Habitual intemperance of defendant. + +7. Wilful, obstinate and continued desertion by defendant for one year. + +8. That defendant has obtained a divorce in any other State or country. + +9. That either party had a husband or wife living at the time of marriage. + +Judicial separations or divorces from bed and board are not granted in +Florida. + +The petitioner called the complainant must have resided in the State two +years, except where the defendant has been guilty of the act of adultery +in the State, then any citizen of the State may obtain a divorce at any +time, and the two years' residence shall not be required of complainant. + +A suit of divorce is commenced by a bill in chancery, and the general +chancery practice of the State is followed throughout. + +A decree of divorce does not render illegitimate children born of the +marriage, except in the case of a decree obtained on the ground that one +of the parties had a previous spouse living at the time of the marriage. + + +GEORGIA. + +MARRIAGE.--The marriageable age for males begins at 17 years and for +females at 14 years. + +Females under 18 years of age require parental consent. + +To be able to contract marriage, a person must be of sound mind, of legal +age of consent, and labouring under neither of the following disabilities: + +1. Previous marriage undissolved. + +2. Nearness of relationship by blood or marriage. + +3. Impotency. + +To constitute an actual contract of marriage the parties must be +consenting thereto voluntarily, and without any fraud practiced upon +either. + +IMPEDIMENTS.--Marriages between whites and persons of African descent are +prohibited. + +A man shall not marry his stepmother, or mother-in-law, or +daughter-in-law, or stepdaughter, or granddaughter of his wife. + +A woman shall not marry her corresponding relatives. + +Marriage is forbidden between ascendants and descendants. Any marriage +within the Levitical degrees is a criminal offense. + +CELEBRATION.--Marriage is a civil contract and no form of solemnization is +prescribed by statute. + +DIVORCE.--There are two forms of divorce in Georgia, a total divorce and a +divorce from bed and board. The causes for total divorce are: + +1. Intermarriage by persons within the prohibited degrees of +relationship. + +2. Mental incapacity at time of marriage. + +3. Impotency at time of marriage. + +4. Force, menaces, duress or fraud in obtaining marriage. + +5. Pregnancy of wife at time of marriage, unknown to husband. + +6. Adultery in either party after marriage. + +7. Wilful and continued desertion for term of three years. + +8. Conviction for an offense involving moral turpitude where penalty is +two years or more in penitentiary. + +9. In cases of cruel treatment, or habitual intoxication, jury may grant +either total or partial divorce. + + +IDAHO. + +MARRIAGE.--The marriageable age for males begins at 18 years and for +females at the same age. + +IMPEDIMENTS.--Marriage is prohibited between ascendants and descendants of +every degree, and between brothers and sisters of the half as well as the +whole blood, and between uncles and nieces, or aunts and nephews, whether +the relationship is legitimate or illegitimate. + +Marriage of whites with negroes or mulattoes is also prohibited. + +A marriage license is required. + +CELEBRATION.--The law prescribes no particular form of solemnization, but +the parties must declare in the presence of the celebrant that they take +each other as husband and wife. Two witnesses must be present. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion for one year. + +4. Wilful neglect for one year. + +5. Habitual intemperance for one year. + +6. Conviction of felony. + +7. Permanent insanity. + +There is no limited form of divorce recognized. + +DEFENCES: + +1. Collusion. + +2. Condonation. + +3. Recrimination. + + +ILLINOIS. + +MARRIAGE.--To marry with parental consent, males must be at least 18 years +and females 16 years of age; without such consent, males must be at least +21 years and females 18 years. + +Marriage is a civil contract and may be celebrated before a qualified +clergyman or magistrate. + +IMPEDIMENTS.--Marriages between parents and children, including +grandparents and grandchildren of every degree, between brothers and +sisters of the half as well as of the whole blood, between uncles and +nieces, aunts and nephews, and between cousins of the first degree are +declared to be incestuous and void. This includes illegitimate as well as +legitimate children and relations. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. When either party at the time of marriage was and continues to be +naturally impotent. + +2. When he or she had a wife or husband living at the time of such +marriage. + +3. When either party has committed adultery subsequent to the marriage. + +4. When either party has wilfully deserted or absented himself or herself +from the wife or husband, without any reasonable cause, for the space of +two years. + +5. When either party has been guilty of habitual drunkenness for the space +of two years. + +6. When either party has attempted the life of the other by poison or +other means showing malice. + +7. When either party has been guilty of extreme and repeated cruelty. + +8. When either party has been convicted of felony or other infamous crime. + +Limited divorces are not granted in this State. + + +INDIAN TERRITORY. + +The laws of marriage and divorce in the Indian Territory are the same as +those of Arkansas, except in the matter of marriage impediments, and in a +few minor details. + +By an Act of Congress applicable to all Territories of the United States, +marriages within and not including the four degrees of consanguinity, +computed according to the civil law, are forbidden. + + +INDIANA. + +MARRIAGE.--Males must be at least 18 years and females 16 years of age. + +Marriage is a civil contract which can be celebrated before any qualified +clergyman, judge or magistrate. + +IMPEDIMENTS.--Marriages between ascendants and descendants, or being +persons of nearer kin than second cousin, are prohibited. + +A lawful marriage cannot be concluded between a white person and another +person possessed of one-eighth or more of negro blood. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Impotency existing at the time of the marriage. + +3. Abandonment for two years. + +4. Cruel and inhuman treatment of either party by the other. + +5. Habitual drunkenness of either party. + +6. The failure of the husband to make reasonable provision for his family +for a period of two years. + +7. The conviction, subsequent to the marriage, in any country, of either +party, of an infamous crime. + +Limited divorces are granted for husband's desertion, or failure to +support his wife. + + +IOWA. + +MARRIAGE.--A male must be at least 16 and a female 14 to conclude +marriage. + +IMPEDIMENTS.--The prohibited degrees of consanguinity and affinity are the +same as those of Illinois. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Against the husband when he has committed adultery subsequent to the +marriage. + +2. When he wilfully deserts his wife and absents himself without a +reasonable cause for the space of two years. + +3. When he is convicted of a felony after the marriage. + +4. When, after marriage, he becomes addicted to habitual drunkenness. + +5. When he is guilty of such inhuman treatment as to endanger the life of +his wife. + +6. Against the wife for the causes above specified, and also when the wife +at the time of the marriage was pregnant by another than her husband, +unless such husband have an illegitimate child or children then living, +which was unknown to the wife at the time of their marriage. + +There is no limited divorce allowed in this State. + + +KANSAS. + +MARRIAGE.--No male under 17 years or female under 15 years of age may +contract marriage without the consent of their parents and the probate +judge of the district. + +IMPEDIMENTS.--The prohibited degrees are the same as those of Iowa. + +Marriage is a civil contract which may be celebrated before a clergyman or +magistrate. + +CAUSES FOR DIVORCE.--Abandonment for one year; adultery; impotency; +extreme cruelty; fraudulent contract; habitual drunkenness; gross neglect +of duty; the conviction of a felony and imprisonment in the penitentiary +therefor subsequent to the marriage. + + +KENTUCKY. + +MARRIAGE.--A male must be at least 14 years and a female 12 years. + +Marriages below these ages are prohibited and void, but the courts having +general equity jurisdiction may declare void a marriage when the male was +under 16, or the female under 14 years of age at the time of the marriage, +and the marriage was without the consent of the father, mother, guardian, +or other person having the proper charge of his or her person, and has not +been ratified by cohabitation after that age. + +As a civil contract marriage may be celebrated either civilly or +religiously. + +IMPEDIMENTS.--Same as in Kansas, with the addition that marriages between +whites and negroes or mulattoes are prohibited. + +CAUSES FOR DIVORCE: + +1. Abandonment for one year. + +2. Adulterous cohabitation. + +3. Condemnation for felony. + +4. Husband's confirmed drunkenness. + +5. Wife's habitual drunkenness. + +6. Wife's pregnancy by another man. + +7. Adultery on part of wife. + +Plaintiff must have been a resident of the State at least one year. + + +LOUISIANA. + +MARRIAGE.--A civil contract which may be celebrated by a minister, priest, +judge or magistrate. No special form required. + +Males must be at least 14 years and females 12 years. Parental consent +necessary unless minor is twenty-one years of age. + +The prohibited degrees of consanguinity and affinity are the same as those +of all the Southern States. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Condemnation of either spouse for infamous offence. + +3. Habitual intemperance. + +4. Cruel treatment. + +5. Abandonment. + +6. Attempt to kill. + +7. Public defamation. + +8. Flight from justice. + +In case of divorce on ground of adultery, the guilty party cannot marry +his or her accomplice. + + +MAINE. + +MARRIAGE.--Minimum age not fixed by statute. Parental consent necessary +for males under 21 years and females under 18 years. + +No special form of marriage ceremony required. + +IMPEDIMENTS.--Same as those of Massachusetts. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Impotency. + +3. Extreme cruelty. + +4. Three years' utter desertion. + +5. Gross and confirmed habits of intoxication. + +6. Cruel and abusive treatment. + +7. When the husband being of sufficient ability, grossly, or wantonly and +cruelly, refuses to provide suitable maintenance for his wife. + +The procedure and effects of divorce are almost identical with those of +Massachusetts. + + +MARYLAND. + +MARRIAGE.--The minimum age for marriage is not fixed by statute, but +parental consent is required for males under 21 years and females under 16 +years. + +IMPEDIMENTS.--Marriage is prohibited between ascendants and descendants, +and collaterally between all persons related by consanguinity and affinity +as set forth in the list of impediments in the statement of the law of +Massachusetts. + +Marriage is also forbidden between whites and negroes, or persons of negro +descent. + +FORMALITIES.--Marriage licenses are required, and a ceremonial +solemnization is essential. + +Marriage may be solemnized "by any minister of the Gospel, or other +officer or person authorized by the laws of this State to solemnize +marriage." + +CAUSES FOR ABSOLUTE DIVORCE: + +1. The impotence of either party at the time of the marriage. + +2. Any cause which renders a marriage null _ab initio_. + +3. Adultery. + +4. Abandonment continued uninterruptedly for at least three years. + +5. When the woman before marriage has been guilty of illicit carnal +intercourse with another man, the same being unknown to her husband at the +time of the marriage. + +Limited divorces granted for cruelty of treatment. + +All divorces are at first granted _nisi_--provisionally--to become +absolute on application six months afterward. + + +MASSACHUSETTS. + +MARRIAGE.--The minimum age for marriage is not fixed by law, but males +under 21 years and females under 18 years must have parental consent. + +IMPEDIMENTS.--No man shall marry his mother, grandmother, daughter, +granddaughter, stepmother, sister, grandfather's wife, son's wife, +grandson's wife, wife's mother, wife's grandmother, wife's daughter, +wife's granddaughter, brother's daughter, sister's daughter, father's +sister or mother's sister. + +No woman shall marry her father, grandfather, son, grandson, stepfather, +brother, grandmother's husband, daughter's husband, granddaughter's +husband, husband's father, husband's grandfather, husband's son, husband's +grandson, brother's son, sister's son, father's brother or mother's +brother. + +In all cases in which the relationship is founded on marriage the +prohibition continues, notwithstanding the dissolution by death or +divorce of the marriage by which the affinity is created, unless the +divorce is for a cause which shows such marriage to have been originally +unlawful or void. + +FORMALITIES.--Marriage may be solemnized by a minister of the Gospel, a +duly qualified rabbi, or a justice of the peace. No special form of +ceremony is required. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Impotency. + +3. Extreme cruelty. + +4. Utter desertion continued for three consecutive years next prior to the +filing of the libel. + +5. Gross and confirmed habits of intoxication caused by the voluntary use +of intoxicating liquor, opium or other drugs. + +6. Cruel and abusive treatment. + +7. On the libel of the wife, when the husband, being of sufficient +ability, grossly, or wantonly and cruelly, refuses or neglects to provide +suitable maintenance for her. + +8. When either party has separated from the other without his or her +consent, and has united with a religious sect that professes to believe +the relation of husband and wife void or unlawful, and has continued +united with such sect or society for three years, refusing during that +term to cohabit with the other party. + +9. When either party has been sentenced to confinement at hard labour for +life or for five years or more in the State prison, or in jail, or house +of correction. + +ALIMONY.--Temporary and permanent alimony may be granted to the wife. + +FORM OF DECREE.--Decrees of divorces are in the first instance _nisi_, and +become absolute six months afterward upon application; unless the court +for sufficient cause, on the petition of any interested party, shall +otherwise order. + + +MICHIGAN. + +MARRIAGE.--The minimum age for males is 18 years and for females 16 years. +Parental consent is necessary for a female under 18 years. + +PROHIBITED DEGREES.--Same as in Massachusetts, with the exception that +marriages between first cousins are prohibited in Michigan. + +FORMALITIES.--License is required. No particular form of celebration +prescribed. + +Marriage may be solemnized by any qualified clergyman, judge or justice of +the peace. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Impotency at time of marriage. + +3. Sentence of either party to prison for three years or more. + +4. Desertion continued two years. + +5. Habitual drunkenness. + +6. In the court's discretion, a divorce may be granted to any resident +whose husband or wife has obtained a divorce in another State. + +Limited or absolute divorces may also be granted for extreme cruelty; +utter desertion for two years; and wanton failure of husband to support +his wife. + + +MINNESOTA. + +MARRIAGE.--The minimum age for males is 18 years, for females 15 years. +Parental consent is required for marriage of male under 21 years or female +under 18 years. + +The prohibited degrees of consanguinity and affinity are the same as in +Michigan. + +No particular form of marriage ceremony is prescribed, but a license is +necessary. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Impotency. + +3. Cruel and inhuman treatment. + +4. Sentence to State prison. + +5. Wilful desertion continued for three years. + +6. Habitual drunkenness. + +Limited divorces are granted to women only on the grounds of husband's +cruelty, abandonment, or such conduct on husband's part as makes +cohabitation unsafe. + + +MISSISSIPPI. + +MARRIAGE.--The minimum age for marriage is not fixed by statute. Parental +consent is required for males under 21 years and females under 18 years. + +The prohibited degrees of relationship are the same as in Massachusetts. + +Marriages of whites with negroes, mulattoes, or persons having more than +one-eighth negro blood, and marriages between Mongolians, or persons +having more than one-eighth Mongolian blood, are prohibited. + +Marriage cannot be concluded without a license duly issued. It may be +solemnized by either clergyman or magistrate. + +CAUSES FOR DIVORCE: + +1. Relationship within prohibited degrees. + +2. Impotency. + +3. Adultery. + +4. Sentence to penitentiary. + +5. Wilful desertion continued two years. + +6. Habitual drunkenness. + +7. Pregnancy of the wife at marriage, by another man, unknown to husband. + +8. Habitual cruelty. + +9. If either party had another husband or wife at time of second marriage. + +10. Insanity. + +11. Habitual use of opium, morphine or other drug. + +Limited divorces are not granted. + + +MISSOURI. + +MARRIAGE.--The minimum age at which marriage can be concluded is 15 years +for males and 12 years for females. + +Parental consent is necessary for males under 21 years or females under 18 +years. + +PROHIBITED DEGREES.--Marriage is forbidden between ascendants and +descendants, between brothers and sisters of the half as well as of the +whole blood, and between uncles and nieces, and aunts and nephews. This +applies to legitimate or illegitimate kindred. + +Marriage is also prohibited between whites and negroes. + +FORMALITIES.--No particular form of marriage is prescribed, but a license +is necessary. + +CAUSES FOR DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Absence without reasonable cause for one year. + +4. Former marriage undissolved. + +5. Conviction of felony or infamous crime. + +6. Habitual drunkenness. + +7. Cruel treatment. + +8. Intolerable indignities. + +9. Vagrancy of husband. + +10. Conviction prior to marriage by either party of felony or infamous +crime, unknown to the other spouse. + +11. Pregnancy at time of marriage of wife by another man. + +Upon granting a divorce the court will make such direction concerning +custody of children, and maintenance of wife, as justice may require. + + +MONTANA. + +MARRIAGE.--Males cannot marry under 18 years and females under 16 years. +If either party is a minor parental consent is required. + +IMPEDIMENTS.--Marriages between ancestors and descendants of every degree, +between brothers and sisters of whole or half blood, between uncles and +nieces, or aunts and nephews, legitimate or illegitimate, are forbidden. + +FORMALITIES.--Outside of license, no particular formalities are +prescribed. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion. + +4. Wilful neglect. + +5. Habitual intemperance. + +6. Conviction of felony. + + +NEBRASKA. + +MARRIAGE.--Males must be at least 18 and females 16 years of age to +conclude marriage. Parental consent is required for males under 21 years +and females under 18 years. + +IMPEDIMENTS.--Marriages between ascendants and descendants, between +brothers and sisters of whole or half blood, between uncles and nieces, +aunts and nephews, and first cousins of the whole blood, are prohibited. + +CELEBRATION.--A marriage license is necessary, but no particular form of +celebration is prescribed. + +GROUNDS FOR DIVORCE: + +1. Adultery. + +2. Impotency at time of marriage. + +3. Sentence to three years' imprisonment or more. + +4. Abandonment for two years. + +5. Habitual drunkenness. + +6. Extreme cruelty. + +7. Utter desertion. + +8. When husband unreasonably and cruelly refuses to provide maintenance +for wife. + +Limited divorce may be obtained on the three last grounds. + + +NEVADA. + +MARRIAGE.--Males cannot marry under 18 years or females under 16 years. +Parental consent is required for males under 21 years and females under 18 +years. + +PROHIBITED DEGREES.--Marriages between persons nearer of kin than second +cousins of the whole blood or cousins of the half blood. + +FORMALITIES.--No particular form prescribed, but it is unlawful for +clergyman or magistrate to solemnize marriage without having a license +presented. + +CAUSES FOR DIVORCE: + +1. Impotency at time of marriage. + +2. Adultery. + +3. Wilful desertion for one year. + +4. Conviction of felony or infamous crime. + +5. Habitual drunkenness. + +6. Extreme cruelty. + +7. Neglect of husband to provide necessaries of life. + +Upon granting a decree of divorce the court shall make such other +direction regarding disposition of property and custody of children as +justice may demand. + + +NEW HAMPSHIRE. + +MARRIAGE.--A male cannot marry under 14 years or a female under 13 years. +There is no statutory requirement for parental consent. + +PROHIBITED DEGREE.--Same as in Massachusetts. Common law marriage is +recognized. + +FORMALITIES.--License is necessary, but no particular form of ceremony is +required. + +CAUSES FOR DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Extreme cruelty. + +4. Conviction of crime punishable in this State for more than one year. + +5. Treatment detrimental to health. + +6. Treatment to endanger reason. + +7. Three years' absence. + +8. Habitual drunkenness. + +9. When either party joins a sect opposed to cohabitation between husband +and wife. + +10. Desertion for three years. + +Upon granting a decree of divorce the court will make such order as to +maintenance of wife and custody of children as the facts shall call for. + + +NEW JERSEY. + +MARRIAGE.--No minimum age is fixed for marriage. Males under 21 years and +females under 18 years must have consent of parents. + +IMPEDIMENTS.--A man shall not marry any of his ancestors or descendants, +or his sister, or the daughter of his brother or sister, or the sister of +his father or mother, whether such collateral kindred be of the whole or +half blood. A woman shall not marry any of her ancestors or descendants, +or her brother, or the son of her brother or sister, or the brother of her +father or mother, whether such collateral kindred be of the whole or half +blood. + +FORMALITIES.--A marriage license is necessary only for non-residents of +State. + +No special form of ceremony is prescribed, except that when solemnized by +a religious society it must be according to the rules and usages of such +society. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Wilful, continued and obstinate desertion for the term of two years. + +3. When either party was, at the time of marriage, incapable of consenting +thereto and the marriage has not been subsequently ratified. + +LIMITED DIVORCES. Granted for + +1. Desertion. + +2. Adultery. + +3. Extreme cruelty. + +In every case, except for extreme cruelty, the party asking for a limited +divorce must allege conscientious scruples against applying for an +absolute divorce. + +JURISDICTION.--The Court of Chancery has exclusive jurisdiction in divorce +matters. + +ANNULMENT.--A marriage may be annulled because: + +1. One of the parties had another wife or husband living at the time of +marriage. + +2. When the parties are within the degrees prohibited by law. + + +NEW MEXICO. + +MARRIAGE.--A male must be at least 18 years and a female 15 years to +conclude marriage. Parental consent is required for males under 21 years +and females under 18 years. + +PROHIBITED DEGREES.--Marriage between ascendants and descendants, between +brothers and sisters, of whole or half blood, between uncles and aunts, +and nieces and nephews are void. + +FORMALITIES.--License is necessary. No special form of ceremony required. +The marriage may be solemnized by an ordained clergyman, civil magistrate +or religious society. + +GROUNDS FOR DIVORCE: + +1. Adultery. + +2. Cruel and inhuman treatment. + +3. Abandonment. + +4. Habitual drunkenness. + +5. Neglect of husband to support his wife. + +6. Impotency. + +7. Pregnancy by wife, at the time of marriage, by another than her +husband, without husband's knowledge. + +8. Conviction and imprisonment for a felony. + + +NEW YORK. + +MARRIAGE.--Marriage is a civil contract, to which the consent of the +parties capable in law of making the contract is essential. Minors become +capable of contracting marriage upon completing their eighteenth year of +age. A marriage is void from the time its nullity is declared by a court +of competent jurisdiction if either party thereto was under the age of +eighteen at the time it was concluded. + +IMPEDIMENTS.--Marriage between an ancestor and a descendant, between a +brother and sister, of either the whole or half blood, between an uncle +and niece, or an aunt and nephew, whether the relatives are legitimate or +illegitimate, is incestuous and void. + +The defeated party in an action of divorce against whom a decree has been +granted on the grounds of adultery is prohibited from marrying again +during the lifetime of the successful party. However, the court which +granted the decree has power so to modify it as to permit such marriage +after five years. + +COMMON LAW MARRIAGE.--By an act which became effective April 12, 1901, the +law of New York has required a contract of marriage to be signed by the +parties and witnesses acknowledged and recorded. Since that time a "common +law" marriage, or one established simply by cohabitation and reputation, +has not been recognized. + +MARRIAGE LICENSES.--The legislature of New York, at its session in 1907, +passed an act providing for marriage licenses, which became effective +January 1, 1908. + +Written consent of both parents or guardian must be given to the town or +city clerk before he may issue license. If residents of the State, they +must personally appear and execute the consent; if non-residents, it must +be executed, acknowledged and certified. + +WHO MAY SOLEMNIZE MARRIAGE.--A clergyman or minister of any religion, or +the leader, or the two assistant leaders, of the Society for Ethical +Culture in New York City, justices and judges of courts of record, judges +of the county courts, justices of the peace, mayors, recorders and +aldermen of cities. + +MARRIAGE BY CONTRACT.--A lawful marriage may be concluded by a written +contract of marriage signed by both parties, and at least two witnesses +who shall subscribe the same, stating the place of residence of each of +the parties and witnesses and the date and place of marriage, and +acknowledged by the parties and witnesses in the manner required for the +acknowledgment of a conveyance of real estate to entitle the same to be +recorded. Such contract shall be filed, within six months after its +execution, in the office of the clerk of the town or city in which the +marriage was solemnized. + +JEWS AND QUAKERS.--Marriages among Quakers or Jews may be solemnized in +the manner and according to the regulations of their respective societies. + +ENCOURAGEMENT OF MARRIAGE.--No marriage shall be deemed or adjudged +invalid, nor shall the validity thereof be in any way affected on account +of any want of authority in any person solemnizing the same, if +consummated with a full belief on the part of the persons so married, or +either of them, that they were lawfully joined in marriage. + +DIVORCE.--The only cause for absolute divorce is the adultery of either +party. + +JURISDICTION.--The Supreme Court has exclusive original jurisdiction of +actions for divorce. + +In an action for absolute divorce, both parties must have been residents +of the State when the offense was committed; or must have been married +within the State; or the plaintiff must have been a resident when the +offense was committed, and also when the action was commenced; or when the +offense was committed within the State, the plaintiff must have been a +resident when the action was commenced. + +LIMITED DIVORCE.--A limited divorce, which is equivalent to a judicial +separation in England, may be granted because of: + +1. The cruel and inhuman treatment of the plaintiff by the defendant. + +2. Such conduct, on the part of the defendant toward the plaintiff, as may +render it unsafe and improper for the latter to cohabit with the former. + +3. The abandonment of the plaintiff by the defendant. + +4. When the wife is plaintiff, the neglect or refusal of the defendant to +provide for her. + +In actions for limited divorce both parties must have been residents of +the State when the action was commenced; or when the marriage took place +within the State, the plaintiff must have been a resident thereof, when +the action was commenced; or when the marriage took place out of the +State, the parties must have become residents thereof, and have continued +to be such at least one year, and the plaintiff must have been a resident +when the action was commenced. + +ANNULMENT OF MARRIAGE.--An action to procure a decree declaring the +marriage contract void and annulling the marriage may be maintained on any +of the following grounds: + +1. When either party was under the age of legal consent. + +2. When either party was an idiot or lunatic. + +3. When either party was physically incapable of entering into the +marriage state, and such incapacity continues, and is incurable. + +4. When the consent of either party was obtained by force, duress or +fraud. + +5. When either party had a former wife or husband living, the former +marriage being in force. + +By a woman plaintiff on the following grounds: + +1. Where the plaintiff had not attained the age of 16 years at the time of +marriage. + +2. When the marriage took place without the consent of the parent, +guardian, or other person having legal charge of her. + +3. Where it was not followed by consummation or cohabitation, and was not +ratified after attaining the age of 16 years. + +DEFENCES IN DIVORCE ACTIONS.--Divorce will not be granted for the cause of +adultery: + +1. When the offense alleged has been condoned or forgiven by plaintiff. + +2. When the adultery was committed by the procurement, connivance, privity +or consent of plaintiff. + +3. If five years have elapsed since the plaintiff discovered the +defendant's guilt. + +4. If there is existing any decree of any competent of any State or +Territory of the United States granting an absolute divorce to the +defendant and against the plaintiff. + +5. If it appears that the plaintiff has also committed adultery. + +CUSTODY OF CHILDREN.--During the pendency of an action for divorce, or on +final judgment, the court may give such directions as justice requires for +the custody, care and education of any of the children of the marriage. + +ALIMONY.--The court has power during the pendency of an action for divorce +to grant a woman plaintiff or defendant such allowance out of her +husband's estate as may be necessary and just for her support, and also +that she may be able to procure counsel to prosecute or defend the suit in +her behalf. + +If the wife becomes successful in the action the court may in its +discretion award her permanent alimony. The amount of alimony in all +cases depends upon the wife's needs, her social status, and her husband's +ability to make provision for her. + +FORM OF DIVORCE DECREE.--Decrees are first entered _nisi_, or +provisionally, and cannot become absolute until the expiration of three +months after the entry of the decree _nisi_. + + +NORTH CAROLINA. + +MARRIAGE.--A male becomes capable of marrying at 16 years and a female at +14 years, but both if under 18 years require parental consent. + +IMPEDIMENTS.--Marriage is prohibited between persons nearer of kin than +first cousins of the whole or half blood. + +So is marriage between whites and negroes or Indians, or between whites +and persons of negro or Indian descent to the third generation, inclusive. + +CAUSES FOR DIVORCE: + +1. Husband's fornication or adultery. + +2. Wife's adultery. + +3. If either party at time of marriage was and still is naturally +impotent. + +4. Wife's pregnancy at time of marriage by another man, without husband's +knowledge. + +LIMITED DIVORCE.--A limited divorce may be obtained for the following +causes: + +1. If either party abandons his or her family. + +2. If either party maliciously turns the other out of doors. + +3. Cruel or barbarous treatment by one party endangering life of the +other. + + +NORTH DAKOTA. + +MARRIAGE.--No male can conclude marriage under 18 years of age or female +under 15 years of age. + +IMPEDIMENTS.--Marriage is prohibited between persons nearer of kin than +second cousins of the whole blood. + +FORMALITIES.--License necessary. No particular form of ceremony is +required, but the parties must express consent in presence of person +solemnizing the marriage, and of at least one witness. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion for one year. + +4. Wilful neglect for one year. + +5. Habitual intemperance for one year. + +6. Conviction of felony. + +Plaintiff must have been in good faith, a resident of the State for six +months before filing petition, and either a citizen of the United States +or a person who has declared his or her intention to become such. + + +OHIO. + +MARRIAGE.--To marry, a male must be at least 18 years and a female 16 +years of age. Parental consent is required for males under 21 years and +females under 18 years. + +IMPEDIMENTS.--Marriage between persons nearer of kin than second cousins +is forbidden. + +FORMALITIES.--License is necessary unless banns be published in presence +of congregation on two different days of public worship. No particular +form of ceremony is required. The marriage may be solemnized by any +ordained minister licensed by the State to perform marriages, or a justice +of the peace in his county. + +CAUSES FOR DIVORCE: + +1. Upon proof that either party was already married at time of the +marriage sought to be dissolved. + +2. Wilful absence of one party from the other for three years. + +3. Adultery. + +4. Impotency. + +5. Extreme cruelty. + +6. Fraudulent contract. + +7. Any gross neglect of duty. + +8. Habitual drunkenness for three years. + +9. Imprisonment in a penitentiary. + +10. Procurement of a divorce without the State. + +ACTIONS FOR SEPARATE MAINTENANCE.--A wife may sue for separate maintenance +because of: + +1. Adultery. + +2. Gross neglect of duty. + +3. Abandonment without good cause. + +4. Habitual drunkenness. + +5. Sentence to imprisonment in a penitentiary. + +EFFECTS OF DIVORCE.--If the divorce is granted to the wife, because of the +aggression of the husband, she shall be allowed such alimony out of her +husband's property as the court deems reasonable. If the husband secures a +divorce, on the aggression of the wife, he shall be allowed such alimony +out of the wife's property as the court deems reasonable. + +The granting of a divorce does not affect the legitimacy of the children +of the parties. + +Upon granting a divorce, the court shall make such order for the care and +support of the children as is just and proper. + + +OKLAHOMA. + +MARRIAGE.--The minimum age for marriage and the rule as to parental +consent are the same as that stated for Nebraska. + +IMPEDIMENTS.--Same as in Nebraska. + +FORMALITIES.--Same as in Nebraska. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Former husband or wife living. + +3. Abandonment for one year. + +4. Impotency. + +5. Pregnancy by wife at time of marriage by another man. + +6. Extreme cruelty. + +7. Fraudulent contract. + +8. Habitual drunkenness. + +9. Gross neglect of duty. + +10. Conviction of felony. + +ACTION FOR SEPARATE MAINTENANCE.--This action may be maintained for any of +the causes sufficient for divorce. + + +OREGON. + +MARRIAGE.--A male is capable of marrying at 18 years, a female at 15 +years. Parental consent is required for males under 21 years and females +under 18 years. + +IMPEDIMENTS.--Marriages between first cousins of the whole or half blood +or relatives nearer of kin are prohibited. + +Marriages between whites and negroes or Mongolians, or persons of +one-fourth or more negro or Mongolian blood. + +CAUSES FOR DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Conviction of felony. + +4. Habitual drunkenness. + +5. Wilful desertion for one year. + +6. Cruel and inhuman treatment, or personal indignities rendering life +burdensome. + + +PENNSYLVANIA. + +MARRIAGE.--The minimum age for marriage is not fixed by statute. Both +males and females require parental consent to marry under 21 years of +age. + +IMPEDIMENTS.--A man may not marry his mother, father's sister, mother's +sister, sister, daughter, granddaughter, father's wife, son's wife, son's +daughter, wife's daughter, daughter of wife's son or daughter. + +A woman may not marry her father, father's brother, mother's brother, +brother, son, grandson, mother's husband, daughter's husband, husband's +son, son of her husband's son or daughter. + +By the act effective January 1, 1902, marriage is prohibited between +persons who are of kin of the degree of first cousins. + +FORMALITIES.--License is necessary unless there is a publication of banns. + +The parties may solemnize their own marriage by obtaining from the clerk +of the orphans' court a formal declaration of their right to do so instead +of a license. + +Marriage may be solemnized by any minister of the Gospel, justice of the +peace, or alderman, or by the parties themselves. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Natural impotence or incapacity of procreation at time of marriage, and +still continuing. + +2. Former marriage still subsisting. + +3. Adultery. + +4. Wilful and malicious desertion for the space of two years. + +5. Husband's cruel and barbarous treatment endangering wife's life. + +6. Husband having offered such indignities to wife as to render her +condition intolerable and life burdensome. + +7. Relationship within prohibited degrees. + +8. Marriage procured by fraud, force or coercion. + +9. Wife's cruel and barbarous treatment of husband. + +10. That either of the parties has been convicted as principal or +accessory of the crime of arson, burglary, embezzlement, forgery, +kidnapping, larceny, murder in first or second degree, voluntary +manslaughter, perjury, rape, robbery, sodomy, buggery, treason, or +misprison of treason, and has been sentenced to prison for more than two +years. + +11. That either husband or wife is a hopeless lunatic or _non compos +mentis_. + +Confinement for ten years or more in an asylum for the insane is +conclusive proof of hopeless insanity. + +LIMITED DIVORCE.--This may be granted for: + +1. Husband turning wife out of doors. + +2. Husband's cruel and barbarous treatment of wife. + +3. Husband offering such indignities to his wife as to render her +condition intolerable and force her to leave his house. + +Upon hearing any cause for divorce the court may decree either a divorce +or a decree of nullity. + + +RHODE ISLAND. + +MARRIAGE.--No age fixed for marriage. Parental consent required for all +minors. + +IMPEDIMENTS.--Same as in Massachusetts. However, Jews are permitted to +marry within degrees permitted by their religion. + +CAUSES FOR DIVORCE: + +1. In case marriage was originally void or voidable by law. + +2. When either party is for crime deemed civilly dead. + +3. When party may be presumed dead. + +4. Impotency. + +5. Adultery. + +6. Extreme cruelty. + +7. Wilful desertion. + +8. Continued drunkenness. + +9. Neglect or refusal of husband, being able, to support wife. + +10. Any other gross misbehaviour and wickedness in either of the parties +repugnant to and in violation of the marriage covenant. + + +SOUTH CAROLINA. + +MARRIAGE.--No age is fixed by law for marriage of minors, nor when +parental consent is necessary. + +IMPEDIMENTS.--Same as to prohibited degrees of kinship as in +Massachusetts. + +Marriages of whites with Indians, negroes, mulattoes, mestizos, or +half-breeds, are forbidden. + +FORMALITIES.--No license is required, and no particular form of ceremony +necessary. + +DIVORCE.--By a provision of the State constitution divorces from the bonds +of matrimony are not allowed in South Carolina. + +Marriages may, however, be annulled for want of consent of either party, +or for any other cause showing that at the time of the supposed marriage +it was not a contract, provided such contract has not been consummated by +cohabitation. + + +SOUTH DAKOTA. + +MARRIAGE.--Minimum age at which males can marry is 18 years, females 15 +years. Parental consent is required for males under 21 years and females +under 18 years. + +PROHIBITED DEGREES.--Same as in Massachusetts. + +Common law marriages are recognized. + +Marriage may be solemnized by minister, priest, judge of supreme court or +probate court, justice of the peace, mayor, or by the parties themselves +making a joint declaration. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion for one year. + +4. Wilful neglect for one year. + +5. Habitual intemperance for one year. + +6. Conviction of felony. + +Limited divorces are not granted. + + +TENNESSEE. + +MARRIAGE.--The lowest age at which males can marry is 16 years, females 14 +years. Parental consent is necessary for males under 21 years and females +under 18 years. + +CONSANGUINITY AND AFFINITY.--The prohibited degrees are the same as in +Massachusetts. + +Marriages of whites with negroes, mulattoes or persons of mixed blood are +forbidden. A person declared guilty of adultery is forbidden his or her +accomplice during the lifetime of the former spouse. + +FORMALITIES.--License necessary. Marriage ceremony may be religious or +civil in form. + +CAUSES FOR DIVORCE: + +1. Natural impotence and incapacity of procreation at time of marriage, +and still existing. + +2. A previous marriage still subsisting. + +3. Adultery. + +4. Desertion for two years. + +5. Conviction of such crime as renders party infamous. + +6. Conviction of felony. + +7. Malicious attempt on life of other spouse. + +8. Wife's refusal to move with husband into this State, and wilful absence +from him for two years. + +9. Wife's pregnancy at time of marriage by another person, without +husband's knowledge. + +10. Habitual drunkenness. + +LIMITED DIVORCES.--Such relief is granted to a wife only, for the +following causes: + +1. Cruel and inhuman treatment, rendering it unsafe and improper for +continued cohabitation. + +2. Such indignities offered to wife as render condition intolerable, and +force her to leave husband. + +3. Husband's abandonment of wife, or his turning her out of doors, +refusing or neglecting to provide for her. + + +TEXAS. + +MARRIAGE.--Earliest age for males to marry is 16 years; females 14 years. +Parental consent required for males under 21 years and females under 18 +years. + +IMPEDIMENTS.--The prohibited degrees of kinship are the same as in New +York. + +Marriage is forbidden between persons of European blood or their +descendants and Africans or the descendants of Africans. + +FORMALITIES.--License required. Marriage may be solemnized by religious or +civil ceremony. + +CAUSES FOR DIVORCE.-- + +1. Excesses; cruel treatment. + +2. Wife taken in adultery. + +3. Wife's abandonment of husband for three years. + +4. Husband's desertion with intention of abandonment for three years. + +5. When husband abandons wife and lives in adultery. + +6. Conviction of felony and imprisonment therefor in State prison. + +There is no such thing as a limited divorce in this State. + + +UTAH. + +MARRIAGE.--Males may marry at 14 years and females at 12 years, but if the +former are under 21 years and the latter under 18 years parental consent +is required. + +PROHIBITED DEGREES.--Marriage between ascendants and descendants, between +brothers and sisters of the whole or half blood, between uncles and +nieces, or aunts and nephews, or between any persons related to each other +within the fourth degree of consanguinity is prohibited. + +Marriage is also forbidden between a white person and a negro or +Mongolian. + +FORMALITIES.--After a license has been procured the marriage may be +solemnized by a minister or priest, judge of the Supreme or District +Court, mayor of a city, or justice of the peace. + +CAUSES FOR DIVORCE.-- + +1. Impotency. + +2. Adultery. + +3. Wilful desertion for more than one year. + +4. Wilful neglect of husband to provide for wife. + +5. Habitual drunkenness. + +6. Conviction for felony. + +7. Cruel treatment. + +8. Permanent insanity of defendant. + +To maintain an action for the last cause the plaintiff must prove that +defendant has been adjudged insane at least five years before the +beginning of action and that the insanity is incurable. + + +VERMONT. + +MARRIAGE.--No minimum age is fixed by statute for marriage of minors, but +males under 21 years and females under 18 years require consent of +parents. + +IMPEDIMENTS.--The prohibited degrees of consanguinity and affinity are the +same as in Massachusetts. + +FORMALITIES.--License, called in Vermont a "certificate," is necessary. + +No special form of marriage ceremony is prescribed, except that if +solemnized by Quakers the ceremony must be in the form used in Quaker +societies. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. When either party is sentenced to confinement in the State prison for +life, or for three years or more, and is actually confined at the time. + +3. Intolerable severity of either party. + +4. Wilful desertion for three consecutive years. + +5. Absence of either party for seven years without being heard of during +that time. + +6. Husband's cruel refusal or neglect to provide suitable maintenance for +wife. + +LIMITED DIVORCES.--A limited divorce, which leaves the marriage +undissolved, may be granted for any of the causes for which an absolute +divorce may be granted. + + +VIRGINIA. + +MARRIAGE.--A male is deemed capable of marriage at 14 years and a female +at 12 years, but for all minors under 21 years parental consent is +required. + +PROHIBITIONS.--Marriage between ascendants and descendants, and between +persons nearer of kin than the fourth degree of consanguinity, is +prohibited. Marriage between white and colored persons is forbidden. + +FORMALITIES.--No marriage or attempted marriage, if it took place in this +State, can be held valid here unless shown to have been under a license +and solemnized according to statute. However, no particular marriage +ceremony is prescribed, except that, if solemnized by a religious society, +it must be in the manner practiced by such society. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Incurable impotency. + +3. Sentence to penitentiary. + +4. Conviction of one party (without the knowledge of the other) of an +infamous offence before marriage. + +5. Flight from justice. + +6. Desertion continued for three years. + +7. Wife's pregnancy at time of marriage by another man, unknown to +husband. + +8. Upon proof that prior to marriage wife had been, unknown to husband, a +prostitute. + +LIMITED DIVORCE.--May be granted for: + +1. Cruelty. + +2. Reasonable apprehension of bodily hurt. + +3. Abandonment. + +4. Desertion. + + +WASHINGTON. + +MARRIAGE.--Marriage is a civil contract which may be entered into by males +of the age of 21 years and females of the age of 18 years who are +otherwise capable. + +PROHIBITED DEGREES.--Marriage is prohibited between persons nearer of kin +than second cousins, whether of the whole or half blood, computing by the +rules of the civil law. + +CELEBRATION.--No particular form of ceremony prescribed, but license is +necessary. + +CAUSES FOR DIVORCE.-- + +1. Consent to marriage obtained by force and fraud and no subsequent +voluntary cohabitation. + +2. Adultery. + +3. Impotency. + +4. Abandonment for one year. + +5. Cruel treatment. + +6. Personal iniquities. + +7. Habitual drunkenness. + +8. Neglect to provide for wife or family. + +9. Present imprisonment in penitentiary. + +10. Any other cause in the court's discretion if it appears parties should +not continue the marriage relation. + +11. Incurable chronic mania or dementia existing for ten years or more. + + +WEST VIRGINIA. + +MARRIAGE.--Males may marry at 18 years and females at 16 years, but +parental consent is required for all persons under 21 years of age. + +PROHIBITED DEGREES.--Same as in the State of Washington. + +FORMALITIES.--As to issuance of license and celebration, same as in +Washington. + +If a man, having had a child by a woman, afterward intermarries with her, +such child is deemed legitimate. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Incurable impotency. + +3. Sentence to penitentiary. + +4. Conviction before marriage of an infamous offence, unknown to other +spouse. + +5. Desertion for three years. + +6. Pregnancy of wife at time of marriage by another man, unknown to +husband. + +7. Proof that wife, unknown to husband, had been before marriage a +notorious prostitute. Proof that husband, unknown to wife, had been before +marriage a licentious person. + +LIMITED DIVORCES.--Granted for: + +1. Cruel treatment. + +2. Reasonable apprehension of bodily hurt. + +3. Abandonment. + +4. Desertion. + +5. Habitual drunkenness. + + +WISCONSIN. + +MARRIAGE.--Males may marry at 18 years and females at 15 years, but +parental consent is required for males under 21 years and females under 18 +years. + +PROHIBITED DEGREES.--Marriage is forbidden between persons nearer of kin +than first cousins, of the whole or half blood, computing by the rules of +the civil law. + +FORMALITIES.--Since April 29, 1899, a marriage license is required, but no +particular form of celebration is necessary. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Impotency. + +3. Sentence to imprisonment for three years or more. + +4. Wilful desertion for one year. + +5. Cruel and inhuman treatment. + +6. Wife's intoxication. + +7. Husband's habitual drunkenness for one year. + +8. Voluntary separation of parties continued for five years. + +9. Extreme cruelty. + +10. Husband's refusal or wilful neglect to provide for wife. + +11. Husband's conduct such as to render it unsafe and improper for wife to +live with him. + +A limited divorce may be granted for all these causes except the first +three. + + +WYOMING. + +MARRIAGE.--A male may marry at 18 years and a female at 16 years. Parental +consent is required if either party is a minor. + +PROHIBITED DEGREES.--Marriage between ascendants and descendants, between +brothers and sisters of the whole or half blood, between uncle and niece, +or aunt and nephew, and between first cousins, is forbidden. This applies +to legitimate or illegitimate kindred, but only to persons related by +blood. + +FORMALITIES.--A license issued by county clerk is necessary. + +Parties must solemnly declare in the presence of a minister or magistrate, +and two witnesses, that they take each other as husband and wife. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Physical incompetence at time of marriage continued to time of divorce. + +3. Conviction and sentence for felony. + +4. Wilful desertion for one year. + +5. Habitual drunkenness. + +6. Extreme cruelty. + +7. Neglect of husband for one year to provide common necessaries of life. + +8. Such indignities as render conditions intolerable. + +9. Vagrancy of husband. + +10. Conviction before marriage (unknown to other spouse) for felony or +infamous crime. + +11. Pregnancy of wife by another man at time of marriage, unknown to +husband. + +Limited divorces are not granted in this State. + + + + +CHAPTER XXVI. + +DOMINION OF CANADA AND NEWFOUNDLAND. + + +The Dominion of Canada now consists of the Provinces of Alberta, British +Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward +Island, Quebec and Saskatchewan, together with certain territories not as +yet included in any Province. + +The Canadian Constitution, similar in principle to that of Great Britain, +is embodied in the British North America Act of 1867 (30 Vict. c. 3). + +This act, which was passed by the Imperial Parliament, created the +federation now styled the Dominion of Canada, and assigned to the Dominion +Parliament power "to make laws for the peace, order and good government of +Canada, in relation to all matters not coming within the classes of +subjects by this act assigned exclusively to the Legislatures of the +Provinces." + +One great distinction between the Canadian Constitution and the +Constitution of the United States of America is that powers not +specifically granted to the Provinces are reserved to the Dominion +Government, whereas under the American Constitution powers not +specifically granted to the Federal Government are reserved to the States, +or to the people. + +Marriage and divorce are specifically set forth in the Canadian +Constitution as a branch of legislation exclusively within the control of +the Dominion Parliament, but although forty-three years have passed since +the act became operative the Dominion Parliament has so far enacted only +two statutes concerning the subject. The first act (May 17, 1882) +legalized the marriage of a man with his deceased wife's sister, and the +second (May 16, 1890) legalized the marriage of a man with his deceased +wife's sister's daughter. + +The Dominion of Canada shares with Ireland the distinction of having no +law permitting a judicial decree of divorce. + +However, by one clause of the British Act of North America there was +preserved in full force the laws and judicial system of the several +Provinces until the laws should be repealed or the courts abolished by +competent authority. + +Consequently, four of the nine Provinces, namely, British Columbia, New +Brunswick, Nova Scotia and Prince Edward Island, have their individual +laws of divorce and divorce courts. + +Of the eight millions of people living in Canada six millions have no +possibility of divorce except by a special act of the Dominion Parliament. + +The Dominion Parliament has power to grant an absolute divorce for any +cause, but it never has done so except for adultery. + +Divorce petitions or bills are, as a matter of practice, introduced first +in the Senate, where there is a standing committee to deal with them. + +For the Provinces of Ontario, Quebec and Manitoba, and the Northwest and +other Territories, the Dominion Parliament is the only authority which can +grant an absolute divorce. + +MARRIAGE.--Legislation concerning the formal requirements and +solemnizations of marriage is still within the exclusive authority of the +legislatures of the Provinces. + +As to the impediments which arise from blood and marriage, the law +throughout the Dominion of Canada is in agreement with the law of England, +which is based upon the 18th chapter of the Book of Leviticus. + +It is expressly provided by the act, 28 and 29 Vict. c. 64, that every law +made or to be made by the legislature of any British possession, "for the +purpose of establishing the validity of any marriage or marriages +contracted in such possession, shall have and be deemed to have had from +the date of the making of such law the same force and effect for the +purpose aforesaid within all parts of Her Majesty's dominions as such law +may have had or may hereafter have within the possession for which the +same was made. Provided that nothing in this law contained shall give any +effect or validity to any marriage unless at the time of such marriage +both of the parties thereto were, according to the law of England, +competent to contract the same." + +VALIDITY OF FOREIGN DIVORCES.--When the validity of a foreign divorce is +considered by the Canadian courts the judges apply the strict rule of +refusing to recognize a decree of divorce pronounced by a court within +whose jurisdiction the parties had not a bona fide domicile. + +The courts also hold that a marriage celebrated in Canada between persons +domiciled there is in its nature indissoluble except by death or by the +act or decree of the Dominion Parliament, or a Canadian court of competent +jurisdiction, and that no judgment of a foreign court dissolving such a +marriage will be recognized in Canada. + +This rule invites, and has received, such severe criticism for its +injustice that it cannot long be maintained by such tribunals of learning +and integrity as the courts of Canada. + +Suppose a Canadian man and woman domiciled in Toronto should intermarry +there, and afterwards acquire a joint domicile of twenty years' duration +in New York City. If, after that period, the wife should obtain in the +courts of the State of New York a divorce on the grounds of her husband's +adultery, and should remarry another man, upon her return to Canada it +would be manifestly unjust to treat the divorce and second marriage as +null and void. + +Some of these days the Canadian courts will be called upon to consider the +legal effect of a divorce obtained upon statutory grounds in England in a +suit between two persons who were married in Canada and at the time of +such marriage were domiciled in that country. Perhaps then the rule we +have mentioned and criticised will be relaxed. + +The Island and Colony of Newfoundland, although a British colony in North +America, is not yet incorporated as a part of the Dominion of Canada. It +has its own governor, legislature and judicial system entirely separate +from the Dominion and its own marriage and divorce law. + +The jurisdiction of Newfoundland extends not only over the island by that +name, but also over the whole of the Atlantic coast of Labrador. + +AGE REQUIREMENTS.--The legal age for marriage in British Columbia, +Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, the +Northwest Territories and Newfoundland is fourteen for a male and twelve +for a female. In Ontario both males and females must be at least fourteen +years of age. + +PARENTAL CONSENT.--In British Columbia, Manitoba, Nova Scotia, Prince +Edward Island, Quebec, the Northwest Territories and Newfoundland parental +consent is necessary for both males and females under twenty-one years of +age. + +In New Brunswick and Ontario parental consent is required for males and +females under eighteen years of age. + +In British Columbia an appeal may be taken to the courts if consent is +refused by parent or guardian. + +CELEBRATION.--Marriages may be solemnized by duly qualified clergymen of +every religious denomination, or by a judge, justice of the peace or other +magistrate. + +Unless banns are published a license must be produced for each marriage, +and can only be obtained from the proper local authority upon affidavit or +declaration of one of the parties to the intended marriage, showing that +no legal impediment exists and that the proper consents have been +obtained. + +The competency of a Protestant minister to marry two Roman Catholics in +the Province of Quebec was called in question by the leading case of +Delphit v. Coté, reported in the Quebec Reports, 20 S. C. 338. The +plaintiff, who had been baptized as a member of the Roman Catholic Church, +was married to the defendant, who, at the time at least, professed the +same belief, by a minister of a Protestant denomination, by virtue of a +license issued in due form. Subsequently an ecclesiastical court of the +Catholic Church declared the marriage null on the ground that two Roman +Catholics could only be married by a Roman Catholic priest. Upon appealing +to the civil court for an annulment of the marriage because of the +ecclesiastical decree, it was held that the ecclesiastical court was +entirely without jurisdiction and that the marriage was in all legal +respects good and binding. + +MARRIAGES WITH INDIANS.--A Christian who marries an aboriginal native or +Indian cannot exercise in Canada the right of divorce or repudiation of +his wife at will, although following the usages of the tribe or "nation" +to which his Indian wife belongs such divorces and repudiations are +customary and regular. + +ANNULMENT OF MARRIAGE.--In any of the Provinces, or in Newfoundland, the +courts may annul marriages on the ground of fraud, mistake, coercion, +duress or lunacy. + +FOREIGN MARRIAGES.--The courts of Canada and Newfoundland recognize a +marriage concluded in a foreign country as valid if it was performed in +accordance with the laws of the foreign country, if each person was +competent to marry, according to the laws of the country of his and her +citizenship, and if the marriage was not in violation of the general laws +and usages of Christendom. + +ONTARIO.--The High Court of Justice in this Province has jurisdiction +where a marriage correct in form is ascertained to be void _de jure_ by +reason of the absence of some essential preliminary to declare the same +null and void _ab initio_; but nothing short of the most clear and +convincing testimony will justify the interposition of the court. + +As we have observed before, there is no divorce court in the Province. + +Every married woman is entitled to hold and alienate as her separate +property all wages and profits acquired by her in any separate occupation +which she may conduct on her separate account. + +QUEBEC.--This Province, which is composed largely of Roman Catholic +inhabitants of French ancestry, treats marriage as a religious contract. + +The system of jurisprudence in Quebec is an admixture of the Code +Napoleon, the _coutume de Paris_, and the common law of England. The +provisions of the Civil Code and Code of Civil Procedure of the Province +are largely of French origin. + +Marriage must be solemnized openly by a competent officer recognized by +law and must be preceded by the publication of banns, unless a license is +obtained. A license for a marriage by a Protestant clergyman must be +issued from the office of the Provincial Secretary. + +A marriage contracted without the free consent of both parties, or of one +of them, can only be attacked by such parties themselves or by the one +whose consent was not free. + +A marriage contracted before the parties, or either of them, have attained +the age required can no longer be contested if six months have elapsed +since the party or parties have attained the proper age; or if the wife +under that age has conceived before the termination of six months. + +The laws in this Province concerning the rights of married women to own +property separate from their husbands are almost mediæval. + +A married woman cannot take judicial proceedings without being authorized +so to do by her husband or the court. + +A husband and wife cannot contract with each other even with the +assistance of a third person. They cannot even make donations to each +other during the marriage. + +Husband and wife are not competent witnesses against each other in a court +of law. + +Neither the courts nor the Provincial legislature grant divorces which +dissolve the marriage bond. Applications for such relief must be addressed +to the Dominion Parliament. + +A separation from bed and board is granted by the courts to either party +to a marriage upon proof of adultery, cruelty, desertion or confirmed +drunkenness; and to a wife for the failure of her husband to provide her +proper support. + +Where a husband keeps a concubine in the same house with his wife the +latter is justified in leaving him to live elsewhere, and in so doing the +wife does not lose any of her marital rights. + +Quebec is the only Province in the Dominion of Canada where a child born +out of wedlock is legitimatized by the subsequent marriage of the parents. + +BRITISH COLUMBIA.--The Divorce and Matrimonial Act of 1857, passed by the +Imperial Parliament, is in full effect in this Province. + +The Supreme Court has jurisdiction to entertain a petition for divorce +between persons domiciled in the Province and in respect of matrimonial +offences alleged to have been committed therein. + +Absolute divorces are granted on the application of the husband on the +ground of adultery; on the application of the wife on the ground of +incestuous adultery, bigamy with adultery, rape, sodomy or bestiality, +adultery coupled with such cruelty as without adultery would have entitled +her to a judicial separation, or adultery coupled with desertion, without +reasonable excuse, for two years or upwards. Alimony may be ordered to be +paid to the wife, by the decree dissolving the marriage or granting a +separation, or it may be sued for separately if the wife has either +obtained or is entitled to such a decree. After absolute divorce either +party may marry again. The procedure in divorce matters is almost +identical with that of England. + +A judicial separation may be obtained by either spouse because of: + +1. Adultery. + +2. Cruelty. + +3. Desertion without cause for two years or more. + +NEW BRUNSWICK.--It is interesting to note that in this Province a married +woman may acquire, hold and dispose of, by will or otherwise (except that +husband's curtsey will not therefore be affected), any real or personal +property as her separate property, in the same manner as if she were a +_femme sole_, without the intervention of any trustee, and may enter into +and render herself liable in respect of and to the extent of her separate +property on any contract, and of suing and being sued in all respects as +if she were a _femme sole_. + +The grounds for absolute divorce are: + +1. Impotency. + +2. Adultery. + +3. Consanguinity. + +NOVA SCOTIA.--This old Province, originally called Acadia, has a judiciary +which consists of a chief justice, an equity judge and five puisne judges, +a supreme court having law and equity jurisdiction throughout the +Province, a vice-admiralty court and a court of marriage and divorce. + +The rules as to consanguinity and affinity, the causes for divorce and +judicial separation and the civil effects of marriage and divorce are the +same as in England. + +ALBERTA.--The Supreme Court Act (February 11, 1907) established the +Supreme Court of the Province and provided that the court "shall have +jurisdiction to grant alimony to any wife who would be entitled to alimony +by the law of England, or to any wife who would be entitled by the law of +England to a divorce and to alimony as incident thereto, or to any wife +whose husband was separate from her without any sufficient cause and under +circumstances which would entitle her by the laws of England to a decree +for restitution of conjugal rights; and alimony, when granted, continue +until further order of the court." + +NORTHWEST TERRITORIES.--The term "Northwest Territories" originally +referred to the region over which the Northwest Company exercised +authority, the territorial limits of which were not clearly defined. The +term is now used to designate the Canadian territories and districts of +Yukon, Keewatin, Mackenzie, Ungava and Franklin. + +As we have before observed, the law of marriage and divorce in the +Northwest Territories is substantially the same as that of England. + +NEWFOUNDLAND.--This, the oldest British colony in North America, is the +most modern in its law of domestic relations. + +Marriage is considered a civil contract, which may be solemnized before a +qualified clergyman of any sect, or a judge, justice of the peace or other +magistrate. + +A married woman has the same right of buying, selling, owning and +controlling any kind of real or personal property as a single woman. She +has also the fullest right to make any lawful contract without adding her +husband as a party. She may sue and be sued as if she were a single woman +or a man. + +There being no divorce courts, the Provincial legislature having no power +to grant divorces, and the Colony of Newfoundland being outside of the +jurisdiction of the Dominion Parliament of Canada, an absolute divorce +cannot be obtained in the colony. + + + + +CHAPTER XXVII. + +THE REPUBLIC OF MEXICO. + + +Mexico is a federative Republic composed of twenty-seven States, three +Territories and a Federal District. + +Under the present Constitution, which is dated February 5, 1857, each +State has the power to control its own local domestic concerns and to have +its own separate executive, legislature and judiciary. + +The Civil Code of the Federal District (_El Codigo Civil de Distrito +Federal_) was enacted simply for the Federal District and the Territories +of Lower California, Tepic and Quintana Roo, but each of the twenty-seven +States have in their respective Civil Codes adopted the provisions of the +Federal Civil Code, especially with reference to the law of marriage and +divorce. Therefore, we find it unnecessary to deal with each State +separately. + +MARRIAGE.--The courts of Mexico, following the Federal Code, define +marriage as the lawful co-partnership of one man and one woman united for +life in an indissoluble bond to perpetuate their species and to render +each other mutual assistance, fidelity and sympathy in bearing together +the burdens of life. + +The law does not recognize in any manner future espousals, nor any +conditions contrary to the legitimate purposes of marriage. + +Marriage must be preceded by the statutory preliminaries and be celebrated +before authorized officials with all such formalities as are by law +required. + +A male must be at least 14 years of age and a female at least 12 years of +age to contract marriage, unless a dispensation from the superior +political authority is obtained permitting marriage at an earlier age. +Such a dispensation can only be obtained in exceptional cases and for good +cause. + +Parental consent is required for the marriage of both males and females +under the age of 21 years. If the father is dead the consent of the mother +is sufficient. If both the father and mother are dead then the consent of +the paternal grandfather will suffice. If he is also dead the paternal +grandmother must give consent. In the event of both paternal grandparents +being dead the maternal grandparents take their place and exercise the +_patria potestad_. + +IMPEDIMENTS.--The impediments to marriage are: + +1. Incapacity of the parties, as when one or both are under age. + +2. Absence of the consent of parents or of the person exercising the +rights of a parent. + +3. Mistake as to the identity of either party. + +4. Relationship within the prohibited degrees. + +CONSANGUINITY AND AFFINITY.--Marriages are prohibited between ascendants +and descendants; between brothers and sisters of the whole or half blood; +between uncles and nieces; aunts and nephews, and all other persons +related by blood or marriage within the third degree. + +The laws of Mexico recognize no relationship other than one by +consanguinity and affinity. + +Each generation constitutes a degree, and the series of degrees constitute +the line of relationship. + +OTHER PROHIBITIONS: + +A. A marriage is prohibited when either of the intending parties has a +husband or wife still living. + +B. If one of the parties has made an attempt against the life of the +husband or wife of the other with the intention of marrying the survivor. + +C. If one of the parties has obtained the apparent consent of the other by +fear, coercion or duress. + +D. If either of the parties is permanently and incurably insane. + +FORMALITIES.--Parties intending to conclude marriage must personally +appear before the judge of civil status of the domicile of either party, +and state their intention. The judge will thereupon make an entry in a +register kept for that purpose of the names, occupations and domiciles of +both of the contracting parties, the names, occupations and domiciles of +their parents, if the same be ascertainable, the names, occupations and +domiciles of the witnesses whom the parties present to the judge as +knowing the legal capacity of the parties, and proof of the consents of +the parents, or of such persons as are lawfully exercising the rights of +the parents. + +If either of the contracting parties has been previously married the judge +must require proper evidence that the former consort is dead. + +If it appears that there exists any impediment to the intended marriage +which could be removed by a dispensation from the superior political +authority such dispensation must be exhibited. + +Upon the judge receiving the required proof that the parties may be +legally married he will cause a copy of the record to be posted in a +conspicuous place in his office for 15 days, and two similar copies must +be posted in the usual public places. If, during the publication as +aforesaid, and for three days thereafter, no valid opposition is made by +any one to the marriage, it becomes the duty of the judge, upon request of +the parties, to fix the place, day and hour for the celebration. + +A marriage must be celebrated in public at the place and time previously +fixed by the judge. The parties must appear in person or by their +specially appointed proxies, and be attended by at least three adult +witnesses, who may be relatives. + +The parties, by themselves, or by their specially appointed proxies, must +formally declare to the judge in the presence of the witnesses their +intention to take each other as husband and wife, upon which declaration +the judge shall pronounce them man and wife and make an official record of +the marriage. + +RIGHTS AND OBLIGATIONS OF MARRIAGE.--Husband and wife are obliged to be +faithful to each other, and each must contribute his or her part to the +objects of the marriage. They are under mutual obligation to succor and +protect one another and to render each to the other affection and +sympathy. + +It is a wife's duty to live with her husband and to follow him wherever he +may choose to go and accept his selection of a conjugal home. + +A husband is obligated to provide alimentation (_alimentos_) to his wife +even though she may have brought no property into the marital community. +By alimentation is meant not only necessary food, but raiment and things +of personal necessity and comfort commensurate with the husband's ability +to make such provision. The husband owes his wife the duty of protecting +her person and reputation. + +The wife must obey her husband in domestic concerns, in the matter of +training and educating the children of the marriage and in all affairs +connected with the common property and the household. + +If the wife has property of her own she must furnish alimentation (food, +clothing and lodging) to her husband when he is in want and cannot obtain +it for himself. + +If a husband proposes to leave the Republic to live in a foreign land the +wife may apply to the courts to be relieved from the usual duty of +adopting her husband's residence. + +The husband is the legitimate representative and manager of all of the +property of the marriage. He is ordinarily his wife's representative in +legal proceedings. A wife generally cannot appear either personally or by +attorney in a suit at law without her husband's authorization in writing. + +If she is of full age a wife does not require her husband's authorization +in the following instances: + +A. To defend herself in a criminal action. + +B. To bring a suit against her husband. + +C. To devise or bequeath her own separate property by a will. + +D. When her husband is in what the Mexican lawyers call a state of +interdiction, as, for example, when he is under guardianship or insane. + +E. When she is in business on her separate account and the suit or +proceeding relates to such business. + +DIVORCE.--It is in the chapter of the Civil Code entitled "_Del divorcio_" +that we find the statutory provisions concerning divorce. The chapter +begins by stating positively that divorce (_divorcio_) does not dissolve +the bonds of matrimony. We must remember that the Federal Code is founded +upon the Spanish Code, and that both Mexico and Spain, being historically +Roman Catholic countries, reflect the leading dogmas of the Catholic +Church in their civil jurisprudence. What is called a divorce in Mexican +law is at the most a separation from bed and board. It simply suspends +certain of the civil obligations and effects of marriage. + +CAUSES FOR DIVORCE: + +1. Adultery of the wife under any circumstances. + +2. Adultery of the husband, if the adultery is committed in the conjugal +home, or if the husband is living in concubinage, or if the husband's +adultery causes a public scandal and attracts public contempt or insult to +the wife, or if the wife has been ill used by word or deed by her +husband's paramour or on account of her. + +3. If the husband proposes or plans to prostitute his wife, or accepts +from a third person any money, article or valuable consideration for the +purpose of effecting such prostitution. + +4. When either spouse instigates or encourages the other to commit a +crime. + +5. The attempt by positive acts by either husband or wife to corrupt their +children or by deliberately permitting third persons to practice such +corruption. + +6. Abandonment without just and legal cause of the conjugal home (_casa +comun_), or if there is just and legal cause for such abandonment, to +remain away for one year or more without beginning a suit for divorce. + +7. Cruelty, threats or injury of a serious nature by one spouse against +the other. + +8. False accusation of a grave nature made by either party against the +other. + +9. The refusal, or wilful neglect, of one spouse to furnish alimentation, +or support, to the other, in accordance with law. + +10. Incorrigible vices of gambling or drunkenness. + +11. The existence of a chronic and incurable disease which is hereditary +or contagious afflicting one of the spouses previous to the marriage, of +which the other spouse had no knowledge when the marriage was concluded. + +12. If the wife gives birth to a child conceived before marriage, which +child has been judicially declared illegitimate. + +13. An infringement or violation of the marriage settlements +(_capitulaciones matrimoniales_). + +14. Mutual consent of the parties. + +PROCEEDINGS FOR DIVORCE.--Even if the spouses consent to a divorce there +must be a formal legal proceeding. In such a case the suit is begun by a +petition to the judge setting forth clearly the consent to divorce and the +agreement of the parties as to the maintenance of the wife, the custody of +the children and the disposition or division of the property held in +common. + +When such a petition is filed it becomes the duty of the judge to summon +the parties before him and to endeavour to effect a reconciliation. + +In a suit where the spouses do not mutually consent to a divorce, it is +still the legal duty of the judge to attempt a reconciliation of the +parties. + +ANNULMENT OF MARRIAGE.--While the Mexican law does not recognize absolute +divorce it does provide for the annulment or setting aside absolutely of +certain marriages. Marriages are voidable and may be annulled in the +courts on the following grounds: + +A. If the parties are related within the prohibited degrees of +consanguinity and affinity. + +B. If the parties, or either of them, were incapable by reason of non-age +or otherwise of legally concluding marriage. + +C. If the necessary parental consent, or consent of the person exercising +the _patria potestad_, was not had. + +D. If the marriage was irregular or contrary to law, as, for example, if +the proper publication was omitted, or no witnesses attended the +celebration. + +E. If there exists in either party, and existed before the marriage, an +incurable impotency for copulation. + +Want of legal age of either party is not a ground for annulment if a child +is born, the issue of the union. + +And if either party, or both, were under the legal age at the time of +marriage, a decree of annulment will not be granted if, upon becoming +twenty-one years of age, the spouses continue to cohabit together. + +Such marriages as we have pointed out above are not void, but voidable, +and any of the grounds sufficient for annulment may be waived by the +aggrieved spouse. + +EFFECTS OF DIVORCE.--Divorce can only be granted to the innocent party, +and suit therefor must be brought within one year after the petitioner +discovers the facts which constitute a legal cause for a decree. + +The innocent party, pending the action, or even after the final decree, +may require the other party to resume the marriage relationship. + +The most usual effect of a divorce is a physical separation of the +spouses. + +If the wife is the guilty party she may, on her husband's suggestion, be +directed by the judge to live in a certain house, for the protection of +the good name of the husband. + +Upon the finding of a decree of divorce, if the parties have not reached +an appropriate agreement, the judge will make such directions as to the +maintenance of the wife, custody of children and division of common +property as justice may require. + +FOREIGN MARRIAGES.--Marriages concluded between foreigners in a foreign +country, which are valid in that country, will be recognized as valid for +all civil effects in Mexico. + +A marriage between a Mexican citizen and a foreigner, or between two +Mexican citizens, and concluded in a foreign country, will be valid for +all civil effects in Mexico, provided such marriage was concluded +according to the law of the foreign country and is not in violation of the +Mexican laws as to the prohibited degrees of relationship, capacity to +contract and consent of persons in _loco parentis_. + +Foreign laws (_leyes extranjeras_) must be established as matters of fact +by the persons relying upon their existence, and their application to +questions at issue must also be shown. + +Within three months after a Mexican citizen who has concluded marriage in +a foreign country returns to the Republic, he or she must cause the +inscription of the celebration to be entered in the Civil Register of his +or her domicile. + + + + +CHAPTER XXVIII. + +ARGENTINE REPUBLIC. + + +The Civil Code of the Argentine Republic shows strong evidences of the +Spanish origin of its precepts. As in the old motherland marriage is +considered as indissoluble except by the death of one of the contracting +parties. However, the Republic does not accept the decrees of the Council +of Trent or the canonical law of the Catholic Church on the subject of +marriage as parts of the law of the land. + +As a matter of religion the people of Argentina may consider marriage as a +sacrament or divine ordinance, or not, as it pleases their consciences, +but as a matter of law marriage in the Argentine Republic is simply a +civil contract. + +ESSENTIALS OF MARRIAGE.--For the validity of marriage there must be the +consent of two contracting parties declared before the public official in +charge of the civil register. The contract can be declared by proxy, but +only with a special authorization from the principal, in which the person +with whom the proxy has to conclude the marriage is clearly described. + +IMPEDIMENTS.--The existence of any of the following conditions make a +marriage unlawful: + +1. Consanguinity between ascendants and descendants without limitation, +whether legitimate or illegitimate. + +2. Consanguinity between brothers and sisters and half brothers and +sisters, legitimate or illegitimate. + +3. Affinity in the direct line in all degrees. + +4. The woman not being twelve and the man fourteen years of age. + +5. The existence of a previous marriage. + +6. Where one of the parties has been voluntarily the author of, or the +accomplice in the death of, the former husband or wife of the other. + +7. Insanity. + +8. A woman over twelve years of age and a man over fourteen, but minors, +and the deaf and dumb who cannot write cannot bind themselves in marriage +without the consent of their legitimate father, or, failing him, without +their mother's consent, or that of their guardian, or of the judicial +consent or permission, in the absence of the above. The civil judge will +decide in cases of disagreement. + +9. A guardian, or his descendants under his power, cannot marry minors +under his guardianship so long as the latter lasts. + +PRELIMINARIES.--Those who desire to marry must present themselves before +the public official in charge of the civil register, at the domicile of +one of the parties, and verbally declare their intention to marry. Two +witnesses are required who, from their knowledge of the contracting +parties, can declare as to their identity and that they consider them +capable of being married. + +CELEBRATION.--The marriage must be celebrated before the official charged +with the civil registry in his office, publicly, the bride and bridegroom, +or their proxies, appearing in person, in the presence of two witnesses +and with the formalities prescribed by law. If either of the contracting +parties are unable to appear at the registry office the marriage may be +celebrated at his (or her) residence. + +If the marriage be celebrated in the registry office two witnesses must be +present, and four witnesses if it is celebrated at the domicile of either +of the contracting parties. + +In celebrating the marriage the Public Registrar must read to the +contracting parties those portions of the law which define the rights and +obligations of married couples. He must also receive from each the +declaration that they respectively desire to take each other as husband +and wife. He must also formally declare the couple to be man and wife. + +There is no legal objection to a religious celebration of marriage +following the civil ceremony, which alone is treated as legally effective. + +HUSBAND AND WIFE.--The contracting parties are bound to be mutually +faithful, but the infidelity of the one does not excuse the infidelity of +the other. The one who breaks this obligation can be proceeded against by +the other in the divorce courts without prejudice to what is laid down on +the subject by the Penal Code. + +The husband is bound to live in the same house as his wife and to give her +all necessary assistance, protection and support. + +If there be no marriage contract to the contrary, the husband is the legal +administrator of all the property belonging to the married couple, +including that of the wife, as well as that which they possessed at +marriage as of that subsequently acquired by them in their own right. + +The wife is bound to live with the husband wherever he may fix his +residence. + +A wife cannot, without her husband's permission, go to law, make any +contract, or acquire goods, nor alienate or pledge goods without such +permission. The wife may, of course, in certain cases, such as divorce, +acquire judicial authorization for prosecuting or defending a suit in the +courts. + +DIVORCE.--The courts of the Argentine Republic grant divorces, but in +effect they only amount to a personal separation of the parties to a +marriage, without the dissolution of the bonds of matrimony. + +These so-called divorces are granted for the following causes: + +1. Adultery of the husband or wife. + +2. Attempt by one of the parties on the life of the other, either +personally or as an accomplice. + +3. The instigation of one of the parties by the other to commit adultery +or other crimes. + +4. Cruelty. + +5. Serious injuries. In estimating the gravity of the injury the judge +will take into consideration the education and social position of the +parties. + +6. Such ill-treatment, even if not serious, as renders married life +unsupportable. + +7. Wilful and malicious desertion. + +EFFECTS OF THE DIVORCE.--If the wife be of age she can exercise all the +usual acts of civil life. + +Each of the parties can fix his or her domicile or residence where he or +she thinks fit, even if it be abroad. However, if the party have children +under his or her care, they cannot be taken abroad without the permission +of the court of their domicile. + +The innocent party can revoke the donations or advantages which he or she +may have made or promised to the other by the marriage contract, whether +they were to have come into effect during the life of the party or after +his or her death. + +Children less than five years old remain in the mother's custody. Those +over that age shall be handed over to the party who, in the opinion of the +judge, is most fitted to educate and care for them. + +The husband who may have given cause for divorce must continue to support +the wife if she have not sufficient means of her own. The judge shall +decide the amount and manner in which this shall be done, with due regard +to the circumstances of both parties. + +Whichever of the parties may have given cause for divorce will have the +right to require the other, if he or she be able to do so, to provide him +or her with subsistence, if such be absolutely necessary. + +DISSOLUTION OF MARRIAGE.--A legal marriage can only be dissolved by the +death of one of the contracting parties. + +A marriage which can be dissolved in accordance with the laws of the +country in which it was celebrated cannot be dissolved in the Argentine +Republic except by the death of one of the parties. + +The supposed decease of one of the contracting parties, either through +absence or disappearance, will not enable the other to marry again. So +long as the decease of one of the contracting parties, either through +absence or disappearance, has not been absolutely proved, the marriage is +not considered as dissolved. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled when it was contracted +in violation of some legal impediment, or for want of proper consent. + +SECOND OR FURTHER MARRIAGES.--A woman cannot marry again for ten months +after a dissolved or annulled marriage, unless she was left pregnant, in +which case she may marry after having given birth to the child. + +PROOF OF MARRIAGE.--A marriage must be proved by certificate, or copy +thereof, of such marriage. If it is impossible to produce the certificate, +or its copy, all other means of proof will be allowed, but these other +proofs will not be admitted unless it is previously established that such +certificate or copy cannot be produced. + + + + +CHAPTER XXIX. + +THE UNITED STATES OF BRAZIL. + + +The United States of Brazil (_Estados Unidos do Brazil_), the largest +country in South America and one of the most extensive political +subdivisions of the world, is a Republic comprising twenty States and a +Federal District. + +Its present constitution was adopted February 24, 1891, and is in many +respects similar to that of the United States of America. + +The legislative power is vested in the President of the Republic and a +National Congress, consisting of a Senate and Chamber of Deputies. + +The individual States are governed by their governors and legislatures, +and possess their own judicial systems. + +The main body of the civil law has its origin in the Portuguese Code and +in the judicial precedents of Portugal. + +There is a Supreme Federal Court of Justice, which sits at the capital, +Rio de Janeiro, and Federal Courts in each of the twenty States. + +Ninety-nine per centum of the people of Brazil are Roman Catholics and +consider marriage as a religious sacrament, but the law of the land +considers it simply as a civil contract. + +MARRIAGE.--The Civil Code defines marriage as a perpetual contract between +two persons of different sex to live together and establish a legitimate +family. + +A civil or legal celebration of marriage is compulsory for all persons, +irrespective of race or creed. If after the civil marriage the parties may +desire to satisfy their consciences and the mandates of their church or +sect by having the marriage solemnized in a religious form, there is no +legal objection thereto. + +Marriage is forbidden: + +1. Of minors under the age of 21 years, unless with parental consent. + +2. Of persons of adult age who are incapable of properly governing +themselves or their estates, without the authorization of their legal +representatives. + +3. Of an adulterous wife with her accomplice who has been condemned for +the offence. + +4. Of a wife or widow who has been condemned as the principal or +accomplice of the crime of homicide with a principal or accomplice in the +same crime. + +5. Of a person bound by solemn vows of religion to a life of chastity. + +The canon law of the Roman Catholic Church is accepted as defining the +religious rules and spiritual effects of marriage, but the civil law +defines the status and temporal effects of the marriage contract. + +PROHIBITED MARRIAGES.--The following persons are forbidden to marry each +other: + +1. Ascendants and descendants. + +2. Persons related collaterally in the second degree. + +3. Males who have not completed their fourteenth year and females who have +not completed their twelfth year of age. + +4. Persons already bound by marriage. + +PRELIMINARIES.--The intending parties must present themselves in person +before the registrar and produce certificates showing: + +A. Full names, ages, occupations and domiciles of the contracting +parties. + +B. The full names, ages, occupations and domiciles of their parents, or, +if they are dead, the same particulars of those who replace them _in loco +parentis_. + +C. Proof of the consents of such persons who in law are entitled to give +or withhold consent to the proposed marriage. + +D. A declaration in writing by two respectable witnesses of full age, +certifying acquaintance with the contracting parties, and knowledge that +they are not related within the prohibited degrees of kinship. + +If either of the contracting parties has been previously married, proof of +the death of the former spouse must be given to the registrar. + +Upon receiving satisfactory proof as stated above, the registrar must post +a notice of the proposed marriage in a conspicuous place in his office, +which notice informs all interested persons to file their objections, if +any they have, in the registry within fifteen days. If at the end of this +period no valid objection to the marriage has been formulated the civil +officer proceeds to the celebration of the marriage. + +A marriage concluded before a civil officer in the form established by the +civil law of Brazil can only be annulled by a civil court. + +DIVORCE.--The law of the Republic does not permit of an absolute divorce +for any cause whatsoever. A true marriage can only be dissolved by the +death of one of the parties. + +JUDICIAL SEPARATION.--A separation of the person and goods may be had for +the following causes: + +1. Adultery of the wife. + +2. Adultery of the husband, if such adultery creates a public scandal, or +if the husband brings his concubine into the home he has established for +his wife. + +3. Sentence of one of the spouses to life imprisonment. + +4. Cruel and ill-human treatment. + +FOREIGN MARRIAGES.--The courts of Brazil recognize as valid a marriage +between two foreigners concluded in a foreign land, provided that such +marriage is monogamous, is not between ascendants or descendants, or +between persons related collaterally in the second degree, and if such +marriage was regularly concluded according to the law of the country of +its celebration. + +A marriage abroad of a citizen of the Republic of Brazil must conform not +only to the law of the place of its celebration, but must also be in +strict accordance with the law of Brazil. + + + + +CHAPTER XXX. + +THE REPUBLIC OF CUBA. + + +A nation may in a day overthrow a dynasty which has ruled for centuries, +it may in a few years completely revolutionize its system of government +and methods of trading, but its ancient code of marriage will live on +unchanged for ages. + +It is a noteworthy fact that the law of Rome concerning marriage survived +the Roman Empire by a thousand years, and even to-day it is the foundation +of the law on that subject in all of the Continental countries of Europe +and of the entire Western Hemisphere, with the exception of the United +States of America and Canada. + +In the Civil Code of Cuba we can see not only its recent origin from the +Spanish Code, but traces of the Law of the Twelve Tables and the +Institutes of Justinian. + +Cuba is to-day a Republic composed of six Provinces. The seat of +government is located at Havana, where sit the Senate and House of +Representatives, which constitute the national legislature. + +The Civil Code is the _Codigo Civil_ of Spain, with such changes and +modifications as have become effective since Spain lost its sovereignty +over Cuba. + +The statement of Cuban law which follows is, therefore, predicated upon +the _Codigo Civil_, which by royal decree of May 11, 1888, was extended to +the islands of Cuba, Porto Rico and the Philippines, upon proclamations +and orders issued during the recent American military occupation and on +the interpretation and construction of the positive law by Cuban courts +and jurists. + +MARRIAGE.--The law considers marriage as a civil contract, which may be +concluded by either a civil (_matrimonio civil_) or a religious +(_matrimonio religioso_) celebration. + +A male cannot marry until he has completed his fourteenth year of age; a +female until she has completed her twelfth year. + +Marriages contracted by minors under the legal age become, however, _ipso +facto_ legal if a day after having arrived at the legal age the parties +continue to live together without bringing suit to annul the marriage, or +if the female becomes pregnant before the legal age or before the +institution of a suit for annulment. + +Only such persons as are in the full enjoyment of their reason can +contract marriage. + +Marriage is forbidden to all persons who suffer from absolute or relative +physical impotency for the purposes of procreation. + +Persons ordained _in sacris_ and those professed in an approved canonical +order, who are bound by a solemn pledge of chastity, cannot lawfully +conclude marriage until they have obtained the proper canonical +dispensation. + +Those who are already bound in marriage cannot contract a new marriage. + +Persons who are twenty-three years of age or upwards may conclude +marriage, if otherwise of legal capacity, without parental consent or +advice. + +Persons under twenty years of age require the consent of their parents, or +of such persons whose right it is to give or withhold such consent. + +Persons who are more than twenty years of age, but under twenty-three, are +under the obligation of asking the advice or counsel of their parents or +of such persons standing in the parental relation before contracting +marriage, and if the advice is refused, or it should be unfavourable, the +marriage cannot take place until three months after the petition was made. + +The consent and the favourable advice for the celebration of a marriage +must be proven, if requested, by means of an instrument authenticated by a +civil or ecclesiastical notary or by the municipal judge of the domicile +of the petitioner. + +When the advice has been proven the lapse of time shall be proven in the +same manner. + +If a marriage is concluded by persons more than twenty years of age, and +under twenty-three years of age, without compliance with the rules just +stated, the marriage will be recognized as valid, but the offender is +subject to certain disabilities and penalties. + +CONSANGUINITY AND AFFINITY.--The following persons are prohibited from +contracting marriage with each other: + +1. The ascendants and descendants by legitimate or natural consanguinity +or affinity. + +2. Collaterals by legitimate consanguinity up to the fourth degree. + +3. Collaterals by legitimate affinity up to the fourth degree. + +4. Collaterals by natural consanguinity or affinity up to the second +degree. + +The government, for sufficient cause, may on the petition of a party grant +a dispensation permitting a marriage of minors who have not obtained the +proper permission or advice of the persons whose legal right it is to +authorize one or the other. + +For grave reasons the government may also grant a dispensation relieving a +party from the prohibition of marrying within the third and fourth degrees +of collaterals by legitimate consanguinity; the impediments arising from +legitimate or natural affinity between collaterals and those relating to +the descendants of the adopter. + +SPECIAL PROHIBITIONS.--The following persons cannot contract marriage with +each other: + +1. The adopting father or mother and the adopted; the latter and the +surviving spouse of the former, and the former and the surviving spouse of +the latter. + +2. The legitimate descendants of the adopter with the adopted, while the +adoption lasts. + +3. Adulterers who have been condemned by a final judgment. + +4. Those who have been condemned as authors, or as the author and +accomplice, of the death of the spouse of either of them. + +CELEBRATION OF MARRIAGE.--A civil marriage must be celebrated according to +the requirements of the code, as changed or modified by subsequent orders, +decrees and legislation. + +Any clergyman, priest or minister, irrespective of faith or sect, who +belongs to a religious denomination actually established in the Republic +of Cuba, and who has been duly authorized, may solemnize marriage. + +A register is kept in the office of the Secretary of Justice containing +the names and addresses of all clergymen, priests and ministers who are +qualified to solemnize marriage in the Republic. + +Persons who desire to contract a religious marriage must present to the +clergyman, priest or minister who is qualified to perform the ceremony a +declaration signed by both of the contracting parties, stating: + +1. The names, surnames, profession, domicile or residence of the +contracting parties. + +2. The names, surnames, profession, domicile or residence of the parents. + +3. Certificates of birth and of the status of the contracting parties, +the consent or advice, if proper, and the dispensation, when it is +necessary. + +Upon the presentation of such a declaration the clergyman, priest or +minister shall announce the future celebration of marriage between the +parties according to the form or method prescribed by the rites and +regulations of his religious denomination. + +If the religions denomination of such clergyman, priest or minister has no +established form for such announcement, then a publication must be made in +the form established by the Civil Code. The method required by the Civil +Code for proclaiming an intended marriage is set forth in Article 89, +which directs a publication by posting the written declaration of the +parties for fifteen days and calling upon those who have information of +any obstacle to oppose the marriage. + +A civil marriage can only be solemnized by a municipal judge (_Juez +Municipal_), to whom must be presented as an indispensable preliminary +such a signed declaration of the parties as is necessary in the case where +the parties desire a religious ceremony. + +A municipal judge chosen to celebrate a civil marriage will also direct as +a preliminary to marriage such a proclamation as is required by Article 89 +aforesaid. + +A priest, minister or clergyman duly authorized to perform marriages may, +for sufficient cause, dispense with the publication as before set forth; +but in every case where a publication is made the marriage cannot be +concluded after fifteen days after the first day of such publication. + +No priest, clergyman or minister is now authorized to grant a dispensation +permitting a marriage for any reason forbidden by the laws of the +Republic. + +An opposition to a marriage made by an interested person must be heard and +determined by the municipal judge of the district before any person +whatsoever is authorized to solemnize the nuptials. + +The celebration itself must be witnessed by two adults, who may be +relatives of the parties. Article 87 of the code, permitting one or both +of the parties to a marriage to appear at the celebration, either +personally or by proxies to whom a special power is given, is still in +effect. + +The municipal judge, priest, minister or clergyman who solemnizes a +marriage must immediately furnish to the parties a certificate of marriage +and cause a full and particular record of said marriage to be filed in the +Civil Registry of the District (_Registro Civil del Distrito_), in default +of which such judge, priest, minister or clergyman will be subject to a +fine of one hundred _pesos_, or imprisoned for not less than 30 days, or +not more than 90 days, by the Correctional Judge (_Juez Correccional_) of +his domicile. + +ANNULMENT OF MARRIAGES.--The civil courts have exclusive jurisdiction to +decree an annulment of marriage. + +The following marriages are void: + +1. Those celebrated between persons related within the prohibited degrees, +except in cases of dispensation. + +2. Those contracted by error as to the person or by compulsion or +intimidation. + +3. Those contracted by the abductor with the abducted while she is in his +power. + +4. Those which are not solemnized by an authorized official. + +A marriage contracted in good faith produces civil effects, although it +may be declared void. + +If good faith existed on the part of only one of the spouses it shall +produce civil effects only with regard to said spouse and to the children. + +Good faith is presumed if the contrary does not appear. + +When bad faith existed on the part of both spouses the marriage shall only +produce civil effects with relation to the children. + +After the annulment of a marriage the sons over three years of age shall +remain in the care of the father and the daughters in the care of the +mother, provided there was good faith on the part of both spouses. + +If either or both were guilty of bad faith the tribunal has power to make +such disposition of the children as justice may require. + +RIGHTS AND OBLIGATIONS.--The spouses are obliged to live together, to be +faithful to, and mutually assist, each other. + +The husband must protect his wife, and the latter must obey her husband. + +The wife is obliged to follow her husband wherever he may establish his +residence. The tribunals may, for just cause, exempt her from this +obligation when the husband removes his residence beyond the seas or to a +foreign country. + +The husband is the administrator of the property of the conjugal +partnership, except when the contrary is stipulated. + +The wife, however, retains ownership of the paraphernal property, which +consists of such property as the wife brings to the marriage, not included +in the dowry. + +The husband is the representative of his wife. The latter cannot, without +his permission, appear in a suit in person nor through an attorney. + +Nevertheless, she does not require such permission to defend herself in a +criminal suit or to proceed against or to defend herself in suits with +her husband. + +Neither may the wife, without the permission of her husband, acquire +property for a good or valuable consideration, alienate her property, or +bind herself, except in certain exceptional cases, and within the +limitations established by law. + +A wife may without her husband's permission: + +1. Execute a will. + +2. Exercise the rights and perform the duties which appertain to her with +regard to the legitimate and acknowledged natural children she may have +had by another, and with relation to the property of the same. + +Only the husband and his heirs can enforce the nullity of the acts +executed by his wife without proper authorization. + +DIVORCE.--Divorce only produces the suspension of the life in common of +the spouses; it does not dissolve the marriage. + +The legal causes for divorce are: + +1. Adultery on the part of the wife in every case, and on the part of the +husband when public scandal or disgrace of the wife results therefrom. + +2. Personal violence actually inflicted or grave insults. + +3. Violence exercised by the husband toward the wife in order to force her +to change her religion. + +4. The proposal of the husband to prostitute his wife. + +5. The attempts of the husband or wife to corrupt their sons, or to +prostitute their daughters, and connivance in their corruption or +prostitution. + +6. The condemnation of a spouse to penal servitude. + +EFFECTS OF DIVORCE: + +1. The separation of the spouses in every case. + +2. The protection of the wife. + +3. The placing of the children under the care of one or both of the +spouses, as may be proper. + +4. The provision for the support of the wife and of the children who do +not remain under the authority of the father. + +5. The adoption of the necessary measures to prevent the husband, who may +have given cause for the divorce, from injuring the wife in the +administration of her property. + +FOREIGN MARRIAGES.--A marriage contracted in a foreign country, according +to the laws of such country, is generally treated as valid in Cuba. Such a +marriage, however, must be monogamous and otherwise in conformity with the +general laws and usages of Christendom. + +If the parties are Cubans, and are married abroad while retaining their +domiciles in Cuba, the foreign marriage must also conform to the +requirements of Cuban law with regards to the capacity of the parties and +the necessary parental consent or advice. + +PROOF OF MARRIAGE.--The ordinary manner to prove a marriage concluded in +Cuba is to produce a certificate of the record of the civil registry, and +this is the proof required unless the books of the civil registry never +existed, or have disappeared, or a question is pending before the +tribunals, in which case all kinds of direct evidence are admissible. + +The uninterrupted status of the parents, together with the certificates of +the birth of their children as legitimate, is one competent method of +proving the marriage of said parents, unless it is shown that one of the +two was bound by a prior marriage. + +A marriage contracted in a foreign country may be established by showing +an authenticated copy of its registration. If such foreign country does +not require a regular or authenticated registration the marriage must be +proved by competent evidence of the regulations of marriage in the foreign +country in question, together with proof that all such regulations were +complied with. + +Should a marriage be contracted in a foreign country between a Cuban and a +foreign woman, or between a foreigner and a Cuban woman, and the +contracting parties do not make special stipulations with regard to their +property, it is understood, when the husband is a Cuban, that he marries +under the system of the legal conjugal partnership; and when the wife is a +Cuban that she marries under the system of laws in force in the husband's +country. + +ENGAGEMENTS TO MARRY.--Future espousals do not give rise to an obligation +to contract marriage. No court will admit a complaint in which their +performance is demanded. + +However, if the promise has been made in a public or private instrument by +a person of age, or by a minor in the presence of the person whose consent +is necessary for the celebration of the marriage, or when banns have been +published, the person who refuses to marry, without just cause, can be +obliged to indemnify the other party for the expenses which he or she may +have incurred by reason of the promised marriage. + +An action to recover indemnity for such expenses must be instituted within +a year, counted from the day of the refusal to celebrate the marriage. + +SPANISH PRECEDENTS.--It should be remembered that in throwing off the yoke +of Spanish rule the people of Cuba did not change their blood, language or +traditions. Just as the law of the United States of America is founded +upon the law of England as it existed at the time of the adoption of the +American Constitution, so the jurisprudence of the Republic of Cuba has as +its foundation the law of Spain as it existed at the time the Republic was +established. + +In both instances there have been changes and modifications by legislative +acts and judicial interpretations, but a Spanish judicial decision has +even more weight in a Cuban tribunal than an English decision has in an +American court because Cuba, being a younger Republic than the United +States, is much nearer to its motherland in point of time, besides its +closer resemblance in race, religion and customs. + + + + +CHAPTER XXXI. + +COMMONWEALTH OF AUSTRALIA. + + +The Commonwealth of Australia, created by an act of the Imperial +Parliament in 1900 (63 and 64 Vic. cap. 12), is a federal State under the +supreme authority of the Crown of Great Britain. + +This act of Parliament not only created a federal Commonwealth out of the +colonies of Queensland, New South Wales, Victoria, South Australia, West +Australia and Tasmania, but it also granted to the new Commonwealth a +written constitution which is obviously modeled upon that of the United +States of America. + +The constitution provides that "every law in force in a colony which has +become or becomes a State shall, unless it is by this constitution +exclusively vested in the Parliament of the Commonwealth or withdrawn from +the Parliament of the State, continue as at the establishment of the +Commonwealth or as at the admission or establishment of the State, as the +case may be." + +It is also provided that "when a law of a State is inconsistent with a law +of the Commonwealth the latter shall prevail and the former shall, to the +extent of the inconsistency, be invalid." + +All powers not delegated to the central or federal government are reserved +to the States. + +However, in spite of its resemblance to other federal systems, the +principle of the responsibility of ministers to Parliament proclaims its +English parentage. + +The judicial power is exercised under the constitution by a federal +supreme court, called the High Court of Justice, and other courts of +federal jurisdiction. + +It is expressly provided in the Australian constitution that the +Parliament of the Commonwealth shall, subject to the constitution, have +power to make laws for the peace, order and good government of the +Commonwealth with respect to "divorce and matrimonial causes, and in +relation thereto, parental rights, and the custody and guardianship of +infants." + +It will be observed that Parliament is given no power under the +constitution to make laws prescribing the qualifications for marriage, the +impediments thereto, and regulations concerning the celebration. All such +power is reserved by the respective States. + +Moreover, the grant of power to Parliament to make laws with regard to +"divorce and matrimonial causes" is not a power "by this constitution +exclusively vested in the Parliament of the Commonwealth or withdrawn from +the Parliament of the State." + +Until the Parliament of the Commonwealth shall legislate on the subject, +by passing enactments concerning divorce and matrimonial causes +superseding the existing statutes of the several States, the laws of each +State will continue in operation. + +In this chapter we shall consider, first, such laws and regulations +concerning marriage and divorce as are in effect throughout the entire +Commonwealth, and then, under separate headings, discuss the laws and +regulations of each State. + +MARRIAGE.--The courts of Australia, following 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. + +The law of the place where marriage is celebrated--that is, the _lex loci +celebrationis_--alone guides the court in ascertaining whether or not a +marriage is regular. All the formal preliminaries, such as the publication +of banns, or license, the consent of the parties entitled to give or +withhold consent and the solemn declaration of the contracting parties +before competent authority, according to the law of the place of +celebration, must be complied with. + +LEGAL AGE.--The legal age for marriage throughout the Commonwealth of +Australia begins with fourteen years for a male and twelve years for a +female. + +PARENTAL CONSENT.--In all of the States parental consent is required for +the marriage of males and females under twenty-one years of age. + +BANNS OR LICENSE.--Unless a marriage license is procured banns must be +published in the parish in which the parties reside, and if they live in +different parishes the banns must be published in each parish. + +Where a man has caused the banns to be published or has procured a license +under a false name or names, or has been married under a false name or +names, he will not be allowed to annul the marriage on that account. A +party cannot take advantage of his own fraud for the purpose of +invalidating a marriage. + +CONSANGUINITY AND AFFINITY.--The law considers it against public policy +and morality, and contrary to the well-being of the parties, that persons +closely related by blood or marriage should intermarry. Marriages are +therefore prohibited between all ascendants and descendants, legitimate or +illegitimate. + +A man is also prohibited from marrying his stepmother, wife's mother, +stepdaughter, daughter-in-law, son's daughter-in-law, daughter's +daughter-in-law, stepson's daughter, stepdaughter's daughter, niece by +blood, niece by affinity, or nephew's wife. + +A woman is prohibited from marrying her uncle by blood or affinity, +husband's uncle, father-in-law, stepson, son-in-law, son's son-in-law, +daughter's son-in-law, stepson's son, stepdaughter's son, nephew by blood +or affinity, or niece's husband. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled in any of the States of +the Commonwealth upon competent proof showing: + +1. A prior and existing marriage of one of the parties. + +2. Impotency or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse. + +3. Relationship within the prohibited degrees. + +4. That the marriage was procured by fraud, violence or mistake as to +identity. + +5. That one of the parties was insane at the time the marriage was +concluded. + +6. That the marriage was celebrated without the consent of the persons by +law entitled to give or withhold consent. + +7. That the marriage was performed without legal license, or the +publication of banns, or solemnized before a person not having authority +to officiate. + +A marriage will not be annulled on the last ground stated if it appears +that one of the parties acted in good faith and honestly believed that the +person who solemnized the marriage had the required authority. + +JUDICIAL SEPARATION.--A decree of judicial separation, which is equivalent +to the old form of limited divorce (_a mensa et thoro_) may be obtained +in any of the States for the following causes: + +1. Adultery of either husband or wife. + +2. Desertion without legal cause for two years or more. + +3. Cruelty or abusive treatment of one spouse by the other. + +It is an absolute bar to a suit for judicial separation that the +petitioner has committed adultery since the marriage. + +DIVORCE.--Absolute divorces completely dissolving the marriage bond are +granted by the courts of every State in Australia. As every State has its +separate statutes on the subject, which set forth the legal causes for +divorce, we shall consider such causes in our discussion of each State +separately. + +DEFENCES.--In all the States condonation of a matrimonial offence, which +is a legal cause for divorce, is a good defence to the petition. + +It is also a sufficient defence for the respondent to show that the +offence complained of was committed by the connivance or active consent of +the petitioner. + +Connivance in adultery as a bar to divorce is founded on the doctrine +_volenti non fit injuria_, the consent consisting in acquiescence, active +or passive, in the adulterous intercourse. Passive acquiescence is a +sufficient bar, provided it was carried out with the intention that the +husband or wife would be guilty; but it must be something more than mere +inattention, indifference or dulness of apprehension. The presumption, +where the facts are equivocal, is in favour of absence of intention. + +One spouse must not invite the other to commit adultery; but he or she may +permit the licentiousness of the other spouse to have its full scope +without being guilty of connivance. + +It is not connivance to watch for the purpose of discovering a suspected +fact so as to make conviction certain. + +COLLUSION.--An illegal agreement and co-operation between a petitioner and +a respondent in a divorce action to enable the petitioner to obtain a +judicial dissolution is a fraud upon the court. Upon such collusion +appearing the court, at its own instance, will dismiss the petition. + +DESERTION.--The High Court of Justice of the Commonwealth has defined +desertion, which in several of the States is a legal cause for absolute +divorce, as follows: "Desertion involves an actual and wilful bringing to +an end of an existing state of cohabitation by one party without the +consent of the other. Such 'consent' must be shown by something more than +a mere mute acquiescence in an existing state of separation or +non-resistance to abandonment. What is necessary is some communication of +the intended acquiescence or non-resistance to the other by express words +or by conduct." + +FORM OF DIVORCE DECREE.--A decree of divorce in any of the States is +granted _nisi_, or provisionally, and cannot be made absolute until three +months have elapsed after the decree _nisi_ is entered. + +A judicial separation may be granted, even if the suit is for an absolute +divorce, if the court deems such a decree better meets the law and facts +of the case. + +VICTORIA.--The Marriage Act of 1890 (54 Victoria, No. 1166), entitled "An +act to consolidate the laws relating to marriage and to the custody of +children and to deserted wives and children and to divorce and matrimonial +causes," is practically a short code on the subject of marriage and +divorce. + +CELEBRATION OF MARRIAGE.--The following persons, and none other, may +celebrate marriages: + +1. A minister of religion ordinarily officiating as such, whose name, +designation and usual place of residence, together with the church, chapel +or other place of worship in which he officiates, is at the time of the +celebration of the marriage duly registered according to law in the office +of the Registrar-General. + +2. A minister of religion being the recognized head of a religious +denomination. + +3. A minister of religion holding a registered certificate that he is a +duly authorized minister, priest or deacon from the head of the religious +denomination to which he belongs, or, if there be no such religious head, +from two or more officiating ministers of places of worship duly +registered according to law. + +4. The Registrar-General or other officer appointed for that purpose. + +JEWS AND QUAKERS.--The law permits Jews and Quakers to be married by such +persons and in such manner as is considered regular and lawful according +to their respective beliefs and usages. + +FORMALITIES.--A marriage must be preceded by a license or the publication +of banns. + +A marriage celebration requires the attendance of two witnesses of full +age. + +DIVORCE.--A domicile of two years or more is a condition precedent to +bringing a suit for divorce. + +The following are legal grounds for a divorce or dissolution of the +marriage bond: + +1. Adultery on part of the wife. + +2. Adultery on part of the husband if committed in the conjugal residence +or if it is coupled with circumstances or conduct of aggravation or of a +repeated act of adultery. + +3. Desertion without just cause continued for three years or more. + +4. The habitual drunkenness of a husband for three years, if the husband +has habitually left his wife without support, or has habitually been +guilty of cruelty to her. + +5. Habitual drunkenness of a wife for three years, if the wife has +habitually neglected her domestic duties, or rendered herself unfit to +discharge them. + +6. Imprisonment of either spouse for not less than three years, and being +still in prison under a commuted sentence for a capital crime, or under +sentence to penal servitude for seven years or more. + +7. If the husband has within five years undergone frequent convictions for +crime and has been sentenced in the aggregate to imprisonment for three +years or more, leaving his wife habitually without means of support. + +8. That within a year previously the respondent has been convicted of +having attempted to murder the petitioner, or of having assaulted him or +her with intent to inflict grievous bodily harm, or that repeatedly during +that period the respondent has assaulted and cruelly beaten the +petitioner. + +FORM OF DECREE.--Divorce decrees are entered, in the first instance, +_nisi_, or provisionally, and cannot be made absolute until after the +expiration of three months following the decree _nisi_. + +IN FORMA PAUPERIS.--Special provision is made enabling poor persons to +prosecute suits for divorce by an interlocutory order in _forma pauperis_, +which relieves the person in whose favour it is granted from certain +charges and expenses, but does not furnish him or her with the free +services of a solicitor or barrister. + +RECENT DECISIONS.--An important divorce decision holds that visits to +brothels by a petitioner who seeks a divorce on the ground of his wife's +adultery constitute misconduct conducing to the adultery of the wife and +bars the petitioner from a decree, without entering into the question of +whether or not adultery was committed by the petitioner in the course of +such visits. + +However, the fact that a husband has conduced to an act of adultery by his +wife is not a bar to him obtaining a divorce based on subsequent acts of +adultery. + +NEW SOUTH WALES.--The requirements as to age, consent of parents, or of +persons standing in _loco parentis_ are the same in this State as +throughout the rest of the Commonwealth and have been set forth in the +first part of this chapter. + +No marriage can be celebrated except by a minister of religion ordinarily +officiating as such, whose name, designation and usual residence have been +and continue registered in the office of the Registrar-General for +Marriages in Sydney or by a district registrar. + +Parental consent is not required of persons who have previously been +lawfully married and whose former marriage has been dissolved by death or +divorce. + +A marriage must be attended by two adult witnesses. + +By the Matrimonial Causes Act of 1899 jurisdiction in respect of divorces +_a mensa et thoro_ (judicial separations), suits for nullity of marriage, +suits for dissolution of marriage (absolute divorce), suits for +restitution of conjugal rights, suits for jactitation of marriage, and all +causes, suits and matters matrimonial are vested in the Supreme Court of +the State. + +CAUSES FOR ABSOLUTE DIVORCE.--A husband who has been domiciled for three +years or more in the State may petition for a dissolution of the marriage +on the following grounds: + +A. That the wife has committed adultery. + +B. That the wife has, without just cause or excuse, wilfully deserted the +petitioner and without any such cause or excuse left him so deserted for +three years or more. + +C. That the wife has, during three years and upwards, been an habitual +drunkard and habitually neglected her domestic duties or rendered herself +unfit to discharge them. + +D. That within one year the wife has been imprisoned for a period of not +less than three years and is still in prison under a commuted sentence for +a capital crime, or under sentence to penal servitude for seven years or +more. + +E. That within one year the wife has been convicted of having attempted to +murder her husband, or having assaulted him with intent to inflict +grievous bodily harm. + +F. That during one year previously the wife has assaulted and cruelly +beaten her husband. + +A wife may obtain an absolute divorce from her husband by proving: + +A. That her husband has committed incestuous adultery. + +B. That the husband has committed bigamy with adultery. + +C. That the husband has committed rape, sodomy or bestiality. + +D. That the husband has committed adultery coupled with such cruelty as +without adultery would have entitled the wife to a divorce _a mensa et +thoro_ (divorce from bed and board) under the laws of England as existing +before the enactment of the Imperial Act 20 and 21, Vict. c. 85. + +E. Adultery of the husband coupled with desertion without reasonable +excuse for two years or upwards. + +JUDICIAL SEPARATION.--A judicial separation may be granted on the ground +of adultery, cruelty or desertion without legal cause or excuse continued +for two years and upwards. + +QUEENSLAND.--In this State marriage may be celebrated by any regular +officiating minister of religion, or by any district registrar, or by +specially authorized justices of the peace. + +CAUSES FOR ABSOLUTE DIVORCE.--A husband is entitled to an absolute divorce +if his wife has committed adultery, but a wife is not so entitled unless +her husband has committed incestuous adultery, bigamy, rape, sodomy, +bestiality, adultery coupled with cruelty, or adultery coupled with +desertion without reasonable excuse for two years or more. + +Incestuous adultery is adultery with a woman within the prohibited +degrees. + +JUDICIAL SEPARATION.--A limited divorce or judicial separation can be +obtained by either spouse on the following grounds: + +1. Adultery. + +2. Cruelty. + +3. Desertion without legal cause for two years. + +LEGITIMACY.--Illegitimate children are legitimatized by the subsequent +marriage of their parents. + +WEST AUSTRALIA.--The Marriage Act of 1894 is virtually an acceptance by +this State, so far as practicable, of the English Divorce Act of 1857. + +The causes for absolute divorce or for a judicial separation are the same +as those given above for the State of Queensland. + +SOUTH AUSTRALIA AND TASMANIA.--In these two States, by legislative +enactments, the causes for absolute divorce and judicial separation are +the same as those given on opposite page for Queensland, West Australia +and South Australia. + +The exercise of appellate jurisdiction by the High Court of Justice of the +Commonwealth in matrimonial causes has the beneficial effect of making the +several States more and more uniform in their local legislation and +judicial interpretation. + +The federal Parliament has express authority under the constitution to +enact a federal code of marriage and divorce which will operate throughout +the entire Commonwealth, and such a code in one form or another is +inevitable. + +The Commonwealth of Australia is not yet a dozen years old, but the need +of superseding six separate systems of law respecting marriage and divorce +by a national law on the subject is already apparent and under +constructive discussion. + +Of all the federative dependencies of the British Crown Australia is +perhaps the most homogenous in race, religion and traditions, and it will +probably be the first to adopt a federal law of marriage and divorce. + + + + +CHAPTER XXXII. + +DOMINION OF NEW ZEALAND. + + +The Dominion of New Zealand is a colony of Great Britain consisting of +North, South and Stewart Islands, or New Zealand proper, and certain +outlying islands, including Cook Island, in the Pacific Ocean. + +Its present form of government was established by an act of the Imperial +Parliament (15 and 16 Vict., cap. 27) passed in 1852. + +The legislative power is vested in the governor and a bicamera General +Assembly or Parliament, consisting of a Legislative Council and a House of +Representatives. The constitution provides that the General Assembly or +Parliament may make laws "not repugnant to the laws of England." + +The General Assembly, by an act passed in 1858, declared that: "Whereas, +the laws of England, as existing on the fourteenth day of June, 1840, have +been applied in New Zealand as far as applicable to the circumstances; +but, Whereas, doubt has arisen in respect to such application--Be it +declared and enacted, that the laws of England, as existing June 14, 1840, +be deemed and taken to have been in force on and after that day and shall +hereafter continue in force." + +Hence it is apparent that the body of the law of New Zealand is founded +upon the jurisprudence of England. + +The judicial system includes a Supreme Court of the Dominion, District +Courts and courts presided over by stipendiary magistrates. + +MARRIAGE.--Males under fourteen years of age and females under twelve +years cannot contract a lawful marriage. + +All persons, male or female, under twenty-one years of age, who have not +previously contracted a lawful marriage, require the consent of their +parents or guardians in order to marry. However, the marriage of males +fourteen years of age or more, or of females twelve years of age or more, +without the consent of parents or guardians, does not make such marriage +_ipso facto_ void. + +Parental consent to a marriage of a minor must be given by the father, if +living and competent to act; if not, then by the following persons in the +order stated: (a) the duly appointed guardian; (b) the mother if she has +not married again; (c) or a guardian specially appointed by a court +exercising chancery powers. + +No person can contract a new marriage who has a spouse by an existing +marriage still living. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between all ascendants +and descendants _ad infinitum_ and between persons related to each other +by blood or marriage within the third degree, according to the method of +computation of the civil law. According to this reckoning a person cannot +marry a relative nearer than his or her own first cousin. + +PRELIMINARIES.--Notice of a proposed marriage must be given to the +registrar of the district in which one of the parties has resided for +three days at least. If the contracting parties live in different +districts notice must be given to the registrars of both districts. Such +notice must set forth the names, ages, status and occupations of each +party, together with their addresses, a statement of the period each party +has lived in the district, and the name and place of the church, chapel or +other building selected by the parties for the solemnization of the +marriage. The parties must also make solemn declaration to the registrar +or registrars to the truth of all statements of fact in said notice and +show that there is no legal impediment to the proposed marriage. + +Upon receiving the notice in due form the registrar will issue a +certificate at once addressed to any officiating minister, or to himself, +authorizing the solemnization of the marriage. All marriages must be +registered, and the officiating minister or officer who fails to have the +record made is subject to punishment. + +Ordinarily, the best proof of a marriage is to produce the marriage +certificate, together with proof identifying the parties, but if the +record is lost, destroyed or never existed proof of the marriage may be +given by direct oral evidence. + +In most instances it is necessary to produce clear evidence of a marriage +ceremony, but in some exceptional cases a marriage may be proved by long +reputation. That is, if two persons live together as husband and wife for +many years, and if they have always been regarded as such by their friends +and neighbours, the courts will presume a legal marriage unless evidence +is produced to prove that the parties were not lawfully married. + +DIVORCE.--An absolute divorce may be obtained according to the provisions +of the Divorce and Matrimonial Compilation Act of 1904 by a husband or +wife who has been domiciled in the Dominion of New Zealand for two years +or upwards on the following grounds: + +1. Adultery of either spouse. + +2. Wilful and continuous desertion without just cause for five years and +upwards. + +3. Habitual drunkenness for four years with habitual cruelty or desertion +on the part of the husband. + +4. Habitual drunkenness for four years with habitual neglect of her +household duties on the part of the wife. + +5. Conviction and sentence to imprisonment or to penal servitude for seven +years or upward for attempting to take the life of the petitioner. + +ANNULMENT OF MARRIAGE.--A marriage is annulled on the theory that true and +proper consent to the marriage contract has never been given by the +parties. The causes or grounds for such annulment are: + +1. A prior and existing marriage of one of the parties. + +2. Impotency or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse. + +3. Relationship of the parties within the forbidden degrees of +consanguinity or affinity. + +4. That the marriage was procured by fraud or violence of one of the +parties. + +5. Mistake as to identity. + +6. That the marriage was performed without the required legal +preliminaries. + +7. Insanity of one of the parties at the time the marriage was solemnized. + +Concerning the sixth cause the tendency of judicial interpretation and +construction is to treat the legal requirements concerning formalities to +be merely directory and to consider the marriage itself, if at least one +of the parties acted in good faith, to be valid. + +The courts of New Zealand view many of the statutory requirements +concerning marriage to be necessary and proper regulations, and which, if +disregarded, subject certain persons to fixed penalties, but are not +necessarily essential to the marriage contract. + +EFFECTS OF DIVORCE AND ANNULMENT.--The parties may remarry. During the +pendency of the suit for divorce the husband is liable to provide his wife +with maintenance or alimony. The amount granted is within the court's +discretion, but generally it is about twenty-five per centum of the +husband's income. + +Upon the granting of a divorce decree in the wife's favour the court has +power to grant the wife permanent alimony, the amount of which depends on +all such facts as the husband's fortune and income, the wife's income and +needs and the social status of the parties. + +If there are children under full age, the issue of the marriage, the court +will in the exercise of its discretion make such order concerning their +custody, support and education as the ends of justice may require. + +JUDICIAL SEPARATION.--Under the Divorce and Matrimonial Compilation Act a +decree of judicial separation, which is the same in effect as a divorce +from bed and board under the old law, may be obtained by either spouse +upon the following grounds: + +1. Adultery. + +2. Cruelty. + +3. Desertion without just cause continued for two years. + +SUMMARY JURISDICTION ACT.--Besides the ordinary suit for a judicial +separation a wife may obtain speedy and inexpensive relief by making an +application to a stipendiary magistrate for an order of separation and +maintenance. + +The causes sufficient for the granting of such relief are: + +A. Habitual drunkenness of the husband, coupled with habitual cruelty to, +or neglect of, the wife and family. + +B. Desertion by the husband of his wife. + +C. Habitual cruelty of the husband toward his wife. + +D. Neglect of the husband to provide reasonable maintenance for his wife +and minor children. + +A husband is entitled to summary relief permitting him a separation order +upon proof that his wife is an habitual drunkard who habitually neglects +her household duties. + + + + +CHAPTER XXXIII. + +THE HINDU LAW. + + +For every person in the world whose rule of civil conduct is based upon +the English system of jurisprudence there are two others to whom Hindu law +is both binding by political authority and the rule of conscience. + +The student of law and world politics will note with interest two +impressive facts concerning Hindu jurisprudence in India. The first is +that until the accession of British rule in that country the Hindu law was +not law in the sense in which the term is understood by lawyers. The +second fact is that the acknowledged jurisconsults and commentators upon +the Hindu law of to-day are not Hindus, but British and Anglo-Indian +jurists. + +Prof. Golapchandra Sarkar, in his admirable treatise, says: "The +administration of the Hindu law by the English judges shows forth in clear +light the administrative capacity, the indomitable energy, the scrupulous +care and the strong common sense of the English nation." + +In treating of the marriage and divorce laws of over two hundred and +twenty-five millions of human beings who are Hindus by race and religion, +the first question to be answered is: What is Hindu law? Hindu law is the +whole body of rules regulating the life of a Hindu in relation to his +civil conduct and the performance of his religious duties grouped together +under the general name of _Dharma Sastra_, or religious ordinances. + +The ultimate source of this wonderful system is the Veda, but the Hindu +also accepts an immemorial custom as transcendant law, contending that +such acceptance is approved in the sacred scripture and in the codes of +divine legislators. + +In the Mahabharat we read: "Reasoning is not reliable; the Vedas differ +from one another; and there is no sage whose doctrine can be safely +accepted; the true rule of law is not easy to be known; the ways of +venerable persons are, therefore, the best to follow." + +The Hindus have for centuries been governed by their own laws, which they +regard not as the edicts of a political sovereign, nor as the enactments +of a human legislature, but as the immutable commands of the Supreme Being +of the universe. With such reverence have these laws been regarded that no +Hindu king of whom we have any historical record ever dared to repeal, +alter or modify one of them. For the past century such progress as Hindu +law has made is due entirely to the action of the British courts in India. + +As we called attention to in the chapter on Mohammedan law, there are four +distinct systems of jurisprudence in India, all in full operation and +effect. Two of these systems, the English law created by the British +Parliament and Anglo-Indian law created by the legislative councils, are +territorial in jurisdiction, while the others, namely, the Hindu law and +the Mohammedan law, are purely personal. That is to say, the Hindu and +Mohammedan systems of law apply respectively to Hindus and Mohammedans, +and to no one else. + +At the beginning of British rule in India the government of the East India +Company gave the native inhabitants of the country the privilege of being +governed by their own laws in matters relating to marriage, inheritance +and religious usages. + +In the regulations promulgated by Warren Hastings in 1772, and since in +the various civil acts and charters establishing the law courts, the rule +is expressed that in cases relating to marriage, inheritance, succession +and religious usages the Hindu law shall apply to the Hindus. + +The Privy Council decided in the leading case of Abraham v. Abraham that +under the regulations and acts a Hindu is a man by both birth and religion +a Hindu. + +In the case of Raj Bahadur v. Bishen Dayal, Mr. Justice Straight said: "If +we are correct in our view that the status of a Hindu or Mohammedan under +the first paragraph of Section 24, Act VI., of 1871, to have the Hindu law +made the 'rule of decision,' depends upon his being an orthodox believer +in the Hindu or Mohammedan religion, the mere circumstance that he may +call himself or be termed by others a Hindu or Mohammedan, as the case may +be, is not enough." + +CASTE.--The idea of caste or class distinction so completely permeates +every religious and secular institution of India that one cannot +understand Hindu law without having in mind the principal features of this +social system. + +The Vedas, upon which the whole structure of Hindu religion and ethics +professes to be based, give no countenance to the present regulations of +caste. + +The Sanscrit word for caste is _verna_, meaning colour, and this leads us +to the true origin of caste distinctions. The _verna_, or colour, of the +light-complexioned Aryan invaders who entered India from the Northwest and +the _verna_ of the dark-skinned aborigines whom they subjugated +established the first distinctions of caste. + +There are four principal castes to-day among the Hindus, namely: + +1. _Brahmin_, or priest caste. + +2. _Kshatriya_, or warrior caste. + +3. _Vaisya_, or merchant caste. + +4. _Sudra_, or servant caste. + +A fifth class, called _Pariahs_, are of no caste, and are practically +outside the law. + +The first three upper classes or castes are also called "twice-born" men, +because they are supposed to be regenerated or "born in the Veda." + +So, generally, are the distinctions of caste recognized that Pope Gregory +XV. found it advisable to publish a bull sanctioning caste regulations in +the Christian churches of India. + +The Hindus attach great importance to the marriage. It is regarded by them +as one of the ten _sankars_, or sacraments, necessary for the regeneration +of men of the twice-born classes, and the only sacrament for women and +_Sudras_. + +The Veda says: "A Brahmin immediately upon being born is produced a debtor +in three obligations: to the holy saints for the practice of religious +duties; to the gods for the performance of sacrifice; to his forefathers +for offspring." + +Manu ordains that "after a man has read the Vedas in the form prescribed +by law, has legally begotten a son and has performed sacrifices to the +best of his power, he has paid his three debts and may then apply his +heart to eternal bliss." + +The Hindus hold the marriage relation in such respect that the question of +the validity of a marriage is rarely submitted to the courts for judicial +determination. + +The law of the Catholic Church treats marriage as a sacramental contract +dissoluble only by death, but the Hindu law goes further by declaring +against the remarriage of widows. + +This rule of Hindu has been legislated upon by Act XV. of 1856, which +makes a Hindu widow eligible for a new marriage, but the marriage of a +widow has never been the practice among Hindus. + +Mann says: "A widow who from a wish to bear children slights her deceased +husband by marrying again brings a disgrace on herself here below and +shall be excluded from the seat of her lord." + +Polygamy, or plurality of wives, is permitted by the Hindu law, but is +rarely practiced. + +Polyandry, or plurality of husbands, is contrary both to the Hindu law and +the provisions of the Indian Penal Code. + +The three higher castes are permitted to intermarry with the caste next +below their own, the issue taking the lower caste or sometimes forming a +new caste. + +In many ways the theoretical inferiority of the _Sudra_ absolves him from +the restraints which the letter of the law lays on the three higher +castes. + +AGE FOR MARRIAGE.--In the Hindu law want of age, though a disqualification +for other purposes, does not render a person incompetent to marry. + +Ordinarily the lowest age is eight years for females, but a girl may be +married before that age if a suitable husband is procured for her. If none +of the persons who ought to give a girl in marriage do so before she +completes her eleventh year she may choose a husband for herself. + +A girl must be given in marriage before she attains puberty. The reason +for marrying off a girl before she reaches the age of puberty is that the +marriage should be free from sexual desire. + +PARENTAL CONSENT.--The Hindu law vests the girl absolutely in her parents +and guardians, by whom the contract of her marriage is made, and her +consent or absence of consent is not material. The consent of the parents +is required for the marriage of minors--that is, persons under fifteen +years of age. The parties authorized to give or withhold such consent are +the father, the paternal grandfather, the brother, a _sakulya_ or kinsman +in succession. + +The want of parental consent, or the consent of the person standing in +_loco parentis_, does not invalidate a marriage otherwise legally +contracted. + +IMPEDIMENTS.--Disqualifications or impediments are absolute or relative. A +disqualification which renders a party incompetent to marry any person is +absolute, while one which simply renders a party incompetent to a +particular person is termed relative. + +A woman with a husband living is absolutely disqualified from contracting +a new marriage. + +Idiots and lunatics are disqualified for civil purposes only, although the +Hindu law permits a wife to desert or disobey an insane husband. + +Deaf and dumb persons, or those afflicted with incurable or loathsome +diseases, are competent to marry, but cannot insist upon conjugal rights. +Among the three highest castes (the twice-born) impotency is not an +impediment to marriage, but for those of the lowest caste (_Sudras_) it is +a disqualification. + +A twice-born husband who was impotent was for centuries permitted to +appoint a kinsman to beget issue by his wife, but this is now forbidden. + +The female must be younger than her husband and of the same caste. + +A girl whose elder sister is unmarried, or a man whose elder brother is +unmarried, is not eligible for marriage. + +MARRIAGE CEREMONIES.--Ceremonies of some sort, religious or secular, are +requisite to the concluding of a valid marriage. The ceremony may be that +of "walking seven steps" or merely the exchange of a garland of flowers. +The question as to whether or not a marriage is ceremonially complete +depends largely upon what ceremonies are customary among the parties +concerned. + +Consummation is not necessary to complete a marriage. In thousands of +cases girls under ten years of age have been married to males older than +themselves who have died before their wives were old enough for the +consummation of marriage. Such a situation has brought about the sad +plight of the tens of thousands of child widows in India. If a girl of +eight years of age is ceremoniously married to a man and immediately +thereafter returns to her father's home to await the time when she shall +be old enough to assume conjugal duties, she is from the moment the +ceremony of marriage is completed a married woman, and if her husband dies +the next day she is an eight-year-old widow whom no orthodox Hindu will +marry. + +When the British first came to India it was a general practice for widows +to voluntarily submit to be burned alive with the corpses of their +deceased husbands. This savage practice was called a _suttee_, and by it +millions of child and adult widows were burned to death. By a provision of +the Indian Penal Code such a death is treated as a suicide, and all who +participate in the offence are holden for homicide. We are glad to record +that the British Government has so thoroughly enforced the law in this +respect that _suttees_ have been entirely abandoned by the Hindus. + +CONSANGUINITY AND AFFINITY.--Baudhayana says: "He who inadvertently +marries a girl sprung from the same original stock with himself must +support her as a mother." + +Marriage between ascendants and descendants is unlawful. + +Marriage is also prohibited between a twice-born man and a woman who is of +the same _gotra_, or primitive stock. + +The woman must not be the daughter of one who is of the same _gotra_ with +the bridegroom's father or maternal grandfather. Neither must she be a +_sapinda_ of the bridegroom's father or maternal grandfather. _Sapinda_ in +the Hindu law means descended from ancestors within the sixth degree. That +is, from persons in the ascending line within the seventh degree from the +intending husband. The _sapinda_ relationship ceases after the fifth and +seventh degrees from the father and mother respectively. + +A _Sudra_ has no _gotra_ of his own. + +DIVORCE.--Divorce in the ordinary sense is unknown to the Hindu law. The +Hindus contend that even death does not dissolve the bond of marriage. + +The single case in which a dissolution of a Hindu marriage can be granted +by a court of law is under Act XXI. of 1860, which was enacted to meet the +complications which arise when one of the spouses becomes a Christian. If +the convert, after deliberation for a prescribed time, refuses to cohabit +further with the other spouse, the court may upon petition declare the +marriage to be dissolved, and either party is free to marry again. + +There are some low castes in the Bombay Presidency, in Assam and +elsewhere, among whom the practice of irregular divorce and remarriage of +the parties prevails. The causes for divorce are mutual consent of the +parties and ill-treatment. These divorces, although permitted by custom, +are not recognized by the courts. + +RESTITUTION OF CONJUGAL RIGHTS.--A Hindu husband or wife can maintain a +lawsuit to obtain a judicial separation against a deserting spouse for +restitution of conjugal rights, but a Hindu convert to Christianity cannot +obtain such a decree if his wife remains a Hindu. + + + + +CHAPTER XXXIV + +THE CHINESE EMPIRE. + + +A treatise on the marriage and divorce laws of the world would be +incomplete without a chapter dealing with the law of the most compact +nationality in history. + +Chinese law is the growth of many centuries and is based on immemorial +custom, but with all its antiquity and wealth of precedent, it has not yet +passed the system of exacting testimony from witnesses by physical +torture. + +The first evidence of civil law to be found in Chinese history or +tradition is the recognition and regulation of the status of marriage. Its +fundamental principle is parental authority. + +Though in a sense systematic, the laws of China are not as yet in a +concentrated or scientific form. Under the present dynasty the collection +of laws which is applied by the courts is called _Ta Ch'ing Lii Li_. + +Two things are to be said in favour of the laws of China--the first being +that every Chinese is within the law, and that the person is considered of +more importance than property. + +MARRIAGE.--A Chinese is not permitted to have more than one wife. He may, +however, in addition, keep concubines, or "secondary wives." Both wives +and concubines have a legal status. + +The wife is considered to be a relative of all her husband's family, but a +concubine is not so considered. It is an offence for a man to degrade his +wife to the level of a concubine, or to elevate a concubine to the level +of his wife. + +The consent of the parties, which is the first requisite of a valid +marriage in Christendom, is legally of no consequence in China. It is the +consent of the parents of the respective parties which is material and +necessary. + +The consent of the father of the woman is sufficient, and if he is dead +then the mother may give the necessary consent. + +The preliminary stages of a Chinese marriage are elaborately formal. It is +the duty of the families of the intended bride and bridegroom to ascertain +whether or not the parties have the capacity to conclude marriage. Certain +introductions and exchange of social courtesies follow. If everything +appears satisfactory the parties acting on behalf of the intended bride +send a note of "eight characters" to the parties acting in behalf of the +prospective bridegroom, which note is practically a proposal of marriage. +If the terms of the proposed marriage are agreed upon the next thing is +for the representatives of the parties to draft and execute the articles +of marriage. + +The courts will hold it to be a marriage if the betrothal is regular, even +if there is no consummation. + +It is essential to a legal marriage that the written consent of the woman +be obtained; it is not sufficient that the woman herself gives free +consent. + +Fraud makes the marriage a nullity. In his book, "Notes and Commentaries +on Chinese Criminal Law," Mr. Ernest Alabaster tells of the case of "Mrs. +Wang." It appears that an old reprobate, knowing that the girl's parents +would refuse him because of his ugliness of face and character, sent a +handsome young nephew to represent him in the marriage negotiations. The +impersonation brought about the signing of the contract, and the old man +secured possession of the bride. Soon after the wedding he ill-treated his +young wife and one night she strangled him. The court decided that the +woman had committed an unjustifiable homicide and that the victim was not +her husband. + +IMPEDIMENTS.--Intermarriage is forbidden between ascendants and +descendants and between kinsmen by consanguinity or affinity up to the +fourth degree. + +Marriage is also forbidden between persons having the same _Hsing_, or +surname. + +A free person cannot contract a valid marriage with a slave. + +A mother and daughter must not marry father and son. + +Marriage is absolutely forbidden to a Buddhist or Taoist priest. + +An official must not marry a wife or buy a concubine within his +jurisdiction. + +It is unlawful for a person of official rank to take as his secondary wife +or concubine an actress, singing woman or a prostitute. + +No one must marry a female fugitive from justice. + +Marriage of a deceased brother's widow is against the law. + +It should be remembered that it is a criminal offence to contract an +invalid marriage. For example, not very long ago a prince of the Imperial +family purchased a singing girl as his secondary wife or concubine. The +marriage was declared null and he was sentenced to receive sixty blows for +attempting to contract an illegal secondary marriage. + +WIDOWS.--A widow or divorced woman can contract a new marriage, but she +must first obtain consent of her parents and wait until the customary +period of mourning is completed. + +DIVORCE.--As an institution divorce is almost as ancient in China as +marriage. Marriage is not considered as in any respect a religious +contract, but as a status created principally for the comfort of man and +the continuance of the race. As woman is considered an inferior creature +to man she has not the same rights in or out of a court of law. However, +she can obtain, against her husband's will, an absolute divorce on the +following grounds: + +1. Impotency. If her husband is unable to perform the sexual act a wife +can compel him to grant her a deed of divorcement. + +2. If a man sells his wife to another the woman is _ipso facto_ divorced +from both men. + +3. If a man induces his wife to become a prostitute, or accepts her +earnings as such, the wife is entitled to a decree of absolute divorce. + +We can find no other causes which entitle a woman to a divorce from her +husband. His adultery, cruelty, abandonment, neglect or drunkenness +furnishes no ground for a dissolution of the marriage. + +For a husband divorce is very easy. The so-called "seven valid reasons" +enable any man so inclined to practically discard his wife when it pleases +him. The seven "reasons" or causes are: + +1. Talkativeness. + +2. Wantonness. + +3. Theft. + +4. Barrenness. + +5. Disobedience to parents of husband. + +6. Jealousy. + +7. Inveterate infirmity. + +The last of the seven reasons permits a man to get rid of a wife who is +incurably ill or infirm. + +MUTUAL CONSENT.--If husband and wife mutually agree upon divorce the +courts, by ancient custom, will ratify their agreement. Although the +Chinese law does not consider the consent or non-consent of the parties as +of any consequence in creating the status of marriage, it, by a peculiar +process of logic, permits them to end the relationship whenever they +mutually please so to do. + +Perhaps one can easier understand the marriage and divorce laws of the +Chinese Empire by remembering that all Chinese laws are supposed to follow +the instincts of the people (_Shun po hsing chi ching_). + +GENERAL OBSERVATIONS.--The present laws and customs of China are but +little changed from the time of the Tang Dynasty, which reigned nearly +thirteen hundred years ago. + +Then, as now, a poor man who finds himself unable to support his wife, +may, if she has no parents to take her back, sell her to his richer +neighbour. + +The judicial machinery of the Chinese Empire is the elaboration of +centuries of customs and precedents. In the first instance parties seeking +legal redress apply by complaint to the lowest court having jurisdiction +within the district of their domicile. If dissatisfied with the decision +an appeal can be made first to the District Magistracy, then to the +Prefecture, and after that to the Supreme Provincial Court. If the +questions involved are sufficiently important a further appeal may be +prosecuted before the Judiciary Board, which sits in Peking and is the +highest judicial court in the Empire. + +In theory a defeated suitor can appeal from the Judiciary Board to the +fountain of law and justice, His Imperial Majesty, the Emperor of China, +but there are few cases, according to the record, which have gone so far. + +We are of the opinion that Chinese law will never approach a scientific +system until China recognizes the necessity and value of having +professional advocates and jurists to point out the way to better things. + + + + +INDEX + + + A + + Alabama, 151 + + Alaska, 152 + + Alberta, 207 + + Algeria, 137 + + Argentina, 218 + + Arizona, 153 + + Arkansas, 154 + + Australia, 238 + + Austria, 67 + + + B + + Belgium, 53 + + Brazil, 223 + + British Columbia, 206 + + Bulgaria, 129 + + + C + + California, 155 + + Canada, 199 + + China, 265 + + Colorado, 156 + + Connecticut, 158 + + Cuba, 227 + + + D + + Delaware, 159 + + Denmark, 81 + + District of Columbia, 157 + + + E + + Egypt, 137 + + England, 16 + + + F + + Finland, 94 + + Florida, 161 + + France, 38 + + + G + + Georgia, 162 + + Germany, 60 + + Greece, 132 + + + H + + Hindu Law, 256 + + Holland, 100 + + Hungary, 72 + + + I + + Idaho, 163 + + Illinois, 164 + + India, 137 + + Indiana, 165 + + Indian Territory, 165 + + Iowa, 166 + + Ireland, 36 + + Italy, 46 + + + J + + Japan, 104 + + Jews, Laws for, 96 + + + K + + Kansas, 167 + + Kentucky, 167 + + + L + + Louisiana, 168 + + + M + + Maine, 169 + + Manitoba, 199 + + Maryland, 169 + + Massachusetts, 170 + + Mexico, 209 + + Michigan, 172 + + Minnesota, 172 + + Mississippi, 173 + + Missouri, 174 + + Mohammedan Law, 137 + + Montana, 175 + + Morocco, 137 + + + N + + Nebraska, 175 + + Nevada, 176 + + New Brunswick, 206 + + Newfoundland, 208 + + New Hampshire, 177 + + New Jersey, 177 + + New Mexico, 179 + + New South Wales, 246 + + New York, 179 + + New Zealand, 250 + + North Carolina, 184 + + North Dakota, 184 + + Northwest Territories, 207 + + Norway, 85 + + Nova Scotia, 207 + + + O + + Ohio, 185 + + Oklahoma, 186 + + Ontario, 204 + + Oregon, 187 + + + P + + Pennsylvania, 187 + + Persia, 137 + + Portugal, 117 + + Prince Edward Island, 199 + + + Q + + Quebec, 204 + + Queensland, 248 + + + R + + Rhode Island, 189 + + Roumania, 121 + + Russia, 89 + + + S + + Saskatchewan, 199 + + Scotland, 32 + + Servia, 125 + + South Australia, 248 + + South Carolina, 190 + + South Dakota, 190 + + Spain, 110 + + Sweden, 76 + + Switzerland, 57 + + + T + + Tasmania, 248 + + Tennessee, 191 + + Texas, 192 + + Transylvania, 72 + + Turkey, 137 + + + U + + United States of America, 148 + + Utah, 193 + + + V + + Vermont, 193 + + Victoria, 243 + + Virginia, 194 + + + W + + Washington, 195 + + West Australia, 248 + + West Virginia, 196 + + Wisconsin, 197 + + Wyoming, 198 + + + + + + +End of the Project Gutenberg EBook of Marriage and Divorce Laws of the World, by +Hyacinthe Ringrose + +*** END OF THIS PROJECT GUTENBERG EBOOK MARRIAGE/DIVORCE LAWS OF WORLD *** + +***** This file should be named 35760-8.txt or 35760-8.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/5/7/6/35760/ + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Marriage and Divorce Laws of the World + +Author: Hyacinthe Ringrose + +Release Date: April 3, 2011 [EBook #35760] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK MARRIAGE/DIVORCE LAWS OF WORLD *** + + + + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + + + + + +</pre> + + + +<p class="center"><span class="giant">Marriage and Divorce<br />Laws of the World</span></p> +<p> </p> +<p class="center">Edited by<br /> +<span class="big">HYACINTHE RINGROSE, D. C. L.</span><br /> +Author of “The Inns of Court”</p> +<p> </p> +<p class="quote">“Marriage is the mother of the world, and +preserves kingdoms, and fills cities, and +churches, and heaven itself.”—Jeremy Taylor</p> +<p> </p> +<p class="center">THE MUSSON-DRAPER COMPANY<br /> +LONDON<span class="spacer"> </span>NEW YORK<span class="spacer"> </span>PARIS<br />1911</p> + + +<p> </p><p> </p> +<p class="center">Copyright, 1911, by<br /> +HYACINTHE RINGROSE<br /> +All rights reserved</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span></p> +<h2>PREFACE</h2> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p><span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p class="right">H. R.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span></p> +<h2>CONTENTS</h2> + +<table border="0" cellpadding="0" cellspacing="5" summary="table"> +<tr><td align="right"><small>CHAPTER</small></td><td> </td><td align="right"><small>PAGE</small></td></tr> +<tr><td align="right"><a href="#CHAPTER_I">I.</a></td><td>INTRODUCTION</td><td align="right"><a href="#Page_7">7</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_II">II.</a></td><td>ENGLAND</td><td align="right"><a href="#Page_16">16</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_III">III.</a></td><td>SCOTLAND</td><td align="right"><a href="#Page_32">32</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_IV">IV.</a></td><td>IRELAND</td><td align="right"><a href="#Page_36">36</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_V">V.</a></td><td>THE FRENCH LAW</td><td align="right"><a href="#Page_38">38</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_VI">VI.</a></td><td>THE LAW OF ITALY</td><td align="right"><a href="#Page_46">46</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_VII">VII.</a></td><td>BELGIUM</td><td align="right"><a href="#Page_53">53</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_VIII">VIII.</a></td><td>SWITZERLAND</td><td align="right"><a href="#Page_57">57</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_IX">IX.</a></td><td>GERMANY</td><td align="right"><a href="#Page_60">60</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_X">X.</a></td><td>AUSTRIA</td><td align="right"><a href="#Page_67">67</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XI">XI.</a></td><td>HUNGARY</td><td align="right"><a href="#Page_72">72</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XII">XII.</a></td><td>SWEDEN</td><td align="right"><a href="#Page_76">76</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XIII">XIII.</a></td><td>DENMARK</td><td align="right"><a href="#Page_81">81</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XIV">XIV.</a></td><td>NORWAY</td><td align="right"><a href="#Page_85">85</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XV">XV.</a></td><td>RUSSIAN EMPIRE</td><td align="right"><a href="#Page_89">89</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XVI">XVI.</a></td><td>HOLLAND</td><td align="right"><a href="#Page_100">100</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XVII">XVII.</a></td><td>THE JAPANESE LAW</td><td align="right"><a href="#Page_104">104</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XVIII">XVIII.</a></td><td>SPAIN</td><td align="right"><a href="#Page_110">110</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XIX">XIX.</a></td><td>LAW OF PORTUGAL</td><td align="right"><a href="#Page_117">117</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XX">XX.</a></td><td>ROUMANIA</td><td align="right"><a href="#Page_121">121</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXI">XXI.</a></td><td>SERVIA</td><td align="right"><a href="#Page_125">125</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXII">XXII.</a></td><td>BULGARIA</td><td align="right"><a href="#Page_129">129</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXIII">XXIII.</a></td><td>KINGDOM OF GREECE</td><td align="right"><a href="#Page_132">132</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXIV">XXIV.</a></td><td>THE MOHAMMEDAN LAW</td><td align="right"><a href="#Page_137">137</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXV">XXV.</a></td><td>UNITED STATES OF AMERICA</td><td align="right"><a href="#Page_148">148</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXVI">XXVI.</a></td><td>DOMINION OF CANADA</td><td align="right"><a href="#Page_199">199</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXVII">XXVII.</a></td><td>REPUBLIC OF MEXICO</td><td align="right"><a href="#Page_209">209</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXVIII">XXVIII.</a></td><td>ARGENTINE REPUBLIC</td><td align="right"><a href="#Page_218">218</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXIX">XXIX.</a></td><td>UNITED STATES OF BRAZIL</td><td align="right"><a href="#Page_223">223</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXX">XXX.</a></td><td>REPUBLIC OF CUBA</td><td align="right"><a href="#Page_227">227</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXXI">XXXI.</a></td><td>COMMONWEALTH OF AUSTRALIA</td><td align="right"><a href="#Page_238">238</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXXII">XXXII.</a></td><td>DOMINION OF NEW ZEALAND</td><td align="right"><a href="#Page_250">250</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXXIII">XXXIII.</a></td><td>THE HINDU LAW</td><td align="right"><a href="#Page_256">256</a></td></tr> +<tr><td align="right"><a href="#CHAPTER_XXXIV">XXXIV.</a></td><td>THE CHINESE EMPIRE</td><td align="right"><a href="#Page_265">265</a></td></tr></table> + + +<p><span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span></p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span></p> +<p class="center"><span class="giant">Marriage and Divorce Laws of the World</span></p> + + +<p> </p><p> </p> + +<h2><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I.</h2> + +<p class="center"><span class="huge"><span class="smcap">Introduction.</span></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> without comment to the extreme simplicity +of the wedding ritual as stated in the 22d verse:</p> + +<p>“And the rib, which the Lord God had taken from man, made he a woman, <i>and +he brought her unto the man</i>.”</p> + +<p>Among primitive men marriage was concluded without civil or religious +ceremony. Even in modern Japan a wedding ritual is considered all but +superfluous.</p> + +<p>The principal marriage ceremonies have been derived from heathen customs; +they were: the <i>arrhae</i>, or espousal gifts, an earnest or pledge that +marriage would be concluded; and the ring betokening fidelity.</p> + +<p>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.</p> + +<p>As with the Mohammedans it was simply a civil contract.</p> + +<p>Under the old Roman law there were three modes of marriage: 1. +<i>Confarreatio</i>, 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.</p> + +<p>2. <i>Coemptio in manum</i>, which was a conveyance or fictitious sale of the +woman to the man.</p> + +<p>3. <i>Usus</i>, 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.</p> + +<p>But a true Roman marriage could be concluded simply by the interchange of +consent.</p> + +<p>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<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.”</p> + +<p>However, the early Christian Church did not treat marriage as a sacrament, +although its celebration was usually the occasion of prayers and +exhortations.</p> + +<p>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.</p> + +<p>The general marriage law of the European <span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span>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: +<i>Nuptiae autem, sive matrimonium est veri et mulieris conjunctio, +individuam vitae consuetudinem continens</i>. Marriage is the union of a man +and a woman, including an inseparable association of their lives.</p> + +<p>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.</p> + +<p>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.</p> + +<p>Polyandry is the condition of a woman having<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> 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.</p> + +<p><span class="smcap">Morganatic Marriage.</span>—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.</p> + +<p>Such alliances are sometimes called “left-handed marriages,” because in +the wedding ceremony the left hand is given instead of the right.</p> + +<p>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.</p> + +<p>By the Royal Marriage Act of England such an alliance has no matrimonial +effect whatever.</p> + +<p><span class="smcap">Divorce.</span>—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:</p> + +<p>“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<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> 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 <i>every</i> 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.”</p> + +<p>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.”</p> + +<p>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, <i>except it be for fornication</i>, and shall marry +another, committeth adultery: and whoso marrieth her which is put away +doth commit adultery.”</p> + +<p>Unless we assume that Jesus was concealing rather than expounding His +views, the plain meaning<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> is that He considered fornication to be the +sufficient and only cause for an absolute divorce.</p> + +<p>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.”</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>We must remember, however, that modern divorce law is not founded on +theological dogmas or theories, but upon practical social science and +humanity.</p> + +<p>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<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> a wife may acquire a +separate domicile from that of her husband if he has given her cause for +divorce.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span> 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.</p> + +<p>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.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span></p> +<h2><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II.</h2> +<p class="center"><span class="huge"><span class="smcap">England.</span></span></p> + +<p><span class="smcap">Introduction.</span>—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.”</p> + +<p>As a status created by contract, marriage confers on the parties certain +privileges and exacts certain duties under legal protection and sanction.</p> + +<p>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.</p> + +<p>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.</p> + +<p>By the passage of the Divorce Act of 1857<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> 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.”</p> + +<p>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.</p> + +<p>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.</p> + +<p><span class="smcap">Lex Loci Contractus.</span>—It is a well-established rule that the law of the +place where the contract of marriage was concluded, that is, the <i>lex loci +contractus</i>, or, as it is sometimes termed, the <i>lex loci celebrationis</i> +(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 <i>lex loci contractus</i>, must +be complied with.</p> + +<p><span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span><span class="smcap">Legal Age.</span>—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.</p> + +<p><span class="smcap">Formal Requirements.</span>—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.</p> + +<p><span class="smcap">Banns.</span>—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.</p> + +<p>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.</p> + +<p><span class="smcap">License.</span>—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<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> 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.</p> + +<p><span class="smcap">Certificate of Registrar.</span>—A marriage by the certificate of the registrar +of marriages may take place at a Roman Catholic place of worship, a +Nonconformist chapel, or at the office of the registrar of marriages. The +parties must have resided in the district at least seven days preceding +the date of the notice, which must be given to the superintendent +registrar, or, if they live in different districts, then notice must be +given to the superintendent registrar of each district, and it must be +exhibited in his office for twenty-one days. If no valid objection to the +marriage is made the superintendent registrar issues his certificate and +the marriage may take place within three months. The cost, including +certificate, is 9s. 7d.</p> + +<p><span class="smcap">Registrar’s License.</span>—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.</p> + +<p>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<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> that there is no +person alive whose consent would ordinarily be necessary.</p> + +<p>A marriage may be legally concluded without a marriage license if banns +are duly published.</p> + +<p><span class="smcap">Hours for Marriage.</span>—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.</p> + +<p><span class="smcap">False Names.</span>—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.</p> + +<p><span class="smcap">Marriage by Reputation.</span>—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—<i>e.g.</i>, 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.</p> + +<p><span class="smcap">Certificates of Marriages—Marriage Lines.</span>—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,<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> should be obtainable +either from the registrar general or from the church where it was +solemnized.</p> + +<p><span class="smcap">Impediments—Prohibited Degrees.</span></p> + +<p>A man may not marry his:</p> + +<div class="blockquot"> +<p>1 Grandmother.</p> + +<p>2 Grandfather’s Wife.</p> + +<p>3 Wife’s Grandmother.</p> + +<p>4-5 Father’s Sister, Mother’s Sister (<i>i.e.</i>, aunt by blood).</p> + +<p>6-7 Father’s Brother’s Wife, Mother’s Brother’s Wife (Uncle’s Wife, +<i>i.e.</i>, aunt by affinity).</p> + +<p>8-9 Wife’s Father’s Sister, Wife’s Mother’s Sister (Wife’s Aunt).</p> + +<p>10 Mother.</p> + +<p>11 Stepmother.</p> + +<p>12 Wife’s Mother (Mother-in-law).</p> + +<p>13 Daughter.</p> + +<p>14 Wife’s Daughter (Step-daughter).</p> + +<p>15 Son’s Wife (Daughter-in-law).</p> + +<p>16 Sister.</p> + +<p>17 Brother’s Wife (Sister-in-law).</p> + +<p>18-19 Son’s Daughter, Daughter’s Daughter, (Granddaughter).</p> + +<p>20 Son’s Son’s Wife (Son’s Daughter-in-law).</p> + +<p>21 Daughter’s Son’s Wife (Daughter’s Daughter-in-law).</p> + +<p>22 Wife’s Son’s Daughter (Stepson’s Daughter).</p> + +<p>23 Wife’s Daughter’s Daughter (Stepdaughter’s Daughter).</p> + +<p>24-25 Brother’s Daughter, Sister’s Daughter (niece).</p> + +<p>26-27 Brother’s Son’s Wife, Sister’s Son’s Wife (nephew’s wife).</p> + +<p>28-29 Wife’s Brother’s Daughter, Wife’s Sister’s Daughter (niece by +affinity).</p></div> + +<p>A woman may not marry her:</p> + +<div class="blockquot"><p>1 Grandfather.</p> + +<p>2 Grandmother’s Husband.</p> + +<p>3 Husband’s Grandfather.</p> + +<p>4-5 Father’s Brother, Mother’s Brother (uncle by blood).</p> + +<p>6-7 Father’s Sister’s Husband, Mother’s Sister’s Husband, (Aunt’s +Husband, <i>i.e.</i>, uncle by affinity).</p> + +<p>8-9 Husband’s Father’s Brother, Husband’s Mother’s Brother (husband’s +uncle).</p> + +<p>10 Father.</p> + +<p>11 Stepfather.</p> + +<p>12 Husband’s Father (father-in-law).</p> + +<p>13 Son.</p> + +<p>14 Husband’s Son (stepson).</p> + +<p>15 Daughter’s Husband (son-in-law).</p> + +<p>16 Brother.</p> + +<p>17-18 Husband’s Brother, Sister’s Husband (brother-in-law).</p> + +<p>19-20 Son’s Son, Daughter’s Son (grandson).</p> + +<p>21 Son’s Daughter’s Husband (son’s son-in-law).</p> + +<p>22 Daughter’s Daughter’s Husband (daughter’s son-in-law).</p> + +<p>23 Husband’s Son’s Son (stepson’s son).</p> + +<p>24 Husband’s Daughter’s Son (stepdaughter’s son).</p> + +<p>25-26 Brother’s Son, Sister’s Son (nephew).</p> + +<p>27-28 Brother’s Daughter’s Husband, Sister’s Daughter’s Husband +(niece’s husband).</p> + +<p>29-30 Husband’s Brother’s Son, Husband’s Sister’s Son (nephew by +affinity).</p></div> + +<p><span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span><span class="smcap">Grounds +Or Causes for Divorce.</span>—A husband is entitled to a divorce if his +wife has committed adultery, but a wife is not so entitled unless her +husband has committed incestuous adultery, bigamy, rape, sodomy, +bestiality, adultery coupled with cruelty, or adultery coupled with +desertion without reasonable excuse for two years or more. Incestuous +adultery is adultery with a woman within the prohibited degrees.</p> + +<p>A wife will not be granted a decree of divorce on the ground of her +husband’s adultery coupled with cruelty unless the cruelty relied on +consists of bodily hurt or injury to health, or a reasonable danger or +apprehension of one or the other of them. There must be at least two acts +of cruelty on the part of the husband.</p> + +<p>The communication of venereal disease when the husband knows of his +condition is an act of cruelty.</p> + +<p><span class="smcap">Procedure.</span>—The application for a divorce is made by a petition to the +Probate, Divorce and Admiralty Division of the High Court of Justice.</p> + +<p>The party seeking relief is called the petitioner, and the party against +whom the petition is brought is called the respondent. The party with whom +a husband alleges his wife has committed adultery is called the +co-respondent. The person with whom a wife alleges her husband has +committed adultery is not a party to the suit. However, a woman implicated +in a divorce suit may, upon proper application, secure an order permitting +her to attend the proceedings as an intervener.</p> + +<p>Divorce proceedings in England are very expensive; the costs in an +ordinary uncontested suit amount to from thirty to forty pounds sterling.</p> + +<p>A petitioner or respondent who is not worth twenty-five pounds after +payment of his or her debts, exclusive of wearing apparel, may sue or<span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span> +defend in <i>forma pauperis</i>. A person whose income exceeds one pound a week +cannot, except in special cases, sue or defend in <i>forma pauperis</i>. A +party desiring to sue or defend in <i>forma pauperis</i> must as a preliminary +measure prepare a written statement of his or her case, setting forth the +facts relied upon as a cause of action or defence, and obtain thereon an +endorsed opinion of a barrister-at-law setting forth his professional +opinion that the cause of action or defence as stated is good in law. The +applicant must then make an affidavit, attaching the statement and the +barrister’s opinion. This affidavit is then filed in the Divorce Registry +of Somerset House, where two days later, if a proper case is made out, an +order is issued granting the applicant leave to sue or defend in <i>forma +pauperis</i>. No fees are charged in respect to this application nor upon the +subsequent proceedings in court. No solicitor or barrister is assigned to +the party proceeding in this form.</p> + +<p><span class="smcap">Jurisdiction.</span>—The Court will only entertain jurisdiction when the husband +is domiciled in England. If the husband is temporarily residing abroad an +action by him or his wife for divorce must be instituted in England.</p> + +<p>The English Courts do not recognize a change of domicile which is obtained +simply to enable the parties to obtain a divorce in another country, the +laws of which offer greater facilities.</p> + +<p>If the domicile of the husband is in England, and either the husband or +the wife obtains a decree of divorce in the United States of America or +elsewhere, the English courts will treat such a divorce as a nullity. A +person’s domicile is his or her permanent home. An Englishman who lives in +America for twenty-five years is not domiciled there unless by all the +facts his conduct shows that he has abandoned his English domicile.</p> + +<p><span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span><span class="smcap">Condonation.</span>—A +matrimonial offence which is a sufficient cause for divorce may be condoned or forgiven by the spouse aggrieved, and such +condonation is a good defence to the action. But subsequent misconduct +will revive the offence as if there had been no condonation.</p> + +<p><span class="smcap">Connivance.</span>—It is a sufficient defence to an action for divorce for the +respondent to show that the adultery complained of was committed by the +connivance or active consent of the petitioner.</p> + +<p><span class="smcap">Collusion.</span>—Collusion is the illegal agreement and co-operation between +the petitioner and the respondent in a divorce action to obtain a judicial +dissolution of the marriage.</p> + +<p><span class="smcap">Form of Divorce Decrees.</span>—An English decree of divorce is in the first +instance <i>nisi</i>, or provisional. If after six months it is unaffected by +any intervention by the King’s Proctor, or any other person, it can be +made absolute upon proper application.</p> + +<p><span class="smcap">King’s Proctor.</span>—This is the proctor or solicitor representing the Crown +in the Probate, Divorce and Admiralty Division of the High Court of +Justice in matrimonial causes.</p> + +<p>In his official capacity he can only intervene in a divorce suit on the +ground of collusion.</p> + +<p>Sir James Hannen, discussing the powers of this officer, said in a leading +case: “If, then, the information given to the King’s Proctor before the +decree <i>nisi</i> does not rise to a suspicion of collusion, but only brings +to his knowledge matters material to the due decision of the case, he is +not entitled to take any step, and the direction of the Attorney-General +would probably be that he should watch the case to see if these material +facts are brought to the notice of the court. If at the trial they should +be, there will be no need for the King’s Proctor to do anything more, for +he would not be<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> entitled to have the same charges tried over again unless +material facts were not brought to the notice of the court.</p> + +<p>“If, however, those material facts are not so brought to the notice of the +court by the parties, he will then be entitled as one of the public, but +still acting under the direction of the Attorney-General, to show cause +against the decree being made absolute.”</p> + +<p>In special cases the court has power to make the decree absolute before +the expiration of six months after the decree <i>nisi</i>.</p> + +<p>Until the decree is made absolute neither party can lawfully contract +another marriage; and in the event of the suit being contested the parties +must further wait until the time for an appeal has passed.</p> + +<p><span class="smcap">Alimony, Temporary and Permanent.</span>—During the pendency of the suit the +husband is liable to provide his wife with alimony or maintenance. The +amount granted is within the court’s discretion, but generally it is about +twenty-five per centum of the husband’s income. Upon the granting of a +decree in the wife’s favour the court has power to grant the wife +permanent alimony, the amount of which depends on all the facts, such as +the husband’s income, the wife’s means and the social status of the +parties. If a wife secures an order for alimony against her husband, he +being a man of property, the court may require him to give security for +its payment or direct him to make a transfer of money to a trustee or +trustees for the convenient payment to the wife. Permanent alimony is +usually smaller than temporary alimony, or alimony <i>pendente lite</i>, but no +rule as to the amount can be safely stated, it resting in the discretion +of the Court.</p> + +<p>If a husband has no considerable property he<span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span> will be directed to pay the +alimony awarded against him in monthly or weekly instalments.</p> + +<p><span class="smcap">Insanity.</span>—Insanity is neither a cause nor a bar to divorce. If an insane +wife commits adultery, or if an insane husband commits adultery coupled +with the other offences which make out a cause of action against him, the +innocent party is entitled to a decree of divorce. So an insane party may +be a petitioner for divorce, but can only appear by his or her committee +in lunacy.</p> + +<p><span class="smcap">Husband’s Name.</span>—A divorced wife is entitled to continue to use her former +husband’s surname.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—An action for the annulment of marriage has for +its purpose the setting aside of the marriage contract on the theory that +proper consent to the marriage has never been given by both the parties.</p> + +<p>The following are the causes or grounds for such annulment:</p> + +<p>1. A prior and existing marriage of one of the parties;</p> + +<p>2. Impotency, or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse;</p> + +<p>3. Relationship within the prohibited degrees;</p> + +<p>4. Marriage procured by fraud, violence or mistake;</p> + +<p>5. Insanity of one of the parties at the time of the marriage;</p> + +<p>6. Marriage performed without legal license, or without the required +publication of banns.</p> + +<p><span class="smcap">Judicial Separation.</span>—By the Matrimonial Causes Act a decree of judicial +separation, which is equivalent in effect to a divorce <i>a mensa et thoro</i> +under the old law, may be obtained either by the husband or wife on the +ground of adultery, or cruelty, or desertion without legal cause for two +years and upwards.</p> + +<p><span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span>The defences which may be set up by the respondent vary according to the +cause relied upon by the petitioner, but there is one absolute bar in +suits for judicial separations brought on any ground, and that is that the +petitioner has committed adultery since the date of the marriage.</p> + +<p><span class="smcap">Separation Orders.</span>—Besides the ordinary suit to obtain a judicial +separation which must be prosecuted in the High Court a wife can obtain +speedy and inexpensive relief by making an application to a police +magistrate, or a board of magistrates, for a separation order. This remedy +is limited to married women whose husbands are domiciled in England or +Wales.</p> + +<p>Such separation orders are intended to furnish summary relief to the wives +of workingmen, and the amount awarded for the wife’s support to be paid by +her husband cannot exceed two pounds a week, no matter what the husband’s +income may be.</p> + +<p>The following are the causes for which, upon application, a magistrate or +board of magistrates is authorized to grant a separation order:</p> + +<p>1. Habitual drunkenness of the husband, which renders him at times +dangerous to himself or others, or incapable of managing himself or his +affairs;</p> + +<p>2. When the husband has been convicted of an aggravated assault upon his +wife, or has been convicted by an Assize or Quarter Sessions Court of an +assault and has been sentenced to a fine of more than five pounds or to +imprisonment for more than two months;</p> + +<p>3. Desertion by the husband of his wife;</p> + +<p>4. Persistent cruelty of the husband toward his wife;</p> + +<p>5. Neglect to provide reasonable maintenance for wife or infant children.</p> + +<p>By the Licensing Act of 1902 a husband is <span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span>entitled to a separation order +by a magistrate or board of magistrates if his wife is an habitual +drunkard.</p> + +<p><span class="smcap">Restitution of Conjugal Rights.</span>—Husbands and wives are entitled to each +other’s society, and if, without sufficient reason, either of them +neglects to perform his or her obligations the injured party may institute +what is known as a suit for restitution of conjugal rights, in which the +court will grant a decree directing the offending party to render conjugal +rights to the other party. If the decree is not complied with, such +non-compliance is equivalent to desertion, and a suit for judicial +separation may be instituted immediately. If the husband is the offending +party, and if he has been guilty of adultery, a suit for divorce may at +once be instituted; or if he commits adultery subsequently to the date of +the decree for restitution, proceedings for divorce may be taken. +Furthermore, if the suit for restitution is brought by the wife, the +husband may be directed to make such periodical payments for her benefit +as the court may think just. If the suit for restitution is brought by the +husband, and if the wife is entitled to any property, the court may order +a settlement for the whole or part of it for the benefit of the husband +and children of the marriage, or either or any of them, or may order the +wife to pay a portion of her earnings to the husband for his own benefit, +or to some other person for the benefit of the children of the marriage. A +husband cannot compel his wife to live with him by force, and if he seizes +and retains possession of her, she or her relatives can obtain a <i>habeas +corpus</i> to compel him to release her, but persons who wrongfully induce a +wife to leave her husband, or who detain her from his society by improper +means, are liable to an action for damages by him. If a husband<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> declines +to live with his wife because he discovers that she has been unchaste +before marriage she cannot obtain a decree for restitution of conjugal +rights unless he knew of the fact before the marriage took place. If a +husband has been guilty of cruelty he cannot obtain a decree for +restitution.</p> + +<p><span class="smcap">Foreign Marriages.</span>—The Foreign Marriage Act of 1892 (55 and 56 Vict. c. +23) forms a complete code upon the subject of the marriage of British +subjects abroad.</p> + +<p>Its chief requirement is that one at least of the parties to the marriage +must be a British subject.</p> + +<p>Notice of the proposed marriage must be given fourteen days before the +ceremony, and it must be performed before one of the following officials, +who is termed in the Act a “marriage officer”: the British ambassador, +minister or chargé-d’affaires, accredited to the country where the +marriage takes place; the British consul, governor, high commissioner, or +official resident. The term consul in the Act includes a consul-general, a +vice-consul, pro-consul, or consular agent.</p> + +<p>If the woman is a British subject, and the man is a subject or citizen of +another country, the marriage officer must be satisfied that the intended +marriage would be recognized by the laws of the country where the man to +be married belongs.</p> + +<p>In 1896 there was passed the Marriage with Foreigners Act (6 Edw. 7, 3. +40), which is intended to protect British subjects who contract marriages +with subjects or citizens of other countries, either at home or abroad, +and to run the risk of having their marriages treated as invalid by the +law of the country of the foreign contracting party. It provides for the +granting of certificates by competent authority in the country to which +the foreign party to the marriage owes allegiance, stating that<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> there is +no lawful impediment to the proposed marriage.</p> + +<p><span class="smcap">Conflict of Laws.</span>—English courts do not recognize a decree of divorce +granted by the courts of a foreign country as having any effect outside of +the country where granted, unless at the time of the beginning of the +action which resulted in the decree both parties were domiciled within the +jurisdiction of the court which granted it.</p> + +<p>This rule applies to divorce decrees obtained in Scotland because for all +the purposes of private international law Scotland is a foreign country.</p> + +<p>The English courts will, however, recognize as possessing +extra-territorial validity a decree of divorce which is recognized as +valid by the courts of the country where the parties were actually +domiciled at the time of its being granted.</p> + +<p>In the case of Gillig v. Gillig, decided in 1906, the English High Court +recognized as valid in England a divorce granted in South Dakota, U. S. +A., of parties domiciled in New York, because the decree in question was +recognized as valid by the courts of the State of New York. It is the +doctrine of English courts that an honest adherence to the principle that +domicile alone gives jurisdiction in a divorce action will preclude the +scandal which arises when a man and woman are held to be husband and wife +in one country and strangers in another.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span></p> +<h2><a name="CHAPTER_III" id="CHAPTER_III"></a>CHAPTER III.</h2> +<p class="center"><span class="huge"><span class="smcap">Scotland.</span></span></p> + +<p>The Act of Union between England and Scotland, A. D. 1707 (6 Anne, c. 2), +which made one legislature, the present British Parliament, for the two +countries, expressly provided that the existing law and judicial procedure +of each kingdom should be continued, except so far as they might be +repealed by the Act, or by subsequent legislation. The foundation of +Scottish jurisprudence is the Roman law, and the canon law which is +derived from it, consequently the law of marriage and divorce in Scotland +differs from that of England. The status of marriage by Scottish law may +be created in any one of three ways: First, by regular or public marriage +celebrated in a church or private house by a minister of religion; second, +by an irregular or clandestine marriage entered into without the +assistance of a clergyman or any other third party, and, third, by +declaration, or declarator, wherein the parties make a declaration +confessing an irregular union, and are fined for the “offence,” and obtain +an extract of the “sentence” which answers to the purpose of a certificate +of marriage.</p> + +<p>The Scottish definition of marriage is given by Lord Penzance as follows: +“The voluntary union of one man and one woman to the exclusion of all +others.”</p> + +<p><span class="smcap">Impediments.</span>—Males under fourteen and females under twelve cannot marry, +but if persons under age, called in the Scottish law “pupils,” live +together and continue to do so after both have passed their nonage they +are considered married, on the<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> ground that there is evidence of a +contract after the impediment has ceased to exist.</p> + +<p><span class="smcap">Insanity.</span>—An insane person cannot give a valid consent and therefore the +insanity of either party is an impediment.</p> + +<p><span class="smcap">Intoxication.</span>—There can be no marriage if one of the parties at the time +of the formal union was so intoxicated as to be bereft of reason, but a +marriage voidable on the ground of either insanity or intoxication may be +validated by the consent of both parties after a return to sanity or +sobriety.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—As to the impediments which arise from blood +and marriage, the 18th Chapter of the Book of Leviticus is practically the +law of Scotland. Marriage is forbidden between ascendants and descendants +<i>ad infinitum</i>, and in the collateral line between brothers and sisters, +consanguinian or uterine, and between all collaterals, one of whom stands +in <i>loco parentis</i> to the other. It is still an academic question whether +or not the marriage of a brother and sister both born illegitimate is +prohibited.</p> + +<p>Of course, a previous marriage still subsisting is an impediment.</p> + +<p><span class="smcap">Gretna Green Marriages.</span>—In order to put a stop to the Gretna Green +marriages which have furnished material for much romance in books and much +sorrow in actual life, it was enacted by 19 and 20 Vict., c. 96, that “no +irregular marriage contracted in Scotland by declaration, acknowledgment +or ceremony (after 31 Dec., 1856) shall be valid unless one of the parties +had at the date thereof his or her usual place of residence there, or had +lived in Scotland for twenty-one days next preceding such marriage.”</p> + +<p>It is manifest from all the decisions that in the absence of impediments, +marriage in Scotland is constituted by interchange of consent. No formal<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> +expression of such consent is necessary. If the court is satisfied, from +the whole circumstances and the conduct of the parties before and after, +that they have given genuine consent to present marriage, it will be held +that the marriage has been validly constituted.</p> + +<p><span class="smcap">Husband and Wife.</span>—By the common law of Scotland the legal status of a +married woman is so merged in that of her husband as to leave her +incapable of independent legal action. Recent legislation has, however, +modified this doctrine.</p> + +<p><span class="smcap">Divorce.</span>—The term divorce as used in this chapter means an absolute +dissolution and setting aside of a legal marriage.</p> + +<p>The Scottish courts recognize two grounds for divorce, adultery and +desertion. These grounds are open to either husband or wife. The action +can only be maintained by the innocent party.</p> + +<p><span class="smcap">Adultery.</span>—The evidence must be such as would “lead the guarded discretion +of a reasonable and just man to the conclusion that adultery has been +committed.”</p> + +<p>If the court has jurisdiction it does not matter that the offence was +committed out of Scotland.</p> + +<p><span class="smcap">Defences.</span>—Besides the denial of the allegation of adultery, the following +are sufficient defences: 1, collusion; 2, condonation; 3, long delay in +bringing the action; 4, connivance or lenocinium of the plaintiff, who is +called a pursuer in Scottish procedure; 5, the honest belief that the +intercourse alleged to be adultery was lawful, as when a wife enters into +a second marriage in the reasonable belief that her first husband is dead.</p> + +<p><span class="smcap">Desertion.</span>—Desertion or, as the Scottish lawyers put it, “non-adherence,” +for a period of four years, against the will of the party deserted, is the +second ground for divorce. Mere separation, as, for example, the absence +of the husband on<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> necessary business or his imprisonment, is not such +non-adherence as will entitle the pursuer to a decree. The desertion must +be a deliberate and obstinate withdrawal from cohabitation and +companionship. If a wife refused to accompany her husband abroad, and he +went alone, her refusal, and not his going away, would constitute +desertion.</p> + +<p><span class="smcap">Foreign Divorce.</span>—If a native of Scotland acquires a foreign domicile, and +obtains a divorce while abroad, the divorce would be recognized in +Scotland if granted for either of the two causes sufficient by Scottish +law.</p> + +<p><span class="smcap">Effects of Divorce.</span>—The judgment of divorce completely sets aside the +marriage, and both parties are free to marry again. On divorce the +innocent party also comes into the immediate enjoyment of all the rights +in the estate of the guilty spouse, or the funds settled by the marriage +contract, as if the offending party had died at the date of the decree.</p> + +<p>Conversely, the guilty spouse loses all claim to such legal rights as he +or she would have had on the death of the innocent party but for the +divorce.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span></p> +<h2><a name="CHAPTER_IV" id="CHAPTER_IV"></a>CHAPTER IV.</h2> +<p class="center"><span class="huge"><span class="smcap">Ireland.</span></span></p> + +<p>Ireland like Scotland has its separate judicial system, and many of its +laws differ from those of all other parts of the British Empire.</p> + +<p>The Irish law relating to marriage and matrimonial controversies is +administered under the Matrimonial Causes and Marriage Law (Ireland) +Amendment Act of 1870. It is practically the same as the English law as it +existed before 1857.</p> + +<p>The Irish Act of 1870 transferred the exercise by the Ecclesiastical +Courts prior to the disestablishment of the Church of Ireland to a court +for matrimonial causes and assigned the trial of such causes to the judge +of the Court of Probate.</p> + +<p>Under the Irish Judicature Act of 1877 this jurisdiction is now vested in +the Supreme Court of Judicature and is exercised by the probate and +matrimonial judge.</p> + +<p>It is impossible to obtain a decree of divorce from the bonds of matrimony +in the courts of Ireland. The only divorce decree granted is from bed and +board, and amounts in effect to what is termed a judicial separation in +England.</p> + +<p>The grounds for the limited form of divorce granted by the courts are +adultery, cruelty or unnatural practices.</p> + +<p>In order to obtain a decree of complete divorce the petitioner must +promote a bill in the House of Lords to dissolve the marriage and allow +the petitioner to marry again, which bill must be founded upon and follow +a divorce from bed and board obtained in the Irish courts.</p> + +<p>When a petition is presented to the House of<span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span> Lords a wife must prove her +husband’s adultery coupled with cruelty and a husband must prove his +wife’s adultery and must, if possible, make his wife’s paramour a party by +instituting proceedings against him for criminal conversation in the Irish +courts.</p> + +<p><span class="smcap">Nullity.</span>—An action for nullity of marriage can be maintained on the +following grounds: 1. Impuberty. 2. Relationship of the parties within the +prohibited degrees. 3. An existing prior marriage of one of the parties. +4. Incapacity of the parties to conclude the marriage contract, as in the +event of one being a lunatic. 5. Non-compliance with marriage laws. 6. +Fraud in procuring the marriage. 7. Impotency.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span></p> +<h2><a name="CHAPTER_V" id="CHAPTER_V"></a>CHAPTER V.</h2> +<p class="center"><span class="huge"><span class="smcap">The French Law of Marriage and Divorce.</span></span></p> + +<p><span class="smcap">Marriage.</span>—A man cannot contract a marriage before he has completed his +eighteenth year and a woman until she has completed her fifteenth year. +However, the President of the Republic may grant a dispensation as to age +upon good cause appearing.</p> + +<p>A son who has not reached the age of twenty-five, or a daughter who has +not reached the age of twenty-one, cannot marry without the consent of +their parents; but if the parents disagree between themselves the consent +of the father is sufficient.</p> + +<p>If both the father and the mother are dead or unable to give consent the +grandparents take their place.</p> + +<p>Sons or daughters less than twenty-one years of age, who have no parents +or grandparents, or only such as are in a condition which renders them +incapable of giving consent, cannot marry without the consent of a family +council.</p> + +<p><span class="smcap">Impediments.</span>—Marriage is prohibited between all legitimate ascendants and +descendants in the direct line and between persons who are connected by +marriage and related in the same degree. Marriage is also prohibited +between uncle and niece and aunt and nephew. The President of the Republic +may, nevertheless, on good cause being shown, dispense with the +prohibitions contained in the Civil Code forbidding the marriage of a +brother-in-law with a sister-in-law, and the marriage between uncle and +niece, and aunt and nephew.</p> + +<p><span class="smcap">Formalities.</span>—A marriage must be celebrated publicly before the civil +status officer of the civil<span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span> domicile of one of the parties. The officer +of the civil status before celebrating a marriage must publish the banns +twice before the door of the Maison Commune, at an interval of eight days. +The President of the Republic, and also the official whom he entrusts with +this power, may dispense, for good cause, with the second publication of +the banns.</p> + +<p><span class="smcap">Foreign Marriages.</span>—A marriage celebrated in a foreign country between +French citizens or between a French citizen and a foreigner is valid if it +is performed according to the forms customary in such country, provided +always that the marriage has been preceded by the publications of the +banns pursuant to the code.</p> + +<p>The record of a marriage contracted in a foreign country must be +transcribed within three months of the return of the French citizen to the +territory of the Republic in the public marriage registers of his civil +domicile.</p> + +<p><span class="smcap">Voidable Marriages.</span>—The validity of a marriage which has been contracted +without the free consent of both parties, or without the free consent of +one of them, can only be impugned by the parties themselves or by the +party whose consent was not freely given.</p> + +<p>When there has been an honest mistake as to the personality of one of the +parties the validity of the marriage can only be impugned by the person +who was misled.</p> + +<p>Such mistakes as to personality include mistakes as to quality as well as +to identity. For example, the Court of Cassation held in 1861 that where a +woman had been misled into marrying an ex-convict by ignorance of the +fact, the marriage was annulable.</p> + +<p>An action for a declaration of nullity of marriage for any cause cannot be +maintained by parties<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> 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 passed since +they acquired knowledge of the cause for an action without any application +to the courts for relief.</p> + +<p>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.</p> + +<p>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.</p> + +<p>The fact that by common repute the parties are married does not dispense +with the necessity of producing the record of the celebration.</p> + +<p>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 assailed on the sole ground that a record of their +parents’ marriage is not produced.</p> + +<p>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.</p> + +<p>The last two paragraphs, which are virtually a<span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> translation of Articles +201 and 202 of the Civil Code, are very important to foreigners who marry +French citizens.</p> + +<p>Until a court has pronounced 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.</p> + +<p>If an Englishwoman in good faith marries a Frenchman in London she is +entitled 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.</p> + +<p>Of course, such a marriage could be declared null, leaving both parties +free to marry again.</p> + +<p>It must be always carried in mind that to constitute 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.</p> + +<p><span class="smcap">Husband and Wife.</span>—Married persons owe each other fidelity, support and +assistance. A husband owes protection to his wife. A wife owes obedience +to her husband.</p> + +<p>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.</p> + +<p>A wife cannot bring a civil action without the<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> 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.</p> + +<p>A wife cannot give away, convey, mortgage or acquire property, with or +without a consideration, without her husband concurring in the document by +which such transfer is made, or giving his written consent.</p> + +<p>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.</p> + +<p><span class="smcap">Marriage Duties.</span>—The husband and wife are mutually bound to feed, support +and educate their children.</p> + +<p>Children are bound to support their parents and other ascendants who are +in want.</p> + +<p><span class="smcap">Dissolution of Marriage.</span>—A marriage is dissolved:</p> + +<p><i>a.</i> By the death of one of the parties;</p> + +<p><i>b.</i> By a divorce pronounced according to law.</p> + +<p><span class="smcap">Second Marriages.</span>—A woman cannot legally marry again until ten months +have elapsed since the dissolution of her previous marriage.</p> + + +<p> </p> +<p class="center">DIVORCE</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Either party to the marriage is entitled to a divorce on the ground of +the adultery of the other.</p> + +<p>2. Either party is entitled 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 assaults. 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.</p> + +<p><span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span>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, entitles the other party to a divorce.</p> + +<p>That article of the Civil Code which provided for divorce by mutual +consent, owing to incompatibility of temper, has been repealed.</p> + +<p><span class="smcap">Divorce Procedure.</span>—A party who wishes to institute a proceeding for +divorce must present the petition personally to the President of the Court +or to the judge who is acting in that capacity. If it appears that the +petitioner 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 petitioner.</p> + +<p>The judge, upon seeing and hearing the petitioner and after having made +such comment as he may deem proper, will affix his order to the end of the +petition, 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.</p> + +<p>It is within the judge’s discretion to grant leave in the same order to +the petitioner to reside separate during the pendency of the action from +the defendant. If the petitioner be a wife, the judge may fix the place of +her temporary residence.</p> + +<p>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 petitioner leave to +issue a citation requiring the defendant to appear in court.</p> + +<p>The judge has authority under the code to<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> 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.</p> + +<p>The case is prepared, investigated and judged in the ordinary form, the +Ministère Public being heard. The Ministère Public is an official who +performs similar duties to those of a King’s Proctor in England.</p> + +<p>The petitioner can at any stage of the case change the petition for a +divorce into a petition for a judicial separation.</p> + +<p><span class="smcap">Newspaper Reports.</span>—The public press is forbidden under penalty of a fine +of from 100 to 2,000 francs to publish the evidence in divorce trials.</p> + +<p><span class="smcap">Effects of Divorce.</span>—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.</p> + +<p>If parties who have been divorced wish to become husband and wife again a +new marriage is necessary. After such a remarriage no new petition 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.</p> + +<p>A divorced woman cannot remarry until ten months after the divorce has +become absolute.</p> + +<p>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.</p> + +<p><span class="smcap">Custody of Children.</span>—The custody of the children belongs to the party in +whose favour the judgment of divorce has been pronounced, unless the court +in the interests of the children, upon<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> the application of the family or +the Ministère Public, directs that they be entrusted to the other party or +to a third person.</p> + +<p>Whoever may become entitled 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.</p> + +<p><span class="smcap">Judicial Separation.</span>—The same causes which are sufficient to obtain a +decree of divorce are sufficient to entitle the party to a separation from +bed and board.</p> + +<p>When a judicial separation has lasted three years the judgment can be +changed into a decree of divorce upon the application of either party.</p> + +<p>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.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span></p> +<h2><a name="CHAPTER_VI" id="CHAPTER_VI"></a>CHAPTER VI.</h2> +<p class="center"><span class="huge"><span class="smcap">Italy.</span></span></p> + +<p><span class="smcap">Marriage.</span>—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 (<i>Il Codice Civile del regno d’Italia</i>), 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.</p> + +<p>As in France, civil marriage is the only form of marriage recognized by +the State.</p> + +<p><span class="smcap">Impediments.</span>—1. Age. A man may not contract marriage before completing +his eighteenth year or a woman before completing her fifteenth. The King +may, however, grant a dispensation permitting a man to marry after +attaining the age of fourteen and a woman after attaining the age of +twelve.</p> + +<p>2. Existing previous marriage. As in France.</p> + +<p>3. Period of delay. A woman cannot contract a new marriage until ten +months after the dissolution or annulment of a former marriage, unless the +marriage was annulled on the ground of impotence. But this prohibition +ceases from the day the woman has given birth to a child.</p> + +<p>4. Consanguinity and affinity. As in France. The King has a right of +dispensation similar to that possessed by the President in France.</p> + +<p>5. Relationship by adoption. As in France.</p> + +<p>6. Mental incapacity. Marriage may not be contracted by one who has been +legally adjudged<span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span> of unsound mind. If an action on this ground is pending +against either party to a contemplated marriage the marriage must be +suspended until final judgment is given.</p> + +<p>7. Homicide. A person who has been legally convicted as a principal or +accomplice in a voluntary homicide committed or attempted upon any person +may not be married to the latter’s consort. As in the case of the +preceding impediment, a contemplated marriage must be suspended if an +action on this ground is pending against either party.</p> + +<p>8. Consent of parents. The age under which the consent of parents or next +of kin is required is 25 for males and 21 for females. An adopted child +requires the consent of both its natural and adopted parents. If the +consent is refused the Italian Code provides for an appeal to the court.</p> + +<p>Foreigners desiring to be married in Italy must present a certificate from +the competent authority of their own country that they satisfy the +requirements of the laws of that country. Foreigners ordinarily residing +in Italy must also satisfy the requirements of the Italian law.</p> + +<p><span class="smcap">Preliminaries.</span>—The preliminary formalities to marriage are essentially +the same in both the French and the Italian Codes.</p> + +<p><span class="smcap">Legal Opposition.</span>—Legal opposition to the marriage may be made by the +parents or, in want of them, by the grandparents of either party, if they +are cognizant of the existence of any legal impediment, even if the +parties are of age. In default of ascendants, opposition can also be made +by a brother, sister, uncle, aunt, or cousin german, as well as by the +guardian or curator duly authorized by the family council, on the ground +of lack of the required consent or the infirmity of mind of one of the +parties to the marriage. Anyone<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> may oppose the remarriage of his former +consort.</p> + +<p>The public prosecutor is required to oppose the marriage officially when +he is cognizant of any impediment, and to facilitate his accomplishment of +this duty the registrar is bound to inform him of any impediment that +appears to exist.</p> + +<p>The effect of a legal opposition is to suspend the celebration of the +marriage until the case has been determined in court. If the opposition +proves to be without legal ground the one filing it, unless one of the +ascendants or the public prosecutor, may be held responsible for any +damage occasioned by him.</p> + +<p><span class="smcap">Celebration.</span>—Marriage must be celebrated publicly in the communal house +and before the registrar of the commune where one of the parties has his +or her domicile. Two witnesses are required.</p> + +<p><span class="smcap">Record of Marriage.</span>—The registrar must inscribe a record of the marriage +in the civil register giving all the necessary details and must deliver an +authenticated abstract of the record to the parties, who without this +cannot legally claim to be married or to enjoy any of the legal +consequences of marriage.</p> + +<p><span class="smcap">Illegitimate Children.</span>—Such children are legitimatized by the subsequent +marriage of their parents, although in order to acquire the legal rights +of legitimate children they must be formally recognized by their parents.</p> + +<p>These legal rights are acquired at the time of marriage only if the +illegitimate children are legally recognized by their parents in the +marriage record or have been legally recognized at some time prior to the +marriage; otherwise they date only from the day when such recognition is +given subsequent to the marriage. Children of adulterous connections and +of persons between<span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span> whom exists the impediment of relationship by blood or +marriage in the direct line, or of relationship by blood in the collateral +line up to the second degree, cannot be legitimatized.</p> + +<p><span class="smcap">Foreign Marriages.</span>—In order that marriage may be valid in Italy an +Italian citizen entering into a marriage in a foreign country must be free +to marry under the Italian law and must make publication in the commune in +Italy of which he is a resident, or if he is no longer a resident of +Italy, in the one in which he last resided. The marriage is valid if +celebrated according to the form prescribed by the laws of the country in +which it takes place. Within three months after his return to Italy he +must have the marriage recorded in the civil register of the commune where +he permanently resides.</p> + +<p><span class="smcap">Annulment.</span>—Marriage may be annulled if contracted in contravention of the +impediments as to age, existing previous marriage, relationship or +homicide. It may also be declared null if it was celebrated before an +incompetent official or without the necessary witnesses; in the former +case, however, the action cannot be instituted more than a year after the +date of celebration. Actions on the foregoing grounds may be brought by +the parties themselves, by the nearest ascendants, by the public +prosecutor or by any one who has a legitimate or actual interest in the +marriage.</p> + +<p>The validity of a marriage may also be attacked by the party whose consent +thereto was not free or who was under error as to the person married; but +actions on these grounds are no longer admissible when cohabitation has +lasted for a month after the removal of the constraint or the discovery of +the error. Impotence, when anterior to marriage, may be put forward as a +ground for annulment by either party. Marriage performed without<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> the +required legal consent may be attacked by the person whose consent was +necessary or by the party to whom it was necessary; but in the former case +it cannot be attacked later than six months after marriage, and in the +latter, six months after the party in question has attained his majority. +Moreover, in cases where only one of the parties has attained the required +age it cannot be attacked when the wife, although not yet of age, has +become pregnant. The marriage of one who has been legally adjudged of +unsound mind can be attacked either by the party himself, his guardian, +the family council, or the public prosecutor, if the judgment had already +been passed when the marriage was celebrated, or if the infirmity for +which the judgment was pronounced was existent at the time of marriage.</p> + +<p>Marriage cannot, however, be attacked on this ground if cohabitation has +endured for three months after the party has been legally adjudged to be +once more of sound mind.</p> + +<p>The public prosecutor is obliged to intervene in all matrimonial causes, +even if they were not instituted by him.</p> + +<p><span class="smcap">Separation.</span>—There is no divorce in Italy, and marriage is only dissolved +by the death of one of the parties. Personal separation is, however, +permitted on the following grounds:</p> + +<p>1. Adultery of the wife, or of the husband if he maintains a concubine in +his house or openly in another place or when such circumstances concur +that the act constitutes a grave indignity (<i>ingiuria grave</i>) to the wife. +The latter provision is intended to apply particularly to cases where the +wife has discovered the husband in <i>flagrante delicto</i>.</p> + +<p>2. Voluntary abandonment.</p> + +<p><span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span>3. Violence endangering the life or health, cruelty, threats, or grave +mental indignities.</p> + +<p>4. Sentence to punishment for crime, except when the conviction was prior +to the marriage and the other party was cognizant of it.</p> + +<p>5. The wife can ask for a separation when the husband, without any just +reason, does not set up an abode, or, having the means, refuses to set one +up in a manner suited to his condition.</p> + +<p>6. Mutual agreement. Separation on this ground is not valid unless +ratified by the court after an attempt at reconciliation has been made.</p> + +<p><span class="smcap">Limitations To Right of Action.</span>—The right to obtain a separation is +extinguished by condonation, express or tacit.</p> + +<p><span class="smcap">Procedure.</span>—Actions for separations must be brought before the court under +whose jurisdiction the defendant is resident or domiciled. Service is +ordinarily personal, but if the residence of the defendant is unknown it +may be made by a judicial edict giving notice of the action, of which one +copy must be posted at the door of the building where the court holds its +sessions, while a copy is published in the newspaper designated for the +official notices of the court, and another copy is transmitted to the +public prosecutor for the district in which the action is brought.</p> + +<p>Before the case is tried the parties are obliged to appear in person and +without attorneys before the President of the Court which has jurisdiction +over the case, who hears each party separately and makes such +representations as he considers calculated to effect a reconciliation. If +a reconciliation is accomplished the fact is noted on the court records +and the case dismissed; otherwise the case is sent back to the court for +trial.</p> + +<p>The trial is ordinarily in accordance with the rules of summary +procedure.</p> + +<p><span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span><span class="smcap">Effects +of Decree.</span>—The party for whose fault the separation was +pronounced incurs the loss of the marriage remainders; of all the uses +which the other party had granted in the marriage contract, and also of +the legal usufruct. The other party preserves the right to the remainders +and to every other use dependent on the marriage contract, even if +stipulated as reciprocal. In case both parties are equally at fault each +incurs the losses above indicated, the right of support in case of +necessity always being preserved.</p> + +<p><span class="smcap">Custody of Children.</span>—The tribunal which pronounces the separation also +orders which of the parties shall retain the children. For grave reasons +it may commit the children to an educational institution or to the charge +of a third party. Whatever the disposition of the children, however, both +parents retain the right of supervising their education.</p> + +<p><span class="smcap">Foreign Divorces.</span>—Decrees of divorce granted by foreign courts are not +recognized in Italy so far as Italian subjects are concerned.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span></p> +<h2><a name="CHAPTER_VII" id="CHAPTER_VII"></a>CHAPTER VII.</h2> +<p class="center"><span class="huge"><span class="smcap">Belgium.</span></span></p> + +<p><span class="smcap">Requirements for Marriage.</span>—A man who has not completed his eighteenth +year and a woman who has not completed her fifteenth year cannot contract +marriage.</p> + +<p>Nevertheless, it is within the power of the sovereign to grant a +dispensation setting aside this requirement for good and sufficient +causes.</p> + +<p>There can be no marriage in Belgium without mutual consent. It is +forbidden to contract a second marriage before the dissolution of the +first.</p> + +<p>A son or a daughter who has not reached the age of twenty-one years cannot +contract a marriage without the consent of his or her father and mother. +In case of disagreement between the father and mother on this subject the +consent of the father is sufficient.</p> + +<p>A disagreement between a father and a mother as to giving consent to the +marriage of their child can be established by a notarial record, by a +summons served by a process server, by minutes of a hearing held on the +subject, or by a letter stating the mother’s objection to the marriage +written by her to a civil officer of the State.</p> + +<p>If the father or the mother is dead, if either of them is absent or +incapable of expressing consent, the consent of the other parent is +sufficient.</p> + +<p>The incapacity of a father or a mother to express consent may be proven by +a declaration made by the future spouse whose ascendant is incapable and +by four witnesses of full age, of either sex.</p> + +<p>If the father and the mother are dead, or both<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> are incapable of +manifesting their wishes, the grandfathers and the grandmothers take their +places.</p> + +<p><span class="smcap">Prohibitions.</span>—In direct line marriage is forbidden between all legitimate +or illegitimate ascendants and descendants and their spouses.</p> + +<p>In the indirect or collateral line marriage is forbidden between brother +and sister, legitimate or illegitimate, and their spouses of the same +degree.</p> + +<p>Marriage is forbidden between uncle and niece and aunt and nephew.</p> + +<p>It is, however, possible for good reasons to obtain a dispensation from +the sovereign permitting a marriage within these prohibited degrees.</p> + +<p><span class="smcap">Formalities.</span>—Marriage must be celebrated publicly before a civil officer +of the State of the commune and in the commune where one of the +contracting parties has his, or her, residence.</p> + +<p><span class="smcap">Objections by Third Persons.</span>—Of course, a husband or wife of an existing +marriage has the right to object formally to his or her spouse contracting +another marriage.</p> + +<p>The father, and, in default of the father, the mother, and, in default of +the mother, the grandparents have the right to oppose a marriage of a +child or grandchild who has not reached the age of twenty-five years.</p> + +<p><span class="smcap">Annulment.</span>—A marriage which has been contracted without the free consent +of the parties, or one of them, may be annulled in the courts, but only on +the application of either of the parties when neither of them have given +free consent, or on the application of the party whose free consent was +not obtained.</p> + +<p>When there has been an error concerning the identity of either of the +parties to the contract the<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> marriage can only be annulled at the instance +of the party who has been misled or imposed upon.</p> + +<p>A marriage which has been contracted without the consent of the father or +mother, the ascendants, or the family council, where such consent was a +necessary condition precedent, can only be annulled on the application of +the person or persons whose consent was wanting.</p> + +<p>A marriage which has been declared null continues in operation, +nevertheless, all the civil effects both for the parents and the children, +when the contract was concluded in good faith.</p> + +<p><span class="smcap">Obligations of Marriage.</span>—The parties to a marriage are bound to mutual +fidelity, protection and assistance.</p> + +<p>The husband owes protection to his wife and a wife obedience to her +husband.</p> + +<p>A wife is obliged to live with her husband at whatever residence he may +judge to be proper. The husband is obliged to receive his wife and to +furnish her with the necessaries of life, according to his ability and +social condition.</p> + +<p>A husband and wife contract together by the fact of marriage itself to +nourish, educate and properly care for their children.</p> + +<p>A wife whose property is mixed with that of her husband, or who keeps her +property separate, cannot give, sell, pledge, mortgage, or acquire title +to property, with or without a valuable consideration, except on the +written consent of her husband.</p> + +<p><span class="smcap">Dissolution of Marriage.</span>—A marriage is dissolved:</p> + +<p>1. By the death of one of the parties;</p> + +<p>2. By legal divorce;</p> + +<p>3. Abrogation by Article 13 of the Constitution.</p> + +<p><span class="smcap">Second Marriage.</span>—A woman cannot conclude a new marriage until ten months +after the dissolution of the one precedent.</p> + +<p><span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span><span class="smcap">Divorce.</span>—A husband +is entitled to a divorce because of the adultery of his wife.</p> + +<p>A wife can only obtain a divorce because of her husband’s adultery, when +the husband has brought his paramour or concubine into the home he has +established for himself and wife.</p> + +<p>Either party to a marriage is entitled to a divorce because of excessive +ill-usage or grievous bodily injuries committed by one against the other.</p> + +<p>The conviction of one of the parties for an infamous offence entitles the +other to institute an action for a divorce.</p> + +<p><span class="smcap">Mutual Consent.</span>—The mutual and persistent agreement of the parties to be +divorced, expressed in the manner provided by law, and after certain +formalities and proofs showing that a continuance of the marriage relation +is unbearable, and that there exists by agreement of both parties +peremptory reasons for a divorcement, is sufficient ground for a decree of +divorce. At a meeting of the International Law Association, held at the +Guildhall, London, on August 4th, 1910, Dr. Gaston de Leval, legal adviser +to the British legation at Brussels, pleaded in favour of the Belgian +system of divorce by mutual consent. Extremely few cases, he said, of such +divorces took place, the proportion not being more than three per cent. on +the average of Belgian divorces. He argued that such a divorce was at +least as moral and difficult to obtain as any other kind of divorce, and +in most of the cases the most difficult to obtain.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span></p> +<h2><a name="CHAPTER_VIII" id="CHAPTER_VIII"></a>CHAPTER VIII.</h2> +<p class="center"><span class="huge"><span class="smcap">Switzerland.</span></span></p> + +<p>The marriage and divorce laws of the Swiss Republic are federal—that is, +operating throughout all the cantons of the confederation. Prior to +January 1, 1876, when the present federal law went into effect, the +different cantons had individual laws regulating divorce.</p> + +<p><span class="smcap">Qualifications for Marriage.</span>—1. Age. A man must be at least eighteen +years of age and a woman at least sixteen in order to contract a valid +marriage.</p> + +<p>2. Mental capacity. Lunatics and idiots are prohibited from marrying.</p> + +<p>3. Free consent. No marriage is valid without the free consent of the +parties. Duress, fraud or error in the person precludes the presumption of +consent.</p> + +<p>4. Consent of parents. Parental consent is required of all persons under +twenty years of age. If the parents are dead or incapable of manifesting +their will the consent of a guardian is necessary. If the guardian refuses +consent the parties may appeal from his decision to the courts.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is prohibited between ascendants and +descendants; between brothers and sisters of the whole or half blood; +between uncles and nieces, or aunts and nephews, whether the relationship +arises from legitimate or illegitimate birth, and between connections by +marriage in the direct line.</p> + +<p>Marriage is also prohibited between adopting parents and adopted children.</p> + +<p>A widow, a divorced woman, or a woman whose<span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span> marriage has been annulled +cannot contract a new marriage within 300 days after the dissolution of +the former marriage.</p> + +<p>When an absolute divorce has been decreed on the ground of adultery, +attempt on life, cruelty, dishonourable treatment, sentence to an +ignominious punishment, wilful desertion, or incurable mental disease, the +guilty or losing party cannot enter into a new marriage until one year has +elapsed from the date of the divorce.</p> + +<p><span class="smcap">Preliminary Formalities.</span>—Before the celebration, publication must be made +in the district of birth and residence of both parties. Fourteen days +after the formal publication of banns the registrar of the domicile of the +intended husband delivers to the parties, provided no valid objection to +the marriage has been served at the registrar’s office, a certificate of +publication, which permits the parties to be married in any place in +Switzerland within six months from date of publication.</p> + +<p><span class="smcap">Celebration.</span>—The marriage ceremony must be performed by a registrar. The +civil ceremony must precede any religious celebration. The civil marriage +before the registrar must be publicly performed in the presence of not +less than two witnesses.</p> + +<p><span class="smcap">Illegitimate Children.</span>—Illegitimate children are legitimatized by the +subsequent marriage of their parents.</p> + +<p><span class="smcap">Foreign Marriages.</span>—A marriage contracted in a foreign country that is +valid according to the laws of that country is valid in Switzerland.</p> + +<p><span class="smcap">Divorce and Judicial Separation.</span>—Absolute divorce is granted for the +following causes:</p> + +<p>1. When both husband and wife consent to a divorcement and it appears to +the court from facts presented that to keep the parties bound together<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> by +the marriage bond is incompatible with the true intention of marriage.</p> + +<p>2. Adultery. However, six months must not have passed since the injured +spouse obtained knowledge of the offence.</p> + +<p>3. Attempt upon the life of either spouse.</p> + +<p>4. Cruelty or dishonourable treatment.</p> + +<p>5. Wilful desertion continued for two years, and the absentee has failed +within six months to obey a judicial summons to return.</p> + +<p>6. Incurable insanity or mental disease of three years’ existence.</p> + +<p>7. In the absence of the causes above set forth the courts have still +power to grant either an absolute divorce or a judicial separation for not +more than two years if it appears that the parties are grossly +antagonistic to each other. If, upon petition, a judicial separation is +granted and at its stated expiration no reconciliation has taken place, +the court will entertain an application for an absolute divorce.</p> + +<p><span class="smcap">Effects of Divorce.</span>—The questions of property, alimony, custody of +children and change of name are determined according to the laws of the +individual cantons. Generally the guilty party must pay damages to the +innocent spouse, either in one payment or by instalments, the amount +depending upon the means of the parties and the nature and degree of the +offence for which the divorce was granted.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span></p> +<h2><a name="CHAPTER_IX" id="CHAPTER_IX"></a>CHAPTER IX.</h2> +<p class="center"><span class="huge"><span class="smcap">German Law.</span></span></p> + +<p>The German Empire consists of twenty-six political States. These include +four kingdoms, six grandduchies, five duchies, seven principalities, three +free towns, and Alsace-Lorraine. With the exception of Alsace-Lorraine, +whose affairs are administered by the central imperial government, all are +sovereign States.</p> + +<p>This individual sovereignty of a German State is somewhat analogous to +that of a State in the American Union. However, we must for the purposes +of this chapter notice one important difference.</p> + +<p>The legislative power of the central authority of the German Empire is not +only exclusive on certain imperial matters, but its acts take precedence +in such domestic concerns as domicile, judicial procedure, marriage and +divorce, and the general rights of a German subject.</p> + +<p>The Constitution of the Empire (April 16, 1871) enumerates in detail the +powers, limitations and relations of the different organs of government.</p> + +<p>From the <i>Germania</i> of Tacitus and other authorities we learn that among +the early Germans marriage was largely a matter of bargain and sale. In +the presence of certain relatives or friends the father or guardian of a +female delivered her to the bridegroom on receipt of the purchase price.</p> + +<p>Marriage by abduction was also recognized, but the abducter was obliged to +make compensation to the abducted female’s father or guardian, which +compensation amounted in effect to an agreed purchase price.</p> + +<p><span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span>Although the consent of the female was never asked or considered on the +question of marriage, we are told by Tacitus that German wives were +remarkable for their fidelity and affection and were treated as friends by +their husbands, who had a high respect for their judgment in all concerns +of life.</p> + +<p>From the mediæval times Christianity has exercised a strong and correcting +influence on the relation of marriage in Germany. At first the Christian +Church recognized the informally declared agreement to marry on the part +of the man and woman, which is called nowadays a betrothal, as all that +was necessary to make them husband and wife. If the agreement referred to +some future time, however, they were not considered as actually married +until cohabitation had taken place. By the decrees of the Council of +Trent, ratified in 1564, the Roman Catholic Church made it a requirement +for the first time that in order to constitute a valid marriage the +declarations of the couple must be made before a priest and witnesses.</p> + +<p>It was not until the eighteenth century that the Protestant Church in +Germany adopted the rule that a marriage is not concluded simply by +betrothal or mutual agreement, but requires a formal religious +celebration.</p> + +<p>The <i>Personenstandsgesetz</i>, which became law on January 1, 1876, provided +for the first time governmental regulation of marriage on a non-sectarian +basis for the German Empire.</p> + +<p>It was not, however, until the enactment of the Civil Code that a clear +and methodical statement of the law of marriage and divorce was given to +the German people.</p> + +<p>The German Civil Code (<i>Bürgerliches Gesetzbuch für das Deutsche Reich</i>), +which became law<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> on January 1, 1900, has been described by Professor +Maitland as “the most carefully considered statement of a nation’s law +that the world has ever seen.” It is in the Fourth Book of this scientific +codification, under the general title of Family Law, that we find the +German statutes of to-day on marriage and divorce. A summary of these +statutes follows:</p> + +<p><span class="smcap">Marriage.</span>—Religious definitions, dogmas and obligations respecting +marriage are not affected or considered by the German Code. Marriage is +treated as a civil contract to which the State is always an added party.</p> + +<p>A legitimate child requires, before the completion of his twenty-first +year, the approval of his father for concluding a marriage; an +illegitimate child requires, before reaching maturity, the approval of the +mother. A male reaches his majority at twenty-one years of age and a +female at the completion of her sixteenth year, for the purpose of +marriage.</p> + +<p><span class="smcap">Impediments To Marriage.</span>—A marriage cannot be concluded between relatives +by blood in the direct line nor between brothers and sisters of full blood +or half blood, nor between persons one of whom has had sexual intercourse +with the parents, grandparents or descendants of the other.</p> + +<p>Persons in the military service, aliens and officials who by the law +require special permission to become married cannot conclude a marriage +without permission.</p> + +<p><span class="smcap">Form of Marriage.</span>—A marriage is concluded by the parties appearing +together and declaring before a registrar, in the presence of two +witnesses, their intention to become husband and wife.</p> + +<p><span class="smcap">Voidable Marriages.</span>—A marriage may be avoided by a spouse who has been +induced to enter the marriage status by fraud concerning such facts<span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span> as +would have deterred him or her from concluding the marriage had he or she +been acquainted with the actual state of affairs. A marriage cannot be +avoided on the ground of fraud or misrepresentation as to the pecuniary +means of either party.</p> + +<p><span class="smcap">Husband and Wife.</span>—The parties are mutually bound to live in conjugal +community. The right to decide in all matters affecting the common +conjugal life belongs to the husband. However, if the decision of the +husband on these matters is an abuse and not a reasonable exercise of his +right the wife is not bound to accept his decision.</p> + +<p><span class="smcap">Property.</span>—A wife has absolute power to deal with her separate property as +if she were a single woman. A wife’s separate property includes also that +which she has acquired by her industry or in the course of a separate +business conducted by her. It is presumed in favour of the husband’s +creditors that all chattels which are in the possession of either husband +or wife, or in their joint possession, belong to the husband. In regard to +articles intended exclusively for the personal use of the wife, such as +clothing, ornaments and working implements, it is presumed that as between +the spouses and the creditors of either that the articles are the property +of the wife.</p> + +<p><span class="smcap">Matrimonial Contracts.</span>—Both spouses may regulate their property relation +by a contract made before or after the marriage.</p> + +<p><span class="smcap">Divorce.</span>—Grounds or Causes. Either spouse may petition for divorce on the +following grounds:</p> + +<p>A. Adultery of the other spouse;</p> + +<p>B. An attempt by one spouse to kill the other;</p> + +<p>C. Wilful desertion continued for the period of one year;</p> + +<p>D. Offences specified in Sections 171 to 175<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> inclusive, of the Criminal +Code, including bigamy, incest and certain detestable crimes;</p> + +<p>E. Such a grave breach of marital duty or such dishonest or immoral +conduct which disturbs the conjugal relation to such an extent that the +petitioner cannot reasonably be expected to continue the relation;</p> + +<p>F. Insanity of the respondent continued for three years and of such a +character that the intellectual community between the parties has ceased +and there is no reasonable hope of its renewal.</p> + +<p>Petitions for divorce must be filed within six months of the time when the +petitioner acquires knowledge of the facts constituting a sufficient +ground.</p> + +<p>The petition cannot be allowed in any case if ten years have elapsed since +the happening of the cause for divorce. After divorcement both parties are +free to remarry.</p> + +<p>If a marriage is dissolved for any cause the decree shall declare the +respondent to be the exclusive guilty party.</p> + +<p><span class="smcap">Punishment for the Guilty.</span>—Adultery is punishable by imprisonment with +labour for a term not exceeding six months in the case of the guilty +married person and the partner in guilt if the marriage is dissolved on +the ground of adultery. Prosecution only takes place, however, on +proposal—that is, at the instance of the aggrieved spouse.</p> + +<p><span class="smcap">Condonation.</span>—The right to a divorce is lost by condonation of the offence +relied upon as a cause. If a marriage is dissolved for any cause the +decree shall declare the respondents to be the exclusive guilty party.</p> + +<p><span class="smcap">Effects of the Divorce.</span>—A divorced wife retains the surname of her +husband unless specifically prohibited until she remarries.</p> + +<p><span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span>If she is the innocent party she may, upon making a declaration before +competent authority, resume her maiden name. If she is the guilty party, +her husband, by making a declaration before competent authority, may +prohibit her calling herself by his surname. After she has thus lost the +surname of her husband she, by operation of law, resumes her maiden name.</p> + +<p><span class="smcap">Maintenance.</span>—A husband declared by a decree of divorce or judicial +separation to be the guilty party shall provide maintenance to his +divorced wife suitable to her station in life, in so far as she is unable +to obtain such maintenance out of her earnings and income.</p> + +<p>A wife declared by decree to be the guilty party shall provide maintenance +to her divorced husband suitable to his station in life, in so far as he +is not able to so maintain himself.</p> + +<p>The maintenance above referred to shall be provided by a money annuity +payable quarterly and in advance.</p> + +<p>In some cases the person bound to provide such maintenance is required to +furnish a bond or security for the performance of the duty.</p> + +<p>For sufficient reason the person entitled to the payment of such a money +annuity may demand a complete settlement in a lump sum.</p> + +<p>The duty to provide maintenance is extinguished on the remarriage of the +party entitled to it or on the death of the party bound to make such +provision.</p> + +<p>If a marriage has been dissolved on account of the insanity of one of the +parties the same spouse shall provide maintenance to the unfortunate +respondent.</p> + +<p>If the husband is bound to provide maintenance to a child of the marriage +the wife is also<span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span> bound to reasonably contribute toward such maintenance +out of her income or earnings.</p> + +<p><span class="smcap">Judicial Separation.</span>—The same causes which are sufficient for a divorce +will entitle the petitioner to a judicial separation if that form of +relief is preferred. If such a judicial separation has been granted either +spouse may apply for a divorce by virtue of the decree for separation, +unless the conjugal community has been re-established after the issue of +such decree.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span></p> +<h2><a name="CHAPTER_X" id="CHAPTER_X"></a>CHAPTER X.</h2> +<p class="center"><span class="huge"><span class="smcap">Austria-Hungary.</span></span></p> + +<p>The Austria-Hungary Empire comprises five countries, each bearing the name +of kingdom—viz., Hungary, Bohemia, Galicia, Illyria and Dalmatia; one +archduchy, Austria; one principality, Transylvania; one duchy, Styria; one +margraviate, Moravia, and one county, Tyrol. In this chapter we shall deal +with the marriage and divorce laws of Austria, leaving those of Hungary +and Transylvania for the following chapter.</p> + +<p>The regulations governing the marriage relation in Austria and the other +parts of the Empire represented in the Austrian Reichsrath are in general +contained in the Austrian Civil Code, which became law on June 1, 1811, +supplemented by later statutes, court decrees and ministerial edicts. +Perhaps the most curious feature of Austrian law is that an absolute +divorce can, for certain causes, be granted when both the parties are +non-Catholic, but for Roman Catholics the bond of marriage is dissoluble +only by the death of one party.</p> + +<p><span class="smcap">Definition of Marriage.</span>—The Austrian Code defines marriage as follows: +“The foundation of family relations is the marriage contract. In the +marriage contract two persons of different sex legally declare their +intention to live in inseparable union to beget children and to rear them +up and to render each other mutual assistance.”</p> + +<p><span class="smcap">Marriage Qualifications.</span>—1. There must be mental capacity. Insane, +demented, imbecile parties or persons deprived of the free use of their +minds<span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span> by intoxication or any other cause cannot contract a binding +marriage.</p> + +<p>2. Minors must have completed their fourteenth year of age.</p> + +<p>3. Minors of legitimate birth under 24 years of age require the consent of +their parents or proper guardians. Illegitimate minors under 24 years of +age require the consent not only of their legal guardians but also that of +the court.</p> + +<p>4. There must be free consent of both parties.</p> + +<p>5. Physical capacity. Permanent and incurable impotence is an impediment +to marriage.</p> + +<p>6. Moral impediments. No person who has taken holy orders which involve a +solemn vow to celibacy can contract a valid marriage. Marriages between +Christians and Jews are forbidden.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is forbidden between ascendants and +descendants, between full or half brothers and sisters, between first +cousins and between uncles and nieces or aunts and nephews. The +relationship may arise from legitimate or illegitimate birth.</p> + +<p>For Jews, however, the impediment of consanguinity extends no further in +the collateral line than to marriage between brother and sister or between +a woman and her nephew or grandnephew.</p> + +<p>A Roman Catholic is expressly forbidden to marry a divorced party until +after the death of the latter’s former consort.</p> + +<p><span class="smcap">Preliminaries.</span>—A valid marriage can take place only after formal +publication of the banns and the solemn declaration of consent.</p> + +<p>Banns are published by announcing the coming marriage together with the +full names of both parties, their birthplace, status and residence, on +three consecutive Sundays or holidays. In the case of Jews the banns must +be published on three consecutive Saturdays or feast days.</p> + +<p><span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span><span class="smcap">Celebration.</span>—The +solemn declaration of consent must generally be given before the spiritual pastor of one of the parties or before his +representative. Two witnesses are necessary.</p> + +<p>A civil marriage in which the solemn declaration of consent is given +before the chief administrative official of the district, in the presence +of two witnesses and a sworn secretary, is obligatory if neither party +belongs to a legally recognized religious sect.</p> + +<p><span class="smcap">Foreign Marriages.</span>—The marriage of an Austrian subject in a foreign +country is treated as valid in Austria if the marriage was concluded +according to the laws of such foreign country, and provided that such +marriage was not in contravention of the Austrian law which accepts the +Roman Catholic dogma of the indissolubility of marriage except by death of +one of the parties.</p> + +<p><span class="smcap">Illegitimate Children.</span>—Such children are fully legitimatized by the +subsequent marriage of their parents.</p> + +<p><span class="smcap">Roman Catholics.</span>—As we have noted before between Roman Catholics the bond +of marriage cannot be dissolved by divorce. This rule applies even if one +of the parties is converted after marriage to a non-Catholic sect.</p> + +<p>The Austrian law provides a way by which some Roman Catholic marriages may +be provisionally dissolved after what is termed a “legal declaration of +death.” If eighty years have elapsed since the birth of an absent spouse, +and his or her place of residence has been unknown for ten years; if an +absent spouse has not been heard from in thirty years; or if a spouse has +been missing for three years, and was last heard of under circumstances +leaving little doubt as to his or her death, then an action can be +instituted to have the absentee legally declared to be dead. Such<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> a +declaration of death will legally dissolve the marriage, leaving the +spouse of the missing party free to marry again. However, should the +absentee spouse ever reappear, the declaration of death and the new +marriage lose all legal effect.</p> + +<p><span class="smcap">Divorce.</span>—Non-Catholic Christians may obtain absolute divorce for the +following causes:</p> + +<p>1. Conviction of adultery, or of a crime the penalty for which could be a +prison sentence of five years.</p> + +<p>2. Malicious abandonment.</p> + +<p>3. Severe cruelty.</p> + +<p>4. Conduct endangering the life or health.</p> + +<p>5. Invincible aversion on account of which both parties desire a divorce. +This need not be a mutual aversion, but it must be shown to be actual and +lasting. For this cause an absolute divorce is granted only after a +temporary separation from bed and board has been decreed, and the parties +appear to be irreconciliable.</p> + +<p><span class="smcap">Effects of Divorce.</span>—The woman retains the name of her husband, and both +parties may remarry, with the exception that a guilty party may not marry +his or her accomplice.</p> + +<p>The guilty party loses all rights and privileges in the property of the +innocent party.</p> + +<p>As to the custody of children the court has authority to make such order +as the facts and justice may require.</p> + +<p><span class="smcap">Jewish Divorces.</span>—Jews in Austria may obtain absolute divorce under +special regulations adapted from the Mosaic law and rabbinical +jurisprudence.</p> + +<p>Marriage may be absolutely dissolved by means of a bill of divorcement +given by the man to the woman, with the mutual agreement of both parties. +This cannot take effect at once, but there must be three attempts at +reconciliation, either by the rabbi or by the court, or by both.</p> + +<p><span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span>The Austrian law also permits a divorce among Jews for the proven adultery +of the wife, in which case he can give her a bill of divorcement without +her consent. A Jewish woman cannot obtain a divorce because of the +adultery of her husband.</p> + +<p><span class="smcap">Judicial Separation.</span>—A judicial separation may be granted for the +following causes:</p> + +<p>1. By mutual consent.</p> + +<p>2. Conviction of either spouse for adultery or a crime.</p> + +<p>3. Malicious abandonment.</p> + +<p>4. Conduct endangering the life or health of spouse seeking relief.</p> + +<p>5. Incurable disease united with danger of contagion.</p> + +<p>6. Cruel and abusive treatment.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span></p> +<h2><a name="CHAPTER_XI" id="CHAPTER_XI"></a>CHAPTER XI.</h2> +<p class="center"><span class="huge"><span class="smcap">Hungarian Marriage and Divorce Laws.</span></span></p> + +<p>In Hungary proper and Transylvania, together with Fiume and certain parts +of the Military Boundary, the marriage law of 1894, supplemented by the +Civil Registration Act of the same year, is in operation for all citizens, +without regard to religious sect.</p> + +<p>In Croatia and Slavonia, which, although legally parts of the Kingdom of +Hungary, are autonomous in domestic affairs; three separate systems of +marriage regulation are in force governing, respectively, the Catholics, +the Oriental Greeks, and the Protestants and Jews.</p> + +<p><span class="smcap">Hungary Proper and Transylvania.</span>—Civil marriage is the only form +recognized by law.</p> + +<p><span class="smcap">Marriage Qualifications.</span>—A man cannot marry before the conclusion of his +eighteenth year; a woman, before the conclusion of her sixteenth year. A +minor cannot conclude a marriage without the consent of his or her legal +representative.</p> + +<p><span class="smcap">Impediments.</span>—1. Marriage is forbidden between ascendants and descendants.</p> + +<p>2. Between brother and sister.</p> + +<p>3. Between brother or sister and offspring of brother or sister.</p> + +<p>4. Marriage between a person who has been previously married and a blood +relative in direct line of that person’s former consort is forbidden.</p> + +<p>5. First cousins may not conclude marriage, except on dispensation from +the Minister of Justice.</p> + +<p>6. No person may conclude a marriage with any one who has been legally +sentenced for a<span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span> murder or a murderous assault committed on the former’s +consort, even if the sentence has not yet entered into effect.</p> + +<p>7. No one may conclude a marriage without the consent of his +ecclesiastical superiors if he has taken ecclesiastical orders or vows +which, according to the law of the church to which he belongs, prevent his +marrying.</p> + +<p>8. So long as the guardianship continues, marriage is prohibited between a +guardian or his offspring and the ward.</p> + +<p><span class="smcap">Preliminaries.</span>—Before a marriage can be lawfully celebrated it must be +preceded by the publication of banns. This publication must be made in the +commune or communes where the parties ordinarily reside. Publication is +made by posting an official notice for fourteen days in the office of the +registrar and in a public place in the communal building.</p> + +<p><span class="smcap">Celebrations.</span>—Marriage is, as a rule, to be solemnized before the +registrar of the district in which at least one of the parties has his or +her residence or domicile. At the celebration of marriage the parties are +obliged to appear together before the officiating magistrate, and in the +presence of two competent witnesses declare that they conclude a marriage +with each other. After such declaration the magistrate declares the couple +to be legally married.</p> + +<p>The registrar is required by law to enter a record of the marriage on his +official register and to give a formal marriage certificate to the +parties.</p> + +<p><span class="smcap">Foreign Marriages.</span>—In general, for a marriage contracted by a Hungarian +citizen in a foreign country to be recognized as valid in Hungary, the +parties to the marriage must satisfy the requirements of their respective +States as to age and legal capacity and must be free from all<span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span> other +impediments contained in the law of either State. The Hungarian citizen +must comply with the regulations of the Hungarian law regarding +publication.</p> + +<p>Besides this, the foreign marriage must be concluded in accordance with +all the requirements of the country where it was celebrated.</p> + +<p><span class="smcap">Illegitimate Children.</span>—If at the time such children were born the parents +could legally have married each other then the subsequent marriage of the +parents makes legitimate the children.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—Marriages may be annulled because of the violation +of the various provisions of law regarding marriage impediments or the +formalities necessary to conclude marriage.</p> + +<p><span class="smcap">Divorce and Separation.</span>—Marriage can be legally dissolved only by a +judicial decree on certain grounds specified by law. These grounds are of +two classes—absolute and relative.</p> + +<p>The following causes constitute absolute grounds for divorce:</p> + +<p>1. Adultery.</p> + +<p>2. Crime against nature.</p> + +<p>3. Bigamy.</p> + +<p>4. Wilful abandonment without just cause.</p> + +<p>5. Attempt upon the life or wilful and serious maltreatment such as to +endanger bodily safety or health.</p> + +<p>6. Sentence to death or to at least five years in prison or the +penitentiary.</p> + +<p>For all of the above causes the court must grant an absolute divorce if +the allegations are proven.</p> + +<p>Divorce may also be granted on the following “relative grounds” if the +court, after careful consideration of the individuality and +characteristics of the parties, is satisfied that the facts warrant the +desired relief:</p> + +<p><span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span>1. Serious violation of marital duties.</p> + +<p>2. Inducing, or attempting to induce, a child belonging to the family to +commission of a criminal act or to an immoral manner of life.</p> + +<p>3. Persistent immoral conduct.</p> + +<p>4. Sentence to prison or the penitentiary for less than five years, or to +jail for an offence involving dishonesty.</p> + +<p><span class="smcap">Judicial Separation.</span>—An action for separation from bed and board can be +maintained on any of the grounds enumerated for divorce.</p> + +<p><span class="smcap">Effects of Divorce or Separation.</span>—After a divorce the guilty party is +required to restore to the innocent party all gifts made by the latter +before or during the marriage. The man who is declared guilty is obliged +to maintain the innocent woman in a position in keeping with his estate +and social position, in so far as her income is insufficient. Alimony is +payable as a rule in advance monthly instalments. The right to alimony +continues after the man’s death, but on the application of his heirs it +may be reduced to the amount of the net income of the estate. The right to +alimony ceases if the woman marries again.</p> + +<p>Up to their seventh year minor children are entrusted to the care of the +mother; after that time, to the innocent party. If both parties are guilty +the father receives the custody of the boys and the mother that of the +girls.</p> + +<p>The effects of separation are the same as those of divorce in reference to +property, alimony and custody of children.</p> + +<p><span class="smcap">Foreign Decrees.</span>—In matrimonial causes where one or both of the parties +is a Hungarian citizen the courts of Hungary do not recognize any foreign +judgment or judicial decree.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span></p> +<h2><a name="CHAPTER_XII" id="CHAPTER_XII"></a>CHAPTER XII.</h2> +<p class="center"><span class="huge"><span class="smcap">Sweden.</span></span></p> + +<p><span class="smcap">Marriage.</span>—Swedish law recognizes marriages which are to take effect in +the future (<i>sponsalia de futuro</i>), and the existence of a betrothal that +has been entered into in the presence of four witnesses and the woman’s +marriage guardian carries with it the obligation of a final fulfilment of +the marriage promise, which under certain conditions is subject to +enforcement by law. Thus, on the refusal of one of the affianced parties +to proceed to the promised marriage, they can be proclaimed man and wife +by judgment of the court, and the complainant has then the rights of a +legally wedded person. This method of procedure is resorted to +particularly if cohabitation has taken place subsequent to the betrothal, +but in the absence of such cohabitation various causes can render the +promise of marriage invalid. Diseases of a contagious or of an incurable +nature, whether contracted before or after the marriage promise was given, +insanity, ungovernable temper, licentiousness or other vices, and serious +defects are sufficient impediments to the compulsory marriage of betrothed +persons.</p> + +<p>A person who, under false pretenses, entices another to promise marriage, +cannot demand the fulfilment of the promise and is even liable to +punishment.</p> + +<p>A betrothal entered into through force or fear, or during a state of +intoxication or temporary insanity, is not valid.</p> + +<p><span class="smcap">Impediments To Marriage.</span>—</p> + +<p>1. Lack of free consent.</p> + +<p><span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span>2. Epilepsy. Sufferers from epilepsy (<i>epilepsia idiopathica</i>) are barred +from marrying.</p> + +<p>3. A heathen or a person who does not belong to any recognized religious +creed cannot contract a lawful marriage.</p> + +<p>4. Non-age. Marriage can be lawfully entered into by males 21 years of age +and over and by females 17 years of age and over. A male Laplander, +however, may marry when 17 years of age and a female when 15 years of age. +A dispensation may be granted from the impediment of non-age, but such +dispensation is not granted a male unless his marriage is approved by his +parents or guardians and unless he is a person of good reputation and able +to support a wife.</p> + +<p><span class="smcap">Consent of Parents.</span>—A male requires the consent of no third party. Any +female under 21 years of age requires the consent of her marriage +guardian.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is prohibited between relatives by +blood in the direct line or between two relatives by blood in the +collateral line, one or both of whom are descended in the first degree +from the common ancestor.</p> + +<p>Marriage is also prohibited between relatives by affinity in the direct +line.</p> + +<p>In all cases relationship by illegitimate as well as legitimate birth is +included.</p> + +<p>A divorced person who has been adjudged guilty of adultery cannot contract +a new marriage without the consent of the innocent party, provided the +latter is still living and has not remarried. Under no conditions can the +guilty party marry his or her accomplice.</p> + +<p>No man or woman who is bound by a betrothal or by an undissolved marriage +can marry a third person.</p> + +<p><span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span>A widower must not contract a new marriage within six months after the +death of his wife, nor a widow within one year after the death of her +husband.</p> + +<p><span class="smcap">Preliminaries.</span>—On three successive Sundays or holy days previous to a +wedding banns must be published from the pulpit of the State church in the +parish in which the prospective bride resides.</p> + +<p><span class="smcap">Celebration.</span>—The usual form of marriage is the religious ceremony. This +alone is valid in case the man and woman belong to the same religious +sect. An adherent of the State church who has never been baptized or who +has never been prepared for the rite of the Lord’s Supper has recourse +only to a civil marriage. This is also the case in a marriage between a +Christian and a Jew and in a marriage between parties who belong to a +Christian church the clergy of which have not been granted the right to +perform marriages.</p> + +<p><span class="smcap">Divorce and Judicial Separation.</span>—Grounds for Judicial Divorce. An +absolute divorce can be granted by court on the following grounds:</p> + +<p>1. Adultery.</p> + +<p>2. Illicit intercourse with a third party after betrothal.</p> + +<p>3. Malicious desertion for at least one year, provided the absentee has +left the Kingdom.</p> + +<p>4. Absence without news for six years.</p> + +<p>5. An attack on the life.</p> + +<p>6. Life imprisonment.</p> + +<p>7. Insanity of at least three years’ duration and pronounced incurable by +physicians.</p> + +<p><span class="smcap">Royal Prerogative.</span>—All the grounds for divorce by royal prerogative are +not definitely determined. The following alone are specifically mentioned +in the law:</p> + +<p><span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span>1. Judicial condemnation to death or to civil death, even if a royal +pardon is granted.</p> + +<p>2. Judicial condemnation for a gross offence or an offence incurring +temporary loss of civil rights.</p> + +<p>3. Judicial condemnation to imprisonment for at least two years.</p> + +<p>4. Proof of prodigality, inebriety or a violent disposition.</p> + +<p>5. Opposition of feeling or thought between the husband and wife which +passes over into aversion and hate, provided that a separation from bed +and board has been granted on this ground and lasted for a year without a +reconciliation taking place during the interval.</p> + +<p><span class="smcap">Limitations to Right of Action.</span>—Collusion, connivance, condonation or +recrimination extinguishes the right to a divorce.</p> + +<p>In a case of adultery divorce will be granted only if the innocent spouse +has instituted proceedings within six months after obtaining knowledge of +the offence, has not condoned it by cohabitation or otherwise and has not +been guilty of a similar offence.</p> + +<p>If the insanity of the defendant in a divorce suit has been caused, or +even accelerated by the cruel treatment of the complainant, divorce will +be refused.</p> + +<p><span class="smcap">Procedure.</span>—In a case of desertion, if the whereabouts of the guilty party +is unknown, the court, by means of publication in all the pulpits of the +district, orders him to return within a year and a day. If he does not +present himself within the time mentioned the judge pronounces the +divorce. Where the ground is insanity the judge must give a hearing to the +nearest relatives of the afflicted party and investigate carefully the +married life of<span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span> the couple, in order to learn whether the insanity was +caused or even accelerated by the plaintiff.</p> + +<p>The State’s attorney is not authorized to interfere in a suit for divorce, +nor are attempts at reconciliation required.</p> + +<p>The court can, however, advise a reconciliation, with or without the +adjournment of the case.</p> + +<p><span class="smcap">Judicial Separation.</span>—This is often only the preliminary to an absolute +divorce. It can be granted when hate and violent anger arise between +husband and wife and one of them reports the matter to the rector of the +parish. It is the duty of the rector to admonish the couple. If they do +not become reconciled they are to be further admonished by the consistory. +If this admonition also proves fruitless the court grants a separation +from bed and board for one year. The law provides also that this procedure +may be followed in cases of malicious desertion, where the guilty party +remains in the country or where one party drives the other from home.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span></p> +<h2><a name="CHAPTER_XIII" id="CHAPTER_XIII"></a>CHAPTER XIII.</h2> +<p class="center"><span class="huge"><span class="smcap">Denmark.</span></span></p> + +<p>Justice is administered in Denmark in the first instance by the judges of +the hundreds in the rural communities and by the city magistrates in the +urban districts. Appeals from such courts lie to the superior courts of +Copenhagen and Viborg, and in the last resort to the Supreme Court, which +consists of a bench of twenty-four judges, at Copenhagen.</p> + +<p>Denmark was one of the first countries in Europe in which the government +established any regulation or control over matrimonial affairs.</p> + +<p>The body of the law on marriage and divorce is found to-day in the Code of +Christian the Fifth (1683), as modified and modernized, and such customs +and precedents of the Danish people as the courts accept as binding.</p> + +<p><span class="smcap">Betrothal.</span>—A betrothal or engagement to marry carries with it no legal +obligation. The courts of Denmark do not recognize the breach of a promise +to marry as constituting a legal cause of action.</p> + +<p>If, however, a woman, on promise of marriage, permits sexual intercourse, +she can sue to have the marriage specifically performed, provided the man +is at least 25 years of age and the woman herself is of good reputation +and neither a widow nor a domestic servant who has become pregnant by her +employer or one of his relatives. In addition, the betrothal must either +have been public or capable of easy proof.</p> + +<p><span class="smcap">Qualifications for Marriage.</span>—A male cannot legally conclude marriage +before the completion of<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> his twentieth year. A female must have completed +her sixteenth year. The King may grant a dispensation permitting parties +of less age to marry.</p> + +<p>Males and females are minors until the completion of their twenty-fifth +year, and during minority cannot conclude marriage without the consent of +their parents or guardians. If the necessary consent is withheld without +just cause the authorities can furnish the desired permission.</p> + +<p><span class="smcap">Impediments.</span>—Marriage is prohibited between relatives in the direct line, +whether by blood or marriage, and between brothers and sisters of the +whole or half blood.</p> + +<p>The royal dispensation is required for marriage between a man and his +brother’s widow, his aunt, great-aunt or any feminine relative nearer of +kin to the common ancestor than the man himself.</p> + +<p>Persons convicted of having committed adultery with each other may not +marry without having first obtained permission of the civil authorities.</p> + +<p>Persons divorced by extra-judicial decree are not allowed to contract a +new marriage, without permission to this effect is given in the decree.</p> + +<p>The law prescribes a mourning period of one year for a widow and three +months for a widower, during which time they are not allowed to contract a +new marriage; but under special conditions the mourning period may be +shortened.</p> + +<p><span class="smcap">Preliminary Formalities.</span>—If the marriage is solemnized before a clergyman +banns must be published from the pulpit for three consecutive Sundays, and +the marriage must follow within three months. In case of a civil marriage +one publication must be made by the authorities at least three weeks and +not more than three months before the celebration.</p> + +<p><span class="smcap">Celebration.</span>—The national church of Denmark is the Lutheran, and in the +case of Protestant<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> Christians a religious marriage must be solemnized +before a clergyman of the Lutheran Church.</p> + +<p>Civil marriages performed at the courthouse by a magistrate are permitted +when the bride and groom are of different religious faith or when neither +of them belong to any recognized religious sect.</p> + +<p><span class="smcap">Illegitimate Children.</span>—Subsequent marriage of the parents legitimatizes a +child born out of wedlock.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A marriage may be annulled at the instance of one +of the parties for the following causes:</p> + +<p>1. Want of free consent by one or both parties.</p> + +<p>2. If one of the parties at the time of the marriage was impotent and this +fact was unknown to the other. This impotence must, however, be incurable +and continue for three years.</p> + +<p>3. If one of the parties was at the time of the marriage afflicted with +leprosy, syphilis, epilepsy or a contagious and loathsome disease, and +this fact was concealed and unknown to the other party. The disease must +be incurable.</p> + +<p><span class="smcap">Divorce.</span>—An absolute divorce upon proper grounds may be obtained by means +of a judicial decree, royal authorization given to the higher civil +authorities, authorization from the Minister of Justice, or a special +royal decree.</p> + +<p>The causes for an absolute divorce are:</p> + +<p>1. The last two causes mentioned above as sufficient for an annulment.</p> + +<p>2. Adultery.</p> + +<p>3. Bigamy.</p> + +<p>4. Wilful abandonment.</p> + +<p>5. Absence for five years or more under circumstances leading a reasonable +person to conclude that the absentee is dead. Exile or deportation from +the country for at least seven years.</p> + +<p><span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span>6. Imprisonment for life, if pardon or +liberty is not given within seven years.</p> + +<p><span class="smcap">Extra-Judicial Divorce.</span>—The Mayor of Copenhagen and the superior +magistrate outside of Copenhagen—called the higher civil authorities—may +give a royal authorization for a divorce in cases where the parties have +lived apart for three years in consequence of a separation decree, and +both parties ask for divorcement.</p> + +<p>The Minister of Justice has also authority in some instances to grant +decrees of absolute divorce.</p> + +<p>The conditions under which a divorce can be granted by special royal +decree are not specifically defined, but the decree is seldom granted +except for substantial reasons and according to precedent.</p> + +<p><span class="smcap">Separation.</span>—Decrees of separation from bed and board may be obtained upon +mutual consent of the parties or if good reason exists upon the petition +of one of the parties.</p> + +<p><span class="smcap">Effects of Divorce.</span>—Usually in the absence of an agreement between the +parties each party receives one-half of the property which during the +marriage relation was held in common.</p> + +<p>The duty of mutual support and assistance ends, but sometimes the man is +directed to pay alimony to the woman.</p> + +<p>The innocent party is generally given custody and control of the children +of the marriage, but the courts favour an agreement between the parties on +this subject.</p> + +<p>Unless the decree of divorce has been brought about by her guilt a +divorced wife is permitted to retain the name and rank of her divorced +husband.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span></p> +<h2><a name="CHAPTER_XIV" id="CHAPTER_XIV"></a>CHAPTER XIV.</h2> +<p class="center"><span class="huge"><span class="smcap">The Norwegian Law.</span></span></p> + +<p>In many respects the laws of marriage and divorce in Norway resemble those +of Denmark. There are, of course, historical and political reasons for the +resemblance.</p> + +<p><span class="smcap">Marriage.</span>—The law of Norway fixes 20 years as the minimum marriageable +age for a man and 16 years for a woman. These provisions are often +interpreted, however, by the courts, as having reference to the age of +puberty, and as this age varies with different persons the law is not +always followed literally, particularly as regards the marriageable age of +a woman. Neither male nor female under the age of 18 years is allowed to +marry without the consent of parents or guardians.</p> + +<p>The validity of an objection to the marriage on the part of parents or +guardians can be tested in court, and although causes for such objections +are not specified or limited by statute they are kept within reasonable +grounds through long-established precedent.</p> + +<p><span class="smcap">Impediments to Marriage.</span>—No man or woman may marry a relative by blood in +the direct line. No man can many his full or half sister.</p> + +<p>Persons convicted of having committed adultery with each other may not +marry without first obtaining permission of the civil authorities.</p> + +<p>A person bound by a marriage not dissolved through natural or legal causes +is not allowed to enter into any other matrimonial alliance.</p> + +<p>After the death of her husband a widow must wait nine months before she +can contract a new marriage, but this waiting period can be shortened<span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span> by +dispensation, especially if she proves that she is not pregnant.</p> + +<p><span class="smcap">Preliminaries.</span>—In case of religious marriage one publication of banns is +sufficient, and even this can be dispensed with in some instances. For a +civil marriage no publication of banns is required.</p> + +<p><span class="smcap">Celebration.</span>—Marriages must be solemnized before a minister of the +Lutheran Church or by some person authorized by the State to officiate, +and in the presence of two competent witnesses. The wedding celebration +may take place either in church or in a private house.</p> + +<p>All notaries have legal authority to perform civil marriages, but only +between persons at least one of whom does not belong to the State church.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—Nullity is of two kinds—absolute and relative. In +the case of the latter the marriage is considered as valid until declared +otherwise, generally on the application of one of the parties. A marriage +is absolutely null if at its celebration there was no declaration of the +clergyman or of the civil official that the couple were man and wife, or +if proof exists of bigamy or of relationship within the prohibited +degrees.</p> + +<p><span class="smcap">Divorce and Separation.</span>—An absolute divorce may be obtained for +sufficient cause either by royal decree or by judicial determination. The +most usual form is by royal decree, which is granted in the following +cases:</p> + +<p>1. When one at least of the causes prescribed by law is proven.</p> + +<p>2. After a separation from bed and board has lasted three years. In such a +case the royal decree is granted either on the petition of both parties, +or, if circumstances justify, on the petition of one of the parties.</p> + +<p><span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span>3. It may be granted by royal decree without any preceding separation. +This form of divorce is granted either when legal cause for divorce exists +or when the ground is otherwise considered sufficient.</p> + +<p>A judicial decree of absolute divorce is obtainable for the following +causes:</p> + +<p>1. Adultery.</p> + +<p>2. Bigamy.</p> + +<p>3. Wilful desertion for at least three years.</p> + +<p>4. Assault and cruel treatment endangering the life of the complainant.</p> + +<p>5. Absence for seven years, especially if no information has been received +of the absentee during that period.</p> + +<p>If the facts as shown leave little or no doubt as to the death of the +absent party, a divorce can be granted after three years’ absence.</p> + +<p>6. Imprisonment for life, after the innocent party has waited seven years.</p> + +<p>In addition to these grounds a divorce by royal decree can be obtained +when one of the parties has become incurably insane or has been sentenced +to prison for at least three years; or when the parties, by mutual +agreement, have lived entirely apart for fully six years, and the facts +show that domestic peace and the well-being of the parties are not +promoted by their continuing as husband and wife.</p> + +<p><span class="smcap">Limitations.</span>—If the act complained of was committed by the consent or +procurement of the complainant, or if the latter has voluntarily cohabited +with the offender after discovery of his or her guilt, or if the +complainant has been guilty of a similar offence, divorce will be refused.</p> + +<p><span class="smcap">Effects of Divorcement.</span>—Each of the parties receives one-half of the +common property, but agreements are permitted by which the man retains<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> +all such property on condition of paying the woman an annual allowance.</p> + +<p>The duty of mutual assistance ceases, although if justice demands the man +may be ordered to pay alimony to the woman. The Norwegian law contains no +hard-and-fast rule as to the custody of the children of divorced parents. +When no agreement exists between the parties the innocent party is +generally given custody of all the children.</p> + +<p>A woman who obtains a decree of divorce against her husband is allowed to +retain the name and rank of her ex-husband.</p> + +<p><span class="smcap">Separation.</span>—A separation from bed and board may be granted either on the +mutual consent of both parties, or by royal decree on the petition of one +of the parties if reasonable grounds exist.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span></p> +<h2><a name="CHAPTER_XV" id="CHAPTER_XV"></a>CHAPTER XV.</h2> +<p class="center"><span class="huge"><span class="smcap">The Russian Empire.</span></span></p> + +<p>There have always been plenty of laws in Russia, the chief difficulty +being not with the quantity but the quality. Another perplexing feature of +Muscovite laws is the uncertainty of this patchwork of royal decrees, +undefined traditions, changing customs and priestly superstitions.</p> + +<p>If Peter the Great had lived long enough he would probably have given +Russia a regular code such as Napoleon bequeathed to France, but he was +too busy during his career with wars, travels and social reforms.</p> + +<p>The Emperor Nicholas I. is entitled to the credit of being the first +Russian sovereign to direct the compilation of anything approaching a +classified legal code, and under his authority the jurist Speransky +collected together some forty volumes. This code, as revised from time to +time, is the best exposition obtainable of the law of the Empire. Its +first article, however, qualifies the entire code by recognizing the +Tsar’s privilege of altering or setting aside any law of the realm at +will.</p> + +<p>Until recently the first lesson for the Russian law student to learn was +expressed in the doctrine: <i>Quod principi placuit, legis habet vigorem</i>. +“The sovereign’s pleasure has the force of law.”</p> + +<p>Many reforms have of late years been worked in Russian law and judicial +procedure, but in these matters Russia is still a long way off from +justifying the belief expressed by Count Mouravieff, that this country has +a civilizing mission such as<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span> no other nation of the world, not only in +Asia, but also in Europe.</p> + +<p>Such benefits as can be derived from the law are still more for the +privileged classes than for the great body of the people, and the point +has not yet been reached of substituting judicial trials for +ecclesiastical in matrimonial causes.</p> + +<p>The regulations concerning marriage and divorce fall within the province +of the clergy and the ecclesiastical courts, except that the civil +tribunals have jurisdiction over annulment and divorce for the +<i>Raskolniken</i>, or “Old Believers,” and for the Baptists and some other +dissenters from the State Church of Russia.</p> + +<p>With the exceptions noted, the regulations of each form of religious +belief, including Mohammedanism and other non-Christian beliefs, are +endorsed by the State as the law for the adherents of that belief. The +civil courts, however, have jurisdiction over the civil effects of +marriage and divorce, and the State law contains certain provisions +binding on the adherents of all religious confessions.</p> + +<p>The regulations governing the Roman Catholics are, in general, those of +the canon law and those governing the German Lutherans are those of the +old Protestant common law of Germany.</p> + +<p>We shall consider the special regulations affecting the Jews in a separate +division of this chapter.</p> + +<p><span class="smcap">Marriage.</span>—A man reaches marriageable age upon the completion of his +eighteenth year and a woman upon the completion of her sixteenth year; +natives of Transcaucasia, however, may marry at the completion of the +fifteenth and thirteenth years, respectively.</p> + +<p>A marriage cannot take place without the free and mutual consent of the +principals. The exercise<span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span> of any kind of compulsion is forbidden to +parents or guardians.</p> + +<p>Without regard to their age children require the consent of their parents. +In most parts of Russia there is no appeal in case a parent withholds +consent. Marriage without parental consent is not invalid, but the guilty +person is liable to a penalty of from four to eight months’ imprisonment, +on petition of the parent, and to the loss of his right of inheritance in +the property of the parent.</p> + +<p>Persons who are under guardianship or curatorship require the consent of +their guardian or curator.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—The prohibited degrees of consanguinity are +determined according to the principles of the religious body to which the +parties belong. Marriage is, however, universally prohibited between +persons who are related in the first or second degree.</p> + +<p><span class="smcap">Difference of Religion.</span>—Marriage between Christians and non-Christians is +prohibited, except between Lutherans, adherents of the Reformed Church, +and other Protestants on the one hand, and Jews and Mohammedans on the +other.</p> + +<p><span class="smcap">Insanity.</span>—Marriage is absolutely prohibited to insane persons.</p> + +<p><span class="smcap">Official Permission.</span>—Civil officials require the consent of their +superiors in order to marry.</p> + +<p><span class="smcap">Holy Orders.</span>—Marriage is prohibited to the clergy of the State Church, +but if a secular priest is already married before ordination he may +continue in that relation. The practice is for the majority of men who +intend to enter the secular priesthood to marry before ordination.</p> + +<p><span class="smcap">Advanced Age.</span>—Persons who have attained the age of eighty years may not +marry.</p> + +<p><span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span><span class="smcap">Fourth Marriage.</span>—The +contracting of a fourth marriage is unconditionally forbidden.</p> + +<p><span class="smcap">Preliminary Formalities.</span>—A male member of the Russian Church, or an “Old +Believer,” who intends marriage, must, from one to three weeks before the +date of celebration, announce the fact to the clergyman in whose parish he +resides, and bring to him the certificates of baptism of himself and his +intended bride, certificates of their social status, proofs of identity +and a certificate that both parties have been to confession and received +holy communion. With these documents and proofs at hand the clergyman +announces the names of the betrothed parties on three successive Sundays +or feast days. The marriage cannot be concluded without a certificate +showing that all the formalities have been complied with.</p> + +<p><span class="smcap">Celebration.</span>—A marriage may be solemnized in accordance with the rules of +the religious sect of the parties, before one of its clergymen, with the +personal participation of the contracting parties and in the presence of +competent witnesses. For members of the Russian Church the solemn +betrothal, which formerly took place some time previous to the marriage, +now introduces the wedding ceremony. The latter must follow the prescribed +ritual exactly. The wedding must take place in church, during the daytime, +before adult witnesses, and the contracting parties must be actually +present.</p> + +<p><span class="smcap">Illegitimate Children.</span>—The subsequent marriage of the parents does not in +itself legitimatize such offspring. After their marriage the parents must +petition the court for an order of legitimacy.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—Any marriage is null that was not solemnized by a +clergyman of the religious sect of which one of the contracting parties is +an adherent, except those solemnized <span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span>before a priest of the Russian +Church, because of the absence of a clergyman of the proper religious +sect. A marriage is also null in case of bigamy, difference of religion +and violation of the rules concerning consanguinity and affinity.</p> + +<p><span class="smcap">Divorce.</span>—It is impossible for an adherent of the Russian Church or for an +“Old Believer” to obtain a decree of absolute divorce.</p> + +<p>The grounds for an absolute divorce for other persons except Jews are:</p> + +<p>1. Adultery.</p> + +<p>2. Bigamy.</p> + +<p>3. Impotence existing at time of marriage.</p> + +<p>4. Absence without news for five years.</p> + +<p>5. Condemnation to the loss of all civil rights.</p> + +<p>6. Banishment to Siberia with the loss of all special rights. Either party +may petition for divorce on this ground.</p> + +<p>7. Entrance of both spouses into a religious order, provided they have no +children who need their support and care.</p> + +<p>8. Conversion of a non-Christian to the Russian Church, provided he or his +consort desires such divorcement.</p> + +<p><span class="smcap">Procedure.</span>—In the case of a Christian who is not an “Old Believer” or a +member of the Russian Church, the petition for divorce is filed in the +ecclesiastical court. After this the bishop designates a clergyman, who is +to make an attempt to reconcile the parties. Not until this attempt has +failed is notice served on the defendant and the day set for a hearing of +the cause. If the court decides in favour of a divorce, the decree must be +submitted to the Synod for revision. In case of condemnation to the loss +of civil rights, a divorce is granted immediately.</p> + +<p>If the ground relied on is the conversion of a non-Christian to the +Russian Church, the divorce<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> is granted merely on the formal declaration +of one of the spouses that he or she does not wish to continue the +marriage.</p> + +<p><span class="smcap">Effects of Divorce.</span>—The adjustment of the personal and property rights +and the custody of the children are matters entirely for the discretion of +the tribunal.</p> + +<p><span class="smcap">Law for Lutherans.</span>—Members of the Lutheran Church outside of Finland are +governed by special regulations concerning the grounds for divorce. These +grounds are:</p> + +<p>1. Adultery.</p> + +<p>2. Unlawful relation with a third party before the marriage, though in the +case of the husband only such relations subsequent to the betrothal are +considered.</p> + +<p>3. Wilful refusal of one party to live with the other.</p> + +<p>4. Unjustified absence for two years without news.</p> + +<p>5. Absence for five years.</p> + +<p>6. Unjustified refusal to perform the marital duty for at least one year.</p> + +<p>7. Wilful prevention of conception.</p> + +<p>8. Impotence existing at time of marriage.</p> + +<p>9. Incurable or loathsome disease existing at time of marriage and +concealed from the other party.</p> + +<p>10. Incurable insanity.</p> + +<p>11. Vicious conduct.</p> + +<p>12. Cruel and abusive treatment.</p> + +<p>13. Design of one spouse to bring dishonour on the other.</p> + +<p>14. Infamous crime.</p> + +<p><span class="smcap">Finland.</span>—In this country marriage between Christian and non-Christian, +and the marriage of a Lutheran who has not yet been admitted to the rite +of holy communion, are prohibited.</p> + +<p><span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span>In case of seduction marriage is prohibited unless the consent of the +parents or of the court is obtained.</p> + +<p>Divorce is permitted in Finland for the following causes:</p> + +<p>1. Adultery.</p> + +<p>2. Illicit intercourse with a third party after betrothal.</p> + +<p>3. Malicious desertion for one year.</p> + +<p>By petition to the Department of Justice of the Imperial Senate a Finn can +obtain, for sufficient cause, a divorce on other grounds.</p> + +<p><span class="smcap">Rights of Married Women.</span>—When we come to consider the rights, or rather, +the lack of rights, of married women in the Muscovite Empire we must +remember that Russia is only geographically in Europe, and only nominally +a Christian State. It is a country standing alone on the map of the world, +five centuries behind in civilization what is really Europe.</p> + +<p>Although among the so-called higher classes woman is often treated +socially—not legally—as the equal of her husband, among the great bulk +of the population she has little more status than that of a domestic +animal.</p> + +<p>There is no other country on earth pretending to be civilized where a +woman, single or married, has so few rights recognized by the State or the +national church.</p> + +<p>A married woman in Russia owns nothing. It is all her husband’s. She is, +however, allowed the privilege of saving up a little hoard of her own on +the flax or wool out of which she makes the clothing for her husband and +children. This little hoard is called her <i>korobka</i>, and upon her death it +goes to her children. If she dies childless it goes to her mother, and if +her mother is also dead it goes to her single sisters.</p> + +<p><span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span>Such a <i>korobka</i>, when accumulated by a single woman from her earnings, is +considered as a dowry upon marriage, and it is generally applied by the +bridegroom to pay the wedding expenses.</p> + +<p>Count Mouravieff could not have been thinking of woman’s place in his +native land when he said: “We Russians bear upon our shoulders the New +Age; we come to relieve the tired men.” It is our opinion that the nation +which is most likely to bear upon the shoulders of its people the New Age +is the country which treats its womankind the best.</p> + +<p><span class="smcap">Special Laws for Jews.</span>—The law of marriage and divorce which governs the +Jews of Russia differs in many particulars from the rules applicable to +adherents of other sects. This special set of regulations comes from the +people of Israel themselves and is an outgrowth of the ancient Mosaic code +of jurisprudence. In thus permitting the Jews to have a body of rules +founded on the ancient precedents of their race and in agreement with +their consciences we find at least one attitude of wise tolerance for +which the Russian Empire is entitled to credit.</p> + +<p><span class="smcap">Betrothal.</span>—A Jewish betrothal must take place in the presence of two +competent witnesses. The consent of the parents of either party is not +required. Like marriage the betrothal can be dissolved only by death or by +divorce. It obligates the parties to marry within thirty days from the +date on which either demands marriage.</p> + +<p>A betrothal may be dissolved on the following grounds:</p> + +<p>A. Evil conduct.</p> + +<p>B. Change of religion.</p> + +<p>C. Insanity.</p> + +<p>D. Unchastity of either party or of one of his or her near relatives.</p> + +<p><span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span>E. By the man entering a dishonest occupation.</p> + +<p><span class="smcap">Impediments.</span>—Besides the impediments which prevent certain people of +other sects from lawfully concluding marriage there are other impediments +specially applicable to Jewish people. Briefly enumerated they are as +follows:</p> + +<p>1. A woman guilty of adultery, or even of secret association, with a man +against her husband’s will cannot marry her accomplice.</p> + +<p>2. A marriage between a Jew and an idolator is forbidden.</p> + +<p>3. If a woman’s husband has died childless, and is survived by a brother, +she can marry no one else than this brother until the latter has declined +marriage with her in the prescribed form.</p> + +<p>4. After the death of near relatives a marriage may not take place within +thirty days.</p> + +<p>5. A widow or divorced woman may not contract a new marriage within ninety +days from the dissolution of her earlier marriage.</p> + +<p>6. A pregnant woman may not marry before her delivery.</p> + +<p>7. A widower may not marry before three feast days have passed since the +death of his wife, but in case he is childless or his children require a +mother’s care he may marry after seven days.</p> + +<p><span class="smcap">Divorce.</span>—The Jewish law makes no distinction between divorce and +annulment. The grounds for divorce are as follows:</p> + +<p>1. Bigamy.</p> + +<p>2. Difference of religion.</p> + +<p>3. Relationship in the first degree in the direct line, by blood or +marriage. No legal action is necessary for these three causes.</p> + +<p>4. Adultery.</p> + +<p>5. Leprosy of the husband.</p> + +<p>6. Mutual consent of the parties.</p> + +<p><span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span>7. Such conduct on the part of the wife as raises a reasonable suspicion +of her adultery.</p> + +<p>8. The cursing by the wife of her father-in-law in her husband’s presence.</p> + +<p>9. Wife’s desertion of husband.</p> + +<p>10. Wife’s refusal for one year to perform marital duty.</p> + +<p>11. Husband’s cruelty to wife.</p> + +<p>12. Husband’s apostasy from the Jewish religion.</p> + +<p>13. When the husband is a fugitive from justice.</p> + +<p>14. Neglect of husband to support his wife.</p> + +<p>15. Persistent vicious and disorderly manner of life on part of the +husband.</p> + +<p>16. Husband’s admission that he is incurably impotent.</p> + +<p>17. The contraction by the husband of a loathsome disease.</p> + +<p>18. The adoption by the husband of a dishonest or disgusting occupation.</p> + +<p>19. Such conduct on the part of the wife as causes her husband, without +deliberation, to violate the ritualistic requirements of the Jewish +religion.</p> + +<p><span class="smcap">Procedure.</span>—The rabbi is the judge in the first instance of a divorce +petition. Appeal from his decision lies to the civil authorities.</p> + +<p>In the ordinary divorce case the first action by the rabbi is an attempt +to reconcile the parties. A confession of the guilty party is competent +evidence.</p> + +<p>The divorce becomes effective by the man delivering to the wife, after the +rabbinical decision, a bill of divorcement. This is done even if the wife +is the successful suitor. The husband can be compelled to make such a +delivery.</p> + +<p><span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span><span class="smcap">Effects of Divorce.</span>—The dowry +(<i>Nedunya</i>), which was settled on the wife at the time of the marriage, must be returned to her if she is the +innocent party. The woman retains the name of her divorced husband. Both +parties are free to marry again.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span></p> +<h2><a name="CHAPTER_XVI" id="CHAPTER_XVI"></a>CHAPTER XVI.</h2> +<p class="center"><span class="huge"><span class="smcap">Holland.</span></span></p> + +<p><span class="smcap">Marriage.</span>—A male must be eighteen years or more and a female sixteen +years or more in order to be lawfully married.</p> + +<p>Marriage is forbidden between all descendants and ascendants, legitimate +or otherwise, and in the collateral line marriages are forbidden between +brothers and sisters of the whole or half blood, legitimate or +illegitimate.</p> + +<p>Marriage is also forbidden in Holland between brothers-in-law and +sisters-in-law, between uncle and niece, or granduncle and grandniece, and +between aunt and nephew, grandaunt and grandnephew, legitimate or +otherwise.</p> + +<p>The Queen has power under the law to grant a dispensation for good reasons +relieving any couple from the effect of such prohibitions. She has also +power, for sufficient cause, to permit persons under age to contract +marriage.</p> + +<p>As a preliminary to marriage children must ask the consent thereto of +their parents, but the consent of the father is sufficient. If the father +is dead the consent of the mother suffices.</p> + +<p>If the mother and father are both dead the grandparents take their places.</p> + +<p>Marriage is treated in Holland as a civil contract.</p> + +<p><span class="smcap">Celebration.</span>—The ceremony of marriage must take place publicly in the +town hall before a registrar, but not until three days after the +publication of banns. Four male witnesses of full age must be present. If +one of the parties is unable to attend the town hall the marriage may<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> be +solemnized in a private house, but in such a case six male witnesses of +full age are necessary. A religious celebration of the marriage cannot be +performed until the officiating clergyman is shown proof that the civil +marriage has already taken place.</p> + +<p><span class="smcap">Foreign Marriage.</span>—A marriage concluded in a foreign country between two +Hollanders, or between a Hollander and a foreigner, is recognized as valid +in Holland if celebrated according to the requirements of the foreign +country, and provided the banns were duly published, without opposition, +in the place or places of residence in Holland of the contracting parties, +and provided such marriage is not in contravention of the law of Holland.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A marriage may be judiciously annulled on the +following grounds:</p> + +<p>1. Previous existing marriage of one of the parties.</p> + +<p>2. Want of free consent on the part of one or both of the parties.</p> + +<p>3. Mistake as to identity of person.</p> + +<p>4. Insanity or deficient mentality of one or both parties.</p> + +<p>5. Lack of marriageable age.</p> + +<p>6. Relationship within prohibited degrees.</p> + +<p>7. Marriage with an accomplice in adultery.</p> + +<p>8. Absence of requisite number of witnesses.</p> + +<p>9. Marriage in spite of an objection raised on publication of the banns, +in case the objection proves to be well founded.</p> + +<p>10. Marriage in violation of any other legal requirement.</p> + +<p><span class="smcap">Divorce.</span>—In Holland a marriage can be dissolved in one of four different +ways:</p> + +<p>1. By death of one of the parties.</p> + +<p><span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span>2. By the absence of one of the spouses for the period of ten years or +more, coupled with the remarriage of the other spouse.</p> + +<p>3. By a divorce pronounced after a judicial separation has been obtained +by one of the spouses.</p> + +<p>4. By a divorce pronounced in the first instance for one of the causes +hereinafter stated.</p> + +<p>The causes for an absolute divorce are:</p> + +<p>1. Adultery.</p> + +<p>2. Malicious abandonment continued for five years.</p> + +<p>3. Judicial condemnation of one of the spouses to prison for an infamous +offence.</p> + +<p>4. Grave bodily harm inflicted by one spouse upon the other.</p> + +<p><span class="smcap">Procedure.</span>—The action for divorce must be instituted before the judge of +the district where the husband is domiciled, except when the cause alleged +is malicious abandonment, in which case the suit must be brought before +the judge of the district in which both parties had their last common +domicile.</p> + +<p>Before filing the formal petition the complainant must personally attend +before the district judge and state the facts, after which it is the duty +of the judge to attempt a reconciliation of the parties. The complainant +must appear without counsel or relatives. The judge next orders both +parties to appear before him without counsel or relatives in the further +endeavour to effect a reconciliation.</p> + +<p>If a reconciliation appears to be impossible the formal petition for +divorce is then filed with the court.</p> + +<p>All suits for divorce are heard <i>in camera</i>, and the public prosecutor +must attend.</p> + +<p><span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span><span class="smcap">Effects of Divorce.</span>—In +so far as the innocent party is not able to support himself or herself out of his or her income the guilty party is +bound, if able, to provide support.</p> + +<p>Except when it appears to the court that justice otherwise requires, the +custody of the children is given to the successful suitor.</p> + +<p>The innocent party retains all gifts made to him or her by the other and +the guilty party loses them all.</p> + +<p>Both parties are free to contract a new marriage.</p> + +<p><span class="smcap">Judicial Separation.</span>—A separation from bed and board may be granted on +the same grounds as entitle a party to an absolute divorce. Such a +separation may also be judicially granted by consent of both spouses.</p> + +<p>After a judicial separation has existed for five years either of the +parties may petition the court to enlarge the decree of separation into a +decree of absolute divorce.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span></p> +<h2><a name="CHAPTER_XVII" id="CHAPTER_XVII"></a>CHAPTER XVII.</h2> +<p class="center"><span class="huge"><span class="smcap">The Japanese Civil Code.</span></span></p> + +<p>The East and the West, the Past and the Present, meet in the Japanese +Civil Code, which became law in January, 1893.</p> + +<p>It is the first codification of private law that Japan ever had in her +long history. Up to that time the basis of Japanese laws and institutions +was Chinese moral philosophy, ancestor worship and the old feudal system.</p> + +<p>The Criminal Code of Japan (<i>Shin-ritsu-koryo</i>), enacted in 1870, was the +last legal code founded on Chinese philosophy, customs and traditions, and +the Revised Criminal Code (<i>Kaitei-Ritsurei</i>) is the first group of +Japanese laws based upon European jurisprudence and civilization.</p> + +<p>Three periods may be marked in the history of Japan with regard to the +legal aspect of the marriage relation. The first was the ancient Japanese +period, the second the Chinese period, and the third, the present, that of +modern Japan.</p> + +<p>The Chinese doctrine of the perpetual obedience of woman to man is +expressed in the “Three Obediences”: Obedience, while yet unmarried, to +the father; obedience, when married, to the husband; obedience, when +widowed, to the son.</p> + +<p>Buddhism regards woman as an unclean creature, a temptation, and an +obstacle to peace and holiness.</p> + +<p>The great revolution in the legal position of woman in Japan which the new +Civil Code has brought about is as impressive as all the other changes for +the better which have of late years taken place in the land of the Cherry +Blossoms.<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> The Chinese and Buddhistic theories concerning womankind have +but little influence on modern Japanese law.</p> + +<p>Under the Civil Code husband and wife are now on an equal footing, except +when consideration for their common domestic life requires some +modifications.</p> + +<p>Persons who are about to marry are permitted to make any contract with +regard to their individual property, and a woman is capable of owning and +controlling her separate property all during marriage.</p> + +<p>When Japanese law belonged to the Chinese system of jurisprudence there +were seven causes for divorce, namely:</p> + +<p>1. Sterility.</p> + +<p>2. Lewdness.</p> + +<p>3. Disobedience to father-in-law or mother-in-law.</p> + +<p>4. Loquacity.</p> + +<p>5. Larceny.</p> + +<p>6. Jealousy.</p> + +<p>7. Bad disease.</p> + +<p>As under the Mosaic law, these causes were invented only for the advantage +of the husband. A wife had no right even to desire a divorce from her +husband.</p> + +<p>An examination of the seven causes shows that a woman could be divorced +practically at her husband’s pleasure. The New Civil Code has changed all +this. A wife has equal rights with her husband to the benefits of the +divorce law.</p> + +<p>The New Civil Code of Japan is divided into five books, but it is only +with Book IV., which deals with the “Family,” that we are at present +concerned.</p> + +<p><span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span>A summary of the present marriage and divorce law of Japan, as translated +from Book IV., follows:</p> + +<p><span class="smcap">Requisites of Marriage.</span>—A man cannot marry before the completion of his +seventeenth year or a woman before the completion of her fifteenth year.</p> + +<p>A person already married cannot contract another marriage.</p> + +<p>A woman cannot contract another marriage within six months from the +dissolution or cancellation of her former marriage.</p> + +<p>If a woman is pregnant at the time of the dissolution or cancellation of +her former marriage this provision does not apply after the day of her +delivery.</p> + +<p>A person who is judicially divorced or punished because of adultery cannot +contract a marriage with the other party to the adultery.</p> + +<p>Lineal relatives by blood or collateral relatives by blood up to the third +degree cannot intermarry; but this does not apply as between an adopted +child and his collateral relatives by adoption.</p> + +<p>Lineal relatives by affinity cannot intermarry. This applies even after +the relationship by affinity has ceased because of marriage or divorce.</p> + +<p>An adopted child, his or her husband or wife, his descendants and the +husband or wife of one of his descendants on the one hand, and the adopter +and his ascendants on the other hand, cannot intermarry, even after the +relationship has ceased.</p> + +<p>For contracting a marriage a child must have the consent of his parents, +being in the same house. This, however, does not apply if the man has +completed his thirtieth year or the woman her twenty-fifth year.</p> + +<p>If one of the parents is unknown, is dead, has<span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span> quit the house, or is +unable to express consent, the consent of the other parent is sufficient.</p> + +<p>If both parents are unknown, dead, have quit the house, or are unable to +express consent, a minor must obtain the consent of his guardian and of +the family council.</p> + +<p>This by way of parenthesis: The members of a house comprise such relatives +of the head of the house as are in his house and the husbands and wives of +such relatives.</p> + +<p>The head and the members of a house bear the name of the house.</p> + +<p>The head of the house is bound to support its members. A marriage takes +effect upon its notification to the registrar. A wedding ceremony is not +legally essential.</p> + +<p>The notification of marriage must be made by the parties concerned and at +least two witnesses of full age, either orally or by a signed document.</p> + +<p>If a Japanese couple in a foreign country contract a marriage between +themselves they may give the notification of their marriage to the +Japanese minister or consul stationed in such country.</p> + +<p><span class="smcap">Effect of Marriage.</span>—By marriage the wife enters the house of the husband. +A man who marries a woman who is head of a house, or a <i>mukoyoshi</i>, enters +the house of his wife.</p> + +<p>A <i>mukoyoshi</i> is a person who is adopted by another and at the same time +marries the daughter of the house who would be the heir to the headship of +the house.</p> + +<p>A wife is bound to live with her husband. A husband must permit his wife +to live with him.</p> + +<p>A husband and wife are bound to support each other. When the wife is a +minor the husband, if of full age, exercises the functions of a guardian.</p> + +<p>A contract made between husband and wife may be cancelled at any time +during the marriage by<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> either party, but without prejudice to the rights +of third persons.</p> + +<p><span class="smcap">Divorce by Mutual Consent.</span>—The husband and wife may effect a divorce by +mutual consent. No court procedure is necessary. Just as in giving notice +of marriage, the parties consenting to be divorced give notice of such +agreement to the registrar, and they are <i>ipso facto</i> divorced.</p> + +<p>A person who has not reached the age of twenty-five years, in order to +effect a divorce by mutual consent, must obtain the consent of the person +or persons whose consent was necessary for the marriage.</p> + +<p>If a husband and wife have effected a divorce by mutual consent without +arranging as to whom the custody of the children shall belong, it belongs +to the husband.</p> + +<p><span class="smcap">Judicial Divorce.</span>—A husband or wife, as the case may be, can bring an +action for divorce for the following causes:</p> + +<p>1. If the other party contracts a second marriage.</p> + +<p>2. If the wife commits adultery.</p> + +<p>3. If the husband is sentenced to punishment for an offence specified in +Article 348 <i>et seq.</i> of the Criminal Code; such offences involving +criminal carnal sexuality.</p> + +<p>4. If the other party is sentenced to punishment for an offence greater +than misdemeanor, involving forgery, bribery, gross sexual immorality, +theft, robbery, obtaining property by false pretences, embezzlement of +goods deposited, receiving knowingly stolen goods, or any of the offences +specified in Articles 175 and 260 of the Criminal Code, or is sentenced to +a major imprisonment or more.</p> + +<p>5. If one party is so ill-treated or grossly insulted by the other that it +makes further living together of the spouses impracticable.</p> + +<p><span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span>6. If one party is deserted by the other.</p> + +<p>7. If one party is ill-treated or grossly insulted by an ascendant of the +other party.</p> + +<p>8. If an ascendant of one party is ill-treated or grossly insulted by the +other party.</p> + +<p>9. If it has been uncertain for three years or more whether or not the +other party is alive or dead.</p> + +<p>10. In the case of the adoption of a <i>mukoyoshi</i>, if the adoption is +dissolved, or in the case of a marriage of an adopted son with a daughter +of the house, if the adoption is dissolved or cancelled.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span></p> +<h2><a name="CHAPTER_XVIII" id="CHAPTER_XVIII"></a>CHAPTER XVIII.</h2> +<p class="center"><span class="huge"><span class="smcap">Spain.</span></span></p> + +<p>Spain is a constitutional and hereditary monarchy, the powers of which are +defined by the fundamental law of June 30, 1876. The legislative authority +is exercised by the sovereign in conjunction with a parliamentary body +called the Cortes, which is composed of two houses, a Senate and a Chamber +of Deputies.</p> + +<p>Spanish law is founded on the Roman law, the Gothic common law, the +National Code of 1501, and the Civil Code of 1888, with its subsequent +amendments and additions.</p> + +<p>Spanish law is binding in the Spanish Peninsula and adjacent islands, the +Canary Islands and such African territory as is subject to Spain.</p> + +<p><span class="smcap">Marriage.</span>—The law recognizes two forms of marriage: the canonical, which +all who profess the Catholic religion should contract; and the civil, +which must be celebrated in the manner hereinafter stated.</p> + +<p>Marriage is forbidden to:</p> + +<p>1. Minors who have not obtained parental consent.</p> + +<p>2. To a widow, during the three hundred and one days following the death +of her husband or before childbirth, if she has been left pregnant.</p> + +<p>3. To a guardian and his or her descendants, with respect to persons who +are the wards of such guardian until the ending of the guardianship, and a +proper accounting has been rendered by the guardian. An exception to this +rule exists when the father of the ward has in his will or in a<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> public +instrument expressly authorized such a marriage.</p> + +<p><span class="smcap">Age.</span>—A male cannot marry until he has completed his fourteenth year of +age; a female until she has completed her twelfth year.</p> + +<p>Marriage contracted by persons under puberty shall, nevertheless, be <i>ipso +facto</i> made legal if a day after having arrived at the legal age of +puberty, the parties continue to live together without bringing a suit to +set aside the marriage, or if the female becomes pregnant before the legal +age, or before the institution of a suit for annulment.</p> + +<p>Persons who are not in the full exercise of their reasoning faculties +cannot contract marriage.</p> + +<p>The law forbids the marriage of all those who suffer from absolute or +relative impotency.</p> + +<p>Priests and all other persons bound by a solemn pledge of celibacy in the +approved canonical manner are forbidden to contract marriage, unless they +have first received the necessary canonical dispensation.</p> + +<p>Persons already lawfully married cannot contract a new marriage.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—The following persons cannot contract +marriage between themselves:</p> + +<p>1. The ascendants and descendants by legitimate or illegitimate blood or +affinity.</p> + +<p>2. Collaterals by legitimate consanguinity up to and including the fourth +degree.</p> + +<p>3. Collaterals by legitimate affinity up to and including the fourth +degree.</p> + +<p>4. Collaterals by natural consanguinity or affinity up to and including +the second degree.</p> + +<p>5. The adopting father or mother and the adopted child; the latter and the +surviving spouse of the adoptees, and the adopters and the surviving +spouse of the adopted.</p> + +<p><span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span>6. The legitimate descendants of the adopter with the adopted, while the +relation of adoption continues.</p> + +<p>7. Accomplices in adultery who have been judicially sentenced.</p> + +<p>Those who have been condemned as principals, or principal and accomplice, +in the homicide of the spouse of any of the parties cannot conclude +marriage between themselves.</p> + +<p>The government for sufficient cause will, on petition of a party, grant a +dispensation permitting marriage between collaterals by legitimate +consanguinity within the fourth degree. Other dispensations may also be +granted on a proper petition.</p> + +<p><span class="smcap">Parental Consent.</span>—The consent of the father is required for the marriage +of a legitimate minor; in his default, or where he cannot consent, the +power to grant it devolves, in this order: upon the mother, the paternal +and maternal grandparents, and in default of all these, upon the family +council.</p> + +<p>Recognized natural children or children legitimatized by royal concession +must ask the consent of those who have recognized or legitimatized them or +of their ascendants, or of the family council.</p> + +<p>Adopted children must ask the consent of the adopting father, and in his +default, of the persons of the natural family upon whom it may devolve.</p> + +<p>Unrecognized illegitimate children must ask the consent of their mother, +when she is known, and in her default consent must be asked of the +maternal grandparents, and in their default, that of the family council.</p> + +<p>Children of age are obliged to ask the advice of the father, and in his +default, of the mother before contracting marriage. In case the advice +given is against the proposed alliance, the marriage<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> cannot be celebrated +until three months after the petition is made.</p> + +<p>Marriage in Spain is dissolved absolutely only by the death of one of the +parties.</p> + +<p><span class="smcap">Canonical Marriage.</span>—The requisites, form and solemnities for the +celebration of canonical marriage is governed by the laws of the Catholic +Church, and by the decrees of the Holy Council of Trent, which are +accepted as part of the organic law of Spain. Canonical marriage produces +all the civil effects in respect to persons and property of the spouses +and their offspring. A magistrate is required to be present at the +celebration of a canonical marriage simply for the purpose of making a +verified record in the Civil Registry of the marriage. So that he may be +present for the purpose above stated, the magistrate must be given notice +in writing twenty-four hours at least before the intended celebration, +telling him of the day, hour and place of the marriage.</p> + +<p>Persons who contract canonical marriage in <i>articulo mortis</i> may give +notice to the officials in charge of the Civil Registry, at any time +whatever prior to its celebration, and prove in any manner whatever that +such duty has been performed.</p> + +<p><span class="smcap">Civil Marriage.</span>—A civil marriage must be preceded by a declaration to the +Municipal Judge, stating the names, ages, professions and domiciles of the +contracting parties; also the names, professions and domiciles of the +parents; and proper certificates of the births and status of the +contracting parties; certificates of consent or advice of parents, and +dispensations when required.</p> + +<p>Marriages may be celebrated personally or by a substitute or proxy to whom +a special authorization has been granted.</p> + +<p>Civil marriages must be solemnized by the contracting parties appearing +before the Municipal<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> Judge, or one of them, and the person whom the +absent party may have appointed as proxy must appear before such +magistrate, together with two competent witnesses.</p> + +<p>The Municipal Judge, after reading articles 56 and 57 of the Civil Code to +the parties (which point out the rights and obligations of married life), +must ask each party if they desire to be married to each other, and if +both answer in the affirmative, the judge shall declare the parties to be +husband and wife, and prepare a record of the marriage.</p> + +<p>Consuls and vice-consuls are empowered to exercise the function of +municipal judges in marriages of Spaniards, celebrated in foreign +countries.</p> + +<p><span class="smcap">Nullity of Marriage.</span>—The following marriages are null and void:</p> + +<p>1. Those concluded between persons related within the prohibited degrees.</p> + +<p>2. Those concluded between persons under the age of puberty.</p> + +<p>3. Marriages between persons, one or both of whom were of incurably +unsound mind.</p> + +<p>4. Incurably impotent persons.</p> + +<p>5. Persons bound by canonical vows to chastity.</p> + +<p>The proceeding to have such marriages judicially declared as null may be +instituted by either spouse, the Public Attorney, or by any interested +person.</p> + +<p>The action lapses, and the marriage will be confirmed in cases based on +abduction, error, force or fear, when the spouses have lived together six +months after the error became known, or after the force or fear has +ceased.</p> + +<p><span class="smcap">Divorce.</span>—A divorce in Spain only amounts to what in other countries is +called a judicial separation. Accepting the decrees of the Council of +Trent as law for Spain, marriage is treated as a<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> sacramental contract +which can only be dissolved by death.</p> + +<p>The Civil Code, Article 104, states the following causes for divorce:</p> + +<p>1. Adultery on the wife’s part.</p> + +<p>2. Adultery on the part of the husband, when public scandal or disgrace of +the wife is a result.</p> + +<p>3. Violence exercised by the husband over the wife in order to force her +to abandon her religious faith.</p> + +<p>4. Cruelty actually inflicted, or grave acts of contumely.</p> + +<p>5. The attempt or proposal of a husband to prostitute his wife.</p> + +<p>6. The attempts of either husband or wife to corrupt the morals of the +sons, or to prostitute the daughters.</p> + +<p>7. Condemnation of either spouse to imprisonment for life.</p> + +<p><span class="smcap">Effects of Divorce or Nullification.</span>—The civil effects of a divorce or +annulment of marriage are as follows:</p> + +<p>1. Separation of the parties.</p> + +<p>2. To place the custody of the children with one or both of the parties, +as justice may require.</p> + +<p>3. To determine the responsibility for the support of the woman and +children.</p> + +<p>4. To place the woman under the special protection of the law.</p> + +<p>5. To decree the necessary measures to prevent the husband, who may have +given cause for divorce, or against whom the petition for nullity of the +marriage has been instituted, from interfering with the wife in the +administration of her separate property.</p> + +<p><span class="smcap">Husband and Wife.</span>—The spouses are under mutual obligation to live +together, to be faithful to,<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> and help each other. The husband is bound to +protect his wife and the wife to obey her husband.</p> + +<p>The wife is required to follow her husband wherever he may establish his +residence. The courts, however, will in some cases release her from this +requirement when the husband changes his residence to a foreign land.</p> + +<p>The husband is the manager of the property of the conjugal union, except +when there is a mutual agreement to the contrary.</p> + +<p>The husband is the legal representative of the wife. She cannot, without +his permission, appear in a suit by herself or through an attorney. +However, she does not need such permission to defend herself in a criminal +case or to bring a suit against her husband, or to defend herself in a +suit brought by her husband against her.</p> + +<p>A wife cannot, without her husband’s permission, acquire property in trade +or by her labour. Neither can she, without such consent, alienate her +property.</p> + +<p>The wife can, without her husband’s permission, perform the following +acts:</p> + +<p>1. Execute a will.</p> + +<p>2. Exercise the rights and perform the duties which pertain to her with +regard to legitimate and recognized illegitimate children, the issue of +herself and another not now her husband.</p> + +<p><span class="smcap">Foreign Marriages.</span>—The Spanish courts recognize as valid in Spain any +marriage performed in a foreign country in accordance with the laws of +such country, provided such marriage also meets with all the requirements +of the Civil Code of Spain.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span></p> +<h2><a name="CHAPTER_XIX" id="CHAPTER_XIX"></a>CHAPTER XIX.</h2> +<p class="center"><span class="huge"><span class="smcap">Civil Code of Portugal.</span></span></p> + +<p>On the third day of October, 1910, King Manuel II. of Portugal was +dethroned and a Republic was proclaimed throughout the country. At the +present time the affairs of the Republic are being administered by a +provisional government. Until this temporary administration is followed by +a permanent government, based on a national constitution, the Civil Code +promulgated in 1867 will continue to be Portuguese law.</p> + +<p><span class="smcap">Marriage.</span>—Marriage is defined in the Civil Code as a perpetual contract +between two persons of different sex to live together and establish a +legitimate family.</p> + +<p>Catholics must celebrate marriage according to the rules and form +prescribed by their church. Those who are not Catholics are required to +have their marriage celebrated before a civil officer of the State +according to the rules and form prescribed by the civil law of the land.</p> + +<p>Marriage is forbidden:</p> + +<p>1. Of minors under the age of 21 years, unless with parental consent.</p> + +<p>2. Of persons of adult age who are incapable of properly governing +themselves or their estates, without the authorization of their legal +representatives.</p> + +<p>3. Of an adulterous wife with her accomplice who has been condemned for +the offence.</p> + +<p>4. Of a wife who has been condemned as the principal or accomplice of the +crime of homicide with a principal or accomplice in the same crime.</p> + +<p><span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span>5. Of any person bound by solemn vows of religion to a life of chastity.</p> + +<p>The canon law of the Catholic Church defines the religious rules and +spiritual effects of marriage, while the civil law defines the civil rules +and temporal effects of the contract.</p> + +<p>A minister of the church who celebrates a marriage contrary to the +requirements of Article 1058 of the Civil Code incurs criminal penalties.</p> + +<p>Marriage between Portuguese subjects who are non-Catholics is recognized +as producing full civil effects.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—The following persons are forbidden to marry +each other:</p> + +<p>1. Ascendants and descendants.</p> + +<p>2. Persons related collaterally in the second degree.</p> + +<p>3. Males who have not completed their fourteenth year and females who have +not completed their twelfth year of age.</p> + +<p>4. Persons already bound by marriage.</p> + +<p>Any infraction of these prohibitions makes a marriage voidable.</p> + +<p><span class="smcap">Marriage Preliminaries.</span>—Whoever desires to contract marriage according to +the manner provided by the civil law of the land must present to the civil +officer of the State acting in the place of the applicant’s domicile a +declaration setting forth:</p> + +<p>1. The full names, ages, occupations and domiciles of the contracting +parties.</p> + +<p>2. The full names, professions and domiciles of the parents.</p> + +<p>Upon receiving this declaration the civil officer publishes a notice of +the intended marriage and informs all interested persons to file their +objections, if any exist, within fifteen days. If at the end of this +period no valid objection to the <span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span>marriage has been formulated the civil +officer proceeds to the celebration of the marriage.</p> + +<p><span class="smcap">Celebration.</span>—For the civil celebration of marriage the contracting +parties, or their duly empowered proxies, appear before the civil officer +of the commune, attended by competent witnesses. If the marriage is +celebrated in the official bureau of the commune two witnesses are +sufficient; if outside of such bureau six witnesses are required.</p> + +<p>Any civil officer celebrating a marriage contrary to these provisions +incurs penal punishment.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A Catholic marriage—that is, one solemnized +according to the canonical law—can only be annulled by an ecclesiastical +tribunal and according to the laws of the Catholic Church enforceable in +Portugal.</p> + +<p>A sentence of an ecclesiastical tribunal annulling a marriage is executed +by the civil authority of the land.</p> + +<p>A marriage concluded before a civil officer in the form established by the +civil law of the land can only be annulled by a civil court.</p> + +<p><span class="smcap">Judicial Separation.</span>—A separation of the person and goods may be had for +the following causes:</p> + +<p>1. Adultery of the wife.</p> + +<p>2. Adultery of the husband, if such adultery creates a public scandal or +if the husband brings his concubine into the home he has established for +his wife.</p> + +<p>3. Sentence of one of the spouses to life imprisonment.</p> + +<p>4. Cruel and abusive treatment.</p> + +<p><span class="smcap">Divorce.</span>—Under the law of Portugal as it existed down to the day when +King Manuel II. was dethroned and a Republic declared there was no such +thing as divorce recognized. Portugal has been for centuries a Catholic +country, and the decrees of<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> the Council of Trent, as well as all the +other rules and regulations concerning marriage stated by the Catholic +Church, have been accepted by Portugal as part of the law of the land. +However, since December 1, 1910, when the present provisional government +was constituted, certain new laws have been promulgated by government +decree. One of these new laws relates to divorce and is most modern and +radical in its scope. It permits the courts to grant absolute divorces for +a number of reasons, including “mutual consent of the parties.”</p> + +<p>Whether such laws, created by proclamation instead of legislation, will be +incorporated into the inevitable new Civil Code of Portugal is a problem +for the future. Our endeavour in this chapter has been to state the +organic law of Portugal as it at present exists, untouched by legislation +on the statute books of that ancient land.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span></p> +<h2><a name="CHAPTER_XX" id="CHAPTER_XX"></a>CHAPTER XX.</h2> +<p class="center"><span class="huge"><span class="smcap">Roumania.</span></span></p> + +<p>Roumania is the name officially adopted by the united kingdom that +comprises the former principalities of Walachia and Moldavia. In its +native form it appears simply as “Roumania,” representing the claim to +Roman descent put forward by its inhabitants.</p> + +<p>The Roumanian Civil Code from which we summarize in this chapter the law +of marriage and divorce of Roumania is practically a copy of the French +Civil Code.</p> + +<p><span class="smcap">Marriage.</span>—A man must be eighteen years of age and a woman fifteen in +order to contract lawful marriage, except a dispensation is granted by the +King.</p> + +<p>The free consent by both contracting parties is essential.</p> + +<p>Men under twenty-five years of age and women under twenty-one cannot marry +without the parental consent. Men under the age of thirty and women under +the age of twenty-five are obliged to ask the consent of their parents.</p> + +<p>A man or woman is allowed but one spouse at a time.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is forbidden between relatives, +whether by blood or by marriage, in the direct line, and in the collateral +line to the fourth degree, inclusive, by the Roman method of counting. The +prohibition obtains whether the relationship arises from legitimate or +illegitimate birth. A dispensation from such impediments may, in special +cases, be granted, by the King.</p> + +<p>Marriage is forbidden between relatives by<span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span> adoption and between +godparents and their godchildren.</p> + +<p>Marriage is forbidden between guardians and wards, or between trustees and +wards, and the father, son or brother of a guardian or trust cannot marry +the ward until the accounts of the guardianship or trust have been +properly audited and settled.</p> + +<p>Soldiers cannot marry without the consent of the military authorities.</p> + +<p>Marriage is expressly forbidden to priests, monks and nuns.</p> + +<p>Divorced persons are forbidden to remarry each other.</p> + +<p>A woman whose marriage has been dissolved by death or divorce may not +marry again until the expiration of ten months after such dissolution.</p> + +<p><span class="smcap">Marriage Preliminaries.</span>—A marriage must be preceded by the publication of +the names, occupations and residences of the parties themselves, and of +their parents, on two Sundays before the celebration. Such publication of +banns must be made before the door of the parish church and the door of +the town hall of the commune where the marriage is to be concluded. The +marriage cannot be solemnized until the fourth day after the second +publication of banns. If a year passes after such publication without +marriage a new publication is necessary. If, upon the publication of +banns, the intended marriage is opposed, as it may be, by any person, the +registrar of the commune must defer the celebration of marriage until the +opposition has been withdrawn or overruled.</p> + +<p><span class="smcap">Celebration.</span>—The marriage must be celebrated by the registrar in the town +hall of the commune in which one of the parties had had continuous +residence for at least six months. The registrar, in the presence of four +witnesses, reads to the<span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span> parties that chapter of the Civil Code of +Roumania which defines the rights and duties of marriage. The parties must +then declare to the registrar their intention to marry each other. After +this the officiating registrar pronounces the parties to be husband and +wife.</p> + +<p>If a religious celebration is desired it must in all cases be preceded by +the civil ceremony.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A marriage may be annulled on any of the following +grounds:</p> + +<p>1. That it was not regularly celebrated before a registrar.</p> + +<p>2. That free consent of one or both parties did not exist.</p> + +<p>3. Lack of proper age.</p> + +<p>4. An existing marriage.</p> + +<p>5. Relationship within prohibited degrees.</p> + +<p>6. Lack of parental consent.</p> + +<p>7. In the case of a soldier, lack of proper consent from the necessary +military authorities.</p> + +<p>Where a marriage has been contracted in good faith the parties thereto and +the issue of the marriage are entitled to all civil rights resulting +therefrom; but if only one party was in good faith, only that party and +the issue of the marriage are entitled to these rights.</p> + +<p><span class="smcap">Divorce.</span>—The great majority of the people of the kingdom belong to the +Roumanian branch of the Orthodox Greek Church, which in practice does not +hold to the doctrine of the indissolubility of marriage.</p> + +<p>The law of the land permits absolute divorce for the following causes:</p> + +<p>1. By mutual consent of the parties. The parties on such an application +appear before a judge with a written inventory of their goods, showing the +division agreed upon, and with certificates of their birth and marriage, +of the births<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> and deaths of their children, and, when necessary, the +consent of their parents.</p> + +<p>The judge then endeavours to reconcile the parties. If at the end of one +year and fifteen days no reconciliation has been effected a divorce is +granted.</p> + +<p>2. Adultery of husband or wife.</p> + +<p>3. Cruel and abusive treatment of one spouse toward the other.</p> + +<p>4. A judicial condemnation of either party to a prison sentence for an +infamous crime.</p> + +<p>5. An attempt of one party on the life of the other.</p> + +<p>6. Intentional omission of one spouse to warn the other of an attempt by a +third person on the life of the other spouse.</p> + +<p><span class="smcap">Separation.</span>—Judicial separations are not granted by the courts of +Roumania.</p> + +<p><span class="smcap">Effects of Divorce.</span>—Divorced parties are forbidden to remarry each other.</p> + +<p>A divorced woman may not marry again within ten months after her +divorcement, and the guilty party in a suit for divorce on the ground of +adultery may not marry his or her accomplice in adultery.</p> + +<p>Otherwise divorced parties are free to marry again.</p> + +<p>A divorced woman may not retain her husband’s surname.</p> + +<p>All property rights granted by the innocent party to the guilty party are +extinguished by the decree of divorce. The guilty party may be ordered to +contribute to the support of the innocent party.</p> + +<p>The custody of the children is usually given to the successful suitor. The +court may, however, if circumstances require, entrust the children to the +guilty party or to a third person.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span></p> +<h2><a name="CHAPTER_XXI" id="CHAPTER_XXI"></a>CHAPTER XXI.</h2> +<p class="center"><span class="huge"><span class="smcap">Servia.</span></span></p> + +<p>Servia is a kingdom in the northwestern part of the Balkan Peninsula. In +1882 it became a constitutional monarchy. The judiciary is vested in a +High Court of Appeal, a Court of Cassation, a Commercial Court and +twenty-three courts of the first instance.</p> + +<p>The Servian laws of marriage and divorce are substantially the same as +those of the Orthodox Greek Church. All marital suits in which one or both +parties belong to this church are governed by State law, although +jurisdiction lies with the ecclesiastical courts. Matters pertaining to +property settlement are, however, entirely within the jurisdiction of the +civil courts, as are all marital suits in which neither party belongs to +the Greek Church.</p> + +<p>When the parties to a marital suit are Roman Catholics decisions are +rendered according to the canon law; and when both parties are +Protestants, according to the principles of the sect to which the parties +belong.</p> + +<p>In the case of a mixed marriage of others than adherents of the Greek +Church the decision is rendered according to the principles of the church +in which the marriage was celebrated.</p> + +<p><span class="smcap">Marriage Qualifications.</span>—A man cannot marry until he has completed his +seventeenth year; a woman until she has completed her fifteenth year of +age. By the dispensation of the church, granted by a bishop, a man of +fifteen years or a woman of thirteen years may conclude marriage.</p> + +<p><span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span>The free consent of both parties is essential to a valid marriage.</p> + +<p>If both the contracting parties are over eighteen years of age parental +consent to a marriage is not obligatory. Where both parties are under +eighteen years, or the intended bride is under that age and the intended +bridegroom is under twenty-one years, the consent of parents is necessary.</p> + +<p>All persons are forbidden to contract a new marriage until a previous +existing marriage has been dissolved or judicially declared a nullity.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is prohibited between relatives by +blood in the direct line and in the collateral line as far as the eighth +degree, inclusive—that is to say, as far as the degree of relationship of +third cousins. Relatives in the seventh or eighth degree may marry by +episcopal dispensation. Marriage is prohibited between relatives by +marriage as far as the fifth degree, inclusive.</p> + +<p>Marriage is prohibited between persons spiritually related, as between the +godparent and the godchild or his descendants.</p> + +<p><span class="smcap">Impediments.</span>—Persons who have been judicially condemned for adultery are +forbidden to contract marriage with their accomplices in the offence.</p> + +<p>The party declared guilty in a suit for divorce is prohibited from +marrying again during the lifetime of the innocent party.</p> + +<p>A woman may not, as a rule, marry again until nine months after the +dissolution by death or divorce of her previous marriage.</p> + +<p>Insane persons cannot contract a binding marriage.</p> + +<p>Incurable impotence of either party, which existed at the time the +marriage was concluded, is cause for a decree of nullity.</p> + +<p><span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span>Marriage is expressly forbidden between Christians and Jews or between +Christians and non-Christians of any sect whatever.</p> + +<p>Marriage is prohibited between two persons one of whom has attempted the +life of the husband or wife of the other.</p> + +<p>A lawful marriage cannot be concluded with a woman who has been abducted +and has not yet been restored to freedom.</p> + +<p>Marriage cannot be concluded by a person who is under sentence to +imprisonment.</p> + +<p><span class="smcap">Preliminaries.</span>—Before the marriage the parish priest must, on three +successive holy days, publish banns in the church, and if any member of +the parish knows of any impediment it is his or her duty to inform the +priest. If a priest fails thus to publish banns, and impediments later +appear, he is amenable to punishment.</p> + +<p><span class="smcap">Celebration.</span>—The law of Servia does not recognize a civil marriage. If +the parties, or one of them, belong to the Orthodox Greek Church they must +be married according to the rites of that church. Christians of other +sects must be married by their clergy and Jews by their authorized +ministers.</p> + +<p><span class="smcap">Children.</span>—Marriage of the parents subsequent to their birth renders +illegitimate children fully legitimate.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A marriage may be declared null by a decree of a +court of competent jurisdiction whenever it appears that some essential +qualification to make the marriage valid was absent at the time it was +concluded, or if it appears that the marriage was concluded in disregard +of the impediments stated by law.</p> + +<p><span class="smcap">Absolute Divorce.</span>—A complete divorce from the marriage bond is allowed by +the courts for the following causes:</p> + +<p><span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span>1. Adultery of either party.</p> + +<p>2. Attempt by either spouse to kill the other.</p> + +<p>3. The concealment by one spouse of information concerning a plot to kill +the other spouse.</p> + +<p>4. Penal servitude incurred by either spouse, under a sentence of at least +eight years.</p> + +<p>5. Apostasy from the Christian religion.</p> + +<p>6. Deliberate desertion persisted in for three years.</p> + +<p>7. Flight from Servia followed by absence of at least four years.</p> + +<p>8. Absence without news for six years.</p> + +<p>A decree of divorce or a decree annulling a marriage must always be +submitted for the approval or disapproval of the ecclesiastical courts.</p> + +<p><span class="smcap">Effects of Divorcement.</span>—The innocent party to a divorce suit may contract +a new marriage, but the guilty party is forbidden to remarry during the +lifetime of the innocent party.</p> + +<p>Usually each party regains such goods and effects as he or she brought to +the alliance.</p> + +<p><span class="smcap">Custody of Children.</span>—Boys under four years and girls under seven are +given, as a rule, to the mother’s custody. After that they are given to +the custody of the father.</p> + +<p>The divorced woman must not continue to use the surname of her ex-husband.</p> + +<p><span class="smcap">Judicial Separation.</span>—A separation from bed and board may be granted by +the court whenever the facts show such a decree to best promote the +interests and well-being of the spouses.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span></p> +<h2><a name="CHAPTER_XXII" id="CHAPTER_XXII"></a>CHAPTER XXII</h2> +<p class="center"><span class="huge"><span class="smcap">Bulgaria.</span></span></p> + +<p>The national religion of the Bulgarian people is that of the Orthodox +Greek Church, and consequently the laws of that church on the subject of +marriage and divorce is part of the organic law of Bulgaria.</p> + +<p>Upon the political independence of the country the Bulgarian Church, which +had hitherto been under the Patriarchate of Constantinople through an +exarch, declared its independence and established the Bulgarian Exarchate. +The ecclesiastical courts of this Exarchate have general jurisdiction of +matrimonial causes except as concern Mohammedans, Jews, and Christians who +are not adherents of any of the Eastern Orthodox churches.</p> + +<p>Besides the laws of the Church, Bulgaria has a national law of marriage +and divorce dating from 1897.</p> + +<p>The matrimonial concerns of Mohammedans are governed by the law of the +religion of Mohammed. Christians who are dissenters from the Orthodox +Church are permitted to marry according to the rules and regulations of +their sect.</p> + +<p><span class="smcap">Requirements for Marriage.</span>—The marriageable age for men begins with +twenty years, and for women with eighteen years.</p> + +<p>Parental consent is required, but if it is arbitrarily denied the +authorities of the church may give their consent in its stead.</p> + +<p>A man or woman is permitted to have but one spouse at a time.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is forbidden between ascendants and +descendants. In<span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span> the collateral line marriage is forbidden between persons +related within the seventh degree. Under this rule a person cannot +lawfully marry the child of his or her second cousin. The ecclesiastical +authorities may upon such grounds as to them may seem sufficient grant a +dispensation permitting a marriage within the prohibited degrees.</p> + +<p>Marriage is also prohibited between godparents and godchildren, and +between godchildren who have the same godparent. Here also the clergy may +remove the impediment by dispensation.</p> + +<p>Persons suffering from idiocy, insanity, epilepsy or syphilis cannot +contract lawful marriage.</p> + +<p>Marriage is forbidden when the parties are of different religious faiths.</p> + +<p>A person under obligation by religious vow to remain celibate or one who +has been sentenced to a state of celibacy by an ecclesiastical court +cannot conclude marriage.</p> + +<p>Accomplices in adultery may not marry each other. Persons in the military +service must obtain the consent of their superiors to contract marriage.</p> + +<p><span class="smcap">Celebration.</span>—The law of Bulgaria does not permit a civil marriage. If +both or one of the contracting parties are baptized members of the +Orthodox Greek Church, the marriage service must be in accordance with the +rites of that church. Christians who belong to other churches are +permitted to be married by the ministers of their faith. Three weeks at +least must intervene between the betrothal and the wedding. All marriages +must be preceded by the publication of banns.</p> + +<p><span class="smcap">Foreign Marriages.</span>—The law of Bulgaria does not recognize the foreign +marriage of Bulgarian subjects unless the following elements are present:</p> + +<p><span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span>1. The foreign marriage must comply with all the laws and rules of the +foreign country where it is concluded.</p> + +<p>2. If the parties are baptized members of the Orthodox Greek Church the +marriage must be solemnized by a priest of that church. This rule applies +even though in the country where the marriage was concluded a civil +ceremony is sufficient.</p> + +<p><span class="smcap">Divorce.</span>—The Church and State both permit absolute divorces. The causes +are:</p> + +<p>1. Adultery of either spouse.</p> + +<p>2. Drunkenness and disorderly conduct.</p> + +<p>3. Cruel and abusive treatment.</p> + +<p>4. Threat to kill.</p> + +<p>5. Incurable impotence.</p> + +<p>6. Absence of the husband for four years coupled with failure to support +wife.</p> + +<p>7. Sentence to prison for an infamous offense.</p> + +<p>8. False accusation of adultery.</p> + +<p>9. Wife’s desertion of the husband continued for three years.</p> + +<p><span class="smcap">Divorce Procedure.</span>—As before stated the suit for divorce must be brought +before the ecclesiastical court.</p> + +<p><span class="smcap">Effects of Divorce.</span>—If the guilty party is the wife, her husband has the +right to retain all her dowry which she brought to him, and to retake all +gifts made to her either before or after marriage.</p> + +<p>If the guilty party is the husband, the wife has the right to recover her +dowry, to keep any present she ever received from the husband, and to +exact suitable maintenance from her divorced husband until such time as +she remarries.</p> + +<p>The custody of the children is given to the winning suitor, except that +children under five years remain in the care of their mother.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span></p> +<h2><a name="CHAPTER_XXIII" id="CHAPTER_XXIII"></a>CHAPTER XXIII.</h2> +<p class="center"><span class="huge"><span class="smcap">The Kingdom of Greece.</span></span></p> + +<p>Because of its matchless philosophy, literature and art, ancient Greece is +still the marvel of the modern world, but little credit is given to old +Hellas as one of the principal sources of the jurisprudence of to-day. For +political reasons the Roman law was the overshadowing and dominating +system of ancient law, but the fountain head of the laws of Rome, even of +the Laws of the Twelve Tables, was the land of Demosthenes, Pericles, +Solon and Lycurgus.</p> + +<p>The great jurisconsults of the Roman Empire were not Roman but Greek +lawyers, not the least of whom was Gaius, the legal commentator who was +the Blackstone of his period.</p> + +<p>The Roman Empire was the physical expression of Grecian intellect. Not +only the first lawyers but the first popes of Rome were Greeks.</p> + +<p>The modern Kingdom of Greece has an excellent system of jurisprudence +based on the old Roman law, with modifications drawn from the Bavarian and +French. The commercial law has been adapted from the <i>Code Napoleon</i>, the +penal laws are of Bavarian origin, and the laws of marriage and divorce +are derived from the Roman law necessarily modified to harmonize with the +dogmas of the Orthodox Greek Church, which is the national church of the +kingdom.</p> + +<p>The Areopagus existed in Greece as a court of justice before the first +Messenian war, 740 B. C. This court was situated on the Hill of Ares +outside the city of Athens, the very “Hill of Mars” on which St. Paul +preached in the year<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> A. D. 52. We find historical mention of the Court of +Areopagus as late as the year 880 of the Christian Era. It is unlikely +that the Areopagus of to-day, which is the supreme court of appeal in +modern Greece, has any other relationship than the same venerable name +with the court of ancient times.</p> + +<p>Besides the Court of the Areopagus, there are four other inferior courts +of appeal, one for each of the judicial districts of Greece. There are +also four commercial tribunals, seventeen courts of first instance, and +over two hundred justices of the peace. The standard of the Grecian +judiciary is very high, for only men of unblemished reputation who have +received the degree of doctor of law from a reputable European university +are eligible to the bench.</p> + +<p>There is no <i>habeas corpus</i> act in Greece, but no one can be arrested, no +house can be entered, and no letter opened without a judicial warrant.</p> + +<p>The supreme power of the Church of Greece is vested in the Holy Hellenic +Synod which consists of five members, who are appointed annually by the +King, and the majority of whom must be prelates. The Metropolitan +Archbishop of Athens is <i>ex-officio</i> president; two royal commissioners +attend without voting and the Synod’s resolutions require to be confirmed +by them in the King’s name. In all purely spiritual matters the Synod has +entire independence; but on questions having a civil side, such as +marriage and divorce, it can only act in concert with the civil +authorities.</p> + +<p>The Orthodox Greek Church as a matter of dogma treats marriage as a +sacrament or divine ordinance, but unlike the Latin Church, it holds that +for sufficient cause marriage may be legally dissolved, but not till a +probationary period has<span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span> elapsed during which a bishop or priest mediates +with the purpose of reconciling the parties.</p> + +<p><span class="smcap">Marriage.</span>—Both by the law of the land and the church law, marriage in +Greece is treated as a social status which can only be concluded by a +religious celebration. A civil ceremony has no validity. If both the +parties or one of them are baptized members of the Orthodox Greek church, +the marriage must be celebrated before a priest and in accordance with the +laws and rites of that church.</p> + +<p>When both of the parties are Roman Catholics they must be married by a +priest of their religion. If one of the parties is a Roman Catholic and +the other a member of the Orthodox Greek Church, the marriage must be +solemnized by a priest of the latter church. The rule is that mixed +marriages must be solemnized by a priest of the Greek Church.</p> + +<p>Jews and Protestants may be married by the ministers of their respective +denominations.</p> + +<p><span class="smcap">Age.</span>—The marriageable age of males begins at the completion of their +fourteenth year, and that of females at the completion of their twelfth +year.</p> + +<p><span class="smcap">Consents.</span>—The free consent of the contracting parties is essential. For a +man under twenty-one years of age, or a woman under eighteen years of age, +the parental consent is also necessary.</p> + +<p><span class="smcap">Monogamy.</span>—All persons are forbidden to contract a new marriage until a +previous marriage has been dissolved by death or divorce.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is prohibited between persons of +whom one is descended in a direct line from the other. Collateral kinsmen +are forbidden to marry within the sixth degree. The degrees are counted +according to the Roman law method of reckoning which counts<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> the number of +descents between the persons on both sides from the common ancestor. The +authorities of the national church may upon such facts as to them seem +proper grant a dispensation allowing a marriage within the forbidden +degrees.</p> + +<p><span class="smcap">Spiritual Relationship.</span>—Marriage is expressly forbidden between +godparents and their godchildren, and between godchildren who have the +same godparent. A church dispensation is, however, easily obtained, +relieving the parties from the last mentioned impediment.</p> + +<p><span class="smcap">Special Prohibitions.</span>—Persons suffering from defective intellect, +insanity, syphilis or epilepsy are forbidden to conclude marriage.</p> + +<p>Persons under religious vows to remain celibate cannot conclude marriage +unless dispensed from such vows.</p> + +<p>Accomplices in adultery may not marry each other.</p> + +<p>Persons in the military service may not conclude marriage without the +consent of the higher military authority.</p> + +<p><span class="smcap">Priests.</span>—A priest of the Orthodox Greek Church is required to marry once, +but he cannot contract a second marriage even after the death of his first +wife.</p> + +<p><span class="smcap">Fourth Marriage.</span>—It is contrary to the law of the land as well as the law +of the church for any person to contract a fourth marriage.</p> + +<p><span class="smcap">Banns.</span>—All marriages must be preceded by the publication of banns.</p> + +<p><span class="smcap">Foreign Marriages.</span>—The Greek courts will not recognize the foreign +marriage of Greek subjects who are baptized members of the Orthodox Greek +Church unless the marriage was solemnized before a priest of that church. +This is the rule, even though in the country where the marriage was +concluded a civil ceremony is sufficient and obligatory.</p> + +<p><span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span><span class="smcap">Divorce.</span>—Absolute +divorces are granted for the following causes:</p> + +<p>1. Adultery of either husband or wife.</p> + +<p>2. Cruel and inhuman treatment, endangering life or health.</p> + +<p>3. An attempt by either spouse to kill the other.</p> + +<p>4. Threat to kill.</p> + +<p>5. The condemnation and imprisonment of either spouse for an infamous or +degrading crime.</p> + +<p>6. Confirmed habits of drunkenness.</p> + +<p>7. Desertion.</p> + +<p>8. Incurable impotence of either party.</p> + +<p><span class="smcap">Procedure.</span>—All suits for divorce must be instituted in the ecclesiastical +courts of the Orthodox Greek Church.</p> + +<p><span class="smcap">Effects of Divorce.</span>—Both parties are free to remarry, but the wife must +wait until a full year has elapsed from the granting of a decree before +contracting a new marriage.</p> + +<p>The wife must not use the surname of her divorced husband.</p> + +<p>If the wife is the successful suitor, she can recover from the defeated +party the dowry she brought to him at marriage. She has a right also to +retain any gifts she may have received from him either before or after +marriage.</p> + +<p>In some instances the husband is obliged to pay alimony to his divorced +wife during her lifetime, up to the time she contracts a new marriage.</p> + +<p>If the parties have children, such of them as are so young as to need a +mother’s care are temporarily awarded to the woman’s custody even though +she be the party declared to be guilty in the divorce suit.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span></p> +<h2><a name="CHAPTER_XXIV" id="CHAPTER_XXIV"></a>CHAPTER XXIV.</h2> +<p class="center"><span class="huge"><span class="smcap">The Mohammedan Law of Turkey, Persia, Egypt, India, Morocco and Algeria.</span></span></p> + +<p>The laws of Mohammedanism which are founded on the Koran and the +Traditions of Mohammed to-day constitute the civil and religious code of +many millions of the world’s inhabitants.</p> + +<p>A country that is subject to the government of Mohammedans is termed +<i>Dar-ool-Islam</i>, or a country of safety and salvation, and a country which +is not subject to such government is termed <i>Dar-ool-hurb</i>, or a country +of enmity. Though Mohammedans are no longer under the sway of one prince, +they are so bound together by the common tie of Islam that as between +themselves there is no difference of country, and they may therefore be +said to compose but one <i>dar</i> or commonwealth.</p> + +<p>A Mohammedan is subject to the law of Islam absolutely, that is without +distinction of place or otherwise.</p> + +<p>Every unbeliever in the Mohammedan religion is termed a <i>kafir</i>, or +infidel, and infidels who are not in subjection to some Mohammedan state +are generally treated by Islamic lawyers as <i>hurbees</i>, or enemies.</p> + +<p>The Mohammedans are taught to believe that their system of jurisprudence +is of divine origin, is incapable of improvement, and can never be changed +in any material particular. The fact is that with all its alleged source, +perfection and immutability Mohammedan law has not been able to escape the +inevitable rule of change which seems to affect everything and everybody +in this world.</p> + +<p><span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span>There are certain countries where the entire legal and religious system is +based on the laws of Mohammedanism; such countries are: Turkey, Persia and +Morocco. There are other countries, such as Egypt, India and Algeria, +where the law of Islam operates side by side with other legal systems.</p> + +<p>In India there are four distinct systems of jurisprudence, all in full +operation and effect. These are:</p> + +<p>1. English law created by the British Parliament.</p> + +<p>2. Anglo-Indian law, which is created in India by the Legislative Councils +of the British Government.</p> + +<p>3. Hindu law, which applies to every one in British India who is a Hindu, +and to no one else.</p> + +<p>4. Mohammedan law, which applies to every one in British India who is a +Mohammedan, and to no one else.</p> + +<p>If a Mohammedan in India abandons his religion he ceases to be governed by +Mohammedan law.</p> + +<p>Since the promulgation of the Regulations of Warren Hastings in 1772, all +suits in British India regarding inheritance, marriage, caste and other +religious usages and institutions with respect to Mohammedans have been +decided invariably according to Mohammedan law.</p> + +<p><span class="smcap">Egypt.</span>—There are four kinds of legal tribunals in Egypt, namely:</p> + +<p>1. The Native Courts, which have civil and criminal jurisdiction over +natives.</p> + +<p>2. The Consular Courts, which have jurisdiction over foreigners charged +with crime.</p> + +<p>3. The Mixed Tribunals, which have civil and criminal jurisdiction over +persons of diverse citizenship.</p> + +<p><span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span>4. The Mohammedan Courts, which deal with the questions of the personal +rights of the Mohammedan inhabitants according to the laws of Islam.</p> + +<p>As over ninety <i>per centum</i> of the people of Egypt are Mohammedans, the +importance of the Mohammedan Courts is apparent.</p> + +<p>The Mohammedan law of marriage and divorce is also recognized as +controlling and effective when the parties to a marriage are Mohammedans, +in Russia, Roumania, Servia, Bulgaria and Greece.</p> + +<p><span class="smcap">Marriage.</span>—Marriage is enjoined on every Mohammedan, and celibacy is +frequently condemned by Mohammed. “When the servant of God marries, he +perfects half of his religion,” said the Prophet. Once Mohammed inquired +of a man if he was married, and being answered in the negative, he asked, +“Art thou sound and healthy?” When the man answered that he was the +Prophet angrily said, “Then thou art one of the brothers of the devil.”</p> + +<p><span class="smcap">Validity of Marriage.</span>—Marriage, according to Mohammedan law, is simply a +civil contract, and its validity does not depend upon any religious +ceremony. Though the civil contract is not required to be reduced to +writing, its validity depends upon the consent of the parties, which is +called “<i>ijab</i>” and “<i>gabul</i>,” meaning declaration and acceptance; the +presence of two male witnesses (or one male and two female witnesses); and +a dower of not less than ten <i>dirhams</i> to be settled on the woman. The +omission of the settlement does not, however, invalidate the contract, for +under any circumstances, the woman becomes entitled to her dower of ten +<i>dirhams</i> or more.</p> + +<p>It is a recognized principle that the capacity of each of the parties to a +marriage is to be judged of by their respective <i>lex domicilii</i>.</p> + +<p>The capacity of a Mussulman domiciled in<span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span> England will be regulated by the +English law, but the capacity of one who is domiciled in the +<i>Belâd-ul-Islâm</i>, or Mohammedan country, by the provisions of Mohammedan +law.</p> + +<p>We are told by the highest authorities on Islamic law that the three +principal conditions which are requisite for a proper marriage are: +understanding, puberty and freedom in the contracting parties.</p> + +<p>The Mohammedan law fixes no arbitrary age at which either male or female +is competent to marry.</p> + +<p>Besides understanding, puberty and freedom, the capacity to marry requires +that there should be no legal disability or bar to the union of the + +parties; that in fact they should not be within the prohibited degrees of +relationship.</p> + +<p><span class="smcap">Legal Disabilities.</span>—There are nine prohibitions to marry, namely:</p> + +<p>1. Consanguinity, which includes mother, grandmother, sister, niece and +aunt.</p> + +<p>2. Affinity, which includes mother-in-law, step-grandmother, +daughter-in-law and step-granddaughter.</p> + +<p>3. Fosterage. A man cannot marry his foster-mother, nor foster-sister, +unless the foster-brother and sister were nursed by the same mother at +intervals widely separated. But a man may marry the mother of his +foster-sister, or the foster-mother of his sister.</p> + +<p>4. Sister-in-law. A man may not marry his wife’s sister during his wife’s +lifetime, unless she be divorced.</p> + +<p>5. A man married to a free woman cannot marry a slave.</p> + +<p>6. It is not lawful for a man to marry the wife or <i>mu’taddah</i> of another, +whether the <i>’iddah</i> be on account of repudiation or death. That is,<span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span> he +cannot marry until the expiration of the woman’s <i>’iddah</i>, or period of +probation.</p> + +<p>7. A Mohammedan cannot marry a Polytheist, but he may marry a Christian, +Jewess, or a Sabean.</p> + +<p>8. It is not lawful for a man to marry his own slave, or a woman her +bondsman.</p> + +<p>9. If a man pronounces three divorces upon a wife who is free, or two upon +a slave, she is not lawful to him until she shall have been regularly +espoused by another man, who having duly consummated the marriage, +afterwards divorces her, or dies, and her <i>’iddah</i> from him be +accomplished.</p> + +<p>In the <i>Korân</i> or <i>El-Kor’an</i> we find in the chapter on women (Sura IV.) +the law expressed as to certain prohibitions:</p> + +<p>“Forbidden to you are your mothers, and your daughters, and your sisters, +and your aunts, both on the father’s and mother’s side, and your nieces on +the brother’s and sister’s side, and your foster-mothers, and your +foster-sisters, and the mothers of your wives, and your stepdaughters who +are your wards, born of your wives to whom you have gone in: (but if ye +have not gone in unto them, it shall be no sin in you to marry them) and +the wives of your sons who proceed out of your loins; and ye may not have +two sisters; except where it is already done. Verily, God is Indulgent, +Merciful!”</p> + +<p><span class="smcap">Polygamy.</span>—According to Mohammedanism polygamy is a divine institution, +and has the express sanction of the law. Mohammed restrained the practice +of polygamy by limiting the maximum number of contemporaneous marriages, +and by making absolute equity toward all obligatory on the man. A +Mohammedan may marry four wives but no more. The law is thus stated: “You +may marry two, three, or four wives, but not more.”<span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span> However, all true +believers are enjoined that, “if you cannot deal equitably and justly with +all you shall marry only one.”</p> + +<p>In India more than ninety-five <i>per centum</i> of the Mohammedans are at the +present, either by conviction or necessity, monogamists. In Persia only +two <i>per centum</i> of the population enjoy the questionable luxury of +plurality of wives.</p> + +<p><span class="smcap">Celebration of Marriage.</span>—The <i>Nikah</i>, or celebration of the marriage +contract, is preceded and followed by festive rejoicings, which have been +variously described by Oriental travellers, but they are not parts of +either the civil or religious ceremonies. The Mohammedan law appoints no +specific religious ceremony, nor are any religious rites necessary for the +contraction of a valid marriage. Legally, a marriage contracted between +two persons possessing the capacity to enter into the contract is valid +and binding, if entered into by mutual consent in the presence of +witnesses. As a matter of practice a Mohammedan marriage is generally +concluded by a formal ceremony which is ended by the <i>Qazi</i> offering the +following prayer:</p> + +<p>“O Great God! grant that mutual love may reign between this couple, as it +existed between Adam and Eve, Abraham and Sarah, Joseph and Zalikha, Moses +and Zipporah, his highness Mohammed and Ayishah, and his highness Ali +al-Murtaza and Fatimatu’z-Zahra.”</p> + +<p><span class="smcap">Husband and Wife.</span>—A husband is not guardian over his wife any further +than respects the rights of marriage, nor does the provision for her rest +upon him any further than with respect to food, clothing and lodging.</p> + +<p>A husband must reside equally with each of his wives, unless one wife +bestow her right upon another wife.</p> + +<p><span class="pagenum"><a name="Page_143" id="Page_143">[Pg 143]</a></span>A wife cannot give evidence in a court of law against her husband. If she +becomes a widow she must observe mourning for the space of four months and +ten days.</p> + +<p>In the event of her husband’s death a wife is entitled to a portion of her +husband’s estate, in addition to her claim of dower, the claim of dower +taking precedence of all other claims on the estate.</p> + +<p>“The women,” says the Koran, “ought to behave toward their husbands in +like manner as their husbands toward them, according to what is just.”</p> + +<p>When the husband has left the place of conjugal domicile without making +any arrangements for his wife’s support, the judge is authorized by law to +make an order that her maintenance shall be paid out of any fund or +property which the husband may have left in deposit or in trust, or +invested in any trade or business.</p> + +<p>When a woman abandons the conjugal domicile without any valid reason, she +is not entitled to maintenance from her husband.</p> + +<p>The Mohammedan law lays down distinctly that a wife is bound to live with +her husband, and to follow him wherever he wishes to go; and that on her +refusing to do so without sufficient or valid reason, the courts of +justice, on a suit for restitution of conjugal rights by the husband, +would order her to live with her husband.</p> + +<p>The obligation of the wife, however, to live with her husband is not +absolute. The law recognizes circumstances which justify her refusal to +live with him.</p> + +<p>Although the condition of women under Mohammedan law is most +unsatisfactory, it must be admitted that Mohammed effected a vast and +marked improvement in the condition of the female<span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span> population of Arabia. +Amongst the Arabs who inhabited the peninsula of Arabia the condition of +women was extremely degraded, for amongst the pagan Arabs a woman was a +mere chattel. The Koran created a great reformation in the condition of +women. For the first time in the history of Oriental legislation the +principle of equality between the sexes was approached.</p> + +<p><span class="smcap">Divorce.</span>—The Mohammedan law of divorce is founded upon express +injunctions contained in the Koran, as well as in the Traditions, and its +rules occupy an important part of all Mohammedan works on jurisprudence.</p> + +<p>These rules may be summarized thus:</p> + +<p>The thing which is lawful but disliked by God is divorce.</p> + +<p>A husband may divorce his wife without any misbehaviour on her part, or +without assigning any cause.</p> + +<p>There is an irregular form of divorce in which the husband repudiates his +wife by three sentences, either express or metaphorical, as for example: +“Thou art divorced! Thou art divorced! Thou art divorced!” The Mohammedan +who thus divorces his wife is held in the <i>Hidayah</i> to violate the law, +but the divorce is legal.</p> + +<p>A sick man may divorce his wife, even though he be on his death-bed.</p> + +<p>An agent or agents may be appointed by a husband to divorce his wife.</p> + +<p>In addition to the will or caprice of the husband, there are also certain +conditions which require a divorce.</p> + +<p>The following are causes for divorce, but generally require to be ratified +by a decree from the <i>Qazi</i> or judge:</p> + +<p>1. <i>Jubb.</i> That is, when the husband has been by any cause deprived of his +organ of generation.<span class="pagenum"><a name="Page_145" id="Page_145">[Pg 145]</a></span> This condition is called <i>majbub</i>, and if it existed +before the marriage the wife can obtain instant divorce.</p> + +<p>2. <i>Unnah.</i> Impotence of either husband or wife.</p> + +<p>3. Inequality of race or tribe.</p> + +<p>4. Insufficient dower. (If the stipulated dowry is not given when +demanded.)</p> + +<p>5. Refusal of Islam. If one of the parties embrace Islam, the judge must +offer it to the other three distinct times, and if he or she refuse to +embrace the faith, divorce follows.</p> + +<p>6. Unjust accusation of adultery by a husband against his wife.</p> + +<p>7. If a wife becomes the proprietor of her husband or the husband becomes +the proprietor of his slave wife divorce takes place.</p> + +<p>8. An invalid marriage of any kind, arising from consanguinity or affinity +of parties, or other causes.</p> + +<p>9. The executed vow of a husband not to have sexual intercourse with his +wife for as long as four months.</p> + +<p>10. Difference of country. As, for example, if a husband flee from a +non-Moslem country to a country of Islam and his wife refuses to accompany +him.</p> + +<p>11. Apostasy from Islam.</p> + +<p>The Greek Church holds that marriage is dissoluble in case of adultery, +but not till a probationary period has elapsed during which a bishop or +priest mediates with a view to reconciliation.</p> + +<p>A fourth marriage is unlawful.</p> + +<p>When a man or woman apostatizes from Islam, then an immediate dissolution +of the marriage takes place, whether the apostasy be of the man or of the +woman, without a judicial decree. If both husband and wife apostatize at +the same<span class="pagenum"><a name="Page_146" id="Page_146">[Pg 146]</a></span> time, their marriage bond remains; and if at any future time the +parties again return to Islam, no remarriage is necessary to constitute +them man and wife.</p> + +<p>There is a form of divorce known as <i>khula</i> which is when a husband and +wife disagreeing, or for any other cause, the wife on payment of a +compensation or ransom to the husband, is permitted by law to obtain from +him a release from the marriage tie.</p> + +<p><i>Mubara’ah</i> is a divorce which is effected by mutual release.</p> + +<p><span class="smcap">A Comparison.</span>—When compared with the Mosaic law it will be seen that by +the latter, divorce was only sanctioned when there was “<i>some +uncleanness</i>” in the wife, and whilst in Islam a husband can take back his +divorced wife, in the law of Moses it was not permitted. See Deut. xxiv., +1-4.</p> + +<p><span class="smcap">Iddah or Iddat.</span>—This is the term of probation incumbent upon a woman in +consequence of a dissolution of marriage, either by divorce or the death +of her husband. After a divorce the period is three months, and after the +death of her husband four months and ten days, both periods being enjoined +by the Koran.</p> + +<p><span class="smcap">Effects of Divorce</span>:</p> + +<p>1. Sexual intercourse between the divorced persons becomes unlawful.</p> + +<p>2. The wife is free to marry another husband after the completion of her +<i>iddah</i>; or immediately if the marriage was never consummated.</p> + +<p>3. The husband may complete his legal number of four wives without +counting the divorced one, or may marry a woman who could not be lawfully +joined with the divorced one, for example, her sister, after the +completion of her <i>iddah</i> but not before.</p> + +<p><span class="pagenum"><a name="Page_147" id="Page_147">[Pg 147]</a></span>4. If the marriage has been consummated before the divorce, the whole of +the unpaid dower becomes immediately payable by the husband to the wife, +and is enforceable like any other debt if the marriage had not been +consummated and the amount of dower was specified in the contract, he is +liable for half that amount; if none was specified, he must give the +divorced wife a present suitable to her rank, or their value. But the wife +has no right to anything if the divorce took place by her wish, or in +consequence of any disqualifications on her side, as for instance, her +apostasy.</p> + +<p>5. The wife is entitled to be maintained by her husband during the <i>iddah</i> +on the same scale as before the divorce, conditionally on submitting to +her husband’s control as regards her place of residence and general +behaviour. But on completion of her <i>iddah</i> she ceases to have any claim +for maintenance.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span></p> +<h2><a name="CHAPTER_XXV" id="CHAPTER_XXV"></a>CHAPTER XXV.</h2> +<p class="center"><span class="huge"><span class="smcap">The United States of America.</span></span></p> + +<p>The United States as such, that is, in its Federal capacity, has no single +system of marriage and divorce laws applicable to all the States and +Territories.</p> + +<p>The purpose of the Constitution of the United States is to maintain by its +federal structure a strong national government, while recognizing each of +the States which make up the federation to be so far as is consistent with +the motive of the Union, sovereign commonwealth.</p> + +<p>When one considers this wonderful federation of States and Territories, +with nearly half a hundred separate governments each making and +interpreting its domestic laws, and yet all parts of, and working in +harmony with, the central or Federal Government, the justice of +Gladstone’s tribute to the American Constitution as “the most wonderful +work ever struck off at a given time by the brain and purpose of man” is +apparent.</p> + +<p>The laws of marriage and divorce in the various States and Territories +cannot therefore be ascertained from a single legislative or judicial +source. The law of the several jurisdictions consists not only of +legislative enactments, but of judicial construction and interpretation of +such legislation.</p> + +<p>Fortunately the tendency is toward uniformity of legislation among the +States, especially on the important subject of marriage and divorce, and +such differences as exist are pointed out substantially in this chapter +when each State or Territory is considered separately.</p> + +<p><span class="pagenum"><a name="Page_149" id="Page_149">[Pg 149]</a></span>The Congress, or national legislature, has power to legislate only upon +such subjects as the Federal Constitution marks out for it, and all powers +not granted to the Federal government remain with the several States.</p> + +<p>The regulation of marriage and divorce is one of the most important +domestic concerns which remains within the jurisdiction of a State.</p> + +<p>Article IV., Section 3, of the Constitution of the United States expressly +grants to Congress exclusive power to prescribe laws for the Territories +of the United States.</p> + +<p>Just as each State has a separate judicial system so the Federal +Government has its separate courts, which have no power to interfere with +the proceedings or judgments of the State courts unless some principle of +the Federal Constitution or a national law is challenged.</p> + +<p><span class="smcap">Essentials to Marriage.</span>—There are three requisites to a lawful marriage +in all of the States and Territories of the United States. These are:</p> + +<p>1. First, that the marriage is <i>monogamous</i>. That is, the Federal courts +and the courts of the several States only recognize as a true marriage one +which in addition to being valid in other respects is a voluntary union of +one man and one woman for life to the exclusion of all others.</p> + +<p>2. The parties must be competent according to the <i>lex loci contractus</i>, +or the law where the contract was concluded.</p> + +<p>3. There must be free consent on the part of both of the contracting +parties.</p> + +<p><span class="smcap">Interstate Comity.</span>—As Wharton points out in his “Conflict of Laws,” +marriage is not merely a contract but an international institution of +Christendom.</p> + +<p>Often complications arise out of some difference between the law of +marriage and divorce in the<span class="pagenum"><a name="Page_150" id="Page_150">[Pg 150]</a></span> State where a marriage is concluded, or a +divorce effected, and the law of the State where one or both of the +parties may after the marriage or divorce acquire a domicile. The guiding +rule in such cases is that if a marriage or divorce is valid in the State +or Territory where it was concluded or effected, it is valid in all of the +States and Territories of the United States.</p> + +<p><span class="smcap">Proof of Marriage.</span>—There are various methods of proving the existence of +a marriage.</p> + +<p>Where the parties live together ostensibly as husband and wife, demeaning +themselves toward each other as such, and are received into society and +treated by their friends and relations as having and being entitled to +that status, the law will, in favour of morality and decency, presume that +they have been legally married. This is the rule accepted with but slight +qualifications in all of the States. The cohabitation of the parties +coupled with the general reputation of being husband and wife is, however, +at the best <i>prima facie</i> evidence sufficient for the purposes of a civil +suit. In criminal prosecutions for adultery or bigamy, marriage is a +necessary ingredient of the offence, and must be directly established.</p> + +<p><span class="smcap">Proof of Marriages Abroad.</span>—In the absence of special statutes requiring a +marriage abroad, or in another State to be proven in a particular manner, +a foreign marriage can only be established by authenticated copies of the +original records, or by proving as a matter of fact what the legal +requirements for marriage are in the other country or State, together with +proof that such requirements have been complied with. Of course, it is +always necessary to identify the parties to any record.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—By an Act of Congress applicable to all the +Territories marriage<span class="pagenum"><a name="Page_151" id="Page_151">[Pg 151]</a></span> within and not including the fourth degree of +consanguinity computed according to the civil law is forbidden. This is +with but slight variation the rule adopted by each of the States.</p> + +<p><span class="smcap">Sources of Law.</span>—The laws of marriage in the several States and +Territories originate from the law on that subject as it existed in +England at the time of the adoption of the Federal Constitution, as +subsequently modified by State legislation and local judicial +interpretation.</p> + +<p>The law of divorce as it exists in the several States is entirely of local +creation.</p> + +<p>In the remainder of this chapter each State and Territory of the United +States and the District of Columbia is considered separately.</p> + + +<p> </p> +<p class="center"><span class="smcap">Alabama.</span></p> + +<p><span class="smcap">Marriage.</span>—The marriageable age for males begins at 17 years and for +females at 14 years of age.</p> + +<p>Males under twenty-one years and females under eighteen years require the +consent of their parents to lawfully conclude marriage.</p> + +<p>The essence of marriage which is considered as a civil contract is the +free consent of both parties.</p> + +<p><span class="smcap">Impediments.</span>—The son must not marry his mother or stepmother, or the +sister of his father or mother, or the widow of his uncle. The brother +must not marry his sister or half-sister, or the daughter of his brother +or half-brother, or of his sister or half-sister. The father must not +marry his daughter or granddaughter, or the widow of his son. No man shall +marry the daughter of his wife, or the daughter of the son or daughter of +his wife; and all such marriages are declared incestuous.</p> + +<p><span class="smcap">Forbidden Marriages.</span>—Bigamous marriages; incestuous marriages; +miscegenation—between<span class="pagenum"><a name="Page_152" id="Page_152">[Pg 152]</a></span> blacks and whites; and marriage of a female +compelled by menace, force or duress. Such marriages involve a criminal +prosecution.</p> + +<p><span class="smcap">Celebration.</span>—A marriage may be concluded before any regular minister of +religion, any judge of a court of record, or a justice of the peace.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Impotency.</p> + +<p>2. Adultery.</p> + +<p>3. Voluntary abandonment from bed and board for two years.</p> + +<p>4. Imprisonment in the penitentiary for two years, the sentence being for +seven years or longer.</p> + +<p>5. The commission of the crime against nature.</p> + +<p>6. Habitual drunkenness.</p> + +<p>7. In favour of the husband, when the wife was pregnant at the time of +marriage without his knowledge or agency.</p> + +<p>8. In favour of the wife, when the husband has committed actual violence +on her person attended with danger to life or health, or when from his +conduct there is reasonable apprehension of such violence.</p> + +<p><span class="smcap">Limited Divorces.</span>—Decrees of separation from bed and board are granted to +either spouse on the ground of cruelty.</p> + +<p><span class="smcap">Remarriage.</span>—On February 13, 1903, an act was approved making it unlawful +for either party to marry again after a decree of divorce has been +granted, until after the expiration of the time allowed for taking an +appeal (sixty days from the date of the decree), as well as during the +pendency of an appeal, if one is taken.</p> + + +<p> </p> +<p class="center"><span class="smcap">Alaska.</span></p> + +<p>In the Territory of Alaska marriage is deemed a civil contract.</p> + +<p><span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span>Marriages may be solemnized before a qualified clergyman, judge or +magistrate.</p> + +<p>Marriage is forbidden between persons who are related to each other +within, but not including, the fourth degree of consanguinity. These +degrees are computed according to the rules of the Roman Law.</p> + +<p><span class="smcap">Divorce.</span>—The following are legal causes for an absolute divorce: +Impotency existing at the time of marriage and continuing to the +commencement of the suit; adultery; conviction of felony; wilful desertion +continued for the period of two years, or more; cruel and inhuman +treatment calculated to impair health or endanger life; and gross and +habitual drunkenness.</p> + + +<p> </p> +<p class="center"><span class="smcap">Arizona.</span></p> + +<p><span class="smcap">Marriage.</span>—In this newly admitted State marriage is treated as a purely +civil contract.</p> + +<p>A male must be at least eighteen and a female at least fourteen years of +age to lawfully contract marriage.</p> + +<p>The consent of the parents is required in the case of males under 21 and +females under 18.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—All marriages between parents and children, +including grandparents and grandchildren of every degree; between brothers +and sisters of the half as well as the whole blood; between uncles and +nieces, aunts and nephews; and between first cousins are declared to be +incestuous and void.</p> + +<p>The preceding paragraph extends to illegitimate as well as legitimate +children and relations.</p> + +<p><span class="smcap">Negroes, Mongolians and Indians.</span>—Marriage between whites and negroes, +between whites and Mongolians, or between whites and Indians are +absolutely void.</p> + +<p><span class="pagenum"><a name="Page_154" id="Page_154">[Pg 154]</a></span><span class="smcap">Preliminaries.</span>—A marriage license is required.</p> + +<p><span class="smcap">Celebration.</span>—Marriage may be concluded before any minister of the Gospel, +judge of a court of record, or justice of the peace.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. When adultery has been committed by either husband or wife.</p> + +<p>2. When one of the parties was physically incompetent at the time of +marriage.</p> + +<p>3. When the husband or wife is guilty of excesses, cruel treatment, or +outrages toward the other.</p> + +<p>4. In favour of the husband, when the wife shall have voluntarily left his +bed or board for the space of six months with the intention of +abandonment.</p> + +<p>5. In favour of the wife, when the husband shall have left her for six +months with the intention of abandonment.</p> + +<p>6. For habitual intemperance.</p> + +<p>7. Wilful neglect to provide for his wife the necessaries and comforts of +life for six months.</p> + +<p>8. When the husband shall have been taken in adultery with another woman.</p> + +<p>9. In favour of either husband or wife, when the other shall have been +convicted, after marriage, of a felony, and imprisonment in any prison.</p> + + +<p> </p> +<p class="center"><span class="smcap">Arkansas.</span></p> + +<p>The minimum age for marriage is 17 for males; 14 for females.</p> + +<p>Parental consent is required for males under 21 years and females under 18 +years of age.</p> + +<p>The prohibited degrees are the same as in Alabama.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Impotency.</p> + +<p><span class="pagenum"><a name="Page_155" id="Page_155">[Pg 155]</a></span>2. Desertion for one year.</p> + +<p>3. Previous existing marriage.</p> + +<p>4. Conviction of felony or infamous crime.</p> + +<p>5. Habitual drunkenness continued for one year.</p> + +<p>6. Cruel and barbarous treatment endangering life.</p> + +<p>7. Indignities which render condition and cohabitation intolerable.</p> + +<p>8. Adultery.</p> + +<p><span class="smcap">Limited Divorce.</span>—Limited divorces are granted for the same causes.</p> + + +<p> </p> +<p class="center"><span class="smcap">California.</span></p> + +<p><span class="smcap">Marriage.</span>—Marriage is defined as a personal relation arising out of a +civil contract, to which the consent of parties capable of making it is +necessary. Consent alone will not constitute marriage; it must be followed +by a solemnization authorized by the code. A male must be at least +eighteen and a female at least fifteen to conclude marriage.</p> + +<p>Parental consent is required if the male is under twenty-one years or the +female under eighteen years. Such consent is not required if the minor has +been previously lawfully married.</p> + +<p><span class="smcap">Impediments.</span>—Marriages between parents and children, ancestors and +descendants of every degree, and between brothers and sisters of the half +as well as the whole blood, and between uncles and nieces or aunts and +nephews are incestuous and void, whether the relationship is legitimate or +illegitimate.</p> + +<p>Marriages between white persons and mulattoes or between white persons and +Mongolians are prohibited.</p> + +<p><span class="smcap">Celebration.</span>—Marriages may be celebrated before any justice of the +supreme court, any judge<span class="pagenum"><a name="Page_156" id="Page_156">[Pg 156]</a></span> of the superior court, any justice of the peace; +or before a priest or minister of the Gospel of any sect.</p> + +<p><span class="smcap">Husband and Wife.</span>—A married woman may acquire, hold and control property +of every description the same as a single woman.</p> + +<p><span class="smcap">Divorce.</span>—The following are legal causes for an absolute divorce: +Adultery; extreme cruelty; wilful desertion; wilful neglect; habitual +intemperance; and conviction by either party of a felony.</p> + +<p>All decrees of divorce are first granted <i>nisi</i>, and an absolute or final +decree cannot be secured until one year after the entry of the decree +<i>nisi</i>.</p> + +<p>Marriages may be annulled on the following grounds: That the party +petitioning for annulment was under age at the date of marriage; that the +former husband or wife of either party was living and the former marriage +undissolved at the time of the marriage in question; that one of the +parties was of unsound mind when the marriage was concluded; that the +marriage was procured by fraud; that the marriage was procured by +coercion; that at the time of the marriage one of the parties was +impotent, and such physical incapacity continues to the date of bringing +the suit for annulment.</p> + + +<p> </p> +<p class="center"><span class="smcap">Colorado.</span></p> + +<p><span class="smcap">Marriage.</span>—Marriage is a civil contract. The minimum marriageable age for +males and for females has not been fixed by statute.</p> + +<p>Parental consent is required for males under 21 years or for females under +18 years.</p> + +<p><span class="smcap">Impediments.</span>—All marriages between parents and children, including +grandparents and grandchildren, of every degree; between brothers and<span class="pagenum"><a name="Page_157" id="Page_157">[Pg 157]</a></span> +sisters of the half as well as of the whole blood; and between uncles and +nieces and aunts and nephews are declared to be incestuous and void. This +provision applies to illegitimate as well as to legitimate children.</p> + +<p>The statute contains a provision that persons living in that portion of +the State acquired from Mexico are permitted to marry according to the +custom of that country.</p> + +<p>No person can lawfully conclude marriage within one year after divorce.</p> + +<p>Marriages are also forbidden between whites and negroes or mulattoes.</p> + +<p>A marriage license is required.</p> + +<p><span class="smcap">Absolute Divorce</span>:</p> + +<p>1. Impotency.</p> + +<p>2. A husband or wife living.</p> + +<p>3. Adultery.</p> + +<p>4. Desertion for one year.</p> + +<p>5. Cruelty.</p> + +<p>6. Failure to support for one year.</p> + +<p>7. Habitual drunkenness for one year.</p> + +<p>8. Conviction of felony.</p> + + +<p> </p> +<p class="center"><span class="smcap">District of Columbia.</span></p> + +<p><span class="smcap">Marriage.</span>—A civil contract. The minimum age for males is 16 years, for +females 14 years.</p> + +<p>The consent of the father or mother is necessary in marriages of males +under the age of twenty-one years, and of females under the age of +eighteen years, unless the party under age has been previously lawfully +married.</p> + +<p><span class="smcap">Impediments.</span>—A man shall not marry his grandmother, grandfather’s wife, +wife’s grandmother, father’s sister, mother’s sister, mother, stepmother, +wife’s mother, daughter, wife’s daughter, son’s wife, sister, son’s +daughter, daughter’s<span class="pagenum"><a name="Page_158" id="Page_158">[Pg 158]</a></span> daughter, son’s son’s wife, +daughter’s son’s wife, wife’s son’s daughter, wife’s daughter’s daughter, brother’s daughter, +sister’s daughter. A woman shall not marry her grandfather, grandmother’s +husband, husband’s grandfather, father’s brother, mother’s brother, +father, stepfather, husband’s father, son, husband’s son, daughter’s +husband, brother, son’s son, daughter’s son, son’s daughter’s husband, +daughter’s daughter’s husband, husband’s son’s son, husband’s daughter’s +son, brother’s son, sister’s son.</p> + +<p><span class="smcap">Celebration.</span>—Marriage may be solemnized before a judge of any court of +record, or any justice of the peace, or by any minister or ordained person +who has furnished proof of his official capacity to the Supreme Court of +the District of Columbia.</p> + +<p>Licenses to marry are issued by the clerk of the Supreme Court upon an +affidavit showing that the contracting parties are competent and that all +the requirements of law have been complied with.</p> + +<p><span class="smcap">Divorce.</span>—There is only one cause for a divorce, namely, adultery. A +judicial separation or divorce from bed and board may be granted because +of cruelty, unjustifiable desertion or drunkenness.</p> + +<p>Marriages procured by fraud or coercion, or between parties incapable by +reason of insanity or non-age of concluding the contract, can be annulled.</p> + +<p>Petitioners in matrimonial causes must have been bona fide residents of +the District of Columbia before instituting proceedings.</p> + + +<p> </p> +<p class="center"><span class="smcap">Connecticut.</span></p> + +<p><span class="smcap">Marriage.</span>—No age is fixed by statute at which minors are capable of +contracting marriage.</p> + +<p>The parents or guardians must give consent<span class="pagenum"><a name="Page_159" id="Page_159">[Pg 159]</a></span> in writing to the registrar +before a license is issued if either party is a minor.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—No man shall marry his mother, grandmother, +daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter; +no woman shall marry her father, grandfather, son, grandson, brother, +uncle, nephew, stepfather or stepson. All such marriages are declared to +be incestuous.</p> + +<p><span class="smcap">Celebration.</span>—Any ordained clergyman of any State, any judge or justice of +the peace may solemnize marriage. No special form of celebration is +required.</p> + +<p><span class="smcap">Annulment.</span>—Whenever, from any cause, any marriage is void the superior +court has jurisdiction, upon complaint, to pass a decree declaring it so.</p> + +<p><span class="smcap">Legitimacy of Children.</span>—Children born before marriage whose parents +afterwards intermarry are deemed legitimate and inherit equally with other +children.</p> + +<p><span class="smcap">Divorce.</span>—The Superior Court has exclusive jurisdiction and may grant +absolute divorce to any man or woman for the following offences committed +by the other: Adultery, fraudulent contract, wilful desertion for three +years with total neglect of duty, seven years’ absence unheard from, +habitual intemperance, intolerable cruelty, sentence to imprisonment for +life, or any infamous crime involving a violation of conjugal duty and +punishable by imprisonment in State prison.</p> + +<p>Parties divorced may marry again.</p> + +<p>There is no limited divorce recognized by the laws of Connecticut.</p> + + +<p> </p> +<p class="center"><span class="smcap">Delaware.</span></p> + +<p><span class="smcap">Marriage.</span>—While no age is fixed by statute as to when males or females +may conclude <span class="pagenum"><a name="Page_160" id="Page_160">[Pg 160]</a></span>marriage, in case of a marriage under the age of 18 years +for males and 16 years for females a divorce can be obtained for fraud for +want of age, in the absence of voluntary ratification after reaching that +age.</p> + +<p>Parental consent is required for males under 21 years and females under 18 +years.</p> + +<p><span class="smcap">Impediments.</span>—Degrees of consanguinity: A man may not marry his mother, +father’s sister, mother’s sister, sister, daughter or the daughter of his +son or daughter. A woman may not marry her father, father’s brother, +mother’s brother, brother, son, or the son of her son or daughter. Degrees +of affinity: A man may not marry his father’s wife, son’s wife, son’s +daughter, wife’s daughter, or the daughter of his wife’s son or daughter. +A woman may not marry her mother’s husband, daughter’s husband, husband’s +son, or the son of her husband’s son or daughter.</p> + +<p>Marriages between whites and negroes or mulattoes are prohibited.</p> + +<p><span class="smcap">Causes for Divorce.</span>—They are adultery, bigamy, desertion for two years, +habitual drunkenness for two years, extreme cruelty, or conviction after +marriage of a crime, followed by continuous imprisonment for two years.</p> + +<p>The causes for divorce from bed and board are the same, with the addition +of one other, namely, hopeless insanity of the husband.</p> + +<p>A marriage may be annulled for any of the following causes, existing at +the time of the marriage: Incurable physical impotency; consanguinity; a +former husband or wife living at the time of the marriage; fraud, force or +coercion; insanity of either party; minority of either party, unless the +marriage be confirmed after reaching proper age, to wit.: wife, 16 years; +husband, 18 years.</p> + + +<p> <span class="pagenum"><a name="Page_161" id="Page_161">[Pg 161]</a></span></p> +<p class="center"><span class="smcap">Florida.</span></p> + +<p><span class="smcap">Marriage.</span>—In order to be valid marriages must be celebrated before a +qualified clergyman, judge, magistrate or notary public.</p> + +<p>Parties must be of sound mind, and the male at least seventeen years of +age and the female at least fourteen years of age.</p> + +<p><span class="smcap">Divorce.</span>—Absolute divorce dissolving a marriage is granted by the courts +for the following causes:</p> + +<p>1. That the parties are within the degrees prohibited by law.</p> + +<p>2. That the defendant is naturally impotent.</p> + +<p>3. That the defendant has been guilty of adultery.</p> + +<p>4. Extreme cruelty by defendant to complainant.</p> + +<p>5. Habitual indulgence by defendant in violent and ungovernable temper.</p> + +<p>6. Habitual intemperance of defendant.</p> + +<p>7. Wilful, obstinate and continued desertion by defendant for one year.</p> + +<p>8. That defendant has obtained a divorce in any other State or country.</p> + +<p>9. That either party had a husband or wife living at the time of marriage.</p> + +<p>Judicial separations or divorces from bed and board are not granted in +Florida.</p> + +<p>The petitioner called the complainant must have resided in the State two +years, except where the defendant has been guilty of the act of adultery +in the State, then any citizen of the State may obtain a divorce at any +time, and the two years’ residence shall not be required of complainant.</p> + +<p>A suit of divorce is commenced by a bill in chancery, and the general +chancery practice of the State is followed throughout.</p> + +<p><span class="pagenum"><a name="Page_162" id="Page_162">[Pg 162]</a></span>A decree of divorce does not render illegitimate children born of the +marriage, except in the case of a decree obtained on the ground that one +of the parties had a previous spouse living at the time of the marriage.</p> + + +<p> </p> +<p class="center"><span class="smcap">Georgia.</span></p> + +<p><span class="smcap">Marriage.</span>—The marriageable age for males begins at 17 years and for +females at 14 years.</p> + +<p>Females under 18 years of age require parental consent.</p> + +<p>To be able to contract marriage, a person must be of sound mind, of legal +age of consent, and labouring under neither of the following disabilities:</p> + +<p>1. Previous marriage undissolved.</p> + +<p>2. Nearness of relationship by blood or marriage.</p> + +<p>3. Impotency.</p> + +<p>To constitute an actual contract of marriage the parties must be +consenting thereto voluntarily, and without any fraud practiced upon +either.</p> + +<p><span class="smcap">Impediments.</span>—Marriages between whites and persons of African descent are +prohibited.</p> + +<p>A man shall not marry his stepmother, or mother-in-law, or +daughter-in-law, or stepdaughter, or granddaughter of his wife.</p> + +<p>A woman shall not marry her corresponding relatives.</p> + +<p>Marriage is forbidden between ascendants and descendants. Any marriage +within the Levitical degrees is a criminal offense.</p> + +<p><span class="smcap">Celebration.</span>—Marriage is a civil contract and no form of solemnization is +prescribed by statute.</p> + +<p><span class="smcap">Divorce.</span>—There are two forms of divorce in Georgia, a total divorce and a +divorce from bed and board. The causes for total divorce are:</p> + +<p>1. Intermarriage by persons within the prohibited degrees of +relationship.</p> + +<p><span class="pagenum"><a name="Page_163" id="Page_163">[Pg 163]</a></span>2. Mental incapacity at time of marriage.</p> + +<p>3. Impotency at time of marriage.</p> + +<p>4. Force, menaces, duress or fraud in obtaining marriage.</p> + +<p>5. Pregnancy of wife at time of marriage, unknown to husband.</p> + +<p>6. Adultery in either party after marriage.</p> + +<p>7. Wilful and continued desertion for term of three years.</p> + +<p>8. Conviction for an offense involving moral turpitude where penalty is +two years or more in penitentiary.</p> + +<p>9. In cases of cruel treatment, or habitual intoxication, jury may grant +either total or partial divorce.</p> + + +<p> </p> +<p class="center"><span class="smcap">Idaho.</span></p> + +<p><span class="smcap">Marriage.</span>—The marriageable age for males begins at 18 years and for +females at the same age.</p> + +<p><span class="smcap">Impediments.</span>—Marriage is prohibited between ascendants and descendants of +every degree, and between brothers and sisters of the half as well as the +whole blood, and between uncles and nieces, or aunts and nephews, whether +the relationship is legitimate or illegitimate.</p> + +<p>Marriage of whites with negroes or mulattoes is also prohibited.</p> + +<p>A marriage license is required.</p> + +<p><span class="smcap">Celebration.</span>—The law prescribes no particular form of solemnization, but +the parties must declare in the presence of the celebrant that they take +each other as husband and wife. Two witnesses must be present.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Extreme cruelty.</p> + +<p><span class="pagenum"><a name="Page_164" id="Page_164">[Pg 164]</a></span>3. Wilful desertion for one year.</p> + +<p>4. Wilful neglect for one year.</p> + +<p>5. Habitual intemperance for one year.</p> + +<p>6. Conviction of felony.</p> + +<p>7. Permanent insanity.</p> + +<p>There is no limited form of divorce recognized.</p> + +<p><span class="smcap">Defences</span>:</p> + +<p>1. Collusion.</p> + +<p>2. Condonation.</p> + +<p>3. Recrimination.</p> + + +<p> </p> +<p class="center"><span class="smcap">Illinois.</span></p> + +<p><span class="smcap">Marriage.</span>—To marry with parental consent, males must be at least 18 years +and females 16 years of age; without such consent, males must be at least +21 years and females 18 years.</p> + +<p>Marriage is a civil contract and may be celebrated before a qualified +clergyman or magistrate.</p> + +<p><span class="smcap">Impediments.</span>—Marriages between parents and children, including +grandparents and grandchildren of every degree, between brothers and +sisters of the half as well as of the whole blood, between uncles and +nieces, aunts and nephews, and between cousins of the first degree are +declared to be incestuous and void. This includes illegitimate as well as +legitimate children and relations.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. When either party at the time of marriage was and continues to be +naturally impotent.</p> + +<p>2. When he or she had a wife or husband living at the time of such +marriage.</p> + +<p>3. When either party has committed adultery subsequent to the marriage.</p> + +<p>4. When either party has wilfully deserted or absented himself or herself +from the wife or husband, without any reasonable cause, for the space of +two years.</p> + +<p><span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span>5. When either party has been guilty of habitual drunkenness for the space +of two years.</p> + +<p>6. When either party has attempted the life of the other by poison or +other means showing malice.</p> + +<p>7. When either party has been guilty of extreme and repeated cruelty.</p> + +<p>8. When either party has been convicted of felony or other infamous crime.</p> + +<p>Limited divorces are not granted in this State.</p> + + +<p> </p> +<p class="center"><span class="smcap">Indian Territory.</span></p> + +<p>The laws of marriage and divorce in the Indian Territory are the same as +those of Arkansas, except in the matter of marriage impediments, and in a +few minor details.</p> + +<p>By an Act of Congress applicable to all Territories of the United States, +marriages within and not including the four degrees of consanguinity, +computed according to the civil law, are forbidden.</p> + + +<p> </p> +<p class="center"><span class="smcap">Indiana.</span></p> + +<p><span class="smcap">Marriage.</span>—Males must be at least 18 years and females 16 years of age.</p> + +<p>Marriage is a civil contract which can be celebrated before any qualified +clergyman, judge or magistrate.</p> + +<p><span class="smcap">Impediments.</span>—Marriages between ascendants and descendants, or being +persons of nearer kin than second cousin, are prohibited.</p> + +<p>A lawful marriage cannot be concluded between a white person and another +person possessed of one-eighth or more of negro blood.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p><span class="pagenum"><a name="Page_166" id="Page_166">[Pg 166]</a></span>2. Impotency existing at the time of the marriage.</p> + +<p>3. Abandonment for two years.</p> + +<p>4. Cruel and inhuman treatment of either party by the other.</p> + +<p>5. Habitual drunkenness of either party.</p> + +<p>6. The failure of the husband to make reasonable provision for his family +for a period of two years.</p> + +<p>7. The conviction, subsequent to the marriage, in any country, of either +party, of an infamous crime.</p> + +<p>Limited divorces are granted for husband’s desertion, or failure to +support his wife.</p> + + +<p> </p> +<p class="center"><span class="smcap">Iowa.</span></p> + +<p><span class="smcap">Marriage.</span>—A male must be at least 16 and a female 14 to conclude +marriage.</p> + +<p><span class="smcap">Impediments.</span>—The prohibited degrees of consanguinity and affinity are the +same as those of Illinois.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Against the husband when he has committed adultery subsequent to the +marriage.</p> + +<p>2. When he wilfully deserts his wife and absents himself without a +reasonable cause for the space of two years.</p> + +<p>3. When he is convicted of a felony after the marriage.</p> + +<p>4. When, after marriage, he becomes addicted to habitual drunkenness.</p> + +<p>5. When he is guilty of such inhuman treatment as to endanger the life of +his wife.</p> + +<p>6. Against the wife for the causes above specified, and also when the wife +at the time of the marriage was pregnant by another than her husband, +unless such husband have an illegitimate<span class="pagenum"><a name="Page_167" id="Page_167">[Pg 167]</a></span> child or children then living, +which was unknown to the wife at the time of their marriage.</p> + +<p>There is no limited divorce allowed in this State.</p> + + +<p> </p> +<p class="center"><span class="smcap">Kansas.</span></p> + +<p><span class="smcap">Marriage.</span>—No male under 17 years or female under 15 years of age may +contract marriage without the consent of their parents and the probate +judge of the district.</p> + +<p><span class="smcap">Impediments.</span>—The prohibited degrees are the same as those of Iowa.</p> + +<p>Marriage is a civil contract which may be celebrated before a clergyman or +magistrate.</p> + +<p><span class="smcap">Causes for Divorce.</span>—Abandonment for one year; adultery; impotency; +extreme cruelty; fraudulent contract; habitual drunkenness; gross neglect +of duty; the conviction of a felony and imprisonment in the penitentiary +therefor subsequent to the marriage.</p> + + +<p> </p> +<p class="center"><span class="smcap">Kentucky.</span></p> + +<p><span class="smcap">Marriage.</span>—A male must be at least 14 years and a female 12 years.</p> + +<p>Marriages below these ages are prohibited and void, but the courts having +general equity jurisdiction may declare void a marriage when the male was +under 16, or the female under 14 years of age at the time of the marriage, +and the marriage was without the consent of the father, mother, guardian, +or other person having the proper charge of his or her person, and has not +been ratified by cohabitation after that age.</p> + +<p>As a civil contract marriage may be celebrated either civilly or +religiously.</p> + +<p><span class="smcap">Impediments.</span>—Same as in Kansas, with the<span class="pagenum"><a name="Page_168" id="Page_168">[Pg 168]</a></span> +addition that marriages between whites and negroes or mulattoes are prohibited.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Abandonment for one year.</p> + +<p>2. Adulterous cohabitation.</p> + +<p>3. Condemnation for felony.</p> + +<p>4. Husband’s confirmed drunkenness.</p> + +<p>5. Wife’s habitual drunkenness.</p> + +<p>6. Wife’s pregnancy by another man.</p> + +<p>7. Adultery on part of wife.</p> + +<p>Plaintiff must have been a resident of the State at least one year.</p> + + +<p> </p> +<p class="center"><span class="smcap">Louisiana.</span></p> + +<p><span class="smcap">Marriage.</span>—A civil contract which may be celebrated by a minister, priest, +judge or magistrate. No special form required.</p> + +<p>Males must be at least 14 years and females 12 years. Parental consent +necessary unless minor is twenty-one years of age.</p> + +<p>The prohibited degrees of consanguinity and affinity are the same as those +of all the Southern States.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Condemnation of either spouse for infamous offence.</p> + +<p>3. Habitual intemperance.</p> + +<p>4. Cruel treatment.</p> + +<p>5. Abandonment.</p> + +<p>6. Attempt to kill.</p> + +<p>7. Public defamation.</p> + +<p>8. Flight from justice.</p> + +<p>In case of divorce on ground of adultery, the guilty party cannot marry +his or her accomplice.</p> + + +<p> <span class="pagenum"><a name="Page_169" id="Page_169">[Pg 169]</a></span></p> +<p class="center"><span class="smcap">Maine.</span></p> + +<p><span class="smcap">Marriage.</span>—Minimum age not fixed by statute. Parental consent necessary +for males under 21 years and females under 18 years.</p> + +<p>No special form of marriage ceremony required.</p> + +<p><span class="smcap">Impediments.</span>—Same as those of Massachusetts.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Impotency.</p> + +<p>3. Extreme cruelty.</p> + +<p>4. Three years’ utter desertion.</p> + +<p>5. Gross and confirmed habits of intoxication.</p> + +<p>6. Cruel and abusive treatment.</p> + +<p>7. When the husband being of sufficient ability, grossly, or wantonly and +cruelly, refuses to provide suitable maintenance for his wife.</p> + +<p>The procedure and effects of divorce are almost identical with those of +Massachusetts.</p> + + +<p> </p> +<p class="center"><span class="smcap">Maryland.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age for marriage is not fixed by statute, but +parental consent is required for males under 21 years and females under 16 +years.</p> + +<p><span class="smcap">Impediments.</span>—Marriage is prohibited between ascendants and descendants, +and collaterally between all persons related by consanguinity and affinity +as set forth in the list of impediments in the statement of the law of +Massachusetts.</p> + +<p>Marriage is also forbidden between whites and negroes, or persons of negro +descent.</p> + +<p><span class="smcap">Formalities.</span>—Marriage licenses are required, and a ceremonial +solemnization is essential.</p> + +<p>Marriage may be solemnized “by any minister of the Gospel, or other +officer or person authorized by the laws of this State to solemnize +marriage.”</p> + +<p><span class="pagenum"><a name="Page_170" id="Page_170">[Pg 170]</a></span><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. The impotence of either party at the time of the marriage.</p> + +<p>2. Any cause which renders a marriage null <i>ab initio</i>.</p> + +<p>3. Adultery.</p> + +<p>4. Abandonment continued uninterruptedly for at least three years.</p> + +<p>5. When the woman before marriage has been guilty of illicit carnal +intercourse with another man, the same being unknown to her husband at the +time of the marriage.</p> + +<p>Limited divorces granted for cruelty of treatment.</p> + +<p>All divorces are at first granted <i>nisi</i>—provisionally—to become +absolute on application six months afterward.</p> + + +<p> </p> +<p class="center"><span class="smcap">Massachusetts.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age for marriage is not fixed by law, but males +under 21 years and females under 18 years must have parental consent.</p> + +<p><span class="smcap">Impediments.</span>—No man shall marry his mother, grandmother, daughter, +granddaughter, stepmother, sister, grandfather’s wife, son’s wife, +grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, +wife’s granddaughter, brother’s daughter, sister’s daughter, father’s +sister or mother’s sister.</p> + +<p>No woman shall marry her father, grandfather, son, grandson, stepfather, +brother, grandmother’s husband, daughter’s husband, granddaughter’s +husband, husband’s father, husband’s grandfather, husband’s son, husband’s +grandson, brother’s son, sister’s son, father’s brother or mother’s +brother.</p> + +<p>In all cases in which the relationship is founded on marriage the +prohibition continues, <span class="pagenum"><a name="Page_171" id="Page_171">[Pg 171]</a></span>notwithstanding the dissolution by death or +divorce of the marriage by which the affinity is created, unless the +divorce is for a cause which shows such marriage to have been originally +unlawful or void.</p> + +<p><span class="smcap">Formalities.</span>—Marriage may be solemnized by a minister of the Gospel, a +duly qualified rabbi, or a justice of the peace. No special form of +ceremony is required.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Impotency.</p> + +<p>3. Extreme cruelty.</p> + +<p>4. Utter desertion continued for three consecutive years next prior to the +filing of the libel.</p> + +<p>5. Gross and confirmed habits of intoxication caused by the voluntary use +of intoxicating liquor, opium or other drugs.</p> + +<p>6. Cruel and abusive treatment.</p> + +<p>7. On the libel of the wife, when the husband, being of sufficient +ability, grossly, or wantonly and cruelly, refuses or neglects to provide +suitable maintenance for her.</p> + +<p>8. When either party has separated from the other without his or her +consent, and has united with a religious sect that professes to believe +the relation of husband and wife void or unlawful, and has continued +united with such sect or society for three years, refusing during that +term to cohabit with the other party.</p> + +<p>9. When either party has been sentenced to confinement at hard labour for +life or for five years or more in the State prison, or in jail, or house +of correction.</p> + +<p><span class="smcap">Alimony.</span>—Temporary and permanent alimony may be granted to the wife.</p> + +<p><span class="smcap">Form of Decree.</span>—Decrees of divorces are in the first instance <i>nisi</i>, and +become absolute six<span class="pagenum"><a name="Page_172" id="Page_172">[Pg 172]</a></span> months afterward upon application; unless the court +for sufficient cause, on the petition of any interested party, shall +otherwise order.</p> + + +<p> </p> +<p class="center"><span class="smcap">Michigan.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age for males is 18 years and for females 16 years. +Parental consent is necessary for a female under 18 years.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Same as in Massachusetts, with the exception that +marriages between first cousins are prohibited in Michigan.</p> + +<p><span class="smcap">Formalities.</span>—License is required. No particular form of celebration +prescribed.</p> + +<p>Marriage may be solemnized by any qualified clergyman, judge or justice of +the peace.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Impotency at time of marriage.</p> + +<p>3. Sentence of either party to prison for three years or more.</p> + +<p>4. Desertion continued two years.</p> + +<p>5. Habitual drunkenness.</p> + +<p>6. In the court’s discretion, a divorce may be granted to any resident +whose husband or wife has obtained a divorce in another State.</p> + +<p>Limited or absolute divorces may also be granted for extreme cruelty; +utter desertion for two years; and wanton failure of husband to support +his wife.</p> + + +<p> </p> +<p class="center"><span class="smcap">Minnesota.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age for males is 18 years, for females 15 years. +Parental consent is required for marriage of male under 21 years or female +under 18 years.</p> + +<p><span class="pagenum"><a name="Page_173" id="Page_173">[Pg 173]</a></span>The prohibited degrees of consanguinity and affinity are the same as in +Michigan.</p> + +<p>No particular form of marriage ceremony is prescribed, but a license is +necessary.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Impotency.</p> + +<p>3. Cruel and inhuman treatment.</p> + +<p>4. Sentence to State prison.</p> + +<p>5. Wilful desertion continued for three years.</p> + +<p>6. Habitual drunkenness.</p> + +<p>Limited divorces are granted to women only on the grounds of husband’s +cruelty, abandonment, or such conduct on husband’s part as makes +cohabitation unsafe.</p> + + +<p> </p> +<p class="center"><span class="smcap">Mississippi.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age for marriage is not fixed by statute. Parental +consent is required for males under 21 years and females under 18 years.</p> + +<p>The prohibited degrees of relationship are the same as in Massachusetts.</p> + +<p>Marriages of whites with negroes, mulattoes, or persons having more than +one-eighth negro blood, and marriages between Mongolians, or persons +having more than one-eighth Mongolian blood, are prohibited.</p> + +<p>Marriage cannot be concluded without a license duly issued. It may be +solemnized by either clergyman or magistrate.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Relationship within prohibited degrees.</p> + +<p>2. Impotency.</p> + +<p>3. Adultery.</p> + +<p>4. Sentence to penitentiary.</p> + +<p>5. Wilful desertion continued two years.</p> + +<p><span class="pagenum"><a name="Page_174" id="Page_174">[Pg 174]</a></span>6. Habitual drunkenness.</p> + +<p>7. Pregnancy of the wife at marriage, by another man, unknown to husband.</p> + +<p>8. Habitual cruelty.</p> + +<p>9. If either party had another husband or wife at time of second marriage.</p> + +<p>10. Insanity.</p> + +<p>11. Habitual use of opium, morphine or other drug.</p> + +<p>Limited divorces are not granted.</p> + + +<p> </p> +<p class="center"><span class="smcap">Missouri.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age at which marriage can be concluded is 15 years +for males and 12 years for females.</p> + +<p>Parental consent is necessary for males under 21 years or females under 18 +years.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Marriage is forbidden between ascendants and +descendants, between brothers and sisters of the half as well as of the +whole blood, and between uncles and nieces, and aunts and nephews. This +applies to legitimate or illegitimate kindred.</p> + +<p>Marriage is also prohibited between whites and negroes.</p> + +<p><span class="smcap">Formalities.</span>—No particular form of marriage is prescribed, but a license +is necessary.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Impotency.</p> + +<p>2. Adultery.</p> + +<p>3. Absence without reasonable cause for one year.</p> + +<p>4. Former marriage undissolved.</p> + +<p>5. Conviction of felony or infamous crime.</p> + +<p>6. Habitual drunkenness.</p> + +<p>7. Cruel treatment.</p> + +<p>8. Intolerable indignities.</p> + +<p><span class="pagenum"><a name="Page_175" id="Page_175">[Pg 175]</a></span>9. Vagrancy of husband.</p> + +<p>10. Conviction prior to marriage by either party of felony or infamous +crime, unknown to the other spouse.</p> + +<p>11. Pregnancy at time of marriage of wife by another man.</p> + +<p>Upon granting a divorce the court will make such direction concerning +custody of children, and maintenance of wife, as justice may require.</p> + + +<p> </p> +<p class="center"><span class="smcap">Montana.</span></p> + +<p><span class="smcap">Marriage.</span>—Males cannot marry under 18 years and females under 16 years. +If either party is a minor parental consent is required.</p> + +<p><span class="smcap">Impediments.</span>—Marriages between ancestors and descendants of every degree, +between brothers and sisters of whole or half blood, between uncles and +nieces, or aunts and nephews, legitimate or illegitimate, are forbidden.</p> + +<p><span class="smcap">Formalities.</span>—Outside of license, no particular formalities are +prescribed.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Extreme cruelty.</p> + +<p>3. Wilful desertion.</p> + +<p>4. Wilful neglect.</p> + +<p>5. Habitual intemperance.</p> + +<p>6. Conviction of felony.</p> + + +<p> </p> +<p class="center"><span class="smcap">Nebraska.</span></p> + +<p><span class="smcap">Marriage.</span>—Males must be at least 18 and females 16 years of age to +conclude marriage. Parental consent is required for males under 21 years +and females under 18 years.</p> + +<p><span class="smcap">Impediments.</span>—Marriages between ascendants and descendants, between +brothers and sisters of<span class="pagenum"><a name="Page_176" id="Page_176">[Pg 176]</a></span> whole or half blood, between uncles and nieces, +aunts and nephews, and first cousins of the whole blood, are prohibited.</p> + +<p><span class="smcap">Celebration.</span>—A marriage license is necessary, but no particular form of +celebration is prescribed.</p> + +<p><span class="smcap">Grounds for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Impotency at time of marriage.</p> + +<p>3. Sentence to three years’ imprisonment or more.</p> + +<p>4. Abandonment for two years.</p> + +<p>5. Habitual drunkenness.</p> + +<p>6. Extreme cruelty.</p> + +<p>7. Utter desertion.</p> + +<p>8. When husband unreasonably and cruelly refuses to provide maintenance +for wife.</p> + +<p>Limited divorce may be obtained on the three last grounds.</p> + + +<p> </p> +<p class="center"><span class="smcap">Nevada.</span></p> + +<p><span class="smcap">Marriage.</span>—Males cannot marry under 18 years or females under 16 years. +Parental consent is required for males under 21 years and females under 18 +years.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Marriages between persons nearer of kin than second +cousins of the whole blood or cousins of the half blood.</p> + +<p><span class="smcap">Formalities.</span>—No particular form prescribed, but it is unlawful for +clergyman or magistrate to solemnize marriage without having a license +presented.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Impotency at time of marriage.</p> + +<p>2. Adultery.</p> + +<p>3. Wilful desertion for one year.</p> + +<p>4. Conviction of felony or infamous crime.</p> + +<p>5. Habitual drunkenness.</p> + +<p><span class="pagenum"><a name="Page_177" id="Page_177">[Pg 177]</a></span>6. Extreme cruelty.</p> + +<p>7. Neglect of husband to provide necessaries of life.</p> + +<p>Upon granting a decree of divorce the court shall make such other +direction regarding disposition of property and custody of children as +justice may demand.</p> + + +<p> </p> +<p class="center"><span class="smcap">New Hampshire.</span></p> + +<p><span class="smcap">Marriage.</span>—A male cannot marry under 14 years or a female under 13 years. +There is no statutory requirement for parental consent.</p> + +<p><span class="smcap">Prohibited Degree.</span>—Same as in Massachusetts. Common law marriage is +recognized.</p> + +<p><span class="smcap">Formalities.</span>—License is necessary, but no particular form of ceremony is +required.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Impotency.</p> + +<p>2. Adultery.</p> + +<p>3. Extreme cruelty.</p> + +<p>4. Conviction of crime punishable in this State for more than one year.</p> + +<p>5. Treatment detrimental to health.</p> + +<p>6. Treatment to endanger reason.</p> + +<p>7. Three years’ absence.</p> + +<p>8. Habitual drunkenness.</p> + +<p>9. When either party joins a sect opposed to cohabitation between husband +and wife.</p> + +<p>10. Desertion for three years.</p> + +<p>Upon granting a decree of divorce the court will make such order as to +maintenance of wife and custody of children as the facts shall call for.</p> + + +<p> </p> +<p class="center"><span class="smcap">New Jersey.</span></p> + +<p><span class="smcap">Marriage.</span>—No minimum age is fixed for marriage. Males under 21 years and +females under 18 years must have consent of parents.</p> + +<p><span class="pagenum"><a name="Page_178" id="Page_178">[Pg 178]</a></span><span class="smcap">Impediments.</span>—A +man shall not marry any of his ancestors or descendants, or his sister, or the daughter of his brother or sister, or the sister of +his father or mother, whether such collateral kindred be of the whole or +half blood. A woman shall not marry any of her ancestors or descendants, +or her brother, or the son of her brother or sister, or the brother of her +father or mother, whether such collateral kindred be of the whole or half blood.</p> + +<p><span class="smcap">Formalities.</span>—A marriage license is necessary only for non-residents of +State.</p> + +<p>No special form of ceremony is prescribed, except that when solemnized by +a religious society it must be according to the rules and usages of such +society.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Wilful, continued and obstinate desertion for the term of two years.</p> + +<p>3. When either party was, at the time of marriage, incapable of consenting +thereto and the marriage has not been subsequently ratified.</p> + +<p><span class="smcap">Limited Divorces.</span> Granted for</p> + +<p>1. Desertion.</p> + +<p>2. Adultery.</p> + +<p>3. Extreme cruelty.</p> + +<p>In every case, except for extreme cruelty, the party asking for a limited +divorce must allege conscientious scruples against applying for an +absolute divorce.</p> + +<p><span class="smcap">Jurisdiction.</span>—The Court of Chancery has exclusive jurisdiction in divorce +matters.</p> + +<p><span class="smcap">Annulment.</span>—A marriage may be annulled because:</p> + +<p>1. One of the parties had another wife or husband living at the time of +marriage.</p> + +<p><span class="pagenum"><a name="Page_179" id="Page_179">[Pg 179]</a></span>2. When the parties are within the degrees prohibited by law.</p> + + +<p> </p> +<p class="center"><span class="smcap">New Mexico.</span></p> + +<p><span class="smcap">Marriage.</span>—A male must be at least 18 years and a female 15 years to +conclude marriage. Parental consent is required for males under 21 years +and females under 18 years.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Marriage between ascendants and descendants, between +brothers and sisters, of whole or half blood, between uncles and aunts, +and nieces and nephews are void.</p> + +<p><span class="smcap">Formalities.</span>—License is necessary. No special form of ceremony required. +The marriage may be solemnized by an ordained clergyman, civil magistrate +or religious society.</p> + +<p><span class="smcap">Grounds for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Cruel and inhuman treatment.</p> + +<p>3. Abandonment.</p> + +<p>4. Habitual drunkenness.</p> + +<p>5. Neglect of husband to support his wife.</p> + +<p>6. Impotency.</p> + +<p>7. Pregnancy by wife, at the time of marriage, by another than her +husband, without husband’s knowledge.</p> + +<p>8. Conviction and imprisonment for a felony.</p> + + +<p> </p> +<p class="center"><span class="smcap">New York.</span></p> + +<p><span class="smcap">Marriage.</span>—Marriage is a civil contract, to which the consent of the +parties capable in law of making the contract is essential. Minors become +capable of contracting marriage upon completing their eighteenth year of +age. A marriage is void from the time its nullity is declared by a court +of competent jurisdiction if either party thereto was under the age of +eighteen at the time it was concluded.</p> + +<p><span class="pagenum"><a name="Page_180" id="Page_180">[Pg 180]</a></span><span class="smcap">Impediments.</span>—Marriage +between an ancestor and a descendant, between a brother and sister, of either the whole or half blood, between an uncle +and niece, or an aunt and nephew, whether the relatives are legitimate or +illegitimate, is incestuous and void.</p> + +<p>The defeated party in an action of divorce against whom a decree has been +granted on the grounds of adultery is prohibited from marrying again +during the lifetime of the successful party. However, the court which +granted the decree has power so to modify it as to permit such marriage +after five years.</p> + +<p><span class="smcap">Common Law Marriage.</span>—By an act which became effective April 12, 1901, the +law of New York has required a contract of marriage to be signed by the +parties and witnesses acknowledged and recorded. Since that time a “common +law” marriage, or one established simply by cohabitation and reputation, +has not been recognized.</p> + +<p><span class="smcap">Marriage Licenses.</span>—The legislature of New York, at its session in 1907, +passed an act providing for marriage licenses, which became effective +January 1, 1908.</p> + +<p>Written consent of both parents or guardian must be given to the town or +city clerk before he may issue license. If residents of the State, they +must personally appear and execute the consent; if non-residents, it must +be executed, acknowledged and certified.</p> + +<p><span class="smcap">Who May Solemnize Marriage.</span>—A clergyman or minister of any religion, or +the leader, or the two assistant leaders, of the Society for Ethical +Culture in New York City, justices and judges of courts of record, judges +of the county courts, justices of the peace, mayors, recorders and +aldermen of cities.</p> + +<p><span class="pagenum"><a name="Page_181" id="Page_181">[Pg 181]</a></span><span class="smcap">Marriage by Contract.</span>—A +lawful marriage may be concluded by a written contract of marriage signed by both parties, and at least two witnesses +who shall subscribe the same, stating the place of residence of each of +the parties and witnesses and the date and place of marriage, and +acknowledged by the parties and witnesses in the manner required for the +acknowledgment of a conveyance of real estate to entitle the same to be +recorded. Such contract shall be filed, within six months after its +execution, in the office of the clerk of the town or city in which the +marriage was solemnized.</p> + +<p><span class="smcap">Jews and Quakers.</span>—Marriages among Quakers or Jews may be solemnized in +the manner and according to the regulations of their respective societies.</p> + +<p><span class="smcap">Encouragement of Marriage.</span>—No marriage shall be deemed or adjudged +invalid, nor shall the validity thereof be in any way affected on account +of any want of authority in any person solemnizing the same, if +consummated with a full belief on the part of the persons so married, or +either of them, that they were lawfully joined in marriage.</p> + +<p><span class="smcap">Divorce.</span>—The only cause for absolute divorce is the adultery of either +party.</p> + +<p><span class="smcap">Jurisdiction.</span>—The Supreme Court has exclusive original jurisdiction of +actions for divorce.</p> + +<p>In an action for absolute divorce, both parties must have been residents +of the State when the offense was committed; or must have been married +within the State; or the plaintiff must have been a resident when the +offense was committed, and also when the action was commenced; or when the +offense was committed within the State, the plaintiff must have been a +resident when the action was commenced.</p> + +<p><span class="pagenum"><a name="Page_182" id="Page_182">[Pg 182]</a></span><span class="smcap">Limited Divorce.</span>—A +limited divorce, which is equivalent to a judicial separation in England, may be granted because of:</p> + +<p>1. The cruel and inhuman treatment of the plaintiff by the defendant.</p> + +<p>2. Such conduct, on the part of the defendant toward the plaintiff, as may +render it unsafe and improper for the latter to cohabit with the former.</p> + +<p>3. The abandonment of the plaintiff by the defendant.</p> + +<p>4. When the wife is plaintiff, the neglect or refusal of the defendant to +provide for her.</p> + +<p>In actions for limited divorce both parties must have been residents of +the State when the action was commenced; or when the marriage took place +within the State, the plaintiff must have been a resident thereof, when +the action was commenced; or when the marriage took place out of the +State, the parties must have become residents thereof, and have continued +to be such at least one year, and the plaintiff must have been a resident +when the action was commenced.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—An action to procure a decree declaring the +marriage contract void and annulling the marriage may be maintained on any +of the following grounds:</p> + +<p>1. When either party was under the age of legal consent.</p> + +<p>2. When either party was an idiot or lunatic.</p> + +<p>3. When either party was physically incapable of entering into the +marriage state, and such incapacity continues, and is incurable.</p> + +<p>4. When the consent of either party was obtained by force, duress or +fraud.</p> + +<p>5. When either party had a former wife or husband living, the former +marriage being in force.</p> + +<p><span class="pagenum"><a name="Page_183" id="Page_183">[Pg 183]</a></span>By a woman plaintiff on the following grounds:</p> + +<p>1. Where the plaintiff had not attained the age of 16 years at the time of +marriage.</p> + +<p>2. When the marriage took place without the consent of the parent, +guardian, or other person having legal charge of her.</p> + +<p>3. Where it was not followed by consummation or cohabitation, and was not +ratified after attaining the age of 16 years.</p> + +<p><span class="smcap">Defences in Divorce Actions.</span>—Divorce will not be granted for the cause of +adultery:</p> + +<p>1. When the offense alleged has been condoned or forgiven by plaintiff.</p> + +<p>2. When the adultery was committed by the procurement, connivance, privity +or consent of plaintiff.</p> + +<p>3. If five years have elapsed since the plaintiff discovered the +defendant’s guilt.</p> + +<p>4. If there is existing any decree of any competent of any State or +Territory of the United States granting an absolute divorce to the +defendant and against the plaintiff.</p> + +<p>5. If it appears that the plaintiff has also committed adultery.</p> + +<p><span class="smcap">Custody of Children.</span>—During the pendency of an action for divorce, or on +final judgment, the court may give such directions as justice requires for +the custody, care and education of any of the children of the marriage.</p> + +<p><span class="smcap">Alimony.</span>—The court has power during the pendency of an action for divorce +to grant a woman plaintiff or defendant such allowance out of her +husband’s estate as may be necessary and just for her support, and also +that she may be able to procure counsel to prosecute or defend the suit in +her behalf.</p> + +<p>If the wife becomes successful in the action the court may in its +discretion award her permanent<span class="pagenum"><a name="Page_184" id="Page_184">[Pg 184]</a></span> alimony. The amount of alimony in all +cases depends upon the wife’s needs, her social status, and her husband’s +ability to make provision for her.</p> + +<p><span class="smcap">Form of Divorce Decree.</span>—Decrees are first entered <i>nisi</i>, or +provisionally, and cannot become absolute until the expiration of three +months after the entry of the decree <i>nisi</i>.</p> + + +<p> </p> +<p class="center"><span class="smcap">North Carolina.</span></p> + +<p><span class="smcap">Marriage.</span>—A male becomes capable of marrying at 16 years and a female at +14 years, but both if under 18 years require parental consent.</p> + +<p><span class="smcap">Impediments.</span>—Marriage is prohibited between persons nearer of kin than +first cousins of the whole or half blood.</p> + +<p>So is marriage between whites and negroes or Indians, or between whites +and persons of negro or Indian descent to the third generation, inclusive.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Husband’s fornication or adultery.</p> + +<p>2. Wife’s adultery.</p> + +<p>3. If either party at time of marriage was and still is naturally +impotent.</p> + +<p>4. Wife’s pregnancy at time of marriage by another man, without husband’s +knowledge.</p> + +<p><span class="smcap">Limited Divorce.</span>—A limited divorce may be obtained for the following +causes:</p> + +<p>1. If either party abandons his or her family.</p> + +<p>2. If either party maliciously turns the other out of doors.</p> + +<p>3. Cruel or barbarous treatment by one party endangering life of the +other.</p> + + +<p> </p> +<p class="center"><span class="smcap">North Dakota.</span></p> + +<p><span class="smcap">Marriage.</span>—No male can conclude marriage under 18 years of age or female +under 15 years of age.</p> + +<p><span class="pagenum"><a name="Page_185" id="Page_185">[Pg 185]</a></span><span class="smcap">Impediments.</span>—Marriage +is prohibited between persons nearer of kin than second cousins of the whole blood.</p> + +<p><span class="smcap">Formalities.</span>—License necessary. No particular form of ceremony is +required, but the parties must express consent in presence of person +solemnizing the marriage, and of at least one witness.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Extreme cruelty.</p> + +<p>3. Wilful desertion for one year.</p> + +<p>4. Wilful neglect for one year.</p> + +<p>5. Habitual intemperance for one year.</p> + +<p>6. Conviction of felony.</p> + +<p>Plaintiff must have been in good faith, a resident of the State for six +months before filing petition, and either a citizen of the United States +or a person who has declared his or her intention to become such.</p> + + +<p> </p> +<p class="center"><span class="smcap">Ohio.</span></p> + +<p><span class="smcap">Marriage.</span>—To marry, a male must be at least 18 years and a female 16 +years of age. Parental consent is required for males under 21 years and +females under 18 years.</p> + +<p><span class="smcap">Impediments.</span>—Marriage between persons nearer of kin than second cousins +is forbidden.</p> + +<p><span class="smcap">Formalities.</span>—License is necessary unless banns be published in presence +of congregation on two different days of public worship. No particular +form of ceremony is required. The marriage may be solemnized by any +ordained minister licensed by the State to perform marriages, or a justice +of the peace in his county.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Upon proof that either party was already married at time of the +marriage sought to be dissolved.</p> + +<p><span class="pagenum"><a name="Page_186" id="Page_186">[Pg 186]</a></span>2. Wilful absence of one party from the other for three years.</p> + +<p>3. Adultery.</p> + +<p>4. Impotency.</p> + +<p>5. Extreme cruelty.</p> + +<p>6. Fraudulent contract.</p> + +<p>7. Any gross neglect of duty.</p> + +<p>8. Habitual drunkenness for three years.</p> + +<p>9. Imprisonment in a penitentiary.</p> + +<p>10. Procurement of a divorce without the State.</p> + +<p><span class="smcap">Actions for Separate Maintenance.</span>—A wife may sue for separate maintenance +because of:</p> + +<p>1. Adultery.</p> + +<p>2. Gross neglect of duty.</p> + +<p>3. Abandonment without good cause.</p> + +<p>4. Habitual drunkenness.</p> + +<p>5. Sentence to imprisonment in a penitentiary.</p> + +<p><span class="smcap">Effects of Divorce.</span>—If the divorce is granted to the wife, because of the +aggression of the husband, she shall be allowed such alimony out of her +husband’s property as the court deems reasonable. If the husband secures a +divorce, on the aggression of the wife, he shall be allowed such alimony +out of the wife’s property as the court deems reasonable.</p> + +<p>The granting of a divorce does not affect the legitimacy of the children +of the parties.</p> + +<p>Upon granting a divorce, the court shall make such order for the care and +support of the children as is just and proper.</p> + + +<p> </p> +<p class="center"><span class="smcap">Oklahoma.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age for marriage and the rule as to parental +consent are the same as that stated for Nebraska.</p> + +<p><span class="smcap">Impediments.</span>—Same as in Nebraska.</p> + +<p><span class="smcap">Formalities.</span>—Same as in Nebraska.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p><span class="pagenum"><a name="Page_187" id="Page_187">[Pg 187]</a></span>2. Former husband or wife living.</p> + +<p>3. Abandonment for one year.</p> + +<p>4. Impotency.</p> + +<p>5. Pregnancy by wife at time of marriage by another man.</p> + +<p>6. Extreme cruelty.</p> + +<p>7. Fraudulent contract.</p> + +<p>8. Habitual drunkenness.</p> + +<p>9. Gross neglect of duty.</p> + +<p>10. Conviction of felony.</p> + +<p><span class="smcap">Action for Separate Maintenance.</span>—This action may be maintained for any of +the causes sufficient for divorce.</p> + + +<p> </p> +<p class="center"><span class="smcap">Oregon.</span></p> + +<p><span class="smcap">Marriage.</span>—A male is capable of marrying at 18 years, a female at 15 +years. Parental consent is required for males under 21 years and females +under 18 years.</p> + +<p><span class="smcap">Impediments.</span>—Marriages between first cousins of the whole or half blood +or relatives nearer of kin are prohibited.</p> + +<p>Marriages between whites and negroes or Mongolians, or persons of +one-fourth or more negro or Mongolian blood.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Impotency.</p> + +<p>2. Adultery.</p> + +<p>3. Conviction of felony.</p> + +<p>4. Habitual drunkenness.</p> + +<p>5. Wilful desertion for one year.</p> + +<p>6. Cruel and inhuman treatment, or personal indignities rendering life +burdensome.</p> + + +<p> </p> +<p class="center"><span class="smcap">Pennsylvania.</span></p> + +<p><span class="smcap">Marriage.</span>—The minimum age for marriage is not fixed by statute. Both +males and females<span class="pagenum"><a name="Page_188" id="Page_188">[Pg 188]</a></span> require parental consent to marry under 21 years of +age.</p> + +<p><span class="smcap">Impediments.</span>—A man may not marry his mother, father’s sister, mother’s +sister, sister, daughter, granddaughter, father’s wife, son’s wife, son’s +daughter, wife’s daughter, daughter of wife’s son or daughter.</p> + +<p>A woman may not marry her father, father’s brother, mother’s brother, +brother, son, grandson, mother’s husband, daughter’s husband, husband’s +son, son of her husband’s son or daughter.</p> + +<p>By the act effective January 1, 1902, marriage is prohibited between +persons who are of kin of the degree of first cousins.</p> + +<p><span class="smcap">Formalities.</span>—License is necessary unless there is a publication of banns.</p> + +<p>The parties may solemnize their own marriage by obtaining from the clerk +of the orphans’ court a formal declaration of their right to do so instead +of a license.</p> + +<p>Marriage may be solemnized by any minister of the Gospel, justice of the +peace, or alderman, or by the parties themselves.</p> + +<p><span class="smcap">Causes for Absolute Divorce</span>:</p> + +<p>1. Natural impotence or incapacity of procreation at time of marriage, and +still continuing.</p> + +<p>2. Former marriage still subsisting.</p> + +<p>3. Adultery.</p> + +<p>4. Wilful and malicious desertion for the space of two years.</p> + +<p>5. Husband’s cruel and barbarous treatment endangering wife’s life.</p> + +<p>6. Husband having offered such indignities to wife as to render her +condition intolerable and life burdensome.</p> + +<p>7. Relationship within prohibited degrees.</p> + +<p>8. Marriage procured by fraud, force or coercion.</p> + +<p><span class="pagenum"><a name="Page_189" id="Page_189">[Pg 189]</a></span>9. Wife’s cruel and barbarous treatment of husband.</p> + +<p>10. That either of the parties has been convicted as principal or +accessory of the crime of arson, burglary, embezzlement, forgery, +kidnapping, larceny, murder in first or second degree, voluntary +manslaughter, perjury, rape, robbery, sodomy, buggery, treason, or +misprison of treason, and has been sentenced to prison for more than two +years.</p> + +<p>11. That either husband or wife is a hopeless lunatic or <i>non compos +mentis</i>.</p> + +<p>Confinement for ten years or more in an asylum for the insane is +conclusive proof of hopeless insanity.</p> + +<p><span class="smcap">Limited Divorce.</span>—This may be granted for:</p> + +<p>1. Husband turning wife out of doors.</p> + +<p>2. Husband’s cruel and barbarous treatment of wife.</p> + +<p>3. Husband offering such indignities to his wife as to render her +condition intolerable and force her to leave his house.</p> + +<p>Upon hearing any cause for divorce the court may decree either a divorce +or a decree of nullity.</p> + + +<p> </p> +<p class="center"><span class="smcap">Rhode Island.</span></p> + +<p><span class="smcap">Marriage.</span>—No age fixed for marriage. Parental consent required for all +minors.</p> + +<p><span class="smcap">Impediments.</span>—Same as in Massachusetts. However, Jews are permitted to +marry within degrees permitted by their religion.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. In case marriage was originally void or voidable by law.</p> + +<p>2. When either party is for crime deemed civilly dead.</p> + +<p>3. When party may be presumed dead.</p> + +<p>4. Impotency.</p> + +<p>5. Adultery.</p> + +<p><span class="pagenum"><a name="Page_190" id="Page_190">[Pg 190]</a></span>6. Extreme cruelty.</p> + +<p>7. Wilful desertion.</p> + +<p>8. Continued drunkenness.</p> + +<p>9. Neglect or refusal of husband, being able, to support wife.</p> + +<p>10. Any other gross misbehaviour and wickedness in either of the parties +repugnant to and in violation of the marriage covenant.</p> + + +<p> </p> +<p class="center"><span class="smcap">South Carolina.</span></p> + +<p><span class="smcap">Marriage.</span>—No age is fixed by law for marriage of minors, nor when +parental consent is necessary.</p> + +<p><span class="smcap">Impediments.</span>—Same as to prohibited degrees of kinship as in +Massachusetts.</p> + +<p>Marriages of whites with Indians, negroes, mulattoes, mestizos, or +half-breeds, are forbidden.</p> + +<p><span class="smcap">Formalities.</span>—No license is required, and no particular form of ceremony +necessary.</p> + +<p><span class="smcap">Divorce.</span>—By a provision of the State constitution divorces from the bonds +of matrimony are not allowed in South Carolina.</p> + +<p>Marriages may, however, be annulled for want of consent of either party, +or for any other cause showing that at the time of the supposed marriage +it was not a contract, provided such contract has not been consummated by +cohabitation.</p> + + +<p> </p> +<p class="center"><span class="smcap">South Dakota.</span></p> + +<p><span class="smcap">Marriage.</span>—Minimum age at which males can marry is 18 years, females 15 +years. Parental consent is required for males under 21 years and females +under 18 years.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Same as in Massachusetts.</p> + +<p>Common law marriages are recognized.</p> + +<p>Marriage may be solemnized by minister, priest, judge of supreme court or +probate court, justice of the peace, mayor, or by the parties themselves +making a joint declaration.</p> + +<p><span class="pagenum"><a name="Page_191" id="Page_191">[Pg 191]</a></span><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery.</p> + +<p>2. Extreme cruelty.</p> + +<p>3. Wilful desertion for one year.</p> + +<p>4. Wilful neglect for one year.</p> + +<p>5. Habitual intemperance for one year.</p> + +<p>6. Conviction of felony.</p> + +<p>Limited divorces are not granted.</p> + + +<p> </p> +<p class="center"><span class="smcap">Tennessee.</span></p> + +<p><span class="smcap">Marriage.</span>—The lowest age at which males can marry is 16 years, females 14 +years. Parental consent is necessary for males under 21 years and females +under 18 years.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—The prohibited degrees are the same as in +Massachusetts.</p> + +<p>Marriages of whites with negroes, mulattoes or persons of mixed blood are +forbidden. A person declared guilty of adultery is forbidden his or her +accomplice during the lifetime of the former spouse.</p> + +<p><span class="smcap">Formalities.</span>—License necessary. Marriage ceremony may be religious or +civil in form.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Natural impotence and incapacity of procreation at time of marriage, +and still existing.</p> + +<p>2. A previous marriage still subsisting.</p> + +<p>3. Adultery.</p> + +<p>4. Desertion for two years.</p> + +<p>5. Conviction of such crime as renders party infamous.</p> + +<p>6. Conviction of felony.</p> + +<p>7. Malicious attempt on life of other spouse.</p> + +<p>8. Wife’s refusal to move with husband into this State, and wilful absence +from him for two years.</p> + +<p>9. Wife’s pregnancy at time of marriage by another person, without +husband’s knowledge.</p> + +<p><span class="pagenum"><a name="Page_192" id="Page_192">[Pg 192]</a></span>10. Habitual drunkenness.</p> + +<p><span class="smcap">Limited Divorces.</span>—Such relief is granted to a wife only, for the +following causes:</p> + +<p>1. Cruel and inhuman treatment, rendering it unsafe and improper for +continued cohabitation.</p> + +<p>2. Such indignities offered to wife as render condition intolerable, and +force her to leave husband.</p> + +<p>3. Husband’s abandonment of wife, or his turning her out of doors, +refusing or neglecting to provide for her.</p> + + +<p> </p> +<p class="center"><span class="smcap">Texas.</span></p> + +<p><span class="smcap">Marriage.</span>—Earliest age for males to marry is 16 years; females 14 years. +Parental consent required for males under 21 years and females under 18 +years.</p> + +<p><span class="smcap">Impediments.</span>—The prohibited degrees of kinship are the same as in New +York.</p> + +<p>Marriage is forbidden between persons of European blood or their +descendants and Africans or the descendants of Africans.</p> + +<p><span class="smcap">Formalities.</span>—License required. Marriage may be solemnized by religious or +civil ceremony.</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Excesses; cruel treatment.</p> + +<p>2. Wife taken in adultery.</p> + +<p>3. Wife’s abandonment of husband for three years.</p> + +<p>4. Husband’s desertion with intention of abandonment for three years.</p> + +<p>5. When husband abandons wife and lives in adultery.</p> + +<p>6. Conviction of felony and imprisonment therefor in State prison.</p> + +<p>There is no such thing as a limited divorce in this State.</p> + + +<p> <span class="pagenum"><a name="Page_193" id="Page_193">[Pg 193]</a></span></p> +<p class="center"><span class="smcap">Utah.</span></p> + +<p><span class="smcap">Marriage.</span>—Males may marry at 14 years and females at 12 years, but if the +former are under 21 years and the latter under 18 years parental consent +is required.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Marriage between ascendants and descendants, between +brothers and sisters of the whole or half blood, between uncles and +nieces, or aunts and nephews, or between any persons related to each other +within the fourth degree of consanguinity is prohibited.</p> + +<p>Marriage is also forbidden between a white person and a negro or +Mongolian.</p> + +<p><span class="smcap">Formalities.</span>—After a license has been procured the marriage may be +solemnized by a minister or priest, judge of the Supreme or District +Court, mayor of a city, or justice of the peace.</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Impotency.</p> + +<p>2. Adultery.</p> + +<p>3. Wilful desertion for more than one year.</p> + +<p>4. Wilful neglect of husband to provide for wife.</p> + +<p>5. Habitual drunkenness.</p> + +<p>6. Conviction for felony.</p> + +<p>7. Cruel treatment.</p> + +<p>8. Permanent insanity of defendant.</p> + +<p>To maintain an action for the last cause the plaintiff must prove that +defendant has been adjudged insane at least five years before the +beginning of action and that the insanity is incurable.</p> + + +<p> </p> +<p class="center"><span class="smcap">Vermont.</span></p> + +<p><span class="smcap">Marriage.</span>—No minimum age is fixed by statute for marriage of minors, but +males under 21 years<span class="pagenum"><a name="Page_194" id="Page_194">[Pg 194]</a></span> and females under 18 years require consent of +parents.</p> + +<p><span class="smcap">Impediments.</span>—The prohibited degrees of consanguinity and affinity are the +same as in Massachusetts.</p> + +<p><span class="smcap">Formalities.</span>—License, called in Vermont a “certificate,” is necessary.</p> + +<p>No special form of marriage ceremony is prescribed, except that if +solemnized by Quakers the ceremony must be in the form used in Quaker +societies.</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Adultery.</p> + +<p>2. When either party is sentenced to confinement in the State prison for +life, or for three years or more, and is actually confined at the time.</p> + +<p>3. Intolerable severity of either party.</p> + +<p>4. Wilful desertion for three consecutive years.</p> + +<p>5. Absence of either party for seven years without being heard of during +that time.</p> + +<p>6. Husband’s cruel refusal or neglect to provide suitable maintenance for +wife.</p> + +<p><span class="smcap">Limited Divorces.</span>—A limited divorce, which leaves the marriage +undissolved, may be granted for any of the causes for which an absolute +divorce may be granted.</p> + + +<p> </p> +<p class="center"><span class="smcap">Virginia.</span></p> + +<p><span class="smcap">Marriage.</span>—A male is deemed capable of marriage at 14 years and a female +at 12 years, but for all minors under 21 years parental consent is +required.</p> + +<p><span class="smcap">Prohibitions.</span>—Marriage between ascendants and descendants, and between +persons nearer of kin than the fourth degree of consanguinity, is +prohibited. Marriage between white and colored persons is forbidden.</p> + +<p><span class="pagenum"><a name="Page_195" id="Page_195">[Pg 195]</a></span><span class="smcap">Formalities.</span>—No +marriage or attempted marriage, if it took place in this State, can be held valid here unless shown to have been under a license +and solemnized according to statute. However, no particular marriage +ceremony is prescribed, except that, if solemnized by a religious society, +it must be in the manner practiced by such society.</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Adultery.</p> + +<p>2. Incurable impotency.</p> + +<p>3. Sentence to penitentiary.</p> + +<p>4. Conviction of one party (without the knowledge of the other) of an +infamous offence before marriage.</p> + +<p>5. Flight from justice.</p> + +<p>6. Desertion continued for three years.</p> + +<p>7. Wife’s pregnancy at time of marriage by another man, unknown to +husband.</p> + +<p>8. Upon proof that prior to marriage wife had been, unknown to husband, a +prostitute.</p> + +<p><span class="smcap">Limited Divorce.</span>—May be granted for:</p> + +<p>1. Cruelty.</p> + +<p>2. Reasonable apprehension of bodily hurt.</p> + +<p>3. Abandonment.</p> + +<p>4. Desertion.</p> + + +<p> </p> +<p class="center"><span class="smcap">Washington.</span></p> + +<p><span class="smcap">Marriage.</span>—Marriage is a civil contract which may be entered into by males +of the age of 21 years and females of the age of 18 years who are +otherwise capable.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Marriage is prohibited between persons nearer of kin +than second cousins, whether of the whole or half blood, computing by the +rules of the civil law.</p> + +<p><span class="smcap">Celebration.</span>—No particular form of ceremony prescribed, but license is +necessary.</p> + +<p><span class="pagenum"><a name="Page_196" id="Page_196">[Pg 196]</a></span><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Consent to marriage obtained by force and fraud and no subsequent +voluntary cohabitation.</p> + +<p>2. Adultery.</p> + +<p>3. Impotency.</p> + +<p>4. Abandonment for one year.</p> + +<p>5. Cruel treatment.</p> + +<p>6. Personal iniquities.</p> + +<p>7. Habitual drunkenness.</p> + +<p>8. Neglect to provide for wife or family.</p> + +<p>9. Present imprisonment in penitentiary.</p> + +<p>10. Any other cause in the court’s discretion if it appears parties should +not continue the marriage relation.</p> + +<p>11. Incurable chronic mania or dementia existing for ten years or more.</p> + + +<p> </p> +<p class="center"><span class="smcap">West Virginia.</span></p> + +<p><span class="smcap">Marriage.</span>—Males may marry at 18 years and females at 16 years, but +parental consent is required for all persons under 21 years of age.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Same as in the State of Washington.</p> + +<p><span class="smcap">Formalities.</span>—As to issuance of license and celebration, same as in +Washington.</p> + +<p>If a man, having had a child by a woman, afterward intermarries with her, +such child is deemed legitimate.</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Adultery.</p> + +<p>2. Incurable impotency.</p> + +<p>3. Sentence to penitentiary.</p> + +<p>4. Conviction before marriage of an infamous offence, unknown to other +spouse.</p> + +<p>5. Desertion for three years.</p> + +<p>6. Pregnancy of wife at time of marriage by another man, unknown to +husband.</p> + +<p><span class="pagenum"><a name="Page_197" id="Page_197">[Pg 197]</a></span>7. Proof that wife, unknown to husband, had been before marriage a +notorious prostitute. Proof that husband, unknown to wife, had been before +marriage a licentious person.</p> + +<p><span class="smcap">Limited Divorces.</span>—Granted for:</p> + +<p>1. Cruel treatment.</p> + +<p>2. Reasonable apprehension of bodily hurt.</p> + +<p>3. Abandonment.</p> + +<p>4. Desertion.</p> + +<p>5. Habitual drunkenness.</p> + + +<p> </p> +<p class="center"><span class="smcap">Wisconsin.</span></p> + +<p><span class="smcap">Marriage.</span>—Males may marry at 18 years and females at 15 years, but +parental consent is required for males under 21 years and females under 18 +years.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Marriage is forbidden between persons nearer of kin +than first cousins, of the whole or half blood, computing by the rules of +the civil law.</p> + +<p><span class="smcap">Formalities.</span>—Since April 29, 1899, a marriage license is required, but no +particular form of celebration is necessary.</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Adultery.</p> + +<p>2. Impotency.</p> + +<p>3. Sentence to imprisonment for three years or more.</p> + +<p>4. Wilful desertion for one year.</p> + +<p>5. Cruel and inhuman treatment.</p> + +<p>6. Wife’s intoxication.</p> + +<p>7. Husband’s habitual drunkenness for one year.</p> + +<p>8. Voluntary separation of parties continued for five years.</p> + +<p>9. Extreme cruelty.</p> + +<p>10. Husband’s refusal or wilful neglect to provide for wife.</p> + +<p><span class="pagenum"><a name="Page_198" id="Page_198">[Pg 198]</a></span>11. Husband’s conduct such as to render it unsafe and improper for wife to +live with him.</p> + +<p>A limited divorce may be granted for all these causes except the first +three.</p> + + +<p> </p> +<p class="center"><span class="smcap">Wyoming.</span></p> + +<p><span class="smcap">Marriage.</span>—A male may marry at 18 years and a female at 16 years. Parental +consent is required if either party is a minor.</p> + +<p><span class="smcap">Prohibited Degrees.</span>—Marriage between ascendants and descendants, between +brothers and sisters of the whole or half blood, between uncle and niece, +or aunt and nephew, and between first cousins, is forbidden. This applies +to legitimate or illegitimate kindred, but only to persons related by +blood.</p> + +<p><span class="smcap">Formalities.</span>—A license issued by county clerk is necessary.</p> + +<p>Parties must solemnly declare in the presence of a minister or magistrate, +and two witnesses, that they take each other as husband and wife.</p> + +<p><span class="smcap">Causes for Divorce.</span>—</p> + +<p>1. Adultery.</p> + +<p>2. Physical incompetence at time of marriage continued to time of divorce.</p> + +<p>3. Conviction and sentence for felony.</p> + +<p>4. Wilful desertion for one year.</p> + +<p>5. Habitual drunkenness.</p> + +<p>6. Extreme cruelty.</p> + +<p>7. Neglect of husband for one year to provide common necessaries of life.</p> + +<p>8. Such indignities as render conditions intolerable.</p> + +<p>9. Vagrancy of husband.</p> + +<p>10. Conviction before marriage (unknown to other spouse) for felony or +infamous crime.</p> + +<p>11. Pregnancy of wife by another man at time of marriage, unknown to +husband.</p> + +<p>Limited divorces are not granted in this State.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_199" id="Page_199">[Pg 199]</a></span></p> +<h2><a name="CHAPTER_XXVI" id="CHAPTER_XXVI"></a>CHAPTER XXVI.</h2> +<p class="center"><span class="huge"><span class="smcap">Dominion of Canada and Newfoundland.</span></span></p> + +<p>The Dominion of Canada now consists of the Provinces of Alberta, British +Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward +Island, Quebec and Saskatchewan, together with certain territories not as +yet included in any Province.</p> + +<p>The Canadian Constitution, similar in principle to that of Great Britain, +is embodied in the British North America Act of 1867 (30 Vict. c. 3).</p> + +<p>This act, which was passed by the Imperial Parliament, created the +federation now styled the Dominion of Canada, and assigned to the Dominion +Parliament power “to make laws for the peace, order and good government of +Canada, in relation to all matters not coming within the classes of +subjects by this act assigned exclusively to the Legislatures of the +Provinces.”</p> + +<p>One great distinction between the Canadian Constitution and the +Constitution of the United States of America is that powers not +specifically granted to the Provinces are reserved to the Dominion +Government, whereas under the American Constitution powers not +specifically granted to the Federal Government are reserved to the States, +or to the people.</p> + +<p>Marriage and divorce are specifically set forth in the Canadian +Constitution as a branch of legislation exclusively within the control of +the Dominion Parliament, but although forty-three years have passed since +the act became operative the Dominion Parliament has so far enacted only +two statutes concerning the subject. The first act<span class="pagenum"><a name="Page_200" id="Page_200">[Pg 200]</a></span> (May 17, 1882) +legalized the marriage of a man with his deceased wife’s sister, and the +second (May 16, 1890) legalized the marriage of a man with his deceased +wife’s sister’s daughter.</p> + +<p>The Dominion of Canada shares with Ireland the distinction of having no +law permitting a judicial decree of divorce.</p> + +<p>However, by one clause of the British Act of North America there was +preserved in full force the laws and judicial system of the several +Provinces until the laws should be repealed or the courts abolished by +competent authority.</p> + +<p>Consequently, four of the nine Provinces, namely, British Columbia, New +Brunswick, Nova Scotia and Prince Edward Island, have their individual +laws of divorce and divorce courts.</p> + +<p>Of the eight millions of people living in Canada six millions have no +possibility of divorce except by a special act of the Dominion Parliament.</p> + +<p>The Dominion Parliament has power to grant an absolute divorce for any +cause, but it never has done so except for adultery.</p> + +<p>Divorce petitions or bills are, as a matter of practice, introduced first +in the Senate, where there is a standing committee to deal with them.</p> + +<p>For the Provinces of Ontario, Quebec and Manitoba, and the Northwest and +other Territories, the Dominion Parliament is the only authority which can +grant an absolute divorce.</p> + +<p><span class="smcap">Marriage.</span>—Legislation concerning the formal requirements and +solemnizations of marriage is still within the exclusive authority of the +legislatures of the Provinces.</p> + +<p>As to the impediments which arise from blood and marriage, the law +throughout the Dominion of Canada is in agreement with the law of England, +which is based upon the 18th chapter of the Book of Leviticus.</p> + +<p><span class="pagenum"><a name="Page_201" id="Page_201">[Pg 201]</a></span>It is expressly provided by the act, 28 and 29 Vict. c. 64, that every law +made or to be made by the legislature of any British possession, “for the +purpose of establishing the validity of any marriage or marriages +contracted in such possession, shall have and be deemed to have had from +the date of the making of such law the same force and effect for the +purpose aforesaid within all parts of Her Majesty’s dominions as such law +may have had or may hereafter have within the possession for which the +same was made. Provided that nothing in this law contained shall give any +effect or validity to any marriage unless at the time of such marriage +both of the parties thereto were, according to the law of England, +competent to contract the same.”</p> + +<p><span class="smcap">Validity of Foreign Divorces.</span>—When the validity of a foreign divorce is +considered by the Canadian courts the judges apply the strict rule of +refusing to recognize a decree of divorce pronounced by a court within +whose jurisdiction the parties had not a bona fide domicile.</p> + +<p>The courts also hold that a marriage celebrated in Canada between persons +domiciled there is in its nature indissoluble except by death or by the +act or decree of the Dominion Parliament, or a Canadian court of competent +jurisdiction, and that no judgment of a foreign court dissolving such a +marriage will be recognized in Canada.</p> + +<p>This rule invites, and has received, such severe criticism for its +injustice that it cannot long be maintained by such tribunals of learning +and integrity as the courts of Canada.</p> + +<p>Suppose a Canadian man and woman domiciled in Toronto should intermarry +there, and afterwards acquire a joint domicile of twenty years’ duration +in New York City. If, after that period, the wife should obtain in the +courts of the State<span class="pagenum"><a name="Page_202" id="Page_202">[Pg 202]</a></span> of New York a divorce on the grounds of her husband’s +adultery, and should remarry another man, upon her return to Canada it +would be manifestly unjust to treat the divorce and second marriage as +null and void.</p> + +<p>Some of these days the Canadian courts will be called upon to consider the +legal effect of a divorce obtained upon statutory grounds in England in a +suit between two persons who were married in Canada and at the time of +such marriage were domiciled in that country. Perhaps then the rule we +have mentioned and criticised will be relaxed.</p> + +<p>The Island and Colony of Newfoundland, although a British colony in North +America, is not yet incorporated as a part of the Dominion of Canada. It +has its own governor, legislature and judicial system entirely separate +from the Dominion and its own marriage and divorce law.</p> + +<p>The jurisdiction of Newfoundland extends not only over the island by that +name, but also over the whole of the Atlantic coast of Labrador.</p> + +<p><span class="smcap">Age Requirements.</span>—The legal age for marriage in British Columbia, +Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, the +Northwest Territories and Newfoundland is fourteen for a male and twelve +for a female. In Ontario both males and females must be at least fourteen +years of age.</p> + +<p><span class="smcap">Parental Consent.</span>—In British Columbia, Manitoba, Nova Scotia, Prince +Edward Island, Quebec, the Northwest Territories and Newfoundland parental +consent is necessary for both males and females under twenty-one years of +age.</p> + +<p>In New Brunswick and Ontario parental consent is required for males and +females under eighteen years of age.</p> + +<p><span class="pagenum"><a name="Page_203" id="Page_203">[Pg 203]</a></span>In British Columbia an appeal may be taken to the courts if consent is +refused by parent or guardian.</p> + +<p><span class="smcap">Celebration.</span>—Marriages may be solemnized by duly qualified clergymen of +every religious denomination, or by a judge, justice of the peace or other +magistrate.</p> + +<p>Unless banns are published a license must be produced for each marriage, +and can only be obtained from the proper local authority upon affidavit or +declaration of one of the parties to the intended marriage, showing that +no legal impediment exists and that the proper consents have been +obtained.</p> + +<p>The competency of a Protestant minister to marry two Roman Catholics in +the Province of Quebec was called in question by the leading case of +Delphit v. Coté, reported in the Quebec Reports, 20 S. C. 338. The +plaintiff, who had been baptized as a member of the Roman Catholic Church, +was married to the defendant, who, at the time at least, professed the +same belief, by a minister of a Protestant denomination, by virtue of a +license issued in due form. Subsequently an ecclesiastical court of the +Catholic Church declared the marriage null on the ground that two Roman +Catholics could only be married by a Roman Catholic priest. Upon appealing +to the civil court for an annulment of the marriage because of the +ecclesiastical decree, it was held that the ecclesiastical court was +entirely without jurisdiction and that the marriage was in all legal +respects good and binding.</p> + +<p><span class="smcap">Marriages with Indians.</span>—A Christian who marries an aboriginal native or +Indian cannot exercise in Canada the right of divorce or repudiation of +his wife at will, although following the usages of the tribe or “nation” +to which his Indian<span class="pagenum"><a name="Page_204" id="Page_204">[Pg 204]</a></span> wife belongs such divorces and repudiations are +customary and regular.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—In any of the Provinces, or in Newfoundland, the +courts may annul marriages on the ground of fraud, mistake, coercion, +duress or lunacy.</p> + +<p><span class="smcap">Foreign Marriages.</span>—The courts of Canada and Newfoundland recognize a +marriage concluded in a foreign country as valid if it was performed in +accordance with the laws of the foreign country, if each person was +competent to marry, according to the laws of the country of his and her +citizenship, and if the marriage was not in violation of the general laws +and usages of Christendom.</p> + +<p><span class="smcap">Ontario.</span>—The High Court of Justice in this Province has jurisdiction +where a marriage correct in form is ascertained to be void <i>de jure</i> by +reason of the absence of some essential preliminary to declare the same +null and void <i>ab initio</i>; but nothing short of the most clear and +convincing testimony will justify the interposition of the court.</p> + +<p>As we have observed before, there is no divorce court in the Province.</p> + +<p>Every married woman is entitled to hold and alienate as her separate +property all wages and profits acquired by her in any separate occupation +which she may conduct on her separate account.</p> + +<p><span class="smcap">Quebec.</span>—This Province, which is composed largely of Roman Catholic +inhabitants of French ancestry, treats marriage as a religious contract.</p> + +<p>The system of jurisprudence in Quebec is an admixture of the Code +Napoleon, the <i>coutume de Paris</i>, and the common law of England. The +provisions of the Civil Code and Code of Civil Procedure of the Province +are largely of French origin.</p> + +<p>Marriage must be solemnized openly by a competent officer recognized by +law and must be <span class="pagenum"><a name="Page_205" id="Page_205">[Pg 205]</a></span>preceded by the publication of banns, unless a license is +obtained. A license for a marriage by a Protestant clergyman must be +issued from the office of the Provincial Secretary.</p> + +<p>A marriage contracted without the free consent of both parties, or of one +of them, can only be attacked by such parties themselves or by the one +whose consent was not free.</p> + +<p>A marriage contracted before the parties, or either of them, have attained +the age required can no longer be contested if six months have elapsed +since the party or parties have attained the proper age; or if the wife +under that age has conceived before the termination of six months.</p> + +<p>The laws in this Province concerning the rights of married women to own +property separate from their husbands are almost mediæval.</p> + +<p>A married woman cannot take judicial proceedings without being authorized +so to do by her husband or the court.</p> + +<p>A husband and wife cannot contract with each other even with the +assistance of a third person. They cannot even make donations to each +other during the marriage.</p> + +<p>Husband and wife are not competent witnesses against each other in a court +of law.</p> + +<p>Neither the courts nor the Provincial legislature grant divorces which +dissolve the marriage bond. Applications for such relief must be addressed +to the Dominion Parliament.</p> + +<p>A separation from bed and board is granted by the courts to either party +to a marriage upon proof of adultery, cruelty, desertion or confirmed +drunkenness; and to a wife for the failure of her husband to provide her +proper support.</p> + +<p>Where a husband keeps a concubine in the same house with his wife the +latter is justified in<span class="pagenum"><a name="Page_206" id="Page_206">[Pg 206]</a></span> leaving him to live elsewhere, and in so doing the +wife does not lose any of her marital rights.</p> + +<p>Quebec is the only Province in the Dominion of Canada where a child born +out of wedlock is legitimatized by the subsequent marriage of the parents.</p> + +<p><span class="smcap">British Columbia.</span>—The Divorce and Matrimonial Act of 1857, passed by the +Imperial Parliament, is in full effect in this Province.</p> + +<p>The Supreme Court has jurisdiction to entertain a petition for divorce +between persons domiciled in the Province and in respect of matrimonial +offences alleged to have been committed therein.</p> + +<p>Absolute divorces are granted on the application of the husband on the +ground of adultery; on the application of the wife on the ground of +incestuous adultery, bigamy with adultery, rape, sodomy or bestiality, +adultery coupled with such cruelty as without adultery would have entitled +her to a judicial separation, or adultery coupled with desertion, without +reasonable excuse, for two years or upwards. Alimony may be ordered to be +paid to the wife, by the decree dissolving the marriage or granting a +separation, or it may be sued for separately if the wife has either +obtained or is entitled to such a decree. After absolute divorce either +party may marry again. The procedure in divorce matters is almost +identical with that of England.</p> + +<p>A judicial separation may be obtained by either spouse because of:</p> + +<p>1. Adultery.</p> + +<p>2. Cruelty.</p> + +<p>3. Desertion without cause for two years or more.</p> + +<p><span class="smcap">New Brunswick.</span>—It is interesting to note that in this Province a married +woman may acquire, hold and dispose of, by will or otherwise (except<span class="pagenum"><a name="Page_207" id="Page_207">[Pg 207]</a></span> that +husband’s curtsey will not therefore be affected), any real or personal +property as her separate property, in the same manner as if she were a +<i>femme sole</i>, without the intervention of any trustee, and may enter into +and render herself liable in respect of and to the extent of her separate +property on any contract, and of suing and being sued in all respects as +if she were a <i>femme sole</i>.</p> + +<p>The grounds for absolute divorce are:</p> + +<p>1. Impotency.</p> + +<p>2. Adultery.</p> + +<p>3. Consanguinity.</p> + +<p><span class="smcap">Nova Scotia.</span>—This old Province, originally called Acadia, has a judiciary +which consists of a chief justice, an equity judge and five puisne judges, +a supreme court having law and equity jurisdiction throughout the +Province, a vice-admiralty court and a court of marriage and divorce.</p> + +<p>The rules as to consanguinity and affinity, the causes for divorce and +judicial separation and the civil effects of marriage and divorce are the +same as in England.</p> + +<p><span class="smcap">Alberta.</span>—The Supreme Court Act (February 11, 1907) established the +Supreme Court of the Province and provided that the court “shall have +jurisdiction to grant alimony to any wife who would be entitled to alimony +by the law of England, or to any wife who would be entitled by the law of +England to a divorce and to alimony as incident thereto, or to any wife +whose husband was separate from her without any sufficient cause and under +circumstances which would entitle her by the laws of England to a decree +for restitution of conjugal rights; and alimony, when granted, continue +until further order of the court.”</p> + +<p><span class="smcap">Northwest Territories.</span>—The term “Northwest Territories” originally +referred to the region over<span class="pagenum"><a name="Page_208" id="Page_208">[Pg 208]</a></span> which the Northwest Company exercised +authority, the territorial limits of which were not clearly defined. The +term is now used to designate the Canadian territories and districts of +Yukon, Keewatin, Mackenzie, Ungava and Franklin.</p> + +<p>As we have before observed, the law of marriage and divorce in the +Northwest Territories is substantially the same as that of England.</p> + +<p><span class="smcap">Newfoundland.</span>—This, the oldest British colony in North America, is the +most modern in its law of domestic relations.</p> + +<p>Marriage is considered a civil contract, which may be solemnized before a +qualified clergyman of any sect, or a judge, justice of the peace or other +magistrate.</p> + +<p>A married woman has the same right of buying, selling, owning and +controlling any kind of real or personal property as a single woman. She +has also the fullest right to make any lawful contract without adding her +husband as a party. She may sue and be sued as if she were a single woman +or a man.</p> + +<p>There being no divorce courts, the Provincial legislature having no power +to grant divorces, and the Colony of Newfoundland being outside of the +jurisdiction of the Dominion Parliament of Canada, an absolute divorce +cannot be obtained in the colony.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_209" id="Page_209">[Pg 209]</a></span></p> +<h2><a name="CHAPTER_XXVII" id="CHAPTER_XXVII"></a>CHAPTER XXVII.</h2> +<p class="center"><span class="huge"><span class="smcap">The Republic of Mexico.</span></span></p> + +<p>Mexico is a federative Republic composed of twenty-seven States, three +Territories and a Federal District.</p> + +<p>Under the present Constitution, which is dated February 5, 1857, each +State has the power to control its own local domestic concerns and to have +its own separate executive, legislature and judiciary.</p> + +<p>The Civil Code of the Federal District (<i>El Codigo Civil de Distrito +Federal</i>) was enacted simply for the Federal District and the Territories +of Lower California, Tepic and Quintana Roo, but each of the twenty-seven +States have in their respective Civil Codes adopted the provisions of the +Federal Civil Code, especially with reference to the law of marriage and +divorce. Therefore, we find it unnecessary to deal with each State +separately.</p> + +<p><span class="smcap">Marriage.</span>—The courts of Mexico, following the Federal Code, define +marriage as the lawful co-partnership of one man and one woman united for +life in an indissoluble bond to perpetuate their species and to render +each other mutual assistance, fidelity and sympathy in bearing together +the burdens of life.</p> + +<p>The law does not recognize in any manner future espousals, nor any +conditions contrary to the legitimate purposes of marriage.</p> + +<p>Marriage must be preceded by the statutory preliminaries and be celebrated +before authorized<span class="pagenum"><a name="Page_210" id="Page_210">[Pg 210]</a></span> officials with all such formalities as are by law +required.</p> + +<p>A male must be at least 14 years of age and a female at least 12 years of +age to contract marriage, unless a dispensation from the superior +political authority is obtained permitting marriage at an earlier age. +Such a dispensation can only be obtained in exceptional cases and for good +cause.</p> + +<p>Parental consent is required for the marriage of both males and females +under the age of 21 years. If the father is dead the consent of the mother +is sufficient. If both the father and mother are dead then the consent of +the paternal grandfather will suffice. If he is also dead the paternal +grandmother must give consent. In the event of both paternal grandparents +being dead the maternal grandparents take their place and exercise the +<i>patria potestad</i>.</p> + +<p><span class="smcap">Impediments.</span>—The impediments to marriage are:</p> + +<p>1. Incapacity of the parties, as when one or both are under age.</p> + +<p>2. Absence of the consent of parents or of the person exercising the +rights of a parent.</p> + +<p>3. Mistake as to the identity of either party.</p> + +<p>4. Relationship within the prohibited degrees.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriages are prohibited between ascendants +and descendants; between brothers and sisters of the whole or half blood; +between uncles and nieces; aunts and nephews, and all other persons +related by blood or marriage within the third degree.</p> + +<p>The laws of Mexico recognize no relationship other than one by +consanguinity and affinity.</p> + +<p>Each generation constitutes a degree, and the series of degrees constitute +the line of relationship.</p> + +<p><span class="pagenum"><a name="Page_211" id="Page_211">[Pg 211]</a></span><span class="smcap">Other Prohibitions</span>:</p> + +<p>A. A marriage is prohibited when either of the intending parties has a +husband or wife still living.</p> + +<p>B. If one of the parties has made an attempt against the life of the +husband or wife of the other with the intention of marrying the survivor.</p> + +<p>C. If one of the parties has obtained the apparent consent of the other by +fear, coercion or duress.</p> + +<p>D. If either of the parties is permanently and incurably insane.</p> + +<p><span class="smcap">Formalities.</span>—Parties intending to conclude marriage must personally +appear before the judge of civil status of the domicile of either party, +and state their intention. The judge will thereupon make an entry in a +register kept for that purpose of the names, occupations and domiciles of +both of the contracting parties, the names, occupations and domiciles of +their parents, if the same be ascertainable, the names, occupations and +domiciles of the witnesses whom the parties present to the judge as +knowing the legal capacity of the parties, and proof of the consents of +the parents, or of such persons as are lawfully exercising the rights of +the parents.</p> + +<p>If either of the contracting parties has been previously married the judge +must require proper evidence that the former consort is dead.</p> + +<p>If it appears that there exists any impediment to the intended marriage +which could be removed by a dispensation from the superior political +authority such dispensation must be exhibited.</p> + +<p>Upon the judge receiving the required proof that the parties may be +legally married he will cause a copy of the record to be posted in a +conspicuous place in his office for 15 days, and two similar copies must +be posted in the usual<span class="pagenum"><a name="Page_212" id="Page_212">[Pg 212]</a></span> public places. If, during the publication as +aforesaid, and for three days thereafter, no valid opposition is made by +any one to the marriage, it becomes the duty of the judge, upon request of +the parties, to fix the place, day and hour for the celebration.</p> + +<p>A marriage must be celebrated in public at the place and time previously +fixed by the judge. The parties must appear in person or by their +specially appointed proxies, and be attended by at least three adult +witnesses, who may be relatives.</p> + +<p>The parties, by themselves, or by their specially appointed proxies, must +formally declare to the judge in the presence of the witnesses their +intention to take each other as husband and wife, upon which declaration +the judge shall pronounce them man and wife and make an official record of +the marriage.</p> + +<p><span class="smcap">Rights and Obligations of Marriage.</span>—Husband and wife are obliged to be +faithful to each other, and each must contribute his or her part to the +objects of the marriage. They are under mutual obligation to succor and +protect one another and to render each to the other affection and +sympathy.</p> + +<p>It is a wife’s duty to live with her husband and to follow him wherever he +may choose to go and accept his selection of a conjugal home.</p> + +<p>A husband is obligated to provide alimentation (<i>alimentos</i>) to his wife +even though she may have brought no property into the marital community. +By alimentation is meant not only necessary food, but raiment and things +of personal necessity and comfort commensurate with the husband’s ability +to make such provision. The husband owes his wife the duty of protecting +her person and reputation.</p> + +<p>The wife must obey her husband in domestic concerns, in the matter of +training and educating<span class="pagenum"><a name="Page_213" id="Page_213">[Pg 213]</a></span> the children of the marriage and in all affairs +connected with the common property and the household.</p> + +<p>If the wife has property of her own she must furnish alimentation (food, +clothing and lodging) to her husband when he is in want and cannot obtain +it for himself.</p> + +<p>If a husband proposes to leave the Republic to live in a foreign land the +wife may apply to the courts to be relieved from the usual duty of +adopting her husband’s residence.</p> + +<p>The husband is the legitimate representative and manager of all of the +property of the marriage. He is ordinarily his wife’s representative in +legal proceedings. A wife generally cannot appear either personally or by +attorney in a suit at law without her husband’s authorization in writing.</p> + +<p>If she is of full age a wife does not require her husband’s authorization +in the following instances:</p> + +<p>A. To defend herself in a criminal action.</p> + +<p>B. To bring a suit against her husband.</p> + +<p>C. To devise or bequeath her own separate property by a will.</p> + +<p>D. When her husband is in what the Mexican lawyers call a state of +interdiction, as, for example, when he is under guardianship or insane.</p> + +<p>E. When she is in business on her separate account and the suit or +proceeding relates to such business.</p> + +<p><span class="smcap">Divorce.</span>—It is in the chapter of the Civil Code entitled “<i>Del divorcio</i>” +that we find the statutory provisions concerning divorce. The chapter +begins by stating positively that divorce (<i>divorcio</i>) does not dissolve +the bonds of matrimony. We must remember that the Federal Code is founded +upon the Spanish Code, and that both Mexico and Spain,<span class="pagenum"><a name="Page_214" id="Page_214">[Pg 214]</a></span> being historically +Roman Catholic countries, reflect the leading dogmas of the Catholic +Church in their civil jurisprudence. What is called a divorce in Mexican +law is at the most a separation from bed and board. It simply suspends +certain of the civil obligations and effects of marriage.</p> + +<p><span class="smcap">Causes for Divorce</span>:</p> + +<p>1. Adultery of the wife under any circumstances.</p> + +<p>2. Adultery of the husband, if the adultery is committed in the conjugal +home, or if the husband is living in concubinage, or if the husband’s +adultery causes a public scandal and attracts public contempt or insult to +the wife, or if the wife has been ill used by word or deed by her +husband’s paramour or on account of her.</p> + +<p>3. If the husband proposes or plans to prostitute his wife, or accepts +from a third person any money, article or valuable consideration for the +purpose of effecting such prostitution.</p> + +<p>4. When either spouse instigates or encourages the other to commit a +crime.</p> + +<p>5. The attempt by positive acts by either husband or wife to corrupt their +children or by deliberately permitting third persons to practice such +corruption.</p> + +<p>6. Abandonment without just and legal cause of the conjugal home (<i>casa +comun</i>), or if there is just and legal cause for such abandonment, to +remain away for one year or more without beginning a suit for divorce.</p> + +<p>7. Cruelty, threats or injury of a serious nature by one spouse against +the other.</p> + +<p>8. False accusation of a grave nature made by either party against the +other.</p> + +<p>9. The refusal, or wilful neglect, of one spouse to furnish alimentation, +or support, to the other, in accordance with law.</p> + +<p><span class="pagenum"><a name="Page_215" id="Page_215">[Pg 215]</a></span>10. Incorrigible vices of gambling or drunkenness.</p> + +<p>11. The existence of a chronic and incurable disease which is hereditary +or contagious afflicting one of the spouses previous to the marriage, of +which the other spouse had no knowledge when the marriage was concluded.</p> + +<p>12. If the wife gives birth to a child conceived before marriage, which +child has been judicially declared illegitimate.</p> + +<p>13. An infringement or violation of the marriage settlements +(<i>capitulaciones matrimoniales</i>).</p> + +<p>14. Mutual consent of the parties.</p> + +<p><span class="smcap">Proceedings for Divorce.</span>—Even if the spouses consent to a divorce there +must be a formal legal proceeding. In such a case the suit is begun by a +petition to the judge setting forth clearly the consent to divorce and the +agreement of the parties as to the maintenance of the wife, the custody of +the children and the disposition or division of the property held in +common.</p> + +<p>When such a petition is filed it becomes the duty of the judge to summon +the parties before him and to endeavour to effect a reconciliation.</p> + +<p>In a suit where the spouses do not mutually consent to a divorce, it is +still the legal duty of the judge to attempt a reconciliation of the +parties.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—While the Mexican law does not recognize absolute +divorce it does provide for the annulment or setting aside absolutely of +certain marriages. Marriages are voidable and may be annulled in the +courts on the following grounds:</p> + +<p>A. If the parties are related within the prohibited degrees of +consanguinity and affinity.</p> + +<p>B. If the parties, or either of them, were incapable by reason of non-age +or otherwise of legally concluding marriage.</p> + +<p><span class="pagenum"><a name="Page_216" id="Page_216">[Pg 216]</a></span>C. If the necessary parental consent, or consent of the person exercising +the <i>patria potestad</i>, was not had.</p> + +<p>D. If the marriage was irregular or contrary to law, as, for example, if +the proper publication was omitted, or no witnesses attended the +celebration.</p> + +<p>E. If there exists in either party, and existed before the marriage, an +incurable impotency for copulation.</p> + +<p>Want of legal age of either party is not a ground for annulment if a child +is born, the issue of the union.</p> + +<p>And if either party, or both, were under the legal age at the time of +marriage, a decree of annulment will not be granted if, upon becoming +twenty-one years of age, the spouses continue to cohabit together.</p> + +<p>Such marriages as we have pointed out above are not void, but voidable, +and any of the grounds sufficient for annulment may be waived by the +aggrieved spouse.</p> + +<p><span class="smcap">Effects of Divorce.</span>—Divorce can only be granted to the innocent party, +and suit therefor must be brought within one year after the petitioner +discovers the facts which constitute a legal cause for a decree.</p> + +<p>The innocent party, pending the action, or even after the final decree, +may require the other party to resume the marriage relationship.</p> + +<p>The most usual effect of a divorce is a physical separation of the +spouses.</p> + +<p>If the wife is the guilty party she may, on her husband’s suggestion, be +directed by the judge to live in a certain house, for the protection of +the good name of the husband.</p> + +<p>Upon the finding of a decree of divorce, if the parties have not reached +an appropriate <span class="pagenum"><a name="Page_217" id="Page_217">[Pg 217]</a></span>agreement, the judge will make such directions as to the +maintenance of the wife, custody of children and division of common +property as justice may require.</p> + +<p><span class="smcap">Foreign Marriages.</span>—Marriages concluded between foreigners in a foreign +country, which are valid in that country, will be recognized as valid for +all civil effects in Mexico.</p> + +<p>A marriage between a Mexican citizen and a foreigner, or between two +Mexican citizens, and concluded in a foreign country, will be valid for +all civil effects in Mexico, provided such marriage was concluded +according to the law of the foreign country and is not in violation of the +Mexican laws as to the prohibited degrees of relationship, capacity to +contract and consent of persons in <i>loco parentis</i>.</p> + +<p>Foreign laws (<i>leyes extranjeras</i>) must be established as matters of fact +by the persons relying upon their existence, and their application to +questions at issue must also be shown.</p> + +<p>Within three months after a Mexican citizen who has concluded marriage in +a foreign country returns to the Republic, he or she must cause the +inscription of the celebration to be entered in the Civil Register of his +or her domicile.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_218" id="Page_218">[Pg 218]</a></span></p> +<h2><a name="CHAPTER_XXVIII" id="CHAPTER_XXVIII"></a>CHAPTER XXVIII.</h2> +<p class="center"><span class="huge"><span class="smcap">Argentine Republic.</span></span></p> + +<p>The Civil Code of the Argentine Republic shows strong evidences of the +Spanish origin of its precepts. As in the old motherland marriage is +considered as indissoluble except by the death of one of the contracting +parties. However, the Republic does not accept the decrees of the Council +of Trent or the canonical law of the Catholic Church on the subject of +marriage as parts of the law of the land.</p> + +<p>As a matter of religion the people of Argentina may consider marriage as a +sacrament or divine ordinance, or not, as it pleases their consciences, +but as a matter of law marriage in the Argentine Republic is simply a +civil contract.</p> + +<p><span class="smcap">Essentials of Marriage.</span>—For the validity of marriage there must be the +consent of two contracting parties declared before the public official in +charge of the civil register. The contract can be declared by proxy, but +only with a special authorization from the principal, in which the person +with whom the proxy has to conclude the marriage is clearly described.</p> + +<p><span class="smcap">Impediments.</span>—The existence of any of the following conditions make a +marriage unlawful:</p> + +<p>1. Consanguinity between ascendants and descendants without limitation, +whether legitimate or illegitimate.</p> + +<p>2. Consanguinity between brothers and sisters and half brothers and +sisters, legitimate or illegitimate.</p> + +<p>3. Affinity in the direct line in all degrees.</p> + +<p>4. The woman not being twelve and the man fourteen years of age.</p> + +<p><span class="pagenum"><a name="Page_219" id="Page_219">[Pg 219]</a></span>5. The existence of a previous marriage.</p> + +<p>6. Where one of the parties has been voluntarily the author of, or the +accomplice in the death of, the former husband or wife of the other.</p> + +<p>7. Insanity.</p> + +<p>8. A woman over twelve years of age and a man over fourteen, but minors, +and the deaf and dumb who cannot write cannot bind themselves in marriage +without the consent of their legitimate father, or, failing him, without +their mother’s consent, or that of their guardian, or of the judicial +consent or permission, in the absence of the above. The civil judge will +decide in cases of disagreement.</p> + +<p>9. A guardian, or his descendants under his power, cannot marry minors +under his guardianship so long as the latter lasts.</p> + +<p><span class="smcap">Preliminaries.</span>—Those who desire to marry must present themselves before +the public official in charge of the civil register, at the domicile of +one of the parties, and verbally declare their intention to marry. Two +witnesses are required who, from their knowledge of the contracting +parties, can declare as to their identity and that they consider them +capable of being married.</p> + +<p><span class="smcap">Celebration.</span>—The marriage must be celebrated before the official charged +with the civil registry in his office, publicly, the bride and bridegroom, +or their proxies, appearing in person, in the presence of two witnesses +and with the formalities prescribed by law. If either of the contracting +parties are unable to appear at the registry office the marriage may be +celebrated at his (or her) residence.</p> + +<p>If the marriage be celebrated in the registry office two witnesses must be +present, and four witnesses if it is celebrated at the domicile of either +of the contracting parties.</p> + +<p><span class="pagenum"><a name="Page_220" id="Page_220">[Pg 220]</a></span>In celebrating the marriage the Public Registrar must read to the +contracting parties those portions of the law which define the rights and +obligations of married couples. He must also receive from each the +declaration that they respectively desire to take each other as husband +and wife. He must also formally declare the couple to be man and wife.</p> + +<p>There is no legal objection to a religious celebration of marriage +following the civil ceremony, which alone is treated as legally effective.</p> + +<p><span class="smcap">Husband and Wife.</span>—The contracting parties are bound to be mutually +faithful, but the infidelity of the one does not excuse the infidelity of +the other. The one who breaks this obligation can be proceeded against by +the other in the divorce courts without prejudice to what is laid down on +the subject by the Penal Code.</p> + +<p>The husband is bound to live in the same house as his wife and to give her +all necessary assistance, protection and support.</p> + +<p>If there be no marriage contract to the contrary, the husband is the legal +administrator of all the property belonging to the married couple, +including that of the wife, as well as that which they possessed at +marriage as of that subsequently acquired by them in their own right.</p> + +<p>The wife is bound to live with the husband wherever he may fix his +residence.</p> + +<p>A wife cannot, without her husband’s permission, go to law, make any +contract, or acquire goods, nor alienate or pledge goods without such +permission. The wife may, of course, in certain cases, such as divorce, +acquire judicial authorization for prosecuting or defending a suit in the +courts.</p> + +<p><span class="smcap">Divorce.</span>—The courts of the Argentine Republic grant divorces, but in +effect they only amount<span class="pagenum"><a name="Page_221" id="Page_221">[Pg 221]</a></span> to a personal separation of the parties to a +marriage, without the dissolution of the bonds of matrimony.</p> + +<p>These so-called divorces are granted for the following causes:</p> + +<p>1. Adultery of the husband or wife.</p> + +<p>2. Attempt by one of the parties on the life of the other, either +personally or as an accomplice.</p> + +<p>3. The instigation of one of the parties by the other to commit adultery +or other crimes.</p> + +<p>4. Cruelty.</p> + +<p>5. Serious injuries. In estimating the gravity of the injury the judge +will take into consideration the education and social position of the +parties.</p> + +<p>6. Such ill-treatment, even if not serious, as renders married life +unsupportable.</p> + +<p>7. Wilful and malicious desertion.</p> + +<p><span class="smcap">Effects of the Divorce.</span>—If the wife be of age she can exercise all the +usual acts of civil life.</p> + +<p>Each of the parties can fix his or her domicile or residence where he or +she thinks fit, even if it be abroad. However, if the party have children +under his or her care, they cannot be taken abroad without the permission +of the court of their domicile.</p> + +<p>The innocent party can revoke the donations or advantages which he or she +may have made or promised to the other by the marriage contract, whether +they were to have come into effect during the life of the party or after +his or her death.</p> + +<p>Children less than five years old remain in the mother’s custody. Those +over that age shall be handed over to the party who, in the opinion of the +judge, is most fitted to educate and care for them.</p> + +<p>The husband who may have given cause for divorce must continue to support +the wife if she have not sufficient means of her own. The judge<span class="pagenum"><a name="Page_222" id="Page_222">[Pg 222]</a></span> shall +decide the amount and manner in which this shall be done, with due regard +to the circumstances of both parties.</p> + +<p>Whichever of the parties may have given cause for divorce will have the +right to require the other, if he or she be able to do so, to provide him +or her with subsistence, if such be absolutely necessary.</p> + +<p><span class="smcap">Dissolution of Marriage.</span>—A legal marriage can only be dissolved by the +death of one of the contracting parties.</p> + +<p>A marriage which can be dissolved in accordance with the laws of the +country in which it was celebrated cannot be dissolved in the Argentine +Republic except by the death of one of the parties.</p> + +<p>The supposed decease of one of the contracting parties, either through +absence or disappearance, will not enable the other to marry again. So +long as the decease of one of the contracting parties, either through +absence or disappearance, has not been absolutely proved, the marriage is +not considered as dissolved.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A marriage may be annulled when it was contracted +in violation of some legal impediment, or for want of proper consent.</p> + +<p><span class="smcap">Second or Further Marriages.</span>—A woman cannot marry again for ten months +after a dissolved or annulled marriage, unless she was left pregnant, in +which case she may marry after having given birth to the child.</p> + +<p><span class="smcap">Proof of Marriage.</span>—A marriage must be proved by certificate, or copy +thereof, of such marriage. If it is impossible to produce the certificate, +or its copy, all other means of proof will be allowed, but these other +proofs will not be admitted unless it is previously established that such +certificate or copy cannot be produced.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_223" id="Page_223">[Pg 223]</a></span></p> +<h2><a name="CHAPTER_XXIX" id="CHAPTER_XXIX"></a>CHAPTER XXIX.</h2> +<p class="center"><span class="huge"><span class="smcap">The United States of Brazil.</span></span></p> + +<p>The United States of Brazil (<i>Estados Unidos do Brazil</i>), the largest +country in South America and one of the most extensive political +subdivisions of the world, is a Republic comprising twenty States and a +Federal District.</p> + +<p>Its present constitution was adopted February 24, 1891, and is in many +respects similar to that of the United States of America.</p> + +<p>The legislative power is vested in the President of the Republic and a +National Congress, consisting of a Senate and Chamber of Deputies.</p> + +<p>The individual States are governed by their governors and legislatures, +and possess their own judicial systems.</p> + +<p>The main body of the civil law has its origin in the Portuguese Code and +in the judicial precedents of Portugal.</p> + +<p>There is a Supreme Federal Court of Justice, which sits at the capital, +Rio de Janeiro, and Federal Courts in each of the twenty States.</p> + +<p>Ninety-nine per centum of the people of Brazil are Roman Catholics and +consider marriage as a religious sacrament, but the law of the land +considers it simply as a civil contract.</p> + +<p><span class="smcap">Marriage.</span>—The Civil Code defines marriage as a perpetual contract between +two persons of different sex to live together and establish a legitimate +family.</p> + +<p>A civil or legal celebration of marriage is compulsory for all persons, +irrespective of race or creed. If after the civil marriage the parties may +desire to satisfy their consciences and the <span class="pagenum"><a name="Page_224" id="Page_224">[Pg 224]</a></span>mandates of their church or +sect by having the marriage solemnized in a religious form, there is no +legal objection thereto.</p> + +<p>Marriage is forbidden:</p> + +<p>1. Of minors under the age of 21 years, unless with parental consent.</p> + +<p>2. Of persons of adult age who are incapable of properly governing +themselves or their estates, without the authorization of their legal +representatives.</p> + +<p>3. Of an adulterous wife with her accomplice who has been condemned for +the offence.</p> + +<p>4. Of a wife or widow who has been condemned as the principal or +accomplice of the crime of homicide with a principal or accomplice in the +same crime.</p> + +<p>5. Of a person bound by solemn vows of religion to a life of chastity.</p> + +<p>The canon law of the Roman Catholic Church is accepted as defining the +religious rules and spiritual effects of marriage, but the civil law +defines the status and temporal effects of the marriage contract.</p> + +<p><span class="smcap">Prohibited Marriages.</span>—The following persons are forbidden to marry each +other:</p> + +<p>1. Ascendants and descendants.</p> + +<p>2. Persons related collaterally in the second degree.</p> + +<p>3. Males who have not completed their fourteenth year and females who have +not completed their twelfth year of age.</p> + +<p>4. Persons already bound by marriage.</p> + +<p><span class="smcap">Preliminaries.</span>—The intending parties must present themselves in person +before the registrar and produce certificates showing:</p> + +<p>A. Full names, ages, occupations and domiciles of the contracting +parties.</p> + +<p><span class="pagenum"><a name="Page_225" id="Page_225">[Pg 225]</a></span>B. The full names, ages, occupations and domiciles of their parents, or, +if they are dead, the same particulars of those who replace them <i>in loco +parentis</i>.</p> + +<p>C. Proof of the consents of such persons who in law are entitled to give +or withhold consent to the proposed marriage.</p> + +<p>D. A declaration in writing by two respectable witnesses of full age, +certifying acquaintance with the contracting parties, and knowledge that +they are not related within the prohibited degrees of kinship.</p> + +<p>If either of the contracting parties has been previously married, proof of +the death of the former spouse must be given to the registrar.</p> + +<p>Upon receiving satisfactory proof as stated above, the registrar must post +a notice of the proposed marriage in a conspicuous place in his office, +which notice informs all interested persons to file their objections, if +any they have, in the registry within fifteen days. If at the end of this +period no valid objection to the marriage has been formulated the civil +officer proceeds to the celebration of the marriage.</p> + +<p>A marriage concluded before a civil officer in the form established by the +civil law of Brazil can only be annulled by a civil court.</p> + +<p><span class="smcap">Divorce.</span>—The law of the Republic does not permit of an absolute divorce +for any cause whatsoever. A true marriage can only be dissolved by the +death of one of the parties.</p> + +<p><span class="smcap">Judicial Separation.</span>—A separation of the person and goods may be had for +the following causes:</p> + +<p>1. Adultery of the wife.</p> + +<p>2. Adultery of the husband, if such adultery creates a public scandal, or +if the husband brings<span class="pagenum"><a name="Page_226" id="Page_226">[Pg 226]</a></span> his concubine into the home he has established for +his wife.</p> + +<p>3. Sentence of one of the spouses to life imprisonment.</p> + +<p>4. Cruel and ill-human treatment.</p> + +<p><span class="smcap">Foreign Marriages.</span>—The courts of Brazil recognize as valid a marriage +between two foreigners concluded in a foreign land, provided that such +marriage is monogamous, is not between ascendants or descendants, or +between persons related collaterally in the second degree, and if such +marriage was regularly concluded according to the law of the country of +its celebration.</p> + +<p>A marriage abroad of a citizen of the Republic of Brazil must conform not +only to the law of the place of its celebration, but must also be in +strict accordance with the law of Brazil.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_227" id="Page_227">[Pg 227]</a></span></p> +<h2><a name="CHAPTER_XXX" id="CHAPTER_XXX"></a>CHAPTER XXX.</h2> +<p class="center"><span class="huge"><span class="smcap">The Republic of Cuba.</span></span></p> + +<p>A nation may in a day overthrow a dynasty which has ruled for centuries, +it may in a few years completely revolutionize its system of government +and methods of trading, but its ancient code of marriage will live on +unchanged for ages.</p> + +<p>It is a noteworthy fact that the law of Rome concerning marriage survived +the Roman Empire by a thousand years, and even to-day it is the foundation +of the law on that subject in all of the Continental countries of Europe +and of the entire Western Hemisphere, with the exception of the United +States of America and Canada.</p> + +<p>In the Civil Code of Cuba we can see not only its recent origin from the +Spanish Code, but traces of the Law of the Twelve Tables and the +Institutes of Justinian.</p> + +<p>Cuba is to-day a Republic composed of six Provinces. The seat of +government is located at Havana, where sit the Senate and House of +Representatives, which constitute the national legislature.</p> + +<p>The Civil Code is the <i>Codigo Civil</i> of Spain, with such changes and +modifications as have become effective since Spain lost its sovereignty +over Cuba.</p> + +<p>The statement of Cuban law which follows is, therefore, predicated upon +the <i>Codigo Civil</i>, which by royal decree of May 11, 1888, was extended to +the islands of Cuba, Porto Rico and the Philippines, upon proclamations +and orders issued during the recent American military occupation and on +the interpretation and construction of the positive law by Cuban courts +and jurists.</p> + +<p><span class="pagenum"><a name="Page_228" id="Page_228">[Pg 228]</a></span><span class="smcap">Marriage.</span>—The law +considers marriage as a civil contract, which may be concluded by either a civil (<i>matrimonio civil</i>) or a religious +(<i>matrimonio religioso</i>) celebration.</p> + +<p>A male cannot marry until he has completed his fourteenth year of age; a +female until she has completed her twelfth year.</p> + +<p>Marriages contracted by minors under the legal age become, however, <i>ipso +facto</i> legal if a day after having arrived at the legal age the parties +continue to live together without bringing suit to annul the marriage, or +if the female becomes pregnant before the legal age or before the +institution of a suit for annulment.</p> + +<p>Only such persons as are in the full enjoyment of their reason can +contract marriage.</p> + +<p>Marriage is forbidden to all persons who suffer from absolute or relative +physical impotency for the purposes of procreation.</p> + +<p>Persons ordained <i>in sacris</i> and those professed in an approved canonical +order, who are bound by a solemn pledge of chastity, cannot lawfully +conclude marriage until they have obtained the proper canonical +dispensation.</p> + +<p>Those who are already bound in marriage cannot contract a new marriage.</p> + +<p>Persons who are twenty-three years of age or upwards may conclude +marriage, if otherwise of legal capacity, without parental consent or +advice.</p> + +<p>Persons under twenty years of age require the consent of their parents, or +of such persons whose right it is to give or withhold such consent.</p> + +<p>Persons who are more than twenty years of age, but under twenty-three, are +under the obligation of asking the advice or counsel of their parents or +of such persons standing in the parental relation before contracting +marriage, and if the advice is refused, or it should be unfavourable, the<span class="pagenum"><a name="Page_229" id="Page_229">[Pg 229]</a></span> +marriage cannot take place until three months after the petition was made.</p> + +<p>The consent and the favourable advice for the celebration of a marriage +must be proven, if requested, by means of an instrument authenticated by a +civil or ecclesiastical notary or by the municipal judge of the domicile +of the petitioner.</p> + +<p>When the advice has been proven the lapse of time shall be proven in the +same manner.</p> + +<p>If a marriage is concluded by persons more than twenty years of age, and +under twenty-three years of age, without compliance with the rules just +stated, the marriage will be recognized as valid, but the offender is +subject to certain disabilities and penalties.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—The following persons are prohibited from +contracting marriage with each other:</p> + +<p>1. The ascendants and descendants by legitimate or natural consanguinity +or affinity.</p> + +<p>2. Collaterals by legitimate consanguinity up to the fourth degree.</p> + +<p>3. Collaterals by legitimate affinity up to the fourth degree.</p> + +<p>4. Collaterals by natural consanguinity or affinity up to the second +degree.</p> + +<p>The government, for sufficient cause, may on the petition of a party grant +a dispensation permitting a marriage of minors who have not obtained the +proper permission or advice of the persons whose legal right it is to +authorize one or the other.</p> + +<p>For grave reasons the government may also grant a dispensation relieving a +party from the prohibition of marrying within the third and fourth degrees +of collaterals by legitimate consanguinity; the impediments arising from +legitimate or natural<span class="pagenum"><a name="Page_230" id="Page_230">[Pg 230]</a></span> affinity between collaterals and those relating to +the descendants of the adopter.</p> + +<p><span class="smcap">Special Prohibitions.</span>—The following persons cannot contract marriage with +each other:</p> + +<p>1. The adopting father or mother and the adopted; the latter and the +surviving spouse of the former, and the former and the surviving spouse of +the latter.</p> + +<p>2. The legitimate descendants of the adopter with the adopted, while the +adoption lasts.</p> + +<p>3. Adulterers who have been condemned by a final judgment.</p> + +<p>4. Those who have been condemned as authors, or as the author and +accomplice, of the death of the spouse of either of them.</p> + +<p><span class="smcap">Celebration of Marriage.</span>—A civil marriage must be celebrated according to +the requirements of the code, as changed or modified by subsequent orders, +decrees and legislation.</p> + +<p>Any clergyman, priest or minister, irrespective of faith or sect, who +belongs to a religious denomination actually established in the Republic +of Cuba, and who has been duly authorized, may solemnize marriage.</p> + +<p>A register is kept in the office of the Secretary of Justice containing +the names and addresses of all clergymen, priests and ministers who are +qualified to solemnize marriage in the Republic.</p> + +<p>Persons who desire to contract a religious marriage must present to the +clergyman, priest or minister who is qualified to perform the ceremony a +declaration signed by both of the contracting parties, stating:</p> + +<p>1. The names, surnames, profession, domicile or residence of the +contracting parties.</p> + +<p>2. The names, surnames, profession, domicile or residence of the parents.</p> + +<p>3. Certificates of birth and of the status of the<span class="pagenum"><a name="Page_231" id="Page_231">[Pg 231]</a></span> contracting parties, +the consent or advice, if proper, and the dispensation, when it is +necessary.</p> + +<p>Upon the presentation of such a declaration the clergyman, priest or +minister shall announce the future celebration of marriage between the +parties according to the form or method prescribed by the rites and +regulations of his religious denomination.</p> + +<p>If the religions denomination of such clergyman, priest or minister has no +established form for such announcement, then a publication must be made in +the form established by the Civil Code. The method required by the Civil +Code for proclaiming an intended marriage is set forth in Article 89, +which directs a publication by posting the written declaration of the +parties for fifteen days and calling upon those who have information of +any obstacle to oppose the marriage.</p> + +<p>A civil marriage can only be solemnized by a municipal judge (<i>Juez +Municipal</i>), to whom must be presented as an indispensable preliminary +such a signed declaration of the parties as is necessary in the case where +the parties desire a religious ceremony.</p> + +<p>A municipal judge chosen to celebrate a civil marriage will also direct as +a preliminary to marriage such a proclamation as is required by Article 89 +aforesaid.</p> + +<p>A priest, minister or clergyman duly authorized to perform marriages may, +for sufficient cause, dispense with the publication as before set forth; +but in every case where a publication is made the marriage cannot be +concluded after fifteen days after the first day of such publication.</p> + +<p>No priest, clergyman or minister is now authorized to grant a dispensation +permitting a marriage for any reason forbidden by the laws of the +Republic.</p> + +<p><span class="pagenum"><a name="Page_232" id="Page_232">[Pg 232]</a></span>An opposition to a marriage made by an interested person must be heard and +determined by the municipal judge of the district before any person +whatsoever is authorized to solemnize the nuptials.</p> + +<p>The celebration itself must be witnessed by two adults, who may be +relatives of the parties. Article 87 of the code, permitting one or both +of the parties to a marriage to appear at the celebration, either +personally or by proxies to whom a special power is given, is still in +effect.</p> + +<p>The municipal judge, priest, minister or clergyman who solemnizes a +marriage must immediately furnish to the parties a certificate of marriage +and cause a full and particular record of said marriage to be filed in the +Civil Registry of the District (<i>Registro Civil del Distrito</i>), in default +of which such judge, priest, minister or clergyman will be subject to a +fine of one hundred <i>pesos</i>, or imprisoned for not less than 30 days, or +not more than 90 days, by the Correctional Judge (<i>Juez Correccional</i>) of +his domicile.</p> + +<p><span class="smcap">Annulment of Marriages.</span>—The civil courts have exclusive jurisdiction to +decree an annulment of marriage.</p> + +<p>The following marriages are void:</p> + +<p>1. Those celebrated between persons related within the prohibited degrees, +except in cases of dispensation.</p> + +<p>2. Those contracted by error as to the person or by compulsion or +intimidation.</p> + +<p>3. Those contracted by the abductor with the abducted while she is in his +power.</p> + +<p>4. Those which are not solemnized by an authorized official.</p> + +<p>A marriage contracted in good faith produces civil effects, although it +may be declared void.</p> + +<p>If good faith existed on the part of only one<span class="pagenum"><a name="Page_233" id="Page_233">[Pg 233]</a></span> of the spouses it shall +produce civil effects only with regard to said spouse and to the children.</p> + +<p>Good faith is presumed if the contrary does not appear.</p> + +<p>When bad faith existed on the part of both spouses the marriage shall only +produce civil effects with relation to the children.</p> + +<p>After the annulment of a marriage the sons over three years of age shall +remain in the care of the father and the daughters in the care of the +mother, provided there was good faith on the part of both spouses.</p> + +<p>If either or both were guilty of bad faith the tribunal has power to make +such disposition of the children as justice may require.</p> + +<p><span class="smcap">Rights and Obligations.</span>—The spouses are obliged to live together, to be +faithful to, and mutually assist, each other.</p> + +<p>The husband must protect his wife, and the latter must obey her husband.</p> + +<p>The wife is obliged to follow her husband wherever he may establish his +residence. The tribunals may, for just cause, exempt her from this +obligation when the husband removes his residence beyond the seas or to a +foreign country.</p> + +<p>The husband is the administrator of the property of the conjugal +partnership, except when the contrary is stipulated.</p> + +<p>The wife, however, retains ownership of the paraphernal property, which +consists of such property as the wife brings to the marriage, not included +in the dowry.</p> + +<p>The husband is the representative of his wife. The latter cannot, without +his permission, appear in a suit in person nor through an attorney.</p> + +<p>Nevertheless, she does not require such permission to defend herself in a +criminal suit or to<span class="pagenum"><a name="Page_234" id="Page_234">[Pg 234]</a></span> proceed against or to defend herself in suits with +her husband.</p> + +<p>Neither may the wife, without the permission of her husband, acquire +property for a good or valuable consideration, alienate her property, or +bind herself, except in certain exceptional cases, and within the +limitations established by law.</p> + +<p>A wife may without her husband’s permission:</p> + +<p>1. Execute a will.</p> + +<p>2. Exercise the rights and perform the duties which appertain to her with +regard to the legitimate and acknowledged natural children she may have +had by another, and with relation to the property of the same.</p> + +<p>Only the husband and his heirs can enforce the nullity of the acts +executed by his wife without proper authorization.</p> + +<p><span class="smcap">Divorce.</span>—Divorce only produces the suspension of the life in common of +the spouses; it does not dissolve the marriage.</p> + +<p>The legal causes for divorce are:</p> + +<p>1. Adultery on the part of the wife in every case, and on the part of the +husband when public scandal or disgrace of the wife results therefrom.</p> + +<p>2. Personal violence actually inflicted or grave insults.</p> + +<p>3. Violence exercised by the husband toward the wife in order to force her +to change her religion.</p> + +<p>4. The proposal of the husband to prostitute his wife.</p> + +<p>5. The attempts of the husband or wife to corrupt their sons, or to +prostitute their daughters, and connivance in their corruption or +prostitution.</p> + +<p>6. The condemnation of a spouse to penal servitude.</p> + +<p><span class="smcap">Effects of Divorce</span>:</p> + +<p>1. The separation of the spouses in every case.</p> + +<p><span class="pagenum"><a name="Page_235" id="Page_235">[Pg 235]</a></span>2. The protection of the wife.</p> + +<p>3. The placing of the children under the care of one or both of the +spouses, as may be proper.</p> + +<p>4. The provision for the support of the wife and of the children who do +not remain under the authority of the father.</p> + +<p>5. The adoption of the necessary measures to prevent the husband, who may +have given cause for the divorce, from injuring the wife in the +administration of her property.</p> + +<p><span class="smcap">Foreign Marriages.</span>—A marriage contracted in a foreign country, according +to the laws of such country, is generally treated as valid in Cuba. Such a +marriage, however, must be monogamous and otherwise in conformity with the +general laws and usages of Christendom.</p> + +<p>If the parties are Cubans, and are married abroad while retaining their +domiciles in Cuba, the foreign marriage must also conform to the +requirements of Cuban law with regards to the capacity of the parties and +the necessary parental consent or advice.</p> + +<p><span class="smcap">Proof of Marriage.</span>—The ordinary manner to prove a marriage concluded in +Cuba is to produce a certificate of the record of the civil registry, and +this is the proof required unless the books of the civil registry never +existed, or have disappeared, or a question is pending before the +tribunals, in which case all kinds of direct evidence are admissible.</p> + +<p>The uninterrupted status of the parents, together with the certificates of +the birth of their children as legitimate, is one competent method of +proving the marriage of said parents, unless it is shown that one of the +two was bound by a prior marriage.</p> + +<p>A marriage contracted in a foreign country may be established by showing +an authenticated<span class="pagenum"><a name="Page_236" id="Page_236">[Pg 236]</a></span> copy of its registration. If such foreign country does +not require a regular or authenticated registration the marriage must be +proved by competent evidence of the regulations of marriage in the foreign +country in question, together with proof that all such regulations were +complied with.</p> + +<p>Should a marriage be contracted in a foreign country between a Cuban and a +foreign woman, or between a foreigner and a Cuban woman, and the +contracting parties do not make special stipulations with regard to their +property, it is understood, when the husband is a Cuban, that he marries +under the system of the legal conjugal partnership; and when the wife is a +Cuban that she marries under the system of laws in force in the husband’s +country.</p> + +<p><span class="smcap">Engagements To Marry.</span>—Future espousals do not give rise to an obligation +to contract marriage. No court will admit a complaint in which their +performance is demanded.</p> + +<p>However, if the promise has been made in a public or private instrument by +a person of age, or by a minor in the presence of the person whose consent +is necessary for the celebration of the marriage, or when banns have been +published, the person who refuses to marry, without just cause, can be +obliged to indemnify the other party for the expenses which he or she may +have incurred by reason of the promised marriage.</p> + +<p>An action to recover indemnity for such expenses must be instituted within +a year, counted from the day of the refusal to celebrate the marriage.</p> + +<p><span class="smcap">Spanish Precedents.</span>—It should be remembered that in throwing off the yoke +of Spanish rule the people of Cuba did not change their blood, language or +traditions. Just as the law of the United States of America is founded +upon the law of England<span class="pagenum"><a name="Page_237" id="Page_237">[Pg 237]</a></span> as it existed at the time of the adoption of the +American Constitution, so the jurisprudence of the Republic of Cuba has as +its foundation the law of Spain as it existed at the time the Republic was +established.</p> + +<p>In both instances there have been changes and modifications by legislative +acts and judicial interpretations, but a Spanish judicial decision has +even more weight in a Cuban tribunal than an English decision has in an +American court because Cuba, being a younger Republic than the United +States, is much nearer to its motherland in point of time, besides its +closer resemblance in race, religion and customs.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_238" id="Page_238">[Pg 238]</a></span></p> +<h2><a name="CHAPTER_XXXI" id="CHAPTER_XXXI"></a>CHAPTER XXXI.</h2> +<p class="center"><span class="huge"><span class="smcap">Commonwealth of Australia.</span></span></p> + +<p>The Commonwealth of Australia, created by an act of the Imperial +Parliament in 1900 (63 and 64 Vic. cap. 12), is a federal State under the +supreme authority of the Crown of Great Britain.</p> + +<p>This act of Parliament not only created a federal Commonwealth out of the +colonies of Queensland, New South Wales, Victoria, South Australia, West +Australia and Tasmania, but it also granted to the new Commonwealth a +written constitution which is obviously modeled upon that of the United +States of America.</p> + +<p>The constitution provides that “every law in force in a colony which has +become or becomes a State shall, unless it is by this constitution +exclusively vested in the Parliament of the Commonwealth or withdrawn from +the Parliament of the State, continue as at the establishment of the +Commonwealth or as at the admission or establishment of the State, as the +case may be.”</p> + +<p>It is also provided that “when a law of a State is inconsistent with a law +of the Commonwealth the latter shall prevail and the former shall, to the +extent of the inconsistency, be invalid.”</p> + +<p>All powers not delegated to the central or federal government are reserved +to the States.</p> + +<p>However, in spite of its resemblance to other federal systems, the +principle of the responsibility of ministers to Parliament proclaims its +English parentage.</p> + +<p>The judicial power is exercised under the constitution by a federal +supreme court, called the<span class="pagenum"><a name="Page_239" id="Page_239">[Pg 239]</a></span> High Court of Justice, and other courts of +federal jurisdiction.</p> + +<p>It is expressly provided in the Australian constitution that the +Parliament of the Commonwealth shall, subject to the constitution, have +power to make laws for the peace, order and good government of the +Commonwealth with respect to “divorce and matrimonial causes, and in +relation thereto, parental rights, and the custody and guardianship of +infants.”</p> + +<p>It will be observed that Parliament is given no power under the +constitution to make laws prescribing the qualifications for marriage, the +impediments thereto, and regulations concerning the celebration. All such +power is reserved by the respective States.</p> + +<p>Moreover, the grant of power to Parliament to make laws with regard to +“divorce and matrimonial causes” is not a power “by this constitution +exclusively vested in the Parliament of the Commonwealth or withdrawn from +the Parliament of the State.”</p> + +<p>Until the Parliament of the Commonwealth shall legislate on the subject, +by passing enactments concerning divorce and matrimonial causes +superseding the existing statutes of the several States, the laws of each +State will continue in operation.</p> + +<p>In this chapter we shall consider, first, such laws and regulations +concerning marriage and divorce as are in effect throughout the entire +Commonwealth, and then, under separate headings, discuss the laws and +regulations of each State.</p> + +<p><span class="smcap">Marriage.</span>—The courts of Australia, following the English courts, only +recognize as a true marriage one which, in addition to being valid in +other respects, involves the essential requirement that<span class="pagenum"><a name="Page_240" id="Page_240">[Pg 240]</a></span> it is a voluntary +union of one man and one woman for life to the exclusion of all others.</p> + +<p>The law of the place where marriage is celebrated—that is, the <i>lex loci +celebrationis</i>—alone guides the court in ascertaining whether or not a +marriage is regular. All the formal preliminaries, such as the publication +of banns, or license, the consent of the parties entitled to give or +withhold consent and the solemn declaration of the contracting parties +before competent authority, according to the law of the place of +celebration, must be complied with.</p> + +<p><span class="smcap">Legal Age.</span>—The legal age for marriage throughout the Commonwealth of +Australia begins with fourteen years for a male and twelve years for a +female.</p> + +<p><span class="smcap">Parental Consent.</span>—In all of the States parental consent is required for +the marriage of males and females under twenty-one years of age.</p> + +<p><span class="smcap">Banns or License.</span>—Unless a marriage license is procured banns must be +published in the parish in which the parties reside, and if they live in +different parishes the banns must be published in each parish.</p> + +<p>Where a man has caused the banns to be published or has procured a license +under a false name or names, or has been married under a false name or +names, he will not be allowed to annul the marriage on that account. A +party cannot take advantage of his own fraud for the purpose of +invalidating a marriage.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—The law considers it against public policy +and morality, and contrary to the well-being of the parties, that persons +closely related by blood or marriage should intermarry. Marriages are +therefore prohibited between all ascendants and descendants, legitimate or +illegitimate.</p> + +<p><span class="pagenum"><a name="Page_241" id="Page_241">[Pg 241]</a></span>A man is also prohibited from marrying his stepmother, wife’s mother, +stepdaughter, daughter-in-law, son’s daughter-in-law, daughter’s +daughter-in-law, stepson’s daughter, stepdaughter’s daughter, niece by +blood, niece by affinity, or nephew’s wife.</p> + +<p>A woman is prohibited from marrying her uncle by blood or affinity, +husband’s uncle, father-in-law, stepson, son-in-law, son’s son-in-law, +daughter’s son-in-law, stepson’s son, stepdaughter’s son, nephew by blood +or affinity, or niece’s husband.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A marriage may be annulled in any of the States of +the Commonwealth upon competent proof showing:</p> + +<p>1. A prior and existing marriage of one of the parties.</p> + +<p>2. Impotency or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse.</p> + +<p>3. Relationship within the prohibited degrees.</p> + +<p>4. That the marriage was procured by fraud, violence or mistake as to +identity.</p> + +<p>5. That one of the parties was insane at the time the marriage was +concluded.</p> + +<p>6. That the marriage was celebrated without the consent of the persons by +law entitled to give or withhold consent.</p> + +<p>7. That the marriage was performed without legal license, or the +publication of banns, or solemnized before a person not having authority +to officiate.</p> + +<p>A marriage will not be annulled on the last ground stated if it appears +that one of the parties acted in good faith and honestly believed that the +person who solemnized the marriage had the required authority.</p> + +<p><span class="smcap">Judicial Separation.</span>—A decree of judicial separation, which is equivalent +to the old form of<span class="pagenum"><a name="Page_242" id="Page_242">[Pg 242]</a></span> limited divorce (<i>a mensa et thoro</i>) may be obtained +in any of the States for the following causes:</p> + +<p>1. Adultery of either husband or wife.</p> + +<p>2. Desertion without legal cause for two years or more.</p> + +<p>3. Cruelty or abusive treatment of one spouse by the other.</p> + +<p>It is an absolute bar to a suit for judicial separation that the +petitioner has committed adultery since the marriage.</p> + +<p><span class="smcap">Divorce.</span>—Absolute divorces completely dissolving the marriage bond are +granted by the courts of every State in Australia. As every State has its +separate statutes on the subject, which set forth the legal causes for +divorce, we shall consider such causes in our discussion of each State +separately.</p> + +<p><span class="smcap">Defences.</span>—In all the States condonation of a matrimonial offence, which +is a legal cause for divorce, is a good defence to the petition.</p> + +<p>It is also a sufficient defence for the respondent to show that the +offence complained of was committed by the connivance or active consent of +the petitioner.</p> + +<p>Connivance in adultery as a bar to divorce is founded on the doctrine +<i>volenti non fit injuria</i>, the consent consisting in acquiescence, active +or passive, in the adulterous intercourse. Passive acquiescence is a +sufficient bar, provided it was carried out with the intention that the +husband or wife would be guilty; but it must be something more than mere +inattention, indifference or dulness of apprehension. The presumption, +where the facts are equivocal, is in favour of absence of intention.</p> + +<p>One spouse must not invite the other to commit adultery; but he or she may +permit the licentiousness of the other spouse to have its full scope +without being guilty of connivance.</p> + +<p><span class="pagenum"><a name="Page_243" id="Page_243">[Pg 243]</a></span>It is not connivance to watch for the purpose of discovering a suspected +fact so as to make conviction certain.</p> + +<p><span class="smcap">Collusion.</span>—An illegal agreement and co-operation between a petitioner and +a respondent in a divorce action to enable the petitioner to obtain a +judicial dissolution is a fraud upon the court. Upon such collusion +appearing the court, at its own instance, will dismiss the petition.</p> + +<p><span class="smcap">Desertion.</span>—The High Court of Justice of the Commonwealth has defined +desertion, which in several of the States is a legal cause for absolute +divorce, as follows: “Desertion involves an actual and wilful bringing to +an end of an existing state of cohabitation by one party without the +consent of the other. Such ‘consent’ must be shown by something more than +a mere mute acquiescence in an existing state of separation or +non-resistance to abandonment. What is necessary is some communication of +the intended acquiescence or non-resistance to the other by express words +or by conduct.”</p> + +<p><span class="smcap">Form of Divorce Decree.</span>—A decree of divorce in any of the States is +granted <i>nisi</i>, or provisionally, and cannot be made absolute until three +months have elapsed after the decree <i>nisi</i> is entered.</p> + +<p>A judicial separation may be granted, even if the suit is for an absolute +divorce, if the court deems such a decree better meets the law and facts +of the case.</p> + +<p><span class="smcap">Victoria.</span>—The Marriage Act of 1890 (54 Victoria, No. 1166), entitled “An +act to consolidate the laws relating to marriage and to the custody of +children and to deserted wives and children and to divorce and matrimonial +causes,” is practically a short code on the subject of marriage and +divorce.</p> + +<p><span class="pagenum"><a name="Page_244" id="Page_244">[Pg 244]</a></span><span class="smcap">Celebration of +Marriage.</span>—The following persons, and none other, may celebrate marriages:</p> + +<p>1. A minister of religion ordinarily officiating as such, whose name, +designation and usual place of residence, together with the church, chapel +or other place of worship in which he officiates, is at the time of the +celebration of the marriage duly registered according to law in the office +of the Registrar-General.</p> + +<p>2. A minister of religion being the recognized head of a religious +denomination.</p> + +<p>3. A minister of religion holding a registered certificate that he is a +duly authorized minister, priest or deacon from the head of the religious +denomination to which he belongs, or, if there be no such religious head, +from two or more officiating ministers of places of worship duly +registered according to law.</p> + +<p>4. The Registrar-General or other officer appointed for that purpose.</p> + +<p><span class="smcap">Jews and Quakers.</span>—The law permits Jews and Quakers to be married by such +persons and in such manner as is considered regular and lawful according +to their respective beliefs and usages.</p> + +<p><span class="smcap">Formalities.</span>—A marriage must be preceded by a license or the publication +of banns.</p> + +<p>A marriage celebration requires the attendance of two witnesses of full +age.</p> + +<p><span class="smcap">Divorce.</span>—A domicile of two years or more is a condition precedent to +bringing a suit for divorce.</p> + +<p>The following are legal grounds for a divorce or dissolution of the +marriage bond:</p> + +<p>1. Adultery on part of the wife.</p> + +<p>2. Adultery on part of the husband if committed in the conjugal residence +or if it is coupled with circumstances or conduct of aggravation or of a +repeated act of adultery.</p> + +<p><span class="pagenum"><a name="Page_245" id="Page_245">[Pg 245]</a></span>3. Desertion without just cause continued for three years or more.</p> + +<p>4. The habitual drunkenness of a husband for three years, if the husband +has habitually left his wife without support, or has habitually been +guilty of cruelty to her.</p> + +<p>5. Habitual drunkenness of a wife for three years, if the wife has +habitually neglected her domestic duties, or rendered herself unfit to +discharge them.</p> + +<p>6. Imprisonment of either spouse for not less than three years, and being +still in prison under a commuted sentence for a capital crime, or under +sentence to penal servitude for seven years or more.</p> + +<p>7. If the husband has within five years undergone frequent convictions for +crime and has been sentenced in the aggregate to imprisonment for three +years or more, leaving his wife habitually without means of support.</p> + +<p>8. That within a year previously the respondent has been convicted of +having attempted to murder the petitioner, or of having assaulted him or +her with intent to inflict grievous bodily harm, or that repeatedly during +that period the respondent has assaulted and cruelly beaten the +petitioner.</p> + +<p><span class="smcap">Form of Decree.</span>—Divorce decrees are entered, in the first instance, +<i>nisi</i>, or provisionally, and cannot be made absolute until after the +expiration of three months following the decree <i>nisi</i>.</p> + +<p><span class="smcap">In Forma Pauperis.</span>—Special provision is made enabling poor persons to +prosecute suits for divorce by an interlocutory order in <i>forma pauperis</i>, +which relieves the person in whose favour it is granted from certain +charges and expenses, but does not furnish him or her with the free +services of a solicitor or barrister.</p> + +<p><span class="pagenum"><a name="Page_246" id="Page_246">[Pg 246]</a></span><span class="smcap">Recent Decisions.</span>—An +important divorce decision holds that visits to brothels by a petitioner who seeks a divorce on the ground of his wife’s +adultery constitute misconduct conducing to the adultery of the wife and +bars the petitioner from a decree, without entering into the question of +whether or not adultery was committed by the petitioner in the course of such visits.</p> + +<p>However, the fact that a husband has conduced to an act of adultery by his +wife is not a bar to him obtaining a divorce based on subsequent acts of +adultery.</p> + +<p><span class="smcap">New South Wales.</span>—The requirements as to age, consent of parents, or of +persons standing in <i>loco parentis</i> are the same in this State as +throughout the rest of the Commonwealth and have been set forth in the +first part of this chapter.</p> + +<p>No marriage can be celebrated except by a minister of religion ordinarily +officiating as such, whose name, designation and usual residence have been +and continue registered in the office of the Registrar-General for +Marriages in Sydney or by a district registrar.</p> + +<p>Parental consent is not required of persons who have previously been +lawfully married and whose former marriage has been dissolved by death or +divorce.</p> + +<p>A marriage must be attended by two adult witnesses.</p> + +<p>By the Matrimonial Causes Act of 1899 jurisdiction in respect of divorces +<i>a mensa et thoro</i> (judicial separations), suits for nullity of marriage, +suits for dissolution of marriage (absolute divorce), suits for +restitution of conjugal rights, suits for jactitation of marriage, and all +causes, suits and matters matrimonial are vested in the Supreme Court of +the State.</p> + +<p><span class="pagenum"><a name="Page_247" id="Page_247">[Pg 247]</a></span><span class="smcap">Causes for Absolute +Divorce.</span>—A husband who has been domiciled for three +years or more in the State may petition for a dissolution of the marriage +on the following grounds:</p> + +<p>A. That the wife has committed adultery.</p> + +<p>B. That the wife has, without just cause or excuse, wilfully deserted the +petitioner and without any such cause or excuse left him so deserted for +three years or more.</p> + +<p>C. That the wife has, during three years and upwards, been an habitual +drunkard and habitually neglected her domestic duties or rendered herself +unfit to discharge them.</p> + +<p>D. That within one year the wife has been imprisoned for a period of not +less than three years and is still in prison under a commuted sentence for +a capital crime, or under sentence to penal servitude for seven years or +more.</p> + +<p>E. That within one year the wife has been convicted of having attempted to +murder her husband, or having assaulted him with intent to inflict +grievous bodily harm.</p> + +<p>F. That during one year previously the wife has assaulted and cruelly +beaten her husband.</p> + +<p>A wife may obtain an absolute divorce from her husband by proving:</p> + +<p>A. That her husband has committed incestuous adultery.</p> + +<p>B. That the husband has committed bigamy with adultery.</p> + +<p>C. That the husband has committed rape, sodomy or bestiality.</p> + +<p>D. That the husband has committed adultery coupled with such cruelty as +without adultery would have entitled the wife to a divorce <i>a mensa et +thoro</i> (divorce from bed and board) under the laws of England as existing +before the enactment of the Imperial Act 20 and 21, Vict. c. 85.</p> + +<p><span class="pagenum"><a name="Page_248" id="Page_248">[Pg 248]</a></span>E. Adultery of the husband coupled with desertion without reasonable +excuse for two years or upwards.</p> + +<p><span class="smcap">Judicial Separation.</span>—A judicial separation may be granted on the ground +of adultery, cruelty or desertion without legal cause or excuse continued +for two years and upwards.</p> + +<p><span class="smcap">Queensland.</span>—In this State marriage may be celebrated by any regular +officiating minister of religion, or by any district registrar, or by +specially authorized justices of the peace.</p> + +<p><span class="smcap">Causes for Absolute Divorce.</span>—A husband is entitled to an absolute divorce +if his wife has committed adultery, but a wife is not so entitled unless +her husband has committed incestuous adultery, bigamy, rape, sodomy, +bestiality, adultery coupled with cruelty, or adultery coupled with +desertion without reasonable excuse for two years or more.</p> + +<p>Incestuous adultery is adultery with a woman within the prohibited +degrees.</p> + +<p><span class="smcap">Judicial Separation.</span>—A limited divorce or judicial separation can be +obtained by either spouse on the following grounds:</p> + +<p>1. Adultery.</p> + +<p>2. Cruelty.</p> + +<p>3. Desertion without legal cause for two years.</p> + +<p><span class="smcap">Legitimacy.</span>—Illegitimate children are legitimatized by the subsequent +marriage of their parents.</p> + +<p><span class="smcap">West Australia.</span>—The Marriage Act of 1894 is virtually an acceptance by +this State, so far as practicable, of the English Divorce Act of 1857.</p> + +<p>The causes for absolute divorce or for a judicial separation are the same +as those given above for the State of Queensland.</p> + +<p><span class="smcap">South Australia and Tasmania.</span>—In these two States, by legislative +enactments, the causes for absolute divorce and judicial separation are +the<span class="pagenum"><a name="Page_249" id="Page_249">[Pg 249]</a></span> same as those given on opposite page for Queensland, West Australia +and South Australia.</p> + +<p>The exercise of appellate jurisdiction by the High Court of Justice of the +Commonwealth in matrimonial causes has the beneficial effect of making the +several States more and more uniform in their local legislation and +judicial interpretation.</p> + +<p>The federal Parliament has express authority under the constitution to +enact a federal code of marriage and divorce which will operate throughout +the entire Commonwealth, and such a code in one form or another is +inevitable.</p> + +<p>The Commonwealth of Australia is not yet a dozen years old, but the need +of superseding six separate systems of law respecting marriage and divorce +by a national law on the subject is already apparent and under +constructive discussion.</p> + +<p>Of all the federative dependencies of the British Crown Australia is +perhaps the most homogenous in race, religion and traditions, and it will +probably be the first to adopt a federal law of marriage and divorce.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_250" id="Page_250">[Pg 250]</a></span></p> +<h2><a name="CHAPTER_XXXII" id="CHAPTER_XXXII"></a>CHAPTER XXXII.</h2> +<p class="center"><span class="huge"><span class="smcap">Dominion of New Zealand.</span></span></p> + +<p>The Dominion of New Zealand is a colony of Great Britain consisting of +North, South and Stewart Islands, or New Zealand proper, and certain +outlying islands, including Cook Island, in the Pacific Ocean.</p> + +<p>Its present form of government was established by an act of the Imperial +Parliament (15 and 16 Vict., cap. 27) passed in 1852.</p> + +<p>The legislative power is vested in the governor and a bicamera General +Assembly or Parliament, consisting of a Legislative Council and a House of +Representatives. The constitution provides that the General Assembly or +Parliament may make laws “not repugnant to the laws of England.”</p> + +<p>The General Assembly, by an act passed in 1858, declared that: “Whereas, +the laws of England, as existing on the fourteenth day of June, 1840, have +been applied in New Zealand as far as applicable to the circumstances; +but, Whereas, doubt has arisen in respect to such application—Be it +declared and enacted, that the laws of England, as existing June 14, 1840, +be deemed and taken to have been in force on and after that day and shall +hereafter continue in force.”</p> + +<p>Hence it is apparent that the body of the law of New Zealand is founded +upon the jurisprudence of England.</p> + +<p>The judicial system includes a Supreme Court of the Dominion, District +Courts and courts presided over by stipendiary magistrates.</p> + +<p><span class="smcap">Marriage.</span>—Males under fourteen years of age<span class="pagenum"><a name="Page_251" id="Page_251">[Pg 251]</a></span> +and females under twelve years cannot contract a lawful marriage.</p> + +<p>All persons, male or female, under twenty-one years of age, who have not +previously contracted a lawful marriage, require the consent of their +parents or guardians in order to marry. However, the marriage of males +fourteen years of age or more, or of females twelve years of age or more, +without the consent of parents or guardians, does not make such marriage +<i>ipso facto</i> void.</p> + +<p>Parental consent to a marriage of a minor must be given by the father, if +living and competent to act; if not, then by the following persons in the +order stated: (a) the duly appointed guardian; (b) the mother if she has +not married again; (c) or a guardian specially appointed by a court +exercising chancery powers.</p> + +<p>No person can contract a new marriage who has a spouse by an existing +marriage still living.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Marriage is forbidden between all ascendants +and descendants <i>ad infinitum</i> and between persons related to each other +by blood or marriage within the third degree, according to the method of +computation of the civil law. According to this reckoning a person cannot +marry a relative nearer than his or her own first cousin.</p> + +<p><span class="smcap">Preliminaries.</span>—Notice of a proposed marriage must be given to the +registrar of the district in which one of the parties has resided for +three days at least. If the contracting parties live in different +districts notice must be given to the registrars of both districts. Such +notice must set forth the names, ages, status and occupations of each +party, together with their addresses, a statement of the period each party +has lived in the district, and the name and place of the church, chapel or +other<span class="pagenum"><a name="Page_252" id="Page_252">[Pg 252]</a></span> building selected by the parties for the solemnization of the +marriage. The parties must also make solemn declaration to the registrar +or registrars to the truth of all statements of fact in said notice and +show that there is no legal impediment to the proposed marriage.</p> + +<p>Upon receiving the notice in due form the registrar will issue a +certificate at once addressed to any officiating minister, or to himself, +authorizing the solemnization of the marriage. All marriages must be +registered, and the officiating minister or officer who fails to have the +record made is subject to punishment.</p> + +<p>Ordinarily, the best proof of a marriage is to produce the marriage +certificate, together with proof identifying the parties, but if the +record is lost, destroyed or never existed proof of the marriage may be +given by direct oral evidence.</p> + +<p>In most instances it is necessary to produce clear evidence of a marriage +ceremony, but in some exceptional cases a marriage may be proved by long +reputation. That is, if two persons live together as husband and wife for +many years, and if they have always been regarded as such by their friends +and neighbours, the courts will presume a legal marriage unless evidence +is produced to prove that the parties were not lawfully married.</p> + +<p><span class="smcap">Divorce.</span>—An absolute divorce may be obtained according to the provisions +of the Divorce and Matrimonial Compilation Act of 1904 by a husband or +wife who has been domiciled in the Dominion of New Zealand for two years +or upwards on the following grounds:</p> + +<p>1. Adultery of either spouse.</p> + +<p>2. Wilful and continuous desertion without just cause for five years and +upwards.</p> + +<p><span class="pagenum"><a name="Page_253" id="Page_253">[Pg 253]</a></span>3. Habitual drunkenness for four years with habitual cruelty or desertion +on the part of the husband.</p> + +<p>4. Habitual drunkenness for four years with habitual neglect of her +household duties on the part of the wife.</p> + +<p>5. Conviction and sentence to imprisonment or to penal servitude for seven +years or upward for attempting to take the life of the petitioner.</p> + +<p><span class="smcap">Annulment of Marriage.</span>—A marriage is annulled on the theory that true and +proper consent to the marriage contract has never been given by the +parties. The causes or grounds for such annulment are:</p> + +<p>1. A prior and existing marriage of one of the parties.</p> + +<p>2. Impotency or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse.</p> + +<p>3. Relationship of the parties within the forbidden degrees of +consanguinity or affinity.</p> + +<p>4. That the marriage was procured by fraud or violence of one of the +parties.</p> + +<p>5. Mistake as to identity.</p> + +<p>6. That the marriage was performed without the required legal +preliminaries.</p> + +<p>7. Insanity of one of the parties at the time the marriage was solemnized.</p> + +<p>Concerning the sixth cause the tendency of judicial interpretation and +construction is to treat the legal requirements concerning formalities to +be merely directory and to consider the marriage itself, if at least one +of the parties acted in good faith, to be valid.</p> + +<p>The courts of New Zealand view many of the statutory requirements +concerning marriage to be necessary and proper regulations, and which, if +disregarded, subject certain persons to fixed <span class="pagenum"><a name="Page_254" id="Page_254">[Pg 254]</a></span>penalties, but are not +necessarily essential to the marriage contract.</p> + +<p><span class="smcap">Effects of Divorce and Annulment.</span>—The parties may remarry. During the +pendency of the suit for divorce the husband is liable to provide his wife +with maintenance or alimony. The amount granted is within the court’s +discretion, but generally it is about twenty-five per centum of the +husband’s income.</p> + +<p>Upon the granting of a divorce decree in the wife’s favour the court has +power to grant the wife permanent alimony, the amount of which depends on +all such facts as the husband’s fortune and income, the wife’s income and +needs and the social status of the parties.</p> + +<p>If there are children under full age, the issue of the marriage, the court +will in the exercise of its discretion make such order concerning their +custody, support and education as the ends of justice may require.</p> + +<p><span class="smcap">Judicial Separation.</span>—Under the Divorce and Matrimonial Compilation Act a +decree of judicial separation, which is the same in effect as a divorce +from bed and board under the old law, may be obtained by either spouse +upon the following grounds:</p> + +<p>1. Adultery.</p> + +<p>2. Cruelty.</p> + +<p>3. Desertion without just cause continued for two years.</p> + +<p><span class="smcap">Summary Jurisdiction Act.</span>—Besides the ordinary suit for a judicial +separation a wife may obtain speedy and inexpensive relief by making an +application to a stipendiary magistrate for an order of separation and +maintenance.</p> + +<p>The causes sufficient for the granting of such relief are:</p> + +<p><span class="pagenum"><a name="Page_255" id="Page_255">[Pg 255]</a></span>A. Habitual drunkenness of the husband, coupled with habitual cruelty to, +or neglect of, the wife and family.</p> + +<p>B. Desertion by the husband of his wife.</p> + +<p>C. Habitual cruelty of the husband toward his wife.</p> + +<p>D. Neglect of the husband to provide reasonable maintenance for his wife +and minor children.</p> + +<p>A husband is entitled to summary relief permitting him a separation order +upon proof that his wife is an habitual drunkard who habitually neglects +her household duties.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_256" id="Page_256">[Pg 256]</a></span></p> +<h2><a name="CHAPTER_XXXIII" id="CHAPTER_XXXIII"></a>CHAPTER XXXIII.</h2> +<p class="center"><span class="huge"><span class="smcap">The Hindu Law.</span></span></p> + +<p>For every person in the world whose rule of civil conduct is based upon +the English system of jurisprudence there are two others to whom Hindu law +is both binding by political authority and the rule of conscience.</p> + +<p>The student of law and world politics will note with interest two +impressive facts concerning Hindu jurisprudence in India. The first is +that until the accession of British rule in that country the Hindu law was +not law in the sense in which the term is understood by lawyers. The +second fact is that the acknowledged jurisconsults and commentators upon +the Hindu law of to-day are not Hindus, but British and Anglo-Indian +jurists.</p> + +<p>Prof. Golapchandra Sarkar, in his admirable treatise, says: “The +administration of the Hindu law by the English judges shows forth in clear +light the administrative capacity, the indomitable energy, the scrupulous +care and the strong common sense of the English nation.”</p> + +<p>In treating of the marriage and divorce laws of over two hundred and +twenty-five millions of human beings who are Hindus by race and religion, +the first question to be answered is: What is Hindu law? Hindu law is the +whole body of rules regulating the life of a Hindu in relation to his +civil conduct and the performance of his religious duties grouped together +under the general name of <i>Dharma Sastra</i>, or religious ordinances.</p> + +<p>The ultimate source of this wonderful system is the Veda, but the Hindu +also accepts an immemorial custom as transcendant law, contending<span class="pagenum"><a name="Page_257" id="Page_257">[Pg 257]</a></span> that +such acceptance is approved in the sacred scripture and in the codes of +divine legislators.</p> + +<p>In the Mahabharat we read: “Reasoning is not reliable; the Vedas differ +from one another; and there is no sage whose doctrine can be safely +accepted; the true rule of law is not easy to be known; the ways of +venerable persons are, therefore, the best to follow.”</p> + +<p>The Hindus have for centuries been governed by their own laws, which they +regard not as the edicts of a political sovereign, nor as the enactments +of a human legislature, but as the immutable commands of the Supreme Being +of the universe. With such reverence have these laws been regarded that no +Hindu king of whom we have any historical record ever dared to repeal, +alter or modify one of them. For the past century such progress as Hindu +law has made is due entirely to the action of the British courts in India.</p> + +<p>As we called attention to in the chapter on Mohammedan law, there are four +distinct systems of jurisprudence in India, all in full operation and +effect. Two of these systems, the English law created by the British +Parliament and Anglo-Indian law created by the legislative councils, are +territorial in jurisdiction, while the others, namely, the Hindu law and +the Mohammedan law, are purely personal. That is to say, the Hindu and +Mohammedan systems of law apply respectively to Hindus and Mohammedans, +and to no one else.</p> + +<p>At the beginning of British rule in India the government of the East India +Company gave the native inhabitants of the country the privilege of being +governed by their own laws in matters relating to marriage, inheritance +and religious usages.</p> + +<p>In the regulations promulgated by Warren Hastings in 1772, and since in +the various civil<span class="pagenum"><a name="Page_258" id="Page_258">[Pg 258]</a></span> acts and charters establishing the law courts, the rule +is expressed that in cases relating to marriage, inheritance, succession +and religious usages the Hindu law shall apply to the Hindus.</p> + +<p>The Privy Council decided in the leading case of Abraham v. Abraham that +under the regulations and acts a Hindu is a man by both birth and religion +a Hindu.</p> + +<p>In the case of Raj Bahadur v. Bishen Dayal, Mr. Justice Straight said: “If +we are correct in our view that the status of a Hindu or Mohammedan under +the first paragraph of Section 24, Act VI., of 1871, to have the Hindu law +made the ‘rule of decision,’ depends upon his being an orthodox believer +in the Hindu or Mohammedan religion, the mere circumstance that he may +call himself or be termed by others a Hindu or Mohammedan, as the case may +be, is not enough.”</p> + +<p><span class="smcap">Caste.</span>—The idea of caste or class distinction so completely permeates +every religious and secular institution of India that one cannot +understand Hindu law without having in mind the principal features of this +social system.</p> + +<p>The Vedas, upon which the whole structure of Hindu religion and ethics +professes to be based, give no countenance to the present regulations of +caste.</p> + +<p>The Sanscrit word for caste is <i>verna</i>, meaning colour, and this leads us +to the true origin of caste distinctions. The <i>verna</i>, or colour, of the +light-complexioned Aryan invaders who entered India from the Northwest and +the <i>verna</i> of the dark-skinned aborigines whom they subjugated +established the first distinctions of caste.</p> + +<p>There are four principal castes to-day among the Hindus, namely:</p> + +<p>1. <i>Brahmin</i>, or priest caste.</p> + +<p>2. <i>Kshatriya</i>, or warrior caste.</p> + +<p><span class="pagenum"><a name="Page_259" id="Page_259">[Pg 259]</a></span>3. <i>Vaisya</i>, or merchant caste.</p> + +<p>4. <i>Sudra</i>, or servant caste.</p> + +<p>A fifth class, called <i>Pariahs</i>, are of no caste, and are practically +outside the law.</p> + +<p>The first three upper classes or castes are also called “twice-born” men, +because they are supposed to be regenerated or “born in the Veda.”</p> + +<p>So, generally, are the distinctions of caste recognized that Pope Gregory +XV. found it advisable to publish a bull sanctioning caste regulations in +the Christian churches of India.</p> + +<p>The Hindus attach great importance to the marriage. It is regarded by them +as one of the ten <i>sankars</i>, or sacraments, necessary for the regeneration +of men of the twice-born classes, and the only sacrament for women and +<i>Sudras</i>.</p> + +<p>The Veda says: “A Brahmin immediately upon being born is produced a debtor +in three obligations: to the holy saints for the practice of religious +duties; to the gods for the performance of sacrifice; to his forefathers +for offspring.”</p> + +<p>Manu ordains that “after a man has read the Vedas in the form prescribed +by law, has legally begotten a son and has performed sacrifices to the +best of his power, he has paid his three debts and may then apply his +heart to eternal bliss.”</p> + +<p>The Hindus hold the marriage relation in such respect that the question of +the validity of a marriage is rarely submitted to the courts for judicial +determination.</p> + +<p>The law of the Catholic Church treats marriage as a sacramental contract +dissoluble only by death, but the Hindu law goes further by declaring +against the remarriage of widows.</p> + +<p>This rule of Hindu has been legislated upon by Act XV. of 1856, which +makes a Hindu widow eligible for a new marriage, but the marriage of<span class="pagenum"><a name="Page_260" id="Page_260">[Pg 260]</a></span> a +widow has never been the practice among Hindus.</p> + +<p>Mann says: “A widow who from a wish to bear children slights her deceased +husband by marrying again brings a disgrace on herself here below and +shall be excluded from the seat of her lord.”</p> + +<p>Polygamy, or plurality of wives, is permitted by the Hindu law, but is +rarely practiced.</p> + +<p>Polyandry, or plurality of husbands, is contrary both to the Hindu law and +the provisions of the Indian Penal Code.</p> + +<p>The three higher castes are permitted to intermarry with the caste next +below their own, the issue taking the lower caste or sometimes forming a +new caste.</p> + +<p>In many ways the theoretical inferiority of the <i>Sudra</i> absolves him from +the restraints which the letter of the law lays on the three higher +castes.</p> + +<p><span class="smcap">Age for Marriage.</span>—In the Hindu law want of age, though a disqualification +for other purposes, does not render a person incompetent to marry.</p> + +<p>Ordinarily the lowest age is eight years for females, but a girl may be +married before that age if a suitable husband is procured for her. If none +of the persons who ought to give a girl in marriage do so before she +completes her eleventh year she may choose a husband for herself.</p> + +<p>A girl must be given in marriage before she attains puberty. The reason +for marrying off a girl before she reaches the age of puberty is that the +marriage should be free from sexual desire.</p> + +<p><span class="smcap">Parental Consent.</span>—The Hindu law vests the girl absolutely in her parents +and guardians, by whom the contract of her marriage is made, and her +consent or absence of consent is not material. The consent of the parents +is required for the<span class="pagenum"><a name="Page_261" id="Page_261">[Pg 261]</a></span> marriage of minors—that is, persons under fifteen +years of age. The parties authorized to give or withhold such consent are +the father, the paternal grandfather, the brother, a <i>sakulya</i> or kinsman +in succession.</p> + +<p>The want of parental consent, or the consent of the person standing in +<i>loco parentis</i>, does not invalidate a marriage otherwise legally +contracted.</p> + +<p><span class="smcap">Impediments.</span>—Disqualifications or impediments are absolute or relative. A +disqualification which renders a party incompetent to marry any person is +absolute, while one which simply renders a party incompetent to a +particular person is termed relative.</p> + +<p>A woman with a husband living is absolutely disqualified from contracting +a new marriage.</p> + +<p>Idiots and lunatics are disqualified for civil purposes only, although the +Hindu law permits a wife to desert or disobey an insane husband.</p> + +<p>Deaf and dumb persons, or those afflicted with incurable or loathsome +diseases, are competent to marry, but cannot insist upon conjugal rights. +Among the three highest castes (the twice-born) impotency is not an +impediment to marriage, but for those of the lowest caste (<i>Sudras</i>) it is +a disqualification.</p> + +<p>A twice-born husband who was impotent was for centuries permitted to +appoint a kinsman to beget issue by his wife, but this is now forbidden.</p> + +<p>The female must be younger than her husband and of the same caste.</p> + +<p>A girl whose elder sister is unmarried, or a man whose elder brother is +unmarried, is not eligible for marriage.</p> + +<p><span class="smcap">Marriage Ceremonies.</span>—Ceremonies of some sort, religious or secular, are +requisite to the concluding of a valid marriage. The ceremony<span class="pagenum"><a name="Page_262" id="Page_262">[Pg 262]</a></span> may be that +of “walking seven steps” or merely the exchange of a garland of flowers. +The question as to whether or not a marriage is ceremonially complete +depends largely upon what ceremonies are customary among the parties +concerned.</p> + +<p>Consummation is not necessary to complete a marriage. In thousands of +cases girls under ten years of age have been married to males older than +themselves who have died before their wives were old enough for the +consummation of marriage. Such a situation has brought about the sad +plight of the tens of thousands of child widows in India. If a girl of +eight years of age is ceremoniously married to a man and immediately +thereafter returns to her father’s home to await the time when she shall +be old enough to assume conjugal duties, she is from the moment the +ceremony of marriage is completed a married woman, and if her husband dies +the next day she is an eight-year-old widow whom no orthodox Hindu will +marry.</p> + +<p>When the British first came to India it was a general practice for widows +to voluntarily submit to be burned alive with the corpses of their +deceased husbands. This savage practice was called a <i>suttee</i>, and by it +millions of child and adult widows were burned to death. By a provision of +the Indian Penal Code such a death is treated as a suicide, and all who +participate in the offence are holden for homicide. We are glad to record +that the British Government has so thoroughly enforced the law in this +respect that <i>suttees</i> have been entirely abandoned by the Hindus.</p> + +<p><span class="smcap">Consanguinity and Affinity.</span>—Baudhayana says: “He who inadvertently +marries a girl sprung<span class="pagenum"><a name="Page_263" id="Page_263">[Pg 263]</a></span> from the same original stock with himself must +support her as a mother.”</p> + +<p>Marriage between ascendants and descendants is unlawful.</p> + +<p>Marriage is also prohibited between a twice-born man and a woman who is of +the same <i>gotra</i>, or primitive stock.</p> + +<p>The woman must not be the daughter of one who is of the same <i>gotra</i> with +the bridegroom’s father or maternal grandfather. Neither must she be a +<i>sapinda</i> of the bridegroom’s father or maternal grandfather. <i>Sapinda</i> in +the Hindu law means descended from ancestors within the sixth degree. That +is, from persons in the ascending line within the seventh degree from the +intending husband. The <i>sapinda</i> relationship ceases after the fifth and +seventh degrees from the father and mother respectively.</p> + +<p>A <i>Sudra</i> has no <i>gotra</i> of his own.</p> + +<p><span class="smcap">Divorce.</span>—Divorce in the ordinary sense is unknown to the Hindu law. The +Hindus contend that even death does not dissolve the bond of marriage.</p> + +<p>The single case in which a dissolution of a Hindu marriage can be granted +by a court of law is under Act XXI. of 1860, which was enacted to meet the +complications which arise when one of the spouses becomes a Christian. If +the convert, after deliberation for a prescribed time, refuses to cohabit +further with the other spouse, the court may upon petition declare the +marriage to be dissolved, and either party is free to marry again.</p> + +<p>There are some low castes in the Bombay Presidency, in Assam and +elsewhere, among whom the practice of irregular divorce and remarriage of +the parties prevails. The causes for divorce are mutual consent of the +parties and ill-treatment.<span class="pagenum"><a name="Page_264" id="Page_264">[Pg 264]</a></span> These divorces, although permitted by custom, +are not recognized by the courts.</p> + +<p><span class="smcap">Restitution of Conjugal Rights.</span>—A Hindu husband or wife can maintain a +lawsuit to obtain a judicial separation against a deserting spouse for +restitution of conjugal rights, but a Hindu convert to Christianity cannot +obtain such a decree if his wife remains a Hindu.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_265" id="Page_265">[Pg 265]</a></span></p> +<h2><a name="CHAPTER_XXXIV" id="CHAPTER_XXXIV"></a>CHAPTER XXXIV</h2> +<p class="center"><span class="huge"><span class="smcap">The Chinese Empire.</span></span></p> + +<p>A treatise on the marriage and divorce laws of the world would be +incomplete without a chapter dealing with the law of the most compact +nationality in history.</p> + +<p>Chinese law is the growth of many centuries and is based on immemorial +custom, but with all its antiquity and wealth of precedent, it has not yet +passed the system of exacting testimony from witnesses by physical +torture.</p> + +<p>The first evidence of civil law to be found in Chinese history or +tradition is the recognition and regulation of the status of marriage. Its +fundamental principle is parental authority.</p> + +<p>Though in a sense systematic, the laws of China are not as yet in a +concentrated or scientific form. Under the present dynasty the collection +of laws which is applied by the courts is called <i>Ta Ch’ing Lii Li</i>.</p> + +<p>Two things are to be said in favour of the laws of China—the first being +that every Chinese is within the law, and that the person is considered of +more importance than property.</p> + +<p><span class="smcap">Marriage.</span>—A Chinese is not permitted to have more than one wife. He may, +however, in addition, keep concubines, or “secondary wives.” Both wives +and concubines have a legal status.</p> + +<p>The wife is considered to be a relative of all her husband’s family, but a +concubine is not so considered. It is an offence for a man to degrade his +wife to the level of a concubine, or to elevate a concubine to the level +of his wife.</p> + +<p>The consent of the parties, which is the first<span class="pagenum"><a name="Page_266" id="Page_266">[Pg 266]</a></span> requisite of a valid +marriage in Christendom, is legally of no consequence in China. It is the +consent of the parents of the respective parties which is material and +necessary.</p> + +<p>The consent of the father of the woman is sufficient, and if he is dead +then the mother may give the necessary consent.</p> + +<p>The preliminary stages of a Chinese marriage are elaborately formal. It is +the duty of the families of the intended bride and bridegroom to ascertain +whether or not the parties have the capacity to conclude marriage. Certain +introductions and exchange of social courtesies follow. If everything +appears satisfactory the parties acting on behalf of the intended bride +send a note of “eight characters” to the parties acting in behalf of the +prospective bridegroom, which note is practically a proposal of marriage. +If the terms of the proposed marriage are agreed upon the next thing is +for the representatives of the parties to draft and execute the articles +of marriage.</p> + +<p>The courts will hold it to be a marriage if the betrothal is regular, even +if there is no consummation.</p> + +<p>It is essential to a legal marriage that the written consent of the woman +be obtained; it is not sufficient that the woman herself gives free +consent.</p> + +<p>Fraud makes the marriage a nullity. In his book, “Notes and Commentaries +on Chinese Criminal Law,” Mr. Ernest Alabaster tells of the case of “Mrs. +Wang.” It appears that an old reprobate, knowing that the girl’s parents +would refuse him because of his ugliness of face and character, sent a +handsome young nephew to represent him in the marriage negotiations. The +impersonation brought about the signing of the contract, and the<span class="pagenum"><a name="Page_267" id="Page_267">[Pg 267]</a></span> old man +secured possession of the bride. Soon after the wedding he ill-treated his +young wife and one night she strangled him. The court decided that the +woman had committed an unjustifiable homicide and that the victim was not +her husband.</p> + +<p><span class="smcap">Impediments.</span>—Intermarriage is forbidden between ascendants and +descendants and between kinsmen by consanguinity or affinity up to the +fourth degree.</p> + +<p>Marriage is also forbidden between persons having the same <i>Hsing</i>, or +surname.</p> + +<p>A free person cannot contract a valid marriage with a slave.</p> + +<p>A mother and daughter must not marry father and son.</p> + +<p>Marriage is absolutely forbidden to a Buddhist or Taoist priest.</p> + +<p>An official must not marry a wife or buy a concubine within his +jurisdiction.</p> + +<p>It is unlawful for a person of official rank to take as his secondary wife +or concubine an actress, singing woman or a prostitute.</p> + +<p>No one must marry a female fugitive from justice.</p> + +<p>Marriage of a deceased brother’s widow is against the law.</p> + +<p>It should be remembered that it is a criminal offence to contract an +invalid marriage. For example, not very long ago a prince of the Imperial +family purchased a singing girl as his secondary wife or concubine. The +marriage was declared null and he was sentenced to receive sixty blows for +attempting to contract an illegal secondary marriage.</p> + +<p><span class="smcap">Widows.</span>—A widow or divorced woman can contract a new marriage, but she +must first obtain consent of her parents and wait until the customary +period of mourning is completed.</p> + +<p><span class="pagenum"><a name="Page_268" id="Page_268">[Pg 268]</a></span><span class="smcap">Divorce.</span>—As an +institution divorce is almost as ancient in China as marriage. Marriage is not considered as in any respect a religious +contract, but as a status created principally for the comfort of man and +the continuance of the race. As woman is considered an inferior creature +to man she has not the same rights in or out of a court of law. However, +she can obtain, against her husband’s will, an absolute divorce on the +following grounds:</p> + +<p>1. Impotency. If her husband is unable to perform the sexual act a wife +can compel him to grant her a deed of divorcement.</p> + +<p>2. If a man sells his wife to another the woman is <i>ipso facto</i> divorced +from both men.</p> + +<p>3. If a man induces his wife to become a prostitute, or accepts her +earnings as such, the wife is entitled to a decree of absolute divorce.</p> + +<p>We can find no other causes which entitle a woman to a divorce from her +husband. His adultery, cruelty, abandonment, neglect or drunkenness +furnishes no ground for a dissolution of the marriage.</p> + +<p>For a husband divorce is very easy. The so-called “seven valid reasons” +enable any man so inclined to practically discard his wife when it pleases +him. The seven “reasons” or causes are:</p> + +<p>1. Talkativeness.</p> + +<p>2. Wantonness.</p> + +<p>3. Theft.</p> + +<p>4. Barrenness.</p> + +<p>5. Disobedience to parents of husband.</p> + +<p>6. Jealousy.</p> + +<p>7. Inveterate infirmity.</p> + +<p>The last of the seven reasons permits a man to get rid of a wife who is +incurably ill or infirm.</p> + +<p><span class="pagenum"><a name="Page_269" id="Page_269">[Pg 269]</a></span><span class="smcap">Mutual +Consent.</span>—If husband and wife mutually agree upon divorce the +courts, by ancient custom, will ratify their agreement. Although the +Chinese law does not consider the consent or non-consent of the parties as +of any consequence in creating the status of marriage, it, by a peculiar +process of logic, permits them to end the relationship whenever they +mutually please so to do.</p> + +<p>Perhaps one can easier understand the marriage and divorce laws of the +Chinese Empire by remembering that all Chinese laws are supposed to follow +the instincts of the people (<i>Shun po hsing chi ching</i>).</p> + +<p><span class="smcap">General Observations.</span>—The present laws and customs of China are but +little changed from the time of the Tang Dynasty, which reigned nearly +thirteen hundred years ago.</p> + +<p>Then, as now, a poor man who finds himself unable to support his wife, +may, if she has no parents to take her back, sell her to his richer +neighbour.</p> + +<p>The judicial machinery of the Chinese Empire is the elaboration of +centuries of customs and precedents. In the first instance parties seeking +legal redress apply by complaint to the lowest court having jurisdiction +within the district of their domicile. If dissatisfied with the decision +an appeal can be made first to the District Magistracy, then to the +Prefecture, and after that to the Supreme Provincial Court. If the +questions involved are sufficiently important a further appeal may be +prosecuted before the Judiciary Board, which sits in Peking and is the +highest judicial court in the Empire.</p> + +<p>In theory a defeated suitor can appeal from the Judiciary Board to the +fountain of law and justice, His Imperial Majesty, the Emperor of<span class="pagenum"><a name="Page_270" id="Page_270">[Pg 270]</a></span> China, +but there are few cases, according to the record, which have gone so far.</p> + +<p>We are of the opinion that Chinese law will never approach a scientific +system until China recognizes the necessity and value of having +professional advocates and jurists to point out the way to better things.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<h2>INDEX</h2> + + +<p class="index"> +<span style="margin-left: -1em;"><span class="big">A</span></span><br /> +<br /> +Alabama, <a href="#Page_151">151</a><br /> +<br /> +Alaska, <a href="#Page_152">152</a><br /> +<br /> +Alberta, <a href="#Page_207">207</a><br /> +<br /> +Algeria, <a href="#Page_137">137</a><br /> +<br /> +Argentina, <a href="#Page_218">218</a><br /> +<br /> +Arizona, <a href="#Page_153">153</a><br /> +<br /> +Arkansas, <a href="#Page_154">154</a><br /> +<br /> +Australia, <a href="#Page_238">238</a><br /> +<br /> +Austria, <a href="#Page_67">67</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">B</span></span><br /> +<br /> +Belgium, <a href="#Page_53">53</a><br /> +<br /> +Brazil, <a href="#Page_223">223</a><br /> +<br /> +British Columbia, <a href="#Page_206">206</a><br /> +<br /> +Bulgaria, <a href="#Page_129">129</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">C</span></span><br /> +<br /> +California, <a href="#Page_155">155</a><br /> +<br /> +Canada, <a href="#Page_199">199</a><br /> +<br /> +China, <a href="#Page_265">265</a><br /> +<br /> +Colorado, <a href="#Page_156">156</a><br /> +<br /> +Connecticut, <a href="#Page_158">158</a><br /> +<br /> +Cuba, <a href="#Page_227">227</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">D</span></span><br /> +<br /> +Delaware, <a href="#Page_159">159</a><br /> +<br /> +Denmark, <a href="#Page_81">81</a><br /> +<br /> +District of Columbia, <a href="#Page_157">157</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">E</span></span><br /> +<br /> +Egypt, <a href="#Page_137">137</a><br /> +<br /> +England, <a href="#Page_16">16</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">F</span></span><br /> +<br /> +Finland, <a href="#Page_94">94</a><br /> +<br /> +Florida, <a href="#Page_161">161</a><br /> +<br /> +France, <a href="#Page_38">38</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">G</span></span><br /> +<br /> +Georgia, <a href="#Page_162">162</a><br /> +<br /> +Germany, <a href="#Page_60">60</a><br /> +<br /> +Greece, <a href="#Page_132">132</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">H</span></span><br /> +<br /> +Hindu Law, <a href="#Page_256">256</a><br /> +<br /> +Holland, <a href="#Page_100">100</a><br /> +<br /> +Hungary, <a href="#Page_72">72</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">I</span></span><br /> +<br /> +Idaho, <a href="#Page_163">163</a><br /> +<br /> +Illinois, <a href="#Page_164">164</a><br /> +<br /> +India, <a href="#Page_137">137</a><br /> +<br /> +Indiana, <a href="#Page_165">165</a><br /> +<br /> +Indian Territory, <a href="#Page_165">165</a><br /> +<br /> +Iowa, <a href="#Page_166">166</a><br /> +<br /> +Ireland, <a href="#Page_36">36</a><br /> +<br /> +Italy, <a href="#Page_46">46</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">J</span></span><br /> +<br /> +Japan, <a href="#Page_104">104</a><br /> +<br /> +Jews, Laws for, <a href="#Page_96">96</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">K</span></span><br /> +<br /> +Kansas, <a href="#Page_167">167</a><br /> +<br /> +Kentucky, <a href="#Page_167">167</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">L</span></span><br /> +<br /> +Louisiana, <a href="#Page_168">168</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">M</span></span><br /> +<br /> +Maine, <a href="#Page_169">169</a><br /> +<br /> +Manitoba, <a href="#Page_199">199</a><br /> +<br /> +Maryland, <a href="#Page_169">169</a><br /> +<br /> +Massachusetts, <a href="#Page_170">170</a><br /> +<br /> +Mexico, <a href="#Page_209">209</a><br /> +<br /> +Michigan, <a href="#Page_172">172</a><br /> +<br /> +Minnesota, <a href="#Page_172">172</a><br /> +<br /> +Mississippi, <a href="#Page_173">173</a><br /> +<br /> +Missouri, <a href="#Page_174">174</a><br /> +<br /> +Mohammedan Law, <a href="#Page_137">137</a><br /> +<br /> +Montana, <a href="#Page_175">175</a><br /> +<br /> +Morocco, <a href="#Page_137">137</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">N</span></span><br /> +<br /> +Nebraska, <a href="#Page_175">175</a><br /> +<br /> +Nevada, <a href="#Page_176">176</a><br /> +<br /> +New Brunswick, <a href="#Page_206">206</a><br /> +<br /> +Newfoundland, <a href="#Page_208">208</a><br /> +<br /> +New Hampshire, <a href="#Page_177">177</a><br /> +<br /> +New Jersey, <a href="#Page_177">177</a><br /> +<br /> +New Mexico, <a href="#Page_179">179</a><br /> +<br /> +New South Wales, <a href="#Page_246">246</a><br /> +<br /> +New York, <a href="#Page_179">179</a><br /> +<br /> +New Zealand, <a href="#Page_250">250</a><br /> +<br /> +North Carolina, <a href="#Page_184">184</a><br /> +<br /> +North Dakota, <a href="#Page_184">184</a><br /> +<br /> +Northwest Territories, <a href="#Page_207">207</a><br /> +<br /> +Norway, <a href="#Page_85">85</a><br /> +<br /> +Nova Scotia, <a href="#Page_207">207</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">O</span></span><br /> +<br /> +Ohio, <a href="#Page_185">185</a><br /> +<br /> +Oklahoma, <a href="#Page_186">186</a><br /> +<br /> +Ontario, <a href="#Page_204">204</a><br /> +<br /> +Oregon, <a href="#Page_187">187</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">P</span></span><br /> +<br /> +Pennsylvania, <a href="#Page_187">187</a><br /> +<br /> +Persia, <a href="#Page_137">137</a><br /> +<br /> +Portugal, <a href="#Page_117">117</a><br /> +<br /> +Prince Edward Island, <a href="#Page_199">199</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">Q</span></span><br /> +<br /> +Quebec, <a href="#Page_204">204</a><br /> +<br /> +Queensland, <a href="#Page_248">248</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">R</span></span><br /> +<br /> +Rhode Island, <a href="#Page_189">189</a><br /> +<br /> +Roumania, <a href="#Page_121">121</a><br /> +<br /> +Russia, <a href="#Page_89">89</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">S</span></span><br /> +<br /> +Saskatchewan, <a href="#Page_199">199</a><br /> +<br /> +Scotland, <a href="#Page_32">32</a><br /> +<br /> +Servia, <a href="#Page_125">125</a><br /> +<br /> +South Australia, <a href="#Page_248">248</a><br /> +<br /> +South Carolina, <a href="#Page_190">190</a><br /> +<br /> +South Dakota, <a href="#Page_190">190</a><br /> +<br /> +Spain, <a href="#Page_110">110</a><br /> +<br /> +Sweden, <a href="#Page_76">76</a><br /> +<br /> +Switzerland, <a href="#Page_57">57</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">T</span></span><br /> +<br /> +Tasmania, <a href="#Page_248">248</a><br /> +<br /> +Tennessee, <a href="#Page_191">191</a><br /> +<br /> +Texas, <a href="#Page_192">192</a><br /> +<br /> +Transylvania, <a href="#Page_72">72</a><br /> +<br /> +Turkey, <a href="#Page_137">137</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">U</span></span><br /> +<br /> +United States of America, <a href="#Page_148">148</a><br /> +<br /> +Utah, <a href="#Page_193">193</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">V</span></span><br /> +<br /> +Vermont, <a href="#Page_193">193</a><br /> +<br /> +Victoria, <a href="#Page_243">243</a><br /> +<br /> +Virginia, <a href="#Page_194">194</a><br /> +<br /> +<br /> +<span style="margin-left: -1em;"><span class="big">W</span></span><br /> +<br /> +Washington, <a href="#Page_195">195</a><br /> +<br /> +West Australia, <a href="#Page_248">248</a><br /> +<br /> +West Virginia, <a href="#Page_196">196</a><br /> +<br /> +Wisconsin, <a href="#Page_197">197</a><br /> +<br /> +Wyoming, <a href="#Page_198">198</a></p> + + + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of Marriage and Divorce Laws of the World, by +Hyacinthe Ringrose + +*** END OF THIS PROJECT GUTENBERG EBOOK MARRIAGE/DIVORCE LAWS 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Marriage and Divorce Laws of the World + +Author: Hyacinthe Ringrose + +Release Date: April 3, 2011 [EBook #35760] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK MARRIAGE/DIVORCE LAWS OF WORLD *** + + + + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + + + + + + + + + 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. + + + + +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 L2 and L3. 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 L20 to L30, 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 may take place at a Roman Catholic place of worship, a +Nonconformist chapel, or at the office of the registrar of marriages. The +parties must have resided in the district at least seven days preceding +the date of the notice, which must be given to the superintendent +registrar, or, if they live in different districts, then notice must be +given to the superintendent registrar of each district, and it must be +exhibited in his office for twenty-one days. If no valid objection to the +marriage is made the superintendent registrar issues his certificate and +the marriage may take place within three months. The cost, including +certificate, is 9s. 7d. + +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 L2 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: + + 1 Grandfather. + + 2 Grandmother's Husband. + + 3 Husband's Grandfather. + + 4-5 Father's Brother, Mother's Brother (uncle by blood). + + 6-7 Father's Sister's Husband, Mother's Sister's Husband, (Aunt's + Husband, _i.e._, uncle by affinity). + + 8-9 Husband's Father's Brother, Husband's Mother's Brother (husband's + uncle). + + 10 Father. + + 11 Stepfather. + + 12 Husband's Father (father-in-law). + + 13 Son. + + 14 Husband's Son (stepson). + + 15 Daughter's Husband (son-in-law). + + 16 Brother. + + 17-18 Husband's Brother, Sister's Husband (brother-in-law). + + 19-20 Son's Son, Daughter's Son (grandson). + + 21 Son's Daughter's Husband (son's son-in-law). + + 22 Daughter's Daughter's Husband (daughter's son-in-law). + + 23 Husband's Son's Son (stepson's son). + + 24 Husband's Daughter's Son (stepdaughter's son). + + 25-26 Brother's Son, Sister's Son (nephew). + + 27-28 Brother's Daughter's Husband, Sister's Daughter's Husband + (niece's husband). + + 29-30 Husband's Brother's Son, Husband's Sister's Son (nephew by + affinity). + +GROUNDS OR CAUSES FOR DIVORCE.--A husband is entitled to a divorce if his +wife has committed adultery, but a wife is not so entitled unless her +husband has committed incestuous adultery, bigamy, rape, sodomy, +bestiality, adultery coupled with cruelty, or adultery coupled with +desertion without reasonable excuse for two years or more. Incestuous +adultery is adultery with a woman within the prohibited degrees. + +A wife will not be granted a decree of divorce on the ground of her +husband's adultery coupled with cruelty unless the cruelty relied on +consists of bodily hurt or injury to health, or a reasonable danger or +apprehension of one or the other of them. There must be at least two acts +of cruelty on the part of the husband. + +The communication of venereal disease when the husband knows of his +condition is an act of cruelty. + +PROCEDURE.--The application for a divorce is made by a petition to the +Probate, Divorce and Admiralty Division of the High Court of Justice. + +The party seeking relief is called the petitioner, and the party against +whom the petition is brought is called the respondent. The party with whom +a husband alleges his wife has committed adultery is called the +co-respondent. The person with whom a wife alleges her husband has +committed adultery is not a party to the suit. However, a woman implicated +in a divorce suit may, upon proper application, secure an order permitting +her to attend the proceedings as an intervener. + +Divorce proceedings in England are very expensive; the costs in an +ordinary uncontested suit amount to from thirty to forty pounds sterling. + +A petitioner or respondent who is not worth twenty-five pounds after +payment of his or her debts, exclusive of wearing apparel, may sue or +defend in _forma pauperis_. A person whose income exceeds one pound a week +cannot, except in special cases, sue or defend in _forma pauperis_. A +party desiring to sue or defend in _forma pauperis_ must as a preliminary +measure prepare a written statement of his or her case, setting forth the +facts relied upon as a cause of action or defence, and obtain thereon an +endorsed opinion of a barrister-at-law setting forth his professional +opinion that the cause of action or defence as stated is good in law. The +applicant must then make an affidavit, attaching the statement and the +barrister's opinion. This affidavit is then filed in the Divorce Registry +of Somerset House, where two days later, if a proper case is made out, an +order is issued granting the applicant leave to sue or defend in _forma +pauperis_. No fees are charged in respect to this application nor upon the +subsequent proceedings in court. No solicitor or barrister is assigned to +the party proceeding in this form. + +JURISDICTION.--The Court will only entertain jurisdiction when the husband +is domiciled in England. If the husband is temporarily residing abroad an +action by him or his wife for divorce must be instituted in England. + +The English Courts do not recognize a change of domicile which is obtained +simply to enable the parties to obtain a divorce in another country, the +laws of which offer greater facilities. + +If the domicile of the husband is in England, and either the husband or +the wife obtains a decree of divorce in the United States of America or +elsewhere, the English courts will treat such a divorce as a nullity. A +person's domicile is his or her permanent home. An Englishman who lives in +America for twenty-five years is not domiciled there unless by all the +facts his conduct shows that he has abandoned his English domicile. + +CONDONATION.--A matrimonial offence which is a sufficient cause for +divorce may be condoned or forgiven by the spouse aggrieved, and such +condonation is a good defence to the action. But subsequent misconduct +will revive the offence as if there had been no condonation. + +CONNIVANCE.--It is a sufficient defence to an action for divorce for the +respondent to show that the adultery complained of was committed by the +connivance or active consent of the petitioner. + +COLLUSION.--Collusion is the illegal agreement and co-operation between +the petitioner and the respondent in a divorce action to obtain a judicial +dissolution of the marriage. + +FORM OF DIVORCE DECREES.--An English decree of divorce is in the first +instance _nisi_, or provisional. If after six months it is unaffected by +any intervention by the King's Proctor, or any other person, it can be +made absolute upon proper application. + +KING'S PROCTOR.--This is the proctor or solicitor representing the Crown +in the Probate, Divorce and Admiralty Division of the High Court of +Justice in matrimonial causes. + +In his official capacity he can only intervene in a divorce suit on the +ground of collusion. + +Sir James Hannen, discussing the powers of this officer, said in a leading +case: "If, then, the information given to the King's Proctor before the +decree _nisi_ does not rise to a suspicion of collusion, but only brings +to his knowledge matters material to the due decision of the case, he is +not entitled to take any step, and the direction of the Attorney-General +would probably be that he should watch the case to see if these material +facts are brought to the notice of the court. If at the trial they should +be, there will be no need for the King's Proctor to do anything more, for +he would not be entitled to have the same charges tried over again unless +material facts were not brought to the notice of the court. + +"If, however, those material facts are not so brought to the notice of the +court by the parties, he will then be entitled as one of the public, but +still acting under the direction of the Attorney-General, to show cause +against the decree being made absolute." + +In special cases the court has power to make the decree absolute before +the expiration of six months after the decree _nisi_. + +Until the decree is made absolute neither party can lawfully contract +another marriage; and in the event of the suit being contested the parties +must further wait until the time for an appeal has passed. + +ALIMONY, TEMPORARY AND PERMANENT.--During the pendency of the suit the +husband is liable to provide his wife with alimony or maintenance. The +amount granted is within the court's discretion, but generally it is about +twenty-five per centum of the husband's income. Upon the granting of a +decree in the wife's favour the court has power to grant the wife +permanent alimony, the amount of which depends on all the facts, such as +the husband's income, the wife's means and the social status of the +parties. If a wife secures an order for alimony against her husband, he +being a man of property, the court may require him to give security for +its payment or direct him to make a transfer of money to a trustee or +trustees for the convenient payment to the wife. Permanent alimony is +usually smaller than temporary alimony, or alimony _pendente lite_, but no +rule as to the amount can be safely stated, it resting in the discretion +of the Court. + +If a husband has no considerable property he will be directed to pay the +alimony awarded against him in monthly or weekly instalments. + +INSANITY.--Insanity is neither a cause nor a bar to divorce. If an insane +wife commits adultery, or if an insane husband commits adultery coupled +with the other offences which make out a cause of action against him, the +innocent party is entitled to a decree of divorce. So an insane party may +be a petitioner for divorce, but can only appear by his or her committee +in lunacy. + +HUSBAND'S NAME.--A divorced wife is entitled to continue to use her former +husband's surname. + +ANNULMENT OF MARRIAGE.--An action for the annulment of marriage has for +its purpose the setting aside of the marriage contract on the theory that +proper consent to the marriage has never been given by both the parties. + +The following are the causes or grounds for such annulment: + +1. A prior and existing marriage of one of the parties; + +2. Impotency, or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse; + +3. Relationship within the prohibited degrees; + +4. Marriage procured by fraud, violence or mistake; + +5. Insanity of one of the parties at the time of the marriage; + +6. Marriage performed without legal license, or without the required +publication of banns. + +JUDICIAL SEPARATION.--By the Matrimonial Causes Act a decree of judicial +separation, which is equivalent in effect to a divorce _a mensa et thoro_ +under the old law, may be obtained either by the husband or wife on the +ground of adultery, or cruelty, or desertion without legal cause for two +years and upwards. + +The defences which may be set up by the respondent vary according to the +cause relied upon by the petitioner, but there is one absolute bar in +suits for judicial separations brought on any ground, and that is that the +petitioner has committed adultery since the date of the marriage. + +SEPARATION ORDERS.--Besides the ordinary suit to obtain a judicial +separation which must be prosecuted in the High Court a wife can obtain +speedy and inexpensive relief by making an application to a police +magistrate, or a board of magistrates, for a separation order. This remedy +is limited to married women whose husbands are domiciled in England or +Wales. + +Such separation orders are intended to furnish summary relief to the wives +of workingmen, and the amount awarded for the wife's support to be paid by +her husband cannot exceed two pounds a week, no matter what the husband's +income may be. + +The following are the causes for which, upon application, a magistrate or +board of magistrates is authorized to grant a separation order: + +1. Habitual drunkenness of the husband, which renders him at times +dangerous to himself or others, or incapable of managing himself or his +affairs; + +2. When the husband has been convicted of an aggravated assault upon his +wife, or has been convicted by an Assize or Quarter Sessions Court of an +assault and has been sentenced to a fine of more than five pounds or to +imprisonment for more than two months; + +3. Desertion by the husband of his wife; + +4. Persistent cruelty of the husband toward his wife; + +5. Neglect to provide reasonable maintenance for wife or infant children. + +By the Licensing Act of 1902 a husband is entitled to a separation order +by a magistrate or board of magistrates if his wife is an habitual +drunkard. + +RESTITUTION OF CONJUGAL RIGHTS.--Husbands and wives are entitled to each +other's society, and if, without sufficient reason, either of them +neglects to perform his or her obligations the injured party may institute +what is known as a suit for restitution of conjugal rights, in which the +court will grant a decree directing the offending party to render conjugal +rights to the other party. If the decree is not complied with, such +non-compliance is equivalent to desertion, and a suit for judicial +separation may be instituted immediately. If the husband is the offending +party, and if he has been guilty of adultery, a suit for divorce may at +once be instituted; or if he commits adultery subsequently to the date of +the decree for restitution, proceedings for divorce may be taken. +Furthermore, if the suit for restitution is brought by the wife, the +husband may be directed to make such periodical payments for her benefit +as the court may think just. If the suit for restitution is brought by the +husband, and if the wife is entitled to any property, the court may order +a settlement for the whole or part of it for the benefit of the husband +and children of the marriage, or either or any of them, or may order the +wife to pay a portion of her earnings to the husband for his own benefit, +or to some other person for the benefit of the children of the marriage. A +husband cannot compel his wife to live with him by force, and if he seizes +and retains possession of her, she or her relatives can obtain a _habeas +corpus_ to compel him to release her, but persons who wrongfully induce a +wife to leave her husband, or who detain her from his society by improper +means, are liable to an action for damages by him. If a husband declines +to live with his wife because he discovers that she has been unchaste +before marriage she cannot obtain a decree for restitution of conjugal +rights unless he knew of the fact before the marriage took place. If a +husband has been guilty of cruelty he cannot obtain a decree for +restitution. + +FOREIGN MARRIAGES.--The Foreign Marriage Act of 1892 (55 and 56 Vict. c. +23) forms a complete code upon the subject of the marriage of British +subjects abroad. + +Its chief requirement is that one at least of the parties to the marriage +must be a British subject. + +Notice of the proposed marriage must be given fourteen days before the +ceremony, and it must be performed before one of the following officials, +who is termed in the Act a "marriage officer": the British ambassador, +minister or charge-d'affaires, accredited to the country where the +marriage takes place; the British consul, governor, high commissioner, or +official resident. The term consul in the Act includes a consul-general, a +vice-consul, pro-consul, or consular agent. + +If the woman is a British subject, and the man is a subject or citizen of +another country, the marriage officer must be satisfied that the intended +marriage would be recognized by the laws of the country where the man to +be married belongs. + +In 1896 there was passed the Marriage with Foreigners Act (6 Edw. 7, 3. +40), which is intended to protect British subjects who contract marriages +with subjects or citizens of other countries, either at home or abroad, +and to run the risk of having their marriages treated as invalid by the +law of the country of the foreign contracting party. It provides for the +granting of certificates by competent authority in the country to which +the foreign party to the marriage owes allegiance, stating that there is +no lawful impediment to the proposed marriage. + +CONFLICT OF LAWS.--English courts do not recognize a decree of divorce +granted by the courts of a foreign country as having any effect outside of +the country where granted, unless at the time of the beginning of the +action which resulted in the decree both parties were domiciled within the +jurisdiction of the court which granted it. + +This rule applies to divorce decrees obtained in Scotland because for all +the purposes of private international law Scotland is a foreign country. + +The English courts will, however, recognize as possessing +extra-territorial validity a decree of divorce which is recognized as +valid by the courts of the country where the parties were actually +domiciled at the time of its being granted. + +In the case of Gillig v. Gillig, decided in 1906, the English High Court +recognized as valid in England a divorce granted in South Dakota, U. S. +A., of parties domiciled in New York, because the decree in question was +recognized as valid by the courts of the State of New York. It is the +doctrine of English courts that an honest adherence to the principle that +domicile alone gives jurisdiction in a divorce action will preclude the +scandal which arises when a man and woman are held to be husband and wife +in one country and strangers in another. + + + + +CHAPTER III. + +SCOTLAND. + + +The Act of Union between England and Scotland, A. D. 1707 (6 Anne, c. 2), +which made one legislature, the present British Parliament, for the two +countries, expressly provided that the existing law and judicial procedure +of each kingdom should be continued, except so far as they might be +repealed by the Act, or by subsequent legislation. The foundation of +Scottish jurisprudence is the Roman law, and the canon law which is +derived from it, consequently the law of marriage and divorce in Scotland +differs from that of England. The status of marriage by Scottish law may +be created in any one of three ways: First, by regular or public marriage +celebrated in a church or private house by a minister of religion; second, +by an irregular or clandestine marriage entered into without the +assistance of a clergyman or any other third party, and, third, by +declaration, or declarator, wherein the parties make a declaration +confessing an irregular union, and are fined for the "offence," and obtain +an extract of the "sentence" which answers to the purpose of a certificate +of marriage. + +The Scottish definition of marriage is given by Lord Penzance as follows: +"The voluntary union of one man and one woman to the exclusion of all +others." + +IMPEDIMENTS.--Males under fourteen and females under twelve cannot marry, +but if persons under age, called in the Scottish law "pupils," live +together and continue to do so after both have passed their nonage they +are considered married, on the ground that there is evidence of a +contract after the impediment has ceased to exist. + +INSANITY.--An insane person cannot give a valid consent and therefore the +insanity of either party is an impediment. + +INTOXICATION.--There can be no marriage if one of the parties at the time +of the formal union was so intoxicated as to be bereft of reason, but a +marriage voidable on the ground of either insanity or intoxication may be +validated by the consent of both parties after a return to sanity or +sobriety. + +CONSANGUINITY AND AFFINITY.--As to the impediments which arise from blood +and marriage, the 18th Chapter of the Book of Leviticus is practically the +law of Scotland. Marriage is forbidden between ascendants and descendants +_ad infinitum_, and in the collateral line between brothers and sisters, +consanguinian or uterine, and between all collaterals, one of whom stands +in _loco parentis_ to the other. It is still an academic question whether +or not the marriage of a brother and sister both born illegitimate is +prohibited. + +Of course, a previous marriage still subsisting is an impediment. + +GRETNA GREEN MARRIAGES.--In order to put a stop to the Gretna Green +marriages which have furnished material for much romance in books and much +sorrow in actual life, it was enacted by 19 and 20 Vict., c. 96, that "no +irregular marriage contracted in Scotland by declaration, acknowledgment +or ceremony (after 31 Dec., 1856) shall be valid unless one of the parties +had at the date thereof his or her usual place of residence there, or had +lived in Scotland for twenty-one days next preceding such marriage." + +It is manifest from all the decisions that in the absence of impediments, +marriage in Scotland is constituted by interchange of consent. No formal +expression of such consent is necessary. If the court is satisfied, from +the whole circumstances and the conduct of the parties before and after, +that they have given genuine consent to present marriage, it will be held +that the marriage has been validly constituted. + +HUSBAND AND WIFE.--By the common law of Scotland the legal status of a +married woman is so merged in that of her husband as to leave her +incapable of independent legal action. Recent legislation has, however, +modified this doctrine. + +DIVORCE.--The term divorce as used in this chapter means an absolute +dissolution and setting aside of a legal marriage. + +The Scottish courts recognize two grounds for divorce, adultery and +desertion. These grounds are open to either husband or wife. The action +can only be maintained by the innocent party. + +ADULTERY.--The evidence must be such as would "lead the guarded discretion +of a reasonable and just man to the conclusion that adultery has been +committed." + +If the court has jurisdiction it does not matter that the offence was +committed out of Scotland. + +DEFENCES.--Besides the denial of the allegation of adultery, the following +are sufficient defences: 1, collusion; 2, condonation; 3, long delay in +bringing the action; 4, connivance or lenocinium of the plaintiff, who is +called a pursuer in Scottish procedure; 5, the honest belief that the +intercourse alleged to be adultery was lawful, as when a wife enters into +a second marriage in the reasonable belief that her first husband is dead. + +DESERTION.--Desertion or, as the Scottish lawyers put it, "non-adherence," +for a period of four years, against the will of the party deserted, is the +second ground for divorce. Mere separation, as, for example, the absence +of the husband on necessary business or his imprisonment, is not such +non-adherence as will entitle the pursuer to a decree. The desertion must +be a deliberate and obstinate withdrawal from cohabitation and +companionship. If a wife refused to accompany her husband abroad, and he +went alone, her refusal, and not his going away, would constitute +desertion. + +FOREIGN DIVORCE.--If a native of Scotland acquires a foreign domicile, and +obtains a divorce while abroad, the divorce would be recognized in +Scotland if granted for either of the two causes sufficient by Scottish +law. + +EFFECTS OF DIVORCE.--The judgment of divorce completely sets aside the +marriage, and both parties are free to marry again. On divorce the +innocent party also comes into the immediate enjoyment of all the rights +in the estate of the guilty spouse, or the funds settled by the marriage +contract, as if the offending party had died at the date of the decree. + +Conversely, the guilty spouse loses all claim to such legal rights as he +or she would have had on the death of the innocent party but for the +divorce. + + + + +CHAPTER IV. + +IRELAND. + + +Ireland like Scotland has its separate judicial system, and many of its +laws differ from those of all other parts of the British Empire. + +The Irish law relating to marriage and matrimonial controversies is +administered under the Matrimonial Causes and Marriage Law (Ireland) +Amendment Act of 1870. It is practically the same as the English law as it +existed before 1857. + +The Irish Act of 1870 transferred the exercise by the Ecclesiastical +Courts prior to the disestablishment of the Church of Ireland to a court +for matrimonial causes and assigned the trial of such causes to the judge +of the Court of Probate. + +Under the Irish Judicature Act of 1877 this jurisdiction is now vested in +the Supreme Court of Judicature and is exercised by the probate and +matrimonial judge. + +It is impossible to obtain a decree of divorce from the bonds of matrimony +in the courts of Ireland. The only divorce decree granted is from bed and +board, and amounts in effect to what is termed a judicial separation in +England. + +The grounds for the limited form of divorce granted by the courts are +adultery, cruelty or unnatural practices. + +In order to obtain a decree of complete divorce the petitioner must +promote a bill in the House of Lords to dissolve the marriage and allow +the petitioner to marry again, which bill must be founded upon and follow +a divorce from bed and board obtained in the Irish courts. + +When a petition is presented to the House of Lords a wife must prove her +husband's adultery coupled with cruelty and a husband must prove his +wife's adultery and must, if possible, make his wife's paramour a party by +instituting proceedings against him for criminal conversation in the Irish +courts. + +NULLITY.--An action for nullity of marriage can be maintained on the +following grounds: 1. Impuberty. 2. Relationship of the parties within the +prohibited degrees. 3. An existing prior marriage of one of the parties. +4. Incapacity of the parties to conclude the marriage contract, as in the +event of one being a lunatic. 5. Non-compliance with marriage laws. 6. +Fraud in procuring the marriage. 7. Impotency. + + + + +CHAPTER V. + +THE FRENCH LAW OF MARRIAGE AND DIVORCE. + + +MARRIAGE.--A man cannot contract a marriage before he has completed his +eighteenth year and a woman until she has completed her fifteenth year. +However, the President of the Republic may grant a dispensation as to age +upon good cause appearing. + +A son who has not reached the age of twenty-five, or a daughter who has +not reached the age of twenty-one, cannot marry without the consent of +their parents; but if the parents disagree between themselves the consent +of the father is sufficient. + +If both the father and the mother are dead or unable to give consent the +grandparents take their place. + +Sons or daughters less than twenty-one years of age, who have no parents +or grandparents, or only such as are in a condition which renders them +incapable of giving consent, cannot marry without the consent of a family +council. + +IMPEDIMENTS.--Marriage is prohibited between all legitimate ascendants and +descendants in the direct line and between persons who are connected by +marriage and related in the same degree. Marriage is also prohibited +between uncle and niece and aunt and nephew. The President of the Republic +may, nevertheless, on good cause being shown, dispense with the +prohibitions contained in the Civil Code forbidding the marriage of a +brother-in-law with a sister-in-law, and the marriage between uncle and +niece, and aunt and nephew. + +FORMALITIES.--A marriage must be celebrated publicly before the civil +status officer of the civil domicile of one of the parties. The officer +of the civil status before celebrating a marriage must publish the banns +twice before the door of the Maison Commune, at an interval of eight days. +The President of the Republic, and also the official whom he entrusts with +this power, may dispense, for good cause, with the second publication of +the banns. + +FOREIGN MARRIAGES.--A marriage celebrated in a foreign country between +French citizens or between a French citizen and a foreigner is valid if it +is performed according to the forms customary in such country, provided +always that the marriage has been preceded by the publications of the +banns pursuant to the code. + +The record of a marriage contracted in a foreign country must be +transcribed within three months of the return of the French citizen to the +territory of the Republic in the public marriage registers of his civil +domicile. + +VOIDABLE MARRIAGES.--The validity of a marriage which has been contracted +without the free consent of both parties, or without the free consent of +one of them, can only be impugned by the parties themselves or by the +party whose consent was not freely given. + +When there has been an honest mistake as to the personality of one of the +parties the validity of the marriage can only be impugned by the person +who was misled. + +Such mistakes as to personality include mistakes as to quality as well as +to identity. For example, the Court of Cassation held in 1861 that where a +woman had been misled into marrying an ex-convict by ignorance of the +fact, the marriage was annulable. + +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 passed 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 assailed 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 pronounced 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 +entitled 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 constitute 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 +assistance. 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 document 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 pronounced 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 entitled to a divorce on the ground of +the adultery of the other. + +2. Either party is entitled 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 assaults. 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, entitles 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 institute a proceeding for +divorce must present the petition personally to the President of the Court +or to the judge who is acting in that capacity. If it appears that the +petitioner 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 petitioner. + +The judge, upon seeing and hearing the petitioner and after having made +such comment as he may deem proper, will affix his order to the end of the +petition, 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 petitioner to reside separate during the pendency of the action from +the defendant. If the petitioner 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 petitioner 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 petitioner can at any stage of the case change the petition for a +divorce into a petition 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 petition 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 pronounced, 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 entitled 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 entitle 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. + +As in France, civil marriage is the only form of marriage recognized by +the State. + +IMPEDIMENTS.--1. Age. A man may not contract marriage before completing +his eighteenth year or a woman before completing her fifteenth. The King +may, however, grant a dispensation permitting a man to marry after +attaining the age of fourteen and a woman after attaining the age of +twelve. + +2. Existing previous marriage. As in France. + +3. Period of delay. A woman cannot contract a new marriage until ten +months after the dissolution or annulment of a former marriage, unless the +marriage was annulled on the ground of impotence. But this prohibition +ceases from the day the woman has given birth to a child. + +4. Consanguinity and affinity. As in France. The King has a right of +dispensation similar to that possessed by the President in France. + +5. Relationship by adoption. As in France. + +6. Mental incapacity. Marriage may not be contracted by one who has been +legally adjudged of unsound mind. If an action on this ground is pending +against either party to a contemplated marriage the marriage must be +suspended until final judgment is given. + +7. Homicide. A person who has been legally convicted as a principal or +accomplice in a voluntary homicide committed or attempted upon any person +may not be married to the latter's consort. As in the case of the +preceding impediment, a contemplated marriage must be suspended if an +action on this ground is pending against either party. + +8. Consent of parents. The age under which the consent of parents or next +of kin is required is 25 for males and 21 for females. An adopted child +requires the consent of both its natural and adopted parents. If the +consent is refused the Italian Code provides for an appeal to the court. + +Foreigners desiring to be married in Italy must present a certificate from +the competent authority of their own country that they satisfy the +requirements of the laws of that country. Foreigners ordinarily residing +in Italy must also satisfy the requirements of the Italian law. + +PRELIMINARIES.--The preliminary formalities to marriage are essentially +the same in both the French and the Italian Codes. + +LEGAL OPPOSITION.--Legal opposition to the marriage may be made by the +parents or, in want of them, by the grandparents of either party, if they +are cognizant of the existence of any legal impediment, even if the +parties are of age. In default of ascendants, opposition can also be made +by a brother, sister, uncle, aunt, or cousin german, as well as by the +guardian or curator duly authorized by the family council, on the ground +of lack of the required consent or the infirmity of mind of one of the +parties to the marriage. Anyone may oppose the remarriage of his former +consort. + +The public prosecutor is required to oppose the marriage officially when +he is cognizant of any impediment, and to facilitate his accomplishment of +this duty the registrar is bound to inform him of any impediment that +appears to exist. + +The effect of a legal opposition is to suspend the celebration of the +marriage until the case has been determined in court. If the opposition +proves to be without legal ground the one filing it, unless one of the +ascendants or the public prosecutor, may be held responsible for any +damage occasioned by him. + +CELEBRATION.--Marriage must be celebrated publicly in the communal house +and before the registrar of the commune where one of the parties has his +or her domicile. Two witnesses are required. + +RECORD OF MARRIAGE.--The registrar must inscribe a record of the marriage +in the civil register giving all the necessary details and must deliver an +authenticated abstract of the record to the parties, who without this +cannot legally claim to be married or to enjoy any of the legal +consequences of marriage. + +ILLEGITIMATE CHILDREN.--Such children are legitimatized by the subsequent +marriage of their parents, although in order to acquire the legal rights +of legitimate children they must be formally recognized by their parents. + +These legal rights are acquired at the time of marriage only if the +illegitimate children are legally recognized by their parents in the +marriage record or have been legally recognized at some time prior to the +marriage; otherwise they date only from the day when such recognition is +given subsequent to the marriage. Children of adulterous connections and +of persons between whom exists the impediment of relationship by blood or +marriage in the direct line, or of relationship by blood in the collateral +line up to the second degree, cannot be legitimatized. + +FOREIGN MARRIAGES.--In order that marriage may be valid in Italy an +Italian citizen entering into a marriage in a foreign country must be free +to marry under the Italian law and must make publication in the commune in +Italy of which he is a resident, or if he is no longer a resident of +Italy, in the one in which he last resided. The marriage is valid if +celebrated according to the form prescribed by the laws of the country in +which it takes place. Within three months after his return to Italy he +must have the marriage recorded in the civil register of the commune where +he permanently resides. + +ANNULMENT.--Marriage may be annulled if contracted in contravention of the +impediments as to age, existing previous marriage, relationship or +homicide. It may also be declared null if it was celebrated before an +incompetent official or without the necessary witnesses; in the former +case, however, the action cannot be instituted more than a year after the +date of celebration. Actions on the foregoing grounds may be brought by +the parties themselves, by the nearest ascendants, by the public +prosecutor or by any one who has a legitimate or actual interest in the +marriage. + +The validity of a marriage may also be attacked by the party whose consent +thereto was not free or who was under error as to the person married; but +actions on these grounds are no longer admissible when cohabitation has +lasted for a month after the removal of the constraint or the discovery of +the error. Impotence, when anterior to marriage, may be put forward as a +ground for annulment by either party. Marriage performed without the +required legal consent may be attacked by the person whose consent was +necessary or by the party to whom it was necessary; but in the former case +it cannot be attacked later than six months after marriage, and in the +latter, six months after the party in question has attained his majority. +Moreover, in cases where only one of the parties has attained the required +age it cannot be attacked when the wife, although not yet of age, has +become pregnant. The marriage of one who has been legally adjudged of +unsound mind can be attacked either by the party himself, his guardian, +the family council, or the public prosecutor, if the judgment had already +been passed when the marriage was celebrated, or if the infirmity for +which the judgment was pronounced was existent at the time of marriage. + +Marriage cannot, however, be attacked on this ground if cohabitation has +endured for three months after the party has been legally adjudged to be +once more of sound mind. + +The public prosecutor is obliged to intervene in all matrimonial causes, +even if they were not instituted by him. + +SEPARATION.--There is no divorce in Italy, and marriage is only dissolved +by the death of one of the parties. Personal separation is, however, +permitted on the following grounds: + +1. Adultery of the wife, or of the husband if he maintains a concubine in +his house or openly in another place or when such circumstances concur +that the act constitutes a grave indignity (_ingiuria grave_) to the wife. +The latter provision is intended to apply particularly to cases where the +wife has discovered the husband in _flagrante delicto_. + +2. Voluntary abandonment. + +3. Violence endangering the life or health, cruelty, threats, or grave +mental indignities. + +4. Sentence to punishment for crime, except when the conviction was prior +to the marriage and the other party was cognizant of it. + +5. The wife can ask for a separation when the husband, without any just +reason, does not set up an abode, or, having the means, refuses to set one +up in a manner suited to his condition. + +6. Mutual agreement. Separation on this ground is not valid unless +ratified by the court after an attempt at reconciliation has been made. + +LIMITATIONS TO RIGHT OF ACTION.--The right to obtain a separation is +extinguished by condonation, express or tacit. + +PROCEDURE.--Actions for separations must be brought before the court under +whose jurisdiction the defendant is resident or domiciled. Service is +ordinarily personal, but if the residence of the defendant is unknown it +may be made by a judicial edict giving notice of the action, of which one +copy must be posted at the door of the building where the court holds its +sessions, while a copy is published in the newspaper designated for the +official notices of the court, and another copy is transmitted to the +public prosecutor for the district in which the action is brought. + +Before the case is tried the parties are obliged to appear in person and +without attorneys before the President of the Court which has jurisdiction +over the case, who hears each party separately and makes such +representations as he considers calculated to effect a reconciliation. If +a reconciliation is accomplished the fact is noted on the court records +and the case dismissed; otherwise the case is sent back to the court for +trial. + +The trial is ordinarily in accordance with the rules of summary +procedure. + +EFFECTS OF DECREE.--The party for whose fault the separation was +pronounced incurs the loss of the marriage remainders; of all the uses +which the other party had granted in the marriage contract, and also of +the legal usufruct. The other party preserves the right to the remainders +and to every other use dependent on the marriage contract, even if +stipulated as reciprocal. In case both parties are equally at fault each +incurs the losses above indicated, the right of support in case of +necessity always being preserved. + +CUSTODY OF CHILDREN.--The tribunal which pronounces the separation also +orders which of the parties shall retain the children. For grave reasons +it may commit the children to an educational institution or to the charge +of a third party. Whatever the disposition of the children, however, both +parents retain the right of supervising their education. + +FOREIGN DIVORCES.--Decrees of divorce granted by foreign courts are not +recognized in Italy so far as Italian subjects are concerned. + + + + +CHAPTER VII. + +BELGIUM. + + +REQUIREMENTS FOR MARRIAGE.--A man who has not completed his eighteenth +year and a woman who has not completed her fifteenth year cannot contract +marriage. + +Nevertheless, it is within the power of the sovereign to grant a +dispensation setting aside this requirement for good and sufficient +causes. + +There can be no marriage in Belgium without mutual consent. It is +forbidden to contract a second marriage before the dissolution of the +first. + +A son or a daughter who has not reached the age of twenty-one years cannot +contract a marriage without the consent of his or her father and mother. +In case of disagreement between the father and mother on this subject the +consent of the father is sufficient. + +A disagreement between a father and a mother as to giving consent to the +marriage of their child can be established by a notarial record, by a +summons served by a process server, by minutes of a hearing held on the +subject, or by a letter stating the mother's objection to the marriage +written by her to a civil officer of the State. + +If the father or the mother is dead, if either of them is absent or +incapable of expressing consent, the consent of the other parent is +sufficient. + +The incapacity of a father or a mother to express consent may be proven by +a declaration made by the future spouse whose ascendant is incapable and +by four witnesses of full age, of either sex. + +If the father and the mother are dead, or both are incapable of +manifesting their wishes, the grandfathers and the grandmothers take their +places. + +PROHIBITIONS.--In direct line marriage is forbidden between all legitimate +or illegitimate ascendants and descendants and their spouses. + +In the indirect or collateral line marriage is forbidden between brother +and sister, legitimate or illegitimate, and their spouses of the same +degree. + +Marriage is forbidden between uncle and niece and aunt and nephew. + +It is, however, possible for good reasons to obtain a dispensation from +the sovereign permitting a marriage within these prohibited degrees. + +FORMALITIES.--Marriage must be celebrated publicly before a civil officer +of the State of the commune and in the commune where one of the +contracting parties has his, or her, residence. + +OBJECTIONS BY THIRD PERSONS.--Of course, a husband or wife of an existing +marriage has the right to object formally to his or her spouse contracting +another marriage. + +The father, and, in default of the father, the mother, and, in default of +the mother, the grandparents have the right to oppose a marriage of a +child or grandchild who has not reached the age of twenty-five years. + +ANNULMENT.--A marriage which has been contracted without the free consent +of the parties, or one of them, may be annulled in the courts, but only on +the application of either of the parties when neither of them have given +free consent, or on the application of the party whose free consent was +not obtained. + +When there has been an error concerning the identity of either of the +parties to the contract the marriage can only be annulled at the instance +of the party who has been misled or imposed upon. + +A marriage which has been contracted without the consent of the father or +mother, the ascendants, or the family council, where such consent was a +necessary condition precedent, can only be annulled on the application of +the person or persons whose consent was wanting. + +A marriage which has been declared null continues in operation, +nevertheless, all the civil effects both for the parents and the children, +when the contract was concluded in good faith. + +OBLIGATIONS OF MARRIAGE.--The parties to a marriage are bound to mutual +fidelity, protection and assistance. + +The husband owes protection to his wife and a wife obedience to her +husband. + +A wife is obliged to live with her husband at whatever residence he may +judge to be proper. The husband is obliged to receive his wife and to +furnish her with the necessaries of life, according to his ability and +social condition. + +A husband and wife contract together by the fact of marriage itself to +nourish, educate and properly care for their children. + +A wife whose property is mixed with that of her husband, or who keeps her +property separate, cannot give, sell, pledge, mortgage, or acquire title +to property, with or without a valuable consideration, except on the +written consent of her husband. + +DISSOLUTION OF MARRIAGE.--A marriage is dissolved: + +1. By the death of one of the parties; + +2. By legal divorce; + +3. Abrogation by Article 13 of the Constitution. + +SECOND MARRIAGE.--A woman cannot conclude a new marriage until ten months +after the dissolution of the one precedent. + +DIVORCE.--A husband is entitled to a divorce because of the adultery of +his wife. + +A wife can only obtain a divorce because of her husband's adultery, when +the husband has brought his paramour or concubine into the home he has +established for himself and wife. + +Either party to a marriage is entitled to a divorce because of excessive +ill-usage or grievous bodily injuries committed by one against the other. + +The conviction of one of the parties for an infamous offence entitles the +other to institute an action for a divorce. + +MUTUAL CONSENT.--The mutual and persistent agreement of the parties to be +divorced, expressed in the manner provided by law, and after certain +formalities and proofs showing that a continuance of the marriage relation +is unbearable, and that there exists by agreement of both parties +peremptory reasons for a divorcement, is sufficient ground for a decree of +divorce. At a meeting of the International Law Association, held at the +Guildhall, London, on August 4th, 1910, Dr. Gaston de Leval, legal adviser +to the British legation at Brussels, pleaded in favour of the Belgian +system of divorce by mutual consent. Extremely few cases, he said, of such +divorces took place, the proportion not being more than three per cent. on +the average of Belgian divorces. He argued that such a divorce was at +least as moral and difficult to obtain as any other kind of divorce, and +in most of the cases the most difficult to obtain. + + + + +CHAPTER VIII. + +SWITZERLAND. + + +The marriage and divorce laws of the Swiss Republic are federal--that is, +operating throughout all the cantons of the confederation. Prior to +January 1, 1876, when the present federal law went into effect, the +different cantons had individual laws regulating divorce. + +QUALIFICATIONS FOR MARRIAGE.--1. Age. A man must be at least eighteen +years of age and a woman at least sixteen in order to contract a valid +marriage. + +2. Mental capacity. Lunatics and idiots are prohibited from marrying. + +3. Free consent. No marriage is valid without the free consent of the +parties. Duress, fraud or error in the person precludes the presumption of +consent. + +4. Consent of parents. Parental consent is required of all persons under +twenty years of age. If the parents are dead or incapable of manifesting +their will the consent of a guardian is necessary. If the guardian refuses +consent the parties may appeal from his decision to the courts. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between ascendants and +descendants; between brothers and sisters of the whole or half blood; +between uncles and nieces, or aunts and nephews, whether the relationship +arises from legitimate or illegitimate birth, and between connections by +marriage in the direct line. + +Marriage is also prohibited between adopting parents and adopted children. + +A widow, a divorced woman, or a woman whose marriage has been annulled +cannot contract a new marriage within 300 days after the dissolution of +the former marriage. + +When an absolute divorce has been decreed on the ground of adultery, +attempt on life, cruelty, dishonourable treatment, sentence to an +ignominious punishment, wilful desertion, or incurable mental disease, the +guilty or losing party cannot enter into a new marriage until one year has +elapsed from the date of the divorce. + +PRELIMINARY FORMALITIES.--Before the celebration, publication must be made +in the district of birth and residence of both parties. Fourteen days +after the formal publication of banns the registrar of the domicile of the +intended husband delivers to the parties, provided no valid objection to +the marriage has been served at the registrar's office, a certificate of +publication, which permits the parties to be married in any place in +Switzerland within six months from date of publication. + +CELEBRATION.--The marriage ceremony must be performed by a registrar. The +civil ceremony must precede any religious celebration. The civil marriage +before the registrar must be publicly performed in the presence of not +less than two witnesses. + +ILLEGITIMATE CHILDREN.--Illegitimate children are legitimatized by the +subsequent marriage of their parents. + +FOREIGN MARRIAGES.--A marriage contracted in a foreign country that is +valid according to the laws of that country is valid in Switzerland. + +DIVORCE AND JUDICIAL SEPARATION.--Absolute divorce is granted for the +following causes: + +1. When both husband and wife consent to a divorcement and it appears to +the court from facts presented that to keep the parties bound together by +the marriage bond is incompatible with the true intention of marriage. + +2. Adultery. However, six months must not have passed since the injured +spouse obtained knowledge of the offence. + +3. Attempt upon the life of either spouse. + +4. Cruelty or dishonourable treatment. + +5. Wilful desertion continued for two years, and the absentee has failed +within six months to obey a judicial summons to return. + +6. Incurable insanity or mental disease of three years' existence. + +7. In the absence of the causes above set forth the courts have still +power to grant either an absolute divorce or a judicial separation for not +more than two years if it appears that the parties are grossly +antagonistic to each other. If, upon petition, a judicial separation is +granted and at its stated expiration no reconciliation has taken place, +the court will entertain an application for an absolute divorce. + +EFFECTS OF DIVORCE.--The questions of property, alimony, custody of +children and change of name are determined according to the laws of the +individual cantons. Generally the guilty party must pay damages to the +innocent spouse, either in one payment or by instalments, the amount +depending upon the means of the parties and the nature and degree of the +offence for which the divorce was granted. + + + + +CHAPTER IX. + +GERMAN LAW. + + +The German Empire consists of twenty-six political States. These include +four kingdoms, six grandduchies, five duchies, seven principalities, three +free towns, and Alsace-Lorraine. With the exception of Alsace-Lorraine, +whose affairs are administered by the central imperial government, all are +sovereign States. + +This individual sovereignty of a German State is somewhat analogous to +that of a State in the American Union. However, we must for the purposes +of this chapter notice one important difference. + +The legislative power of the central authority of the German Empire is not +only exclusive on certain imperial matters, but its acts take precedence +in such domestic concerns as domicile, judicial procedure, marriage and +divorce, and the general rights of a German subject. + +The Constitution of the Empire (April 16, 1871) enumerates in detail the +powers, limitations and relations of the different organs of government. + +From the _Germania_ of Tacitus and other authorities we learn that among +the early Germans marriage was largely a matter of bargain and sale. In +the presence of certain relatives or friends the father or guardian of a +female delivered her to the bridegroom on receipt of the purchase price. + +Marriage by abduction was also recognized, but the abducter was obliged to +make compensation to the abducted female's father or guardian, which +compensation amounted in effect to an agreed purchase price. + +Although the consent of the female was never asked or considered on the +question of marriage, we are told by Tacitus that German wives were +remarkable for their fidelity and affection and were treated as friends by +their husbands, who had a high respect for their judgment in all concerns +of life. + +From the mediaeval times Christianity has exercised a strong and correcting +influence on the relation of marriage in Germany. At first the Christian +Church recognized the informally declared agreement to marry on the part +of the man and woman, which is called nowadays a betrothal, as all that +was necessary to make them husband and wife. If the agreement referred to +some future time, however, they were not considered as actually married +until cohabitation had taken place. By the decrees of the Council of +Trent, ratified in 1564, the Roman Catholic Church made it a requirement +for the first time that in order to constitute a valid marriage the +declarations of the couple must be made before a priest and witnesses. + +It was not until the eighteenth century that the Protestant Church in +Germany adopted the rule that a marriage is not concluded simply by +betrothal or mutual agreement, but requires a formal religious +celebration. + +The _Personenstandsgesetz_, which became law on January 1, 1876, provided +for the first time governmental regulation of marriage on a non-sectarian +basis for the German Empire. + +It was not, however, until the enactment of the Civil Code that a clear +and methodical statement of the law of marriage and divorce was given to +the German people. + +The German Civil Code (_Buergerliches Gesetzbuch fuer das Deutsche Reich_), +which became law on January 1, 1900, has been described by Professor +Maitland as "the most carefully considered statement of a nation's law +that the world has ever seen." It is in the Fourth Book of this scientific +codification, under the general title of Family Law, that we find the +German statutes of to-day on marriage and divorce. A summary of these +statutes follows: + +MARRIAGE.--Religious definitions, dogmas and obligations respecting +marriage are not affected or considered by the German Code. Marriage is +treated as a civil contract to which the State is always an added party. + +A legitimate child requires, before the completion of his twenty-first +year, the approval of his father for concluding a marriage; an +illegitimate child requires, before reaching maturity, the approval of the +mother. A male reaches his majority at twenty-one years of age and a +female at the completion of her sixteenth year, for the purpose of +marriage. + +IMPEDIMENTS TO MARRIAGE.--A marriage cannot be concluded between relatives +by blood in the direct line nor between brothers and sisters of full blood +or half blood, nor between persons one of whom has had sexual intercourse +with the parents, grandparents or descendants of the other. + +Persons in the military service, aliens and officials who by the law +require special permission to become married cannot conclude a marriage +without permission. + +FORM OF MARRIAGE.--A marriage is concluded by the parties appearing +together and declaring before a registrar, in the presence of two +witnesses, their intention to become husband and wife. + +VOIDABLE MARRIAGES.--A marriage may be avoided by a spouse who has been +induced to enter the marriage status by fraud concerning such facts as +would have deterred him or her from concluding the marriage had he or she +been acquainted with the actual state of affairs. A marriage cannot be +avoided on the ground of fraud or misrepresentation as to the pecuniary +means of either party. + +HUSBAND AND WIFE.--The parties are mutually bound to live in conjugal +community. The right to decide in all matters affecting the common +conjugal life belongs to the husband. However, if the decision of the +husband on these matters is an abuse and not a reasonable exercise of his +right the wife is not bound to accept his decision. + +PROPERTY.--A wife has absolute power to deal with her separate property as +if she were a single woman. A wife's separate property includes also that +which she has acquired by her industry or in the course of a separate +business conducted by her. It is presumed in favour of the husband's +creditors that all chattels which are in the possession of either husband +or wife, or in their joint possession, belong to the husband. In regard to +articles intended exclusively for the personal use of the wife, such as +clothing, ornaments and working implements, it is presumed that as between +the spouses and the creditors of either that the articles are the property +of the wife. + +MATRIMONIAL CONTRACTS.--Both spouses may regulate their property relation +by a contract made before or after the marriage. + +DIVORCE.--Grounds or Causes. Either spouse may petition for divorce on the +following grounds: + +A. Adultery of the other spouse; + +B. An attempt by one spouse to kill the other; + +C. Wilful desertion continued for the period of one year; + +D. Offences specified in Sections 171 to 175 inclusive, of the Criminal +Code, including bigamy, incest and certain detestable crimes; + +E. Such a grave breach of marital duty or such dishonest or immoral +conduct which disturbs the conjugal relation to such an extent that the +petitioner cannot reasonably be expected to continue the relation; + +F. Insanity of the respondent continued for three years and of such a +character that the intellectual community between the parties has ceased +and there is no reasonable hope of its renewal. + +Petitions for divorce must be filed within six months of the time when the +petitioner acquires knowledge of the facts constituting a sufficient +ground. + +The petition cannot be allowed in any case if ten years have elapsed since +the happening of the cause for divorce. After divorcement both parties are +free to remarry. + +If a marriage is dissolved for any cause the decree shall declare the +respondent to be the exclusive guilty party. + +PUNISHMENT FOR THE GUILTY.--Adultery is punishable by imprisonment with +labour for a term not exceeding six months in the case of the guilty +married person and the partner in guilt if the marriage is dissolved on +the ground of adultery. Prosecution only takes place, however, on +proposal--that is, at the instance of the aggrieved spouse. + +CONDONATION.--The right to a divorce is lost by condonation of the offence +relied upon as a cause. If a marriage is dissolved for any cause the +decree shall declare the respondents to be the exclusive guilty party. + +EFFECTS OF THE DIVORCE.--A divorced wife retains the surname of her +husband unless specifically prohibited until she remarries. + +If she is the innocent party she may, upon making a declaration before +competent authority, resume her maiden name. If she is the guilty party, +her husband, by making a declaration before competent authority, may +prohibit her calling herself by his surname. After she has thus lost the +surname of her husband she, by operation of law, resumes her maiden name. + +MAINTENANCE.--A husband declared by a decree of divorce or judicial +separation to be the guilty party shall provide maintenance to his +divorced wife suitable to her station in life, in so far as she is unable +to obtain such maintenance out of her earnings and income. + +A wife declared by decree to be the guilty party shall provide maintenance +to her divorced husband suitable to his station in life, in so far as he +is not able to so maintain himself. + +The maintenance above referred to shall be provided by a money annuity +payable quarterly and in advance. + +In some cases the person bound to provide such maintenance is required to +furnish a bond or security for the performance of the duty. + +For sufficient reason the person entitled to the payment of such a money +annuity may demand a complete settlement in a lump sum. + +The duty to provide maintenance is extinguished on the remarriage of the +party entitled to it or on the death of the party bound to make such +provision. + +If a marriage has been dissolved on account of the insanity of one of the +parties the same spouse shall provide maintenance to the unfortunate +respondent. + +If the husband is bound to provide maintenance to a child of the marriage +the wife is also bound to reasonably contribute toward such maintenance +out of her income or earnings. + +JUDICIAL SEPARATION.--The same causes which are sufficient for a divorce +will entitle the petitioner to a judicial separation if that form of +relief is preferred. If such a judicial separation has been granted either +spouse may apply for a divorce by virtue of the decree for separation, +unless the conjugal community has been re-established after the issue of +such decree. + + + + +CHAPTER X. + +AUSTRIA-HUNGARY. + + +The Austria-Hungary Empire comprises five countries, each bearing the name +of kingdom--viz., Hungary, Bohemia, Galicia, Illyria and Dalmatia; one +archduchy, Austria; one principality, Transylvania; one duchy, Styria; one +margraviate, Moravia, and one county, Tyrol. In this chapter we shall deal +with the marriage and divorce laws of Austria, leaving those of Hungary +and Transylvania for the following chapter. + +The regulations governing the marriage relation in Austria and the other +parts of the Empire represented in the Austrian Reichsrath are in general +contained in the Austrian Civil Code, which became law on June 1, 1811, +supplemented by later statutes, court decrees and ministerial edicts. +Perhaps the most curious feature of Austrian law is that an absolute +divorce can, for certain causes, be granted when both the parties are +non-Catholic, but for Roman Catholics the bond of marriage is dissoluble +only by the death of one party. + +DEFINITION OF MARRIAGE.--The Austrian Code defines marriage as follows: +"The foundation of family relations is the marriage contract. In the +marriage contract two persons of different sex legally declare their +intention to live in inseparable union to beget children and to rear them +up and to render each other mutual assistance." + +MARRIAGE QUALIFICATIONS.--1. There must be mental capacity. Insane, +demented, imbecile parties or persons deprived of the free use of their +minds by intoxication or any other cause cannot contract a binding +marriage. + +2. Minors must have completed their fourteenth year of age. + +3. Minors of legitimate birth under 24 years of age require the consent of +their parents or proper guardians. Illegitimate minors under 24 years of +age require the consent not only of their legal guardians but also that of +the court. + +4. There must be free consent of both parties. + +5. Physical capacity. Permanent and incurable impotence is an impediment +to marriage. + +6. Moral impediments. No person who has taken holy orders which involve a +solemn vow to celibacy can contract a valid marriage. Marriages between +Christians and Jews are forbidden. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between ascendants and +descendants, between full or half brothers and sisters, between first +cousins and between uncles and nieces or aunts and nephews. The +relationship may arise from legitimate or illegitimate birth. + +For Jews, however, the impediment of consanguinity extends no further in +the collateral line than to marriage between brother and sister or between +a woman and her nephew or grandnephew. + +A Roman Catholic is expressly forbidden to marry a divorced party until +after the death of the latter's former consort. + +PRELIMINARIES.--A valid marriage can take place only after formal +publication of the banns and the solemn declaration of consent. + +Banns are published by announcing the coming marriage together with the +full names of both parties, their birthplace, status and residence, on +three consecutive Sundays or holidays. In the case of Jews the banns must +be published on three consecutive Saturdays or feast days. + +CELEBRATION.--The solemn declaration of consent must generally be given +before the spiritual pastor of one of the parties or before his +representative. Two witnesses are necessary. + +A civil marriage in which the solemn declaration of consent is given +before the chief administrative official of the district, in the presence +of two witnesses and a sworn secretary, is obligatory if neither party +belongs to a legally recognized religious sect. + +FOREIGN MARRIAGES.--The marriage of an Austrian subject in a foreign +country is treated as valid in Austria if the marriage was concluded +according to the laws of such foreign country, and provided that such +marriage was not in contravention of the Austrian law which accepts the +Roman Catholic dogma of the indissolubility of marriage except by death of +one of the parties. + +ILLEGITIMATE CHILDREN.--Such children are fully legitimatized by the +subsequent marriage of their parents. + +ROMAN CATHOLICS.--As we have noted before between Roman Catholics the bond +of marriage cannot be dissolved by divorce. This rule applies even if one +of the parties is converted after marriage to a non-Catholic sect. + +The Austrian law provides a way by which some Roman Catholic marriages may +be provisionally dissolved after what is termed a "legal declaration of +death." If eighty years have elapsed since the birth of an absent spouse, +and his or her place of residence has been unknown for ten years; if an +absent spouse has not been heard from in thirty years; or if a spouse has +been missing for three years, and was last heard of under circumstances +leaving little doubt as to his or her death, then an action can be +instituted to have the absentee legally declared to be dead. Such a +declaration of death will legally dissolve the marriage, leaving the +spouse of the missing party free to marry again. However, should the +absentee spouse ever reappear, the declaration of death and the new +marriage lose all legal effect. + +DIVORCE.--Non-Catholic Christians may obtain absolute divorce for the +following causes: + +1. Conviction of adultery, or of a crime the penalty for which could be a +prison sentence of five years. + +2. Malicious abandonment. + +3. Severe cruelty. + +4. Conduct endangering the life or health. + +5. Invincible aversion on account of which both parties desire a divorce. +This need not be a mutual aversion, but it must be shown to be actual and +lasting. For this cause an absolute divorce is granted only after a +temporary separation from bed and board has been decreed, and the parties +appear to be irreconciliable. + +EFFECTS OF DIVORCE.--The woman retains the name of her husband, and both +parties may remarry, with the exception that a guilty party may not marry +his or her accomplice. + +The guilty party loses all rights and privileges in the property of the +innocent party. + +As to the custody of children the court has authority to make such order +as the facts and justice may require. + +JEWISH DIVORCES.--Jews in Austria may obtain absolute divorce under +special regulations adapted from the Mosaic law and rabbinical +jurisprudence. + +Marriage may be absolutely dissolved by means of a bill of divorcement +given by the man to the woman, with the mutual agreement of both parties. +This cannot take effect at once, but there must be three attempts at +reconciliation, either by the rabbi or by the court, or by both. + +The Austrian law also permits a divorce among Jews for the proven adultery +of the wife, in which case he can give her a bill of divorcement without +her consent. A Jewish woman cannot obtain a divorce because of the +adultery of her husband. + +JUDICIAL SEPARATION.--A judicial separation may be granted for the +following causes: + +1. By mutual consent. + +2. Conviction of either spouse for adultery or a crime. + +3. Malicious abandonment. + +4. Conduct endangering the life or health of spouse seeking relief. + +5. Incurable disease united with danger of contagion. + +6. Cruel and abusive treatment. + + + + +CHAPTER XI. + +HUNGARIAN MARRIAGE AND DIVORCE LAWS. + + +In Hungary proper and Transylvania, together with Fiume and certain parts +of the Military Boundary, the marriage law of 1894, supplemented by the +Civil Registration Act of the same year, is in operation for all citizens, +without regard to religious sect. + +In Croatia and Slavonia, which, although legally parts of the Kingdom of +Hungary, are autonomous in domestic affairs; three separate systems of +marriage regulation are in force governing, respectively, the Catholics, +the Oriental Greeks, and the Protestants and Jews. + +HUNGARY PROPER AND TRANSYLVANIA.--Civil marriage is the only form +recognized by law. + +MARRIAGE QUALIFICATIONS.--A man cannot marry before the conclusion of his +eighteenth year; a woman, before the conclusion of her sixteenth year. A +minor cannot conclude a marriage without the consent of his or her legal +representative. + +IMPEDIMENTS.--1. Marriage is forbidden between ascendants and descendants. + +2. Between brother and sister. + +3. Between brother or sister and offspring of brother or sister. + +4. Marriage between a person who has been previously married and a blood +relative in direct line of that person's former consort is forbidden. + +5. First cousins may not conclude marriage, except on dispensation from +the Minister of Justice. + +6. No person may conclude a marriage with any one who has been legally +sentenced for a murder or a murderous assault committed on the former's +consort, even if the sentence has not yet entered into effect. + +7. No one may conclude a marriage without the consent of his +ecclesiastical superiors if he has taken ecclesiastical orders or vows +which, according to the law of the church to which he belongs, prevent his +marrying. + +8. So long as the guardianship continues, marriage is prohibited between a +guardian or his offspring and the ward. + +PRELIMINARIES.--Before a marriage can be lawfully celebrated it must be +preceded by the publication of banns. This publication must be made in the +commune or communes where the parties ordinarily reside. Publication is +made by posting an official notice for fourteen days in the office of the +registrar and in a public place in the communal building. + +CELEBRATIONS.--Marriage is, as a rule, to be solemnized before the +registrar of the district in which at least one of the parties has his or +her residence or domicile. At the celebration of marriage the parties are +obliged to appear together before the officiating magistrate, and in the +presence of two competent witnesses declare that they conclude a marriage +with each other. After such declaration the magistrate declares the couple +to be legally married. + +The registrar is required by law to enter a record of the marriage on his +official register and to give a formal marriage certificate to the +parties. + +FOREIGN MARRIAGES.--In general, for a marriage contracted by a Hungarian +citizen in a foreign country to be recognized as valid in Hungary, the +parties to the marriage must satisfy the requirements of their respective +States as to age and legal capacity and must be free from all other +impediments contained in the law of either State. The Hungarian citizen +must comply with the regulations of the Hungarian law regarding +publication. + +Besides this, the foreign marriage must be concluded in accordance with +all the requirements of the country where it was celebrated. + +ILLEGITIMATE CHILDREN.--If at the time such children were born the parents +could legally have married each other then the subsequent marriage of the +parents makes legitimate the children. + +ANNULMENT OF MARRIAGE.--Marriages may be annulled because of the violation +of the various provisions of law regarding marriage impediments or the +formalities necessary to conclude marriage. + +DIVORCE AND SEPARATION.--Marriage can be legally dissolved only by a +judicial decree on certain grounds specified by law. These grounds are of +two classes--absolute and relative. + +The following causes constitute absolute grounds for divorce: + +1. Adultery. + +2. Crime against nature. + +3. Bigamy. + +4. Wilful abandonment without just cause. + +5. Attempt upon the life or wilful and serious maltreatment such as to +endanger bodily safety or health. + +6. Sentence to death or to at least five years in prison or the +penitentiary. + +For all of the above causes the court must grant an absolute divorce if +the allegations are proven. + +Divorce may also be granted on the following "relative grounds" if the +court, after careful consideration of the individuality and +characteristics of the parties, is satisfied that the facts warrant the +desired relief: + +1. Serious violation of marital duties. + +2. Inducing, or attempting to induce, a child belonging to the family to +commission of a criminal act or to an immoral manner of life. + +3. Persistent immoral conduct. + +4. Sentence to prison or the penitentiary for less than five years, or to +jail for an offence involving dishonesty. + +JUDICIAL SEPARATION.--An action for separation from bed and board can be +maintained on any of the grounds enumerated for divorce. + +EFFECTS OF DIVORCE OR SEPARATION.--After a divorce the guilty party is +required to restore to the innocent party all gifts made by the latter +before or during the marriage. The man who is declared guilty is obliged +to maintain the innocent woman in a position in keeping with his estate +and social position, in so far as her income is insufficient. Alimony is +payable as a rule in advance monthly instalments. The right to alimony +continues after the man's death, but on the application of his heirs it +may be reduced to the amount of the net income of the estate. The right to +alimony ceases if the woman marries again. + +Up to their seventh year minor children are entrusted to the care of the +mother; after that time, to the innocent party. If both parties are guilty +the father receives the custody of the boys and the mother that of the +girls. + +The effects of separation are the same as those of divorce in reference to +property, alimony and custody of children. + +FOREIGN DECREES.--In matrimonial causes where one or both of the parties +is a Hungarian citizen the courts of Hungary do not recognize any foreign +judgment or judicial decree. + + + + +CHAPTER XII. + +SWEDEN. + + +MARRIAGE.--Swedish law recognizes marriages which are to take effect in +the future (_sponsalia de futuro_), and the existence of a betrothal that +has been entered into in the presence of four witnesses and the woman's +marriage guardian carries with it the obligation of a final fulfilment of +the marriage promise, which under certain conditions is subject to +enforcement by law. Thus, on the refusal of one of the affianced parties +to proceed to the promised marriage, they can be proclaimed man and wife +by judgment of the court, and the complainant has then the rights of a +legally wedded person. This method of procedure is resorted to +particularly if cohabitation has taken place subsequent to the betrothal, +but in the absence of such cohabitation various causes can render the +promise of marriage invalid. Diseases of a contagious or of an incurable +nature, whether contracted before or after the marriage promise was given, +insanity, ungovernable temper, licentiousness or other vices, and serious +defects are sufficient impediments to the compulsory marriage of betrothed +persons. + +A person who, under false pretenses, entices another to promise marriage, +cannot demand the fulfilment of the promise and is even liable to +punishment. + +A betrothal entered into through force or fear, or during a state of +intoxication or temporary insanity, is not valid. + +IMPEDIMENTS TO MARRIAGE.-- + +1. Lack of free consent. + +2. Epilepsy. Sufferers from epilepsy (_epilepsia idiopathica_) are barred +from marrying. + +3. A heathen or a person who does not belong to any recognized religious +creed cannot contract a lawful marriage. + +4. Non-age. Marriage can be lawfully entered into by males 21 years of age +and over and by females 17 years of age and over. A male Laplander, +however, may marry when 17 years of age and a female when 15 years of age. +A dispensation may be granted from the impediment of non-age, but such +dispensation is not granted a male unless his marriage is approved by his +parents or guardians and unless he is a person of good reputation and able +to support a wife. + +CONSENT OF PARENTS.--A male requires the consent of no third party. Any +female under 21 years of age requires the consent of her marriage +guardian. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between relatives by +blood in the direct line or between two relatives by blood in the +collateral line, one or both of whom are descended in the first degree +from the common ancestor. + +Marriage is also prohibited between relatives by affinity in the direct +line. + +In all cases relationship by illegitimate as well as legitimate birth is +included. + +A divorced person who has been adjudged guilty of adultery cannot contract +a new marriage without the consent of the innocent party, provided the +latter is still living and has not remarried. Under no conditions can the +guilty party marry his or her accomplice. + +No man or woman who is bound by a betrothal or by an undissolved marriage +can marry a third person. + +A widower must not contract a new marriage within six months after the +death of his wife, nor a widow within one year after the death of her +husband. + +PRELIMINARIES.--On three successive Sundays or holy days previous to a +wedding banns must be published from the pulpit of the State church in the +parish in which the prospective bride resides. + +CELEBRATION.--The usual form of marriage is the religious ceremony. This +alone is valid in case the man and woman belong to the same religious +sect. An adherent of the State church who has never been baptized or who +has never been prepared for the rite of the Lord's Supper has recourse +only to a civil marriage. This is also the case in a marriage between a +Christian and a Jew and in a marriage between parties who belong to a +Christian church the clergy of which have not been granted the right to +perform marriages. + +DIVORCE AND JUDICIAL SEPARATION.--Grounds for Judicial Divorce. An +absolute divorce can be granted by court on the following grounds: + +1. Adultery. + +2. Illicit intercourse with a third party after betrothal. + +3. Malicious desertion for at least one year, provided the absentee has +left the Kingdom. + +4. Absence without news for six years. + +5. An attack on the life. + +6. Life imprisonment. + +7. Insanity of at least three years' duration and pronounced incurable by +physicians. + +ROYAL PREROGATIVE.--All the grounds for divorce by royal prerogative are +not definitely determined. The following alone are specifically mentioned +in the law: + +1. Judicial condemnation to death or to civil death, even if a royal +pardon is granted. + +2. Judicial condemnation for a gross offence or an offence incurring +temporary loss of civil rights. + +3. Judicial condemnation to imprisonment for at least two years. + +4. Proof of prodigality, inebriety or a violent disposition. + +5. Opposition of feeling or thought between the husband and wife which +passes over into aversion and hate, provided that a separation from bed +and board has been granted on this ground and lasted for a year without a +reconciliation taking place during the interval. + +LIMITATIONS TO RIGHT OF ACTION.--Collusion, connivance, condonation or +recrimination extinguishes the right to a divorce. + +In a case of adultery divorce will be granted only if the innocent spouse +has instituted proceedings within six months after obtaining knowledge of +the offence, has not condoned it by cohabitation or otherwise and has not +been guilty of a similar offence. + +If the insanity of the defendant in a divorce suit has been caused, or +even accelerated by the cruel treatment of the complainant, divorce will +be refused. + +PROCEDURE.--In a case of desertion, if the whereabouts of the guilty party +is unknown, the court, by means of publication in all the pulpits of the +district, orders him to return within a year and a day. If he does not +present himself within the time mentioned the judge pronounces the +divorce. Where the ground is insanity the judge must give a hearing to the +nearest relatives of the afflicted party and investigate carefully the +married life of the couple, in order to learn whether the insanity was +caused or even accelerated by the plaintiff. + +The State's attorney is not authorized to interfere in a suit for divorce, +nor are attempts at reconciliation required. + +The court can, however, advise a reconciliation, with or without the +adjournment of the case. + +JUDICIAL SEPARATION.--This is often only the preliminary to an absolute +divorce. It can be granted when hate and violent anger arise between +husband and wife and one of them reports the matter to the rector of the +parish. It is the duty of the rector to admonish the couple. If they do +not become reconciled they are to be further admonished by the consistory. +If this admonition also proves fruitless the court grants a separation +from bed and board for one year. The law provides also that this procedure +may be followed in cases of malicious desertion, where the guilty party +remains in the country or where one party drives the other from home. + + + + +CHAPTER XIII. + +DENMARK. + + +Justice is administered in Denmark in the first instance by the judges of +the hundreds in the rural communities and by the city magistrates in the +urban districts. Appeals from such courts lie to the superior courts of +Copenhagen and Viborg, and in the last resort to the Supreme Court, which +consists of a bench of twenty-four judges, at Copenhagen. + +Denmark was one of the first countries in Europe in which the government +established any regulation or control over matrimonial affairs. + +The body of the law on marriage and divorce is found to-day in the Code of +Christian the Fifth (1683), as modified and modernized, and such customs +and precedents of the Danish people as the courts accept as binding. + +BETROTHAL.--A betrothal or engagement to marry carries with it no legal +obligation. The courts of Denmark do not recognize the breach of a promise +to marry as constituting a legal cause of action. + +If, however, a woman, on promise of marriage, permits sexual intercourse, +she can sue to have the marriage specifically performed, provided the man +is at least 25 years of age and the woman herself is of good reputation +and neither a widow nor a domestic servant who has become pregnant by her +employer or one of his relatives. In addition, the betrothal must either +have been public or capable of easy proof. + +QUALIFICATIONS FOR MARRIAGE.--A male cannot legally conclude marriage +before the completion of his twentieth year. A female must have completed +her sixteenth year. The King may grant a dispensation permitting parties +of less age to marry. + +Males and females are minors until the completion of their twenty-fifth +year, and during minority cannot conclude marriage without the consent of +their parents or guardians. If the necessary consent is withheld without +just cause the authorities can furnish the desired permission. + +IMPEDIMENTS.--Marriage is prohibited between relatives in the direct line, +whether by blood or marriage, and between brothers and sisters of the +whole or half blood. + +The royal dispensation is required for marriage between a man and his +brother's widow, his aunt, great-aunt or any feminine relative nearer of +kin to the common ancestor than the man himself. + +Persons convicted of having committed adultery with each other may not +marry without having first obtained permission of the civil authorities. + +Persons divorced by extra-judicial decree are not allowed to contract a +new marriage, without permission to this effect is given in the decree. + +The law prescribes a mourning period of one year for a widow and three +months for a widower, during which time they are not allowed to contract a +new marriage; but under special conditions the mourning period may be +shortened. + +PRELIMINARY FORMALITIES.--If the marriage is solemnized before a clergyman +banns must be published from the pulpit for three consecutive Sundays, and +the marriage must follow within three months. In case of a civil marriage +one publication must be made by the authorities at least three weeks and +not more than three months before the celebration. + +CELEBRATION.--The national church of Denmark is the Lutheran, and in the +case of Protestant Christians a religious marriage must be solemnized +before a clergyman of the Lutheran Church. + +Civil marriages performed at the courthouse by a magistrate are permitted +when the bride and groom are of different religious faith or when neither +of them belong to any recognized religious sect. + +ILLEGITIMATE CHILDREN.--Subsequent marriage of the parents legitimatizes a +child born out of wedlock. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled at the instance of one +of the parties for the following causes: + +1. Want of free consent by one or both parties. + +2. If one of the parties at the time of the marriage was impotent and this +fact was unknown to the other. This impotence must, however, be incurable +and continue for three years. + +3. If one of the parties was at the time of the marriage afflicted with +leprosy, syphilis, epilepsy or a contagious and loathsome disease, and +this fact was concealed and unknown to the other party. The disease must +be incurable. + +DIVORCE.--An absolute divorce upon proper grounds may be obtained by means +of a judicial decree, royal authorization given to the higher civil +authorities, authorization from the Minister of Justice, or a special +royal decree. + +The causes for an absolute divorce are: + +1. The last two causes mentioned above as sufficient for an annulment. + +2. Adultery. + +3. Bigamy. + +4. Wilful abandonment. + +5. Absence for five years or more under circumstances leading a reasonable +person to conclude that the absentee is dead. Exile or deportation from +the country for at least seven years. + +6. Imprisonment for life, if pardon or liberty is not given within seven +years. + +EXTRA-JUDICIAL DIVORCE.--The Mayor of Copenhagen and the superior +magistrate outside of Copenhagen--called the higher civil authorities--may +give a royal authorization for a divorce in cases where the parties have +lived apart for three years in consequence of a separation decree, and +both parties ask for divorcement. + +The Minister of Justice has also authority in some instances to grant +decrees of absolute divorce. + +The conditions under which a divorce can be granted by special royal +decree are not specifically defined, but the decree is seldom granted +except for substantial reasons and according to precedent. + +SEPARATION.--Decrees of separation from bed and board may be obtained upon +mutual consent of the parties or if good reason exists upon the petition +of one of the parties. + +EFFECTS OF DIVORCE.--Usually in the absence of an agreement between the +parties each party receives one-half of the property which during the +marriage relation was held in common. + +The duty of mutual support and assistance ends, but sometimes the man is +directed to pay alimony to the woman. + +The innocent party is generally given custody and control of the children +of the marriage, but the courts favour an agreement between the parties on +this subject. + +Unless the decree of divorce has been brought about by her guilt a +divorced wife is permitted to retain the name and rank of her divorced +husband. + + + + +CHAPTER XIV. + +THE NORWEGIAN LAW. + + +In many respects the laws of marriage and divorce in Norway resemble those +of Denmark. There are, of course, historical and political reasons for the +resemblance. + +MARRIAGE.--The law of Norway fixes 20 years as the minimum marriageable +age for a man and 16 years for a woman. These provisions are often +interpreted, however, by the courts, as having reference to the age of +puberty, and as this age varies with different persons the law is not +always followed literally, particularly as regards the marriageable age of +a woman. Neither male nor female under the age of 18 years is allowed to +marry without the consent of parents or guardians. + +The validity of an objection to the marriage on the part of parents or +guardians can be tested in court, and although causes for such objections +are not specified or limited by statute they are kept within reasonable +grounds through long-established precedent. + +IMPEDIMENTS TO MARRIAGE.--No man or woman may marry a relative by blood in +the direct line. No man can many his full or half sister. + +Persons convicted of having committed adultery with each other may not +marry without first obtaining permission of the civil authorities. + +A person bound by a marriage not dissolved through natural or legal causes +is not allowed to enter into any other matrimonial alliance. + +After the death of her husband a widow must wait nine months before she +can contract a new marriage, but this waiting period can be shortened by +dispensation, especially if she proves that she is not pregnant. + +PRELIMINARIES.--In case of religious marriage one publication of banns is +sufficient, and even this can be dispensed with in some instances. For a +civil marriage no publication of banns is required. + +CELEBRATION.--Marriages must be solemnized before a minister of the +Lutheran Church or by some person authorized by the State to officiate, +and in the presence of two competent witnesses. The wedding celebration +may take place either in church or in a private house. + +All notaries have legal authority to perform civil marriages, but only +between persons at least one of whom does not belong to the State church. + +ANNULMENT OF MARRIAGE.--Nullity is of two kinds--absolute and relative. In +the case of the latter the marriage is considered as valid until declared +otherwise, generally on the application of one of the parties. A marriage +is absolutely null if at its celebration there was no declaration of the +clergyman or of the civil official that the couple were man and wife, or +if proof exists of bigamy or of relationship within the prohibited +degrees. + +DIVORCE AND SEPARATION.--An absolute divorce may be obtained for +sufficient cause either by royal decree or by judicial determination. The +most usual form is by royal decree, which is granted in the following +cases: + +1. When one at least of the causes prescribed by law is proven. + +2. After a separation from bed and board has lasted three years. In such a +case the royal decree is granted either on the petition of both parties, +or, if circumstances justify, on the petition of one of the parties. + +3. It may be granted by royal decree without any preceding separation. +This form of divorce is granted either when legal cause for divorce exists +or when the ground is otherwise considered sufficient. + +A judicial decree of absolute divorce is obtainable for the following +causes: + +1. Adultery. + +2. Bigamy. + +3. Wilful desertion for at least three years. + +4. Assault and cruel treatment endangering the life of the complainant. + +5. Absence for seven years, especially if no information has been received +of the absentee during that period. + +If the facts as shown leave little or no doubt as to the death of the +absent party, a divorce can be granted after three years' absence. + +6. Imprisonment for life, after the innocent party has waited seven years. + +In addition to these grounds a divorce by royal decree can be obtained +when one of the parties has become incurably insane or has been sentenced +to prison for at least three years; or when the parties, by mutual +agreement, have lived entirely apart for fully six years, and the facts +show that domestic peace and the well-being of the parties are not +promoted by their continuing as husband and wife. + +LIMITATIONS.--If the act complained of was committed by the consent or +procurement of the complainant, or if the latter has voluntarily cohabited +with the offender after discovery of his or her guilt, or if the +complainant has been guilty of a similar offence, divorce will be refused. + +EFFECTS OF DIVORCEMENT.--Each of the parties receives one-half of the +common property, but agreements are permitted by which the man retains +all such property on condition of paying the woman an annual allowance. + +The duty of mutual assistance ceases, although if justice demands the man +may be ordered to pay alimony to the woman. The Norwegian law contains no +hard-and-fast rule as to the custody of the children of divorced parents. +When no agreement exists between the parties the innocent party is +generally given custody of all the children. + +A woman who obtains a decree of divorce against her husband is allowed to +retain the name and rank of her ex-husband. + +SEPARATION.--A separation from bed and board may be granted either on the +mutual consent of both parties, or by royal decree on the petition of one +of the parties if reasonable grounds exist. + + + + +CHAPTER XV. + +THE RUSSIAN EMPIRE. + + +There have always been plenty of laws in Russia, the chief difficulty +being not with the quantity but the quality. Another perplexing feature of +Muscovite laws is the uncertainty of this patchwork of royal decrees, +undefined traditions, changing customs and priestly superstitions. + +If Peter the Great had lived long enough he would probably have given +Russia a regular code such as Napoleon bequeathed to France, but he was +too busy during his career with wars, travels and social reforms. + +The Emperor Nicholas I. is entitled to the credit of being the first +Russian sovereign to direct the compilation of anything approaching a +classified legal code, and under his authority the jurist Speransky +collected together some forty volumes. This code, as revised from time to +time, is the best exposition obtainable of the law of the Empire. Its +first article, however, qualifies the entire code by recognizing the +Tsar's privilege of altering or setting aside any law of the realm at +will. + +Until recently the first lesson for the Russian law student to learn was +expressed in the doctrine: _Quod principi placuit, legis habet vigorem_. +"The sovereign's pleasure has the force of law." + +Many reforms have of late years been worked in Russian law and judicial +procedure, but in these matters Russia is still a long way off from +justifying the belief expressed by Count Mouravieff, that this country has +a civilizing mission such as no other nation of the world, not only in +Asia, but also in Europe. + +Such benefits as can be derived from the law are still more for the +privileged classes than for the great body of the people, and the point +has not yet been reached of substituting judicial trials for +ecclesiastical in matrimonial causes. + +The regulations concerning marriage and divorce fall within the province +of the clergy and the ecclesiastical courts, except that the civil +tribunals have jurisdiction over annulment and divorce for the +_Raskolniken_, or "Old Believers," and for the Baptists and some other +dissenters from the State Church of Russia. + +With the exceptions noted, the regulations of each form of religious +belief, including Mohammedanism and other non-Christian beliefs, are +endorsed by the State as the law for the adherents of that belief. The +civil courts, however, have jurisdiction over the civil effects of +marriage and divorce, and the State law contains certain provisions +binding on the adherents of all religious confessions. + +The regulations governing the Roman Catholics are, in general, those of +the canon law and those governing the German Lutherans are those of the +old Protestant common law of Germany. + +We shall consider the special regulations affecting the Jews in a separate +division of this chapter. + +MARRIAGE.--A man reaches marriageable age upon the completion of his +eighteenth year and a woman upon the completion of her sixteenth year; +natives of Transcaucasia, however, may marry at the completion of the +fifteenth and thirteenth years, respectively. + +A marriage cannot take place without the free and mutual consent of the +principals. The exercise of any kind of compulsion is forbidden to +parents or guardians. + +Without regard to their age children require the consent of their parents. +In most parts of Russia there is no appeal in case a parent withholds +consent. Marriage without parental consent is not invalid, but the guilty +person is liable to a penalty of from four to eight months' imprisonment, +on petition of the parent, and to the loss of his right of inheritance in +the property of the parent. + +Persons who are under guardianship or curatorship require the consent of +their guardian or curator. + +CONSANGUINITY AND AFFINITY.--The prohibited degrees of consanguinity are +determined according to the principles of the religious body to which the +parties belong. Marriage is, however, universally prohibited between +persons who are related in the first or second degree. + +DIFFERENCE OF RELIGION.--Marriage between Christians and non-Christians is +prohibited, except between Lutherans, adherents of the Reformed Church, +and other Protestants on the one hand, and Jews and Mohammedans on the +other. + +INSANITY.--Marriage is absolutely prohibited to insane persons. + +OFFICIAL PERMISSION.--Civil officials require the consent of their +superiors in order to marry. + +HOLY ORDERS.--Marriage is prohibited to the clergy of the State Church, +but if a secular priest is already married before ordination he may +continue in that relation. The practice is for the majority of men who +intend to enter the secular priesthood to marry before ordination. + +ADVANCED AGE.--Persons who have attained the age of eighty years may not +marry. + +FOURTH MARRIAGE.--The contracting of a fourth marriage is unconditionally +forbidden. + +PRELIMINARY FORMALITIES.--A male member of the Russian Church, or an "Old +Believer," who intends marriage, must, from one to three weeks before the +date of celebration, announce the fact to the clergyman in whose parish he +resides, and bring to him the certificates of baptism of himself and his +intended bride, certificates of their social status, proofs of identity +and a certificate that both parties have been to confession and received +holy communion. With these documents and proofs at hand the clergyman +announces the names of the betrothed parties on three successive Sundays +or feast days. The marriage cannot be concluded without a certificate +showing that all the formalities have been complied with. + +CELEBRATION.--A marriage may be solemnized in accordance with the rules of +the religious sect of the parties, before one of its clergymen, with the +personal participation of the contracting parties and in the presence of +competent witnesses. For members of the Russian Church the solemn +betrothal, which formerly took place some time previous to the marriage, +now introduces the wedding ceremony. The latter must follow the prescribed +ritual exactly. The wedding must take place in church, during the daytime, +before adult witnesses, and the contracting parties must be actually +present. + +ILLEGITIMATE CHILDREN.--The subsequent marriage of the parents does not in +itself legitimatize such offspring. After their marriage the parents must +petition the court for an order of legitimacy. + +ANNULMENT OF MARRIAGE.--Any marriage is null that was not solemnized by a +clergyman of the religious sect of which one of the contracting parties is +an adherent, except those solemnized before a priest of the Russian +Church, because of the absence of a clergyman of the proper religious +sect. A marriage is also null in case of bigamy, difference of religion +and violation of the rules concerning consanguinity and affinity. + +DIVORCE.--It is impossible for an adherent of the Russian Church or for an +"Old Believer" to obtain a decree of absolute divorce. + +The grounds for an absolute divorce for other persons except Jews are: + +1. Adultery. + +2. Bigamy. + +3. Impotence existing at time of marriage. + +4. Absence without news for five years. + +5. Condemnation to the loss of all civil rights. + +6. Banishment to Siberia with the loss of all special rights. Either party +may petition for divorce on this ground. + +7. Entrance of both spouses into a religious order, provided they have no +children who need their support and care. + +8. Conversion of a non-Christian to the Russian Church, provided he or his +consort desires such divorcement. + +PROCEDURE.--In the case of a Christian who is not an "Old Believer" or a +member of the Russian Church, the petition for divorce is filed in the +ecclesiastical court. After this the bishop designates a clergyman, who is +to make an attempt to reconcile the parties. Not until this attempt has +failed is notice served on the defendant and the day set for a hearing of +the cause. If the court decides in favour of a divorce, the decree must be +submitted to the Synod for revision. In case of condemnation to the loss +of civil rights, a divorce is granted immediately. + +If the ground relied on is the conversion of a non-Christian to the +Russian Church, the divorce is granted merely on the formal declaration +of one of the spouses that he or she does not wish to continue the +marriage. + +EFFECTS OF DIVORCE.--The adjustment of the personal and property rights +and the custody of the children are matters entirely for the discretion of +the tribunal. + +LAW FOR LUTHERANS.--Members of the Lutheran Church outside of Finland are +governed by special regulations concerning the grounds for divorce. These +grounds are: + +1. Adultery. + +2. Unlawful relation with a third party before the marriage, though in the +case of the husband only such relations subsequent to the betrothal are +considered. + +3. Wilful refusal of one party to live with the other. + +4. Unjustified absence for two years without news. + +5. Absence for five years. + +6. Unjustified refusal to perform the marital duty for at least one year. + +7. Wilful prevention of conception. + +8. Impotence existing at time of marriage. + +9. Incurable or loathsome disease existing at time of marriage and +concealed from the other party. + +10. Incurable insanity. + +11. Vicious conduct. + +12. Cruel and abusive treatment. + +13. Design of one spouse to bring dishonour on the other. + +14. Infamous crime. + +FINLAND.--In this country marriage between Christian and non-Christian, +and the marriage of a Lutheran who has not yet been admitted to the rite +of holy communion, are prohibited. + +In case of seduction marriage is prohibited unless the consent of the +parents or of the court is obtained. + +Divorce is permitted in Finland for the following causes: + +1. Adultery. + +2. Illicit intercourse with a third party after betrothal. + +3. Malicious desertion for one year. + +By petition to the Department of Justice of the Imperial Senate a Finn can +obtain, for sufficient cause, a divorce on other grounds. + +RIGHTS OF MARRIED WOMEN.--When we come to consider the rights, or rather, +the lack of rights, of married women in the Muscovite Empire we must +remember that Russia is only geographically in Europe, and only nominally +a Christian State. It is a country standing alone on the map of the world, +five centuries behind in civilization what is really Europe. + +Although among the so-called higher classes woman is often treated +socially--not legally--as the equal of her husband, among the great bulk +of the population she has little more status than that of a domestic +animal. + +There is no other country on earth pretending to be civilized where a +woman, single or married, has so few rights recognized by the State or the +national church. + +A married woman in Russia owns nothing. It is all her husband's. She is, +however, allowed the privilege of saving up a little hoard of her own on +the flax or wool out of which she makes the clothing for her husband and +children. This little hoard is called her _korobka_, and upon her death it +goes to her children. If she dies childless it goes to her mother, and if +her mother is also dead it goes to her single sisters. + +Such a _korobka_, when accumulated by a single woman from her earnings, is +considered as a dowry upon marriage, and it is generally applied by the +bridegroom to pay the wedding expenses. + +Count Mouravieff could not have been thinking of woman's place in his +native land when he said: "We Russians bear upon our shoulders the New +Age; we come to relieve the tired men." It is our opinion that the nation +which is most likely to bear upon the shoulders of its people the New Age +is the country which treats its womankind the best. + +SPECIAL LAWS FOR JEWS.--The law of marriage and divorce which governs the +Jews of Russia differs in many particulars from the rules applicable to +adherents of other sects. This special set of regulations comes from the +people of Israel themselves and is an outgrowth of the ancient Mosaic code +of jurisprudence. In thus permitting the Jews to have a body of rules +founded on the ancient precedents of their race and in agreement with +their consciences we find at least one attitude of wise tolerance for +which the Russian Empire is entitled to credit. + +BETROTHAL.--A Jewish betrothal must take place in the presence of two +competent witnesses. The consent of the parents of either party is not +required. Like marriage the betrothal can be dissolved only by death or by +divorce. It obligates the parties to marry within thirty days from the +date on which either demands marriage. + +A betrothal may be dissolved on the following grounds: + +A. Evil conduct. + +B. Change of religion. + +C. Insanity. + +D. Unchastity of either party or of one of his or her near relatives. + +E. By the man entering a dishonest occupation. + +IMPEDIMENTS.--Besides the impediments which prevent certain people of +other sects from lawfully concluding marriage there are other impediments +specially applicable to Jewish people. Briefly enumerated they are as +follows: + +1. A woman guilty of adultery, or even of secret association, with a man +against her husband's will cannot marry her accomplice. + +2. A marriage between a Jew and an idolator is forbidden. + +3. If a woman's husband has died childless, and is survived by a brother, +she can marry no one else than this brother until the latter has declined +marriage with her in the prescribed form. + +4. After the death of near relatives a marriage may not take place within +thirty days. + +5. A widow or divorced woman may not contract a new marriage within ninety +days from the dissolution of her earlier marriage. + +6. A pregnant woman may not marry before her delivery. + +7. A widower may not marry before three feast days have passed since the +death of his wife, but in case he is childless or his children require a +mother's care he may marry after seven days. + +DIVORCE.--The Jewish law makes no distinction between divorce and +annulment. The grounds for divorce are as follows: + +1. Bigamy. + +2. Difference of religion. + +3. Relationship in the first degree in the direct line, by blood or +marriage. No legal action is necessary for these three causes. + +4. Adultery. + +5. Leprosy of the husband. + +6. Mutual consent of the parties. + +7. Such conduct on the part of the wife as raises a reasonable suspicion +of her adultery. + +8. The cursing by the wife of her father-in-law in her husband's presence. + +9. Wife's desertion of husband. + +10. Wife's refusal for one year to perform marital duty. + +11. Husband's cruelty to wife. + +12. Husband's apostasy from the Jewish religion. + +13. When the husband is a fugitive from justice. + +14. Neglect of husband to support his wife. + +15. Persistent vicious and disorderly manner of life on part of the +husband. + +16. Husband's admission that he is incurably impotent. + +17. The contraction by the husband of a loathsome disease. + +18. The adoption by the husband of a dishonest or disgusting occupation. + +19. Such conduct on the part of the wife as causes her husband, without +deliberation, to violate the ritualistic requirements of the Jewish +religion. + +PROCEDURE.--The rabbi is the judge in the first instance of a divorce +petition. Appeal from his decision lies to the civil authorities. + +In the ordinary divorce case the first action by the rabbi is an attempt +to reconcile the parties. A confession of the guilty party is competent +evidence. + +The divorce becomes effective by the man delivering to the wife, after the +rabbinical decision, a bill of divorcement. This is done even if the wife +is the successful suitor. The husband can be compelled to make such a +delivery. + +EFFECTS OF DIVORCE.--The dowry (_Nedunya_), which was settled on the wife +at the time of the marriage, must be returned to her if she is the +innocent party. The woman retains the name of her divorced husband. Both +parties are free to marry again. + + + + +CHAPTER XVI. + +HOLLAND. + + +MARRIAGE.--A male must be eighteen years or more and a female sixteen +years or more in order to be lawfully married. + +Marriage is forbidden between all descendants and ascendants, legitimate +or otherwise, and in the collateral line marriages are forbidden between +brothers and sisters of the whole or half blood, legitimate or +illegitimate. + +Marriage is also forbidden in Holland between brothers-in-law and +sisters-in-law, between uncle and niece, or granduncle and grandniece, and +between aunt and nephew, grandaunt and grandnephew, legitimate or +otherwise. + +The Queen has power under the law to grant a dispensation for good reasons +relieving any couple from the effect of such prohibitions. She has also +power, for sufficient cause, to permit persons under age to contract +marriage. + +As a preliminary to marriage children must ask the consent thereto of +their parents, but the consent of the father is sufficient. If the father +is dead the consent of the mother suffices. + +If the mother and father are both dead the grandparents take their places. + +Marriage is treated in Holland as a civil contract. + +CELEBRATION.--The ceremony of marriage must take place publicly in the +town hall before a registrar, but not until three days after the +publication of banns. Four male witnesses of full age must be present. If +one of the parties is unable to attend the town hall the marriage may be +solemnized in a private house, but in such a case six male witnesses of +full age are necessary. A religious celebration of the marriage cannot be +performed until the officiating clergyman is shown proof that the civil +marriage has already taken place. + +FOREIGN MARRIAGE.--A marriage concluded in a foreign country between two +Hollanders, or between a Hollander and a foreigner, is recognized as valid +in Holland if celebrated according to the requirements of the foreign +country, and provided the banns were duly published, without opposition, +in the place or places of residence in Holland of the contracting parties, +and provided such marriage is not in contravention of the law of Holland. + +ANNULMENT OF MARRIAGE.--A marriage may be judiciously annulled on the +following grounds: + +1. Previous existing marriage of one of the parties. + +2. Want of free consent on the part of one or both of the parties. + +3. Mistake as to identity of person. + +4. Insanity or deficient mentality of one or both parties. + +5. Lack of marriageable age. + +6. Relationship within prohibited degrees. + +7. Marriage with an accomplice in adultery. + +8. Absence of requisite number of witnesses. + +9. Marriage in spite of an objection raised on publication of the banns, +in case the objection proves to be well founded. + +10. Marriage in violation of any other legal requirement. + +DIVORCE.--In Holland a marriage can be dissolved in one of four different +ways: + +1. By death of one of the parties. + +2. By the absence of one of the spouses for the period of ten years or +more, coupled with the remarriage of the other spouse. + +3. By a divorce pronounced after a judicial separation has been obtained +by one of the spouses. + +4. By a divorce pronounced in the first instance for one of the causes +hereinafter stated. + +The causes for an absolute divorce are: + +1. Adultery. + +2. Malicious abandonment continued for five years. + +3. Judicial condemnation of one of the spouses to prison for an infamous +offence. + +4. Grave bodily harm inflicted by one spouse upon the other. + +PROCEDURE.--The action for divorce must be instituted before the judge of +the district where the husband is domiciled, except when the cause alleged +is malicious abandonment, in which case the suit must be brought before +the judge of the district in which both parties had their last common +domicile. + +Before filing the formal petition the complainant must personally attend +before the district judge and state the facts, after which it is the duty +of the judge to attempt a reconciliation of the parties. The complainant +must appear without counsel or relatives. The judge next orders both +parties to appear before him without counsel or relatives in the further +endeavour to effect a reconciliation. + +If a reconciliation appears to be impossible the formal petition for +divorce is then filed with the court. + +All suits for divorce are heard _in camera_, and the public prosecutor +must attend. + +EFFECTS OF DIVORCE.--In so far as the innocent party is not able to +support himself or herself out of his or her income the guilty party is +bound, if able, to provide support. + +Except when it appears to the court that justice otherwise requires, the +custody of the children is given to the successful suitor. + +The innocent party retains all gifts made to him or her by the other and +the guilty party loses them all. + +Both parties are free to contract a new marriage. + +JUDICIAL SEPARATION.--A separation from bed and board may be granted on +the same grounds as entitle a party to an absolute divorce. Such a +separation may also be judicially granted by consent of both spouses. + +After a judicial separation has existed for five years either of the +parties may petition the court to enlarge the decree of separation into a +decree of absolute divorce. + + + + +CHAPTER XVII. + +THE JAPANESE CIVIL CODE. + + +The East and the West, the Past and the Present, meet in the Japanese +Civil Code, which became law in January, 1893. + +It is the first codification of private law that Japan ever had in her +long history. Up to that time the basis of Japanese laws and institutions +was Chinese moral philosophy, ancestor worship and the old feudal system. + +The Criminal Code of Japan (_Shin-ritsu-koryo_), enacted in 1870, was the +last legal code founded on Chinese philosophy, customs and traditions, and +the Revised Criminal Code (_Kaitei-Ritsurei_) is the first group of +Japanese laws based upon European jurisprudence and civilization. + +Three periods may be marked in the history of Japan with regard to the +legal aspect of the marriage relation. The first was the ancient Japanese +period, the second the Chinese period, and the third, the present, that of +modern Japan. + +The Chinese doctrine of the perpetual obedience of woman to man is +expressed in the "Three Obediences": Obedience, while yet unmarried, to +the father; obedience, when married, to the husband; obedience, when +widowed, to the son. + +Buddhism regards woman as an unclean creature, a temptation, and an +obstacle to peace and holiness. + +The great revolution in the legal position of woman in Japan which the new +Civil Code has brought about is as impressive as all the other changes for +the better which have of late years taken place in the land of the Cherry +Blossoms. The Chinese and Buddhistic theories concerning womankind have +but little influence on modern Japanese law. + +Under the Civil Code husband and wife are now on an equal footing, except +when consideration for their common domestic life requires some +modifications. + +Persons who are about to marry are permitted to make any contract with +regard to their individual property, and a woman is capable of owning and +controlling her separate property all during marriage. + +When Japanese law belonged to the Chinese system of jurisprudence there +were seven causes for divorce, namely: + +1. Sterility. + +2. Lewdness. + +3. Disobedience to father-in-law or mother-in-law. + +4. Loquacity. + +5. Larceny. + +6. Jealousy. + +7. Bad disease. + +As under the Mosaic law, these causes were invented only for the advantage +of the husband. A wife had no right even to desire a divorce from her +husband. + +An examination of the seven causes shows that a woman could be divorced +practically at her husband's pleasure. The New Civil Code has changed all +this. A wife has equal rights with her husband to the benefits of the +divorce law. + +The New Civil Code of Japan is divided into five books, but it is only +with Book IV., which deals with the "Family," that we are at present +concerned. + +A summary of the present marriage and divorce law of Japan, as translated +from Book IV., follows: + +REQUISITES OF MARRIAGE.--A man cannot marry before the completion of his +seventeenth year or a woman before the completion of her fifteenth year. + +A person already married cannot contract another marriage. + +A woman cannot contract another marriage within six months from the +dissolution or cancellation of her former marriage. + +If a woman is pregnant at the time of the dissolution or cancellation of +her former marriage this provision does not apply after the day of her +delivery. + +A person who is judicially divorced or punished because of adultery cannot +contract a marriage with the other party to the adultery. + +Lineal relatives by blood or collateral relatives by blood up to the third +degree cannot intermarry; but this does not apply as between an adopted +child and his collateral relatives by adoption. + +Lineal relatives by affinity cannot intermarry. This applies even after +the relationship by affinity has ceased because of marriage or divorce. + +An adopted child, his or her husband or wife, his descendants and the +husband or wife of one of his descendants on the one hand, and the adopter +and his ascendants on the other hand, cannot intermarry, even after the +relationship has ceased. + +For contracting a marriage a child must have the consent of his parents, +being in the same house. This, however, does not apply if the man has +completed his thirtieth year or the woman her twenty-fifth year. + +If one of the parents is unknown, is dead, has quit the house, or is +unable to express consent, the consent of the other parent is sufficient. + +If both parents are unknown, dead, have quit the house, or are unable to +express consent, a minor must obtain the consent of his guardian and of +the family council. + +This by way of parenthesis: The members of a house comprise such relatives +of the head of the house as are in his house and the husbands and wives of +such relatives. + +The head and the members of a house bear the name of the house. + +The head of the house is bound to support its members. A marriage takes +effect upon its notification to the registrar. A wedding ceremony is not +legally essential. + +The notification of marriage must be made by the parties concerned and at +least two witnesses of full age, either orally or by a signed document. + +If a Japanese couple in a foreign country contract a marriage between +themselves they may give the notification of their marriage to the +Japanese minister or consul stationed in such country. + +EFFECT OF MARRIAGE.--By marriage the wife enters the house of the husband. +A man who marries a woman who is head of a house, or a _mukoyoshi_, enters +the house of his wife. + +A _mukoyoshi_ is a person who is adopted by another and at the same time +marries the daughter of the house who would be the heir to the headship of +the house. + +A wife is bound to live with her husband. A husband must permit his wife +to live with him. + +A husband and wife are bound to support each other. When the wife is a +minor the husband, if of full age, exercises the functions of a guardian. + +A contract made between husband and wife may be cancelled at any time +during the marriage by either party, but without prejudice to the rights +of third persons. + +DIVORCE BY MUTUAL CONSENT.--The husband and wife may effect a divorce by +mutual consent. No court procedure is necessary. Just as in giving notice +of marriage, the parties consenting to be divorced give notice of such +agreement to the registrar, and they are _ipso facto_ divorced. + +A person who has not reached the age of twenty-five years, in order to +effect a divorce by mutual consent, must obtain the consent of the person +or persons whose consent was necessary for the marriage. + +If a husband and wife have effected a divorce by mutual consent without +arranging as to whom the custody of the children shall belong, it belongs +to the husband. + +JUDICIAL DIVORCE.--A husband or wife, as the case may be, can bring an +action for divorce for the following causes: + +1. If the other party contracts a second marriage. + +2. If the wife commits adultery. + +3. If the husband is sentenced to punishment for an offence specified in +Article 348 _et seq._ of the Criminal Code; such offences involving +criminal carnal sexuality. + +4. If the other party is sentenced to punishment for an offence greater +than misdemeanor, involving forgery, bribery, gross sexual immorality, +theft, robbery, obtaining property by false pretences, embezzlement of +goods deposited, receiving knowingly stolen goods, or any of the offences +specified in Articles 175 and 260 of the Criminal Code, or is sentenced to +a major imprisonment or more. + +5. If one party is so ill-treated or grossly insulted by the other that it +makes further living together of the spouses impracticable. + +6. If one party is deserted by the other. + +7. If one party is ill-treated or grossly insulted by an ascendant of the +other party. + +8. If an ascendant of one party is ill-treated or grossly insulted by the +other party. + +9. If it has been uncertain for three years or more whether or not the +other party is alive or dead. + +10. In the case of the adoption of a _mukoyoshi_, if the adoption is +dissolved, or in the case of a marriage of an adopted son with a daughter +of the house, if the adoption is dissolved or cancelled. + + + + +CHAPTER XVIII. + +SPAIN. + + +Spain is a constitutional and hereditary monarchy, the powers of which are +defined by the fundamental law of June 30, 1876. The legislative authority +is exercised by the sovereign in conjunction with a parliamentary body +called the Cortes, which is composed of two houses, a Senate and a Chamber +of Deputies. + +Spanish law is founded on the Roman law, the Gothic common law, the +National Code of 1501, and the Civil Code of 1888, with its subsequent +amendments and additions. + +Spanish law is binding in the Spanish Peninsula and adjacent islands, the +Canary Islands and such African territory as is subject to Spain. + +MARRIAGE.--The law recognizes two forms of marriage: the canonical, which +all who profess the Catholic religion should contract; and the civil, +which must be celebrated in the manner hereinafter stated. + +Marriage is forbidden to: + +1. Minors who have not obtained parental consent. + +2. To a widow, during the three hundred and one days following the death +of her husband or before childbirth, if she has been left pregnant. + +3. To a guardian and his or her descendants, with respect to persons who +are the wards of such guardian until the ending of the guardianship, and a +proper accounting has been rendered by the guardian. An exception to this +rule exists when the father of the ward has in his will or in a public +instrument expressly authorized such a marriage. + +AGE.--A male cannot marry until he has completed his fourteenth year of +age; a female until she has completed her twelfth year. + +Marriage contracted by persons under puberty shall, nevertheless, be _ipso +facto_ made legal if a day after having arrived at the legal age of +puberty, the parties continue to live together without bringing a suit to +set aside the marriage, or if the female becomes pregnant before the legal +age, or before the institution of a suit for annulment. + +Persons who are not in the full exercise of their reasoning faculties +cannot contract marriage. + +The law forbids the marriage of all those who suffer from absolute or +relative impotency. + +Priests and all other persons bound by a solemn pledge of celibacy in the +approved canonical manner are forbidden to contract marriage, unless they +have first received the necessary canonical dispensation. + +Persons already lawfully married cannot contract a new marriage. + +CONSANGUINITY AND AFFINITY.--The following persons cannot contract +marriage between themselves: + +1. The ascendants and descendants by legitimate or illegitimate blood or +affinity. + +2. Collaterals by legitimate consanguinity up to and including the fourth +degree. + +3. Collaterals by legitimate affinity up to and including the fourth +degree. + +4. Collaterals by natural consanguinity or affinity up to and including +the second degree. + +5. The adopting father or mother and the adopted child; the latter and the +surviving spouse of the adoptees, and the adopters and the surviving +spouse of the adopted. + +6. The legitimate descendants of the adopter with the adopted, while the +relation of adoption continues. + +7. Accomplices in adultery who have been judicially sentenced. + +Those who have been condemned as principals, or principal and accomplice, +in the homicide of the spouse of any of the parties cannot conclude +marriage between themselves. + +The government for sufficient cause will, on petition of a party, grant a +dispensation permitting marriage between collaterals by legitimate +consanguinity within the fourth degree. Other dispensations may also be +granted on a proper petition. + +PARENTAL CONSENT.--The consent of the father is required for the marriage +of a legitimate minor; in his default, or where he cannot consent, the +power to grant it devolves, in this order: upon the mother, the paternal +and maternal grandparents, and in default of all these, upon the family +council. + +Recognized natural children or children legitimatized by royal concession +must ask the consent of those who have recognized or legitimatized them or +of their ascendants, or of the family council. + +Adopted children must ask the consent of the adopting father, and in his +default, of the persons of the natural family upon whom it may devolve. + +Unrecognized illegitimate children must ask the consent of their mother, +when she is known, and in her default consent must be asked of the +maternal grandparents, and in their default, that of the family council. + +Children of age are obliged to ask the advice of the father, and in his +default, of the mother before contracting marriage. In case the advice +given is against the proposed alliance, the marriage cannot be celebrated +until three months after the petition is made. + +Marriage in Spain is dissolved absolutely only by the death of one of the +parties. + +CANONICAL MARRIAGE.--The requisites, form and solemnities for the +celebration of canonical marriage is governed by the laws of the Catholic +Church, and by the decrees of the Holy Council of Trent, which are +accepted as part of the organic law of Spain. Canonical marriage produces +all the civil effects in respect to persons and property of the spouses +and their offspring. A magistrate is required to be present at the +celebration of a canonical marriage simply for the purpose of making a +verified record in the Civil Registry of the marriage. So that he may be +present for the purpose above stated, the magistrate must be given notice +in writing twenty-four hours at least before the intended celebration, +telling him of the day, hour and place of the marriage. + +Persons who contract canonical marriage in _articulo mortis_ may give +notice to the officials in charge of the Civil Registry, at any time +whatever prior to its celebration, and prove in any manner whatever that +such duty has been performed. + +CIVIL MARRIAGE.--A civil marriage must be preceded by a declaration to the +Municipal Judge, stating the names, ages, professions and domiciles of the +contracting parties; also the names, professions and domiciles of the +parents; and proper certificates of the births and status of the +contracting parties; certificates of consent or advice of parents, and +dispensations when required. + +Marriages may be celebrated personally or by a substitute or proxy to whom +a special authorization has been granted. + +Civil marriages must be solemnized by the contracting parties appearing +before the Municipal Judge, or one of them, and the person whom the +absent party may have appointed as proxy must appear before such +magistrate, together with two competent witnesses. + +The Municipal Judge, after reading articles 56 and 57 of the Civil Code to +the parties (which point out the rights and obligations of married life), +must ask each party if they desire to be married to each other, and if +both answer in the affirmative, the judge shall declare the parties to be +husband and wife, and prepare a record of the marriage. + +Consuls and vice-consuls are empowered to exercise the function of +municipal judges in marriages of Spaniards, celebrated in foreign +countries. + +NULLITY OF MARRIAGE.--The following marriages are null and void: + +1. Those concluded between persons related within the prohibited degrees. + +2. Those concluded between persons under the age of puberty. + +3. Marriages between persons, one or both of whom were of incurably +unsound mind. + +4. Incurably impotent persons. + +5. Persons bound by canonical vows to chastity. + +The proceeding to have such marriages judicially declared as null may be +instituted by either spouse, the Public Attorney, or by any interested +person. + +The action lapses, and the marriage will be confirmed in cases based on +abduction, error, force or fear, when the spouses have lived together six +months after the error became known, or after the force or fear has +ceased. + +DIVORCE.--A divorce in Spain only amounts to what in other countries is +called a judicial separation. Accepting the decrees of the Council of +Trent as law for Spain, marriage is treated as a sacramental contract +which can only be dissolved by death. + +The Civil Code, Article 104, states the following causes for divorce: + +1. Adultery on the wife's part. + +2. Adultery on the part of the husband, when public scandal or disgrace of +the wife is a result. + +3. Violence exercised by the husband over the wife in order to force her +to abandon her religious faith. + +4. Cruelty actually inflicted, or grave acts of contumely. + +5. The attempt or proposal of a husband to prostitute his wife. + +6. The attempts of either husband or wife to corrupt the morals of the +sons, or to prostitute the daughters. + +7. Condemnation of either spouse to imprisonment for life. + +EFFECTS OF DIVORCE OR NULLIFICATION.--The civil effects of a divorce or +annulment of marriage are as follows: + +1. Separation of the parties. + +2. To place the custody of the children with one or both of the parties, +as justice may require. + +3. To determine the responsibility for the support of the woman and +children. + +4. To place the woman under the special protection of the law. + +5. To decree the necessary measures to prevent the husband, who may have +given cause for divorce, or against whom the petition for nullity of the +marriage has been instituted, from interfering with the wife in the +administration of her separate property. + +HUSBAND AND WIFE.--The spouses are under mutual obligation to live +together, to be faithful to, and help each other. The husband is bound to +protect his wife and the wife to obey her husband. + +The wife is required to follow her husband wherever he may establish his +residence. The courts, however, will in some cases release her from this +requirement when the husband changes his residence to a foreign land. + +The husband is the manager of the property of the conjugal union, except +when there is a mutual agreement to the contrary. + +The husband is the legal representative of the wife. She cannot, without +his permission, appear in a suit by herself or through an attorney. +However, she does not need such permission to defend herself in a criminal +case or to bring a suit against her husband, or to defend herself in a +suit brought by her husband against her. + +A wife cannot, without her husband's permission, acquire property in trade +or by her labour. Neither can she, without such consent, alienate her +property. + +The wife can, without her husband's permission, perform the following +acts: + +1. Execute a will. + +2. Exercise the rights and perform the duties which pertain to her with +regard to legitimate and recognized illegitimate children, the issue of +herself and another not now her husband. + +FOREIGN MARRIAGES.--The Spanish courts recognize as valid in Spain any +marriage performed in a foreign country in accordance with the laws of +such country, provided such marriage also meets with all the requirements +of the Civil Code of Spain. + + + + +CHAPTER XIX. + +CIVIL CODE OF PORTUGAL. + + +On the third day of October, 1910, King Manuel II. of Portugal was +dethroned and a Republic was proclaimed throughout the country. At the +present time the affairs of the Republic are being administered by a +provisional government. Until this temporary administration is followed by +a permanent government, based on a national constitution, the Civil Code +promulgated in 1867 will continue to be Portuguese law. + +MARRIAGE.--Marriage is defined in the Civil Code as a perpetual contract +between two persons of different sex to live together and establish a +legitimate family. + +Catholics must celebrate marriage according to the rules and form +prescribed by their church. Those who are not Catholics are required to +have their marriage celebrated before a civil officer of the State +according to the rules and form prescribed by the civil law of the land. + +Marriage is forbidden: + +1. Of minors under the age of 21 years, unless with parental consent. + +2. Of persons of adult age who are incapable of properly governing +themselves or their estates, without the authorization of their legal +representatives. + +3. Of an adulterous wife with her accomplice who has been condemned for +the offence. + +4. Of a wife who has been condemned as the principal or accomplice of the +crime of homicide with a principal or accomplice in the same crime. + +5. Of any person bound by solemn vows of religion to a life of chastity. + +The canon law of the Catholic Church defines the religious rules and +spiritual effects of marriage, while the civil law defines the civil rules +and temporal effects of the contract. + +A minister of the church who celebrates a marriage contrary to the +requirements of Article 1058 of the Civil Code incurs criminal penalties. + +Marriage between Portuguese subjects who are non-Catholics is recognized +as producing full civil effects. + +CONSANGUINITY AND AFFINITY.--The following persons are forbidden to marry +each other: + +1. Ascendants and descendants. + +2. Persons related collaterally in the second degree. + +3. Males who have not completed their fourteenth year and females who have +not completed their twelfth year of age. + +4. Persons already bound by marriage. + +Any infraction of these prohibitions makes a marriage voidable. + +MARRIAGE PRELIMINARIES.--Whoever desires to contract marriage according to +the manner provided by the civil law of the land must present to the civil +officer of the State acting in the place of the applicant's domicile a +declaration setting forth: + +1. The full names, ages, occupations and domiciles of the contracting +parties. + +2. The full names, professions and domiciles of the parents. + +Upon receiving this declaration the civil officer publishes a notice of +the intended marriage and informs all interested persons to file their +objections, if any exist, within fifteen days. If at the end of this +period no valid objection to the marriage has been formulated the civil +officer proceeds to the celebration of the marriage. + +CELEBRATION.--For the civil celebration of marriage the contracting +parties, or their duly empowered proxies, appear before the civil officer +of the commune, attended by competent witnesses. If the marriage is +celebrated in the official bureau of the commune two witnesses are +sufficient; if outside of such bureau six witnesses are required. + +Any civil officer celebrating a marriage contrary to these provisions +incurs penal punishment. + +ANNULMENT OF MARRIAGE.--A Catholic marriage--that is, one solemnized +according to the canonical law--can only be annulled by an ecclesiastical +tribunal and according to the laws of the Catholic Church enforceable in +Portugal. + +A sentence of an ecclesiastical tribunal annulling a marriage is executed +by the civil authority of the land. + +A marriage concluded before a civil officer in the form established by the +civil law of the land can only be annulled by a civil court. + +JUDICIAL SEPARATION.--A separation of the person and goods may be had for +the following causes: + +1. Adultery of the wife. + +2. Adultery of the husband, if such adultery creates a public scandal or +if the husband brings his concubine into the home he has established for +his wife. + +3. Sentence of one of the spouses to life imprisonment. + +4. Cruel and abusive treatment. + +DIVORCE.--Under the law of Portugal as it existed down to the day when +King Manuel II. was dethroned and a Republic declared there was no such +thing as divorce recognized. Portugal has been for centuries a Catholic +country, and the decrees of the Council of Trent, as well as all the +other rules and regulations concerning marriage stated by the Catholic +Church, have been accepted by Portugal as part of the law of the land. +However, since December 1, 1910, when the present provisional government +was constituted, certain new laws have been promulgated by government +decree. One of these new laws relates to divorce and is most modern and +radical in its scope. It permits the courts to grant absolute divorces for +a number of reasons, including "mutual consent of the parties." + +Whether such laws, created by proclamation instead of legislation, will be +incorporated into the inevitable new Civil Code of Portugal is a problem +for the future. Our endeavour in this chapter has been to state the +organic law of Portugal as it at present exists, untouched by legislation +on the statute books of that ancient land. + + + + +CHAPTER XX. + +ROUMANIA. + + +Roumania is the name officially adopted by the united kingdom that +comprises the former principalities of Walachia and Moldavia. In its +native form it appears simply as "Roumania," representing the claim to +Roman descent put forward by its inhabitants. + +The Roumanian Civil Code from which we summarize in this chapter the law +of marriage and divorce of Roumania is practically a copy of the French +Civil Code. + +MARRIAGE.--A man must be eighteen years of age and a woman fifteen in +order to contract lawful marriage, except a dispensation is granted by the +King. + +The free consent by both contracting parties is essential. + +Men under twenty-five years of age and women under twenty-one cannot marry +without the parental consent. Men under the age of thirty and women under +the age of twenty-five are obliged to ask the consent of their parents. + +A man or woman is allowed but one spouse at a time. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between relatives, +whether by blood or by marriage, in the direct line, and in the collateral +line to the fourth degree, inclusive, by the Roman method of counting. The +prohibition obtains whether the relationship arises from legitimate or +illegitimate birth. A dispensation from such impediments may, in special +cases, be granted, by the King. + +Marriage is forbidden between relatives by adoption and between +godparents and their godchildren. + +Marriage is forbidden between guardians and wards, or between trustees and +wards, and the father, son or brother of a guardian or trust cannot marry +the ward until the accounts of the guardianship or trust have been +properly audited and settled. + +Soldiers cannot marry without the consent of the military authorities. + +Marriage is expressly forbidden to priests, monks and nuns. + +Divorced persons are forbidden to remarry each other. + +A woman whose marriage has been dissolved by death or divorce may not +marry again until the expiration of ten months after such dissolution. + +MARRIAGE PRELIMINARIES.--A marriage must be preceded by the publication of +the names, occupations and residences of the parties themselves, and of +their parents, on two Sundays before the celebration. Such publication of +banns must be made before the door of the parish church and the door of +the town hall of the commune where the marriage is to be concluded. The +marriage cannot be solemnized until the fourth day after the second +publication of banns. If a year passes after such publication without +marriage a new publication is necessary. If, upon the publication of +banns, the intended marriage is opposed, as it may be, by any person, the +registrar of the commune must defer the celebration of marriage until the +opposition has been withdrawn or overruled. + +CELEBRATION.--The marriage must be celebrated by the registrar in the town +hall of the commune in which one of the parties had had continuous +residence for at least six months. The registrar, in the presence of four +witnesses, reads to the parties that chapter of the Civil Code of +Roumania which defines the rights and duties of marriage. The parties must +then declare to the registrar their intention to marry each other. After +this the officiating registrar pronounces the parties to be husband and +wife. + +If a religious celebration is desired it must in all cases be preceded by +the civil ceremony. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled on any of the following +grounds: + +1. That it was not regularly celebrated before a registrar. + +2. That free consent of one or both parties did not exist. + +3. Lack of proper age. + +4. An existing marriage. + +5. Relationship within prohibited degrees. + +6. Lack of parental consent. + +7. In the case of a soldier, lack of proper consent from the necessary +military authorities. + +Where a marriage has been contracted in good faith the parties thereto and +the issue of the marriage are entitled to all civil rights resulting +therefrom; but if only one party was in good faith, only that party and +the issue of the marriage are entitled to these rights. + +DIVORCE.--The great majority of the people of the kingdom belong to the +Roumanian branch of the Orthodox Greek Church, which in practice does not +hold to the doctrine of the indissolubility of marriage. + +The law of the land permits absolute divorce for the following causes: + +1. By mutual consent of the parties. The parties on such an application +appear before a judge with a written inventory of their goods, showing the +division agreed upon, and with certificates of their birth and marriage, +of the births and deaths of their children, and, when necessary, the +consent of their parents. + +The judge then endeavours to reconcile the parties. If at the end of one +year and fifteen days no reconciliation has been effected a divorce is +granted. + +2. Adultery of husband or wife. + +3. Cruel and abusive treatment of one spouse toward the other. + +4. A judicial condemnation of either party to a prison sentence for an +infamous crime. + +5. An attempt of one party on the life of the other. + +6. Intentional omission of one spouse to warn the other of an attempt by a +third person on the life of the other spouse. + +SEPARATION.--Judicial separations are not granted by the courts of +Roumania. + +EFFECTS OF DIVORCE.--Divorced parties are forbidden to remarry each other. + +A divorced woman may not marry again within ten months after her +divorcement, and the guilty party in a suit for divorce on the ground of +adultery may not marry his or her accomplice in adultery. + +Otherwise divorced parties are free to marry again. + +A divorced woman may not retain her husband's surname. + +All property rights granted by the innocent party to the guilty party are +extinguished by the decree of divorce. The guilty party may be ordered to +contribute to the support of the innocent party. + +The custody of the children is usually given to the successful suitor. The +court may, however, if circumstances require, entrust the children to the +guilty party or to a third person. + + + + +CHAPTER XXI. + +SERVIA. + + +Servia is a kingdom in the northwestern part of the Balkan Peninsula. In +1882 it became a constitutional monarchy. The judiciary is vested in a +High Court of Appeal, a Court of Cassation, a Commercial Court and +twenty-three courts of the first instance. + +The Servian laws of marriage and divorce are substantially the same as +those of the Orthodox Greek Church. All marital suits in which one or both +parties belong to this church are governed by State law, although +jurisdiction lies with the ecclesiastical courts. Matters pertaining to +property settlement are, however, entirely within the jurisdiction of the +civil courts, as are all marital suits in which neither party belongs to +the Greek Church. + +When the parties to a marital suit are Roman Catholics decisions are +rendered according to the canon law; and when both parties are +Protestants, according to the principles of the sect to which the parties +belong. + +In the case of a mixed marriage of others than adherents of the Greek +Church the decision is rendered according to the principles of the church +in which the marriage was celebrated. + +MARRIAGE QUALIFICATIONS.--A man cannot marry until he has completed his +seventeenth year; a woman until she has completed her fifteenth year of +age. By the dispensation of the church, granted by a bishop, a man of +fifteen years or a woman of thirteen years may conclude marriage. + +The free consent of both parties is essential to a valid marriage. + +If both the contracting parties are over eighteen years of age parental +consent to a marriage is not obligatory. Where both parties are under +eighteen years, or the intended bride is under that age and the intended +bridegroom is under twenty-one years, the consent of parents is necessary. + +All persons are forbidden to contract a new marriage until a previous +existing marriage has been dissolved or judicially declared a nullity. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between relatives by +blood in the direct line and in the collateral line as far as the eighth +degree, inclusive--that is to say, as far as the degree of relationship of +third cousins. Relatives in the seventh or eighth degree may marry by +episcopal dispensation. Marriage is prohibited between relatives by +marriage as far as the fifth degree, inclusive. + +Marriage is prohibited between persons spiritually related, as between the +godparent and the godchild or his descendants. + +IMPEDIMENTS.--Persons who have been judicially condemned for adultery are +forbidden to contract marriage with their accomplices in the offence. + +The party declared guilty in a suit for divorce is prohibited from +marrying again during the lifetime of the innocent party. + +A woman may not, as a rule, marry again until nine months after the +dissolution by death or divorce of her previous marriage. + +Insane persons cannot contract a binding marriage. + +Incurable impotence of either party, which existed at the time the +marriage was concluded, is cause for a decree of nullity. + +Marriage is expressly forbidden between Christians and Jews or between +Christians and non-Christians of any sect whatever. + +Marriage is prohibited between two persons one of whom has attempted the +life of the husband or wife of the other. + +A lawful marriage cannot be concluded with a woman who has been abducted +and has not yet been restored to freedom. + +Marriage cannot be concluded by a person who is under sentence to +imprisonment. + +PRELIMINARIES.--Before the marriage the parish priest must, on three +successive holy days, publish banns in the church, and if any member of +the parish knows of any impediment it is his or her duty to inform the +priest. If a priest fails thus to publish banns, and impediments later +appear, he is amenable to punishment. + +CELEBRATION.--The law of Servia does not recognize a civil marriage. If +the parties, or one of them, belong to the Orthodox Greek Church they must +be married according to the rites of that church. Christians of other +sects must be married by their clergy and Jews by their authorized +ministers. + +CHILDREN.--Marriage of the parents subsequent to their birth renders +illegitimate children fully legitimate. + +ANNULMENT OF MARRIAGE.--A marriage may be declared null by a decree of a +court of competent jurisdiction whenever it appears that some essential +qualification to make the marriage valid was absent at the time it was +concluded, or if it appears that the marriage was concluded in disregard +of the impediments stated by law. + +ABSOLUTE DIVORCE.--A complete divorce from the marriage bond is allowed by +the courts for the following causes: + +1. Adultery of either party. + +2. Attempt by either spouse to kill the other. + +3. The concealment by one spouse of information concerning a plot to kill +the other spouse. + +4. Penal servitude incurred by either spouse, under a sentence of at least +eight years. + +5. Apostasy from the Christian religion. + +6. Deliberate desertion persisted in for three years. + +7. Flight from Servia followed by absence of at least four years. + +8. Absence without news for six years. + +A decree of divorce or a decree annulling a marriage must always be +submitted for the approval or disapproval of the ecclesiastical courts. + +EFFECTS OF DIVORCEMENT.--The innocent party to a divorce suit may contract +a new marriage, but the guilty party is forbidden to remarry during the +lifetime of the innocent party. + +Usually each party regains such goods and effects as he or she brought to +the alliance. + +CUSTODY OF CHILDREN.--Boys under four years and girls under seven are +given, as a rule, to the mother's custody. After that they are given to +the custody of the father. + +The divorced woman must not continue to use the surname of her ex-husband. + +JUDICIAL SEPARATION.--A separation from bed and board may be granted by +the court whenever the facts show such a decree to best promote the +interests and well-being of the spouses. + + + + +CHAPTER XXII + +BULGARIA. + + +The national religion of the Bulgarian people is that of the Orthodox +Greek Church, and consequently the laws of that church on the subject of +marriage and divorce is part of the organic law of Bulgaria. + +Upon the political independence of the country the Bulgarian Church, which +had hitherto been under the Patriarchate of Constantinople through an +exarch, declared its independence and established the Bulgarian Exarchate. +The ecclesiastical courts of this Exarchate have general jurisdiction of +matrimonial causes except as concern Mohammedans, Jews, and Christians who +are not adherents of any of the Eastern Orthodox churches. + +Besides the laws of the Church, Bulgaria has a national law of marriage +and divorce dating from 1897. + +The matrimonial concerns of Mohammedans are governed by the law of the +religion of Mohammed. Christians who are dissenters from the Orthodox +Church are permitted to marry according to the rules and regulations of +their sect. + +REQUIREMENTS FOR MARRIAGE.--The marriageable age for men begins with +twenty years, and for women with eighteen years. + +Parental consent is required, but if it is arbitrarily denied the +authorities of the church may give their consent in its stead. + +A man or woman is permitted to have but one spouse at a time. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between ascendants and +descendants. In the collateral line marriage is forbidden between persons +related within the seventh degree. Under this rule a person cannot +lawfully marry the child of his or her second cousin. The ecclesiastical +authorities may upon such grounds as to them may seem sufficient grant a +dispensation permitting a marriage within the prohibited degrees. + +Marriage is also prohibited between godparents and godchildren, and +between godchildren who have the same godparent. Here also the clergy may +remove the impediment by dispensation. + +Persons suffering from idiocy, insanity, epilepsy or syphilis cannot +contract lawful marriage. + +Marriage is forbidden when the parties are of different religious faiths. + +A person under obligation by religious vow to remain celibate or one who +has been sentenced to a state of celibacy by an ecclesiastical court +cannot conclude marriage. + +Accomplices in adultery may not marry each other. Persons in the military +service must obtain the consent of their superiors to contract marriage. + +CELEBRATION.--The law of Bulgaria does not permit a civil marriage. If +both or one of the contracting parties are baptized members of the +Orthodox Greek Church, the marriage service must be in accordance with the +rites of that church. Christians who belong to other churches are +permitted to be married by the ministers of their faith. Three weeks at +least must intervene between the betrothal and the wedding. All marriages +must be preceded by the publication of banns. + +FOREIGN MARRIAGES.--The law of Bulgaria does not recognize the foreign +marriage of Bulgarian subjects unless the following elements are present: + +1. The foreign marriage must comply with all the laws and rules of the +foreign country where it is concluded. + +2. If the parties are baptized members of the Orthodox Greek Church the +marriage must be solemnized by a priest of that church. This rule applies +even though in the country where the marriage was concluded a civil +ceremony is sufficient. + +DIVORCE.--The Church and State both permit absolute divorces. The causes +are: + +1. Adultery of either spouse. + +2. Drunkenness and disorderly conduct. + +3. Cruel and abusive treatment. + +4. Threat to kill. + +5. Incurable impotence. + +6. Absence of the husband for four years coupled with failure to support +wife. + +7. Sentence to prison for an infamous offense. + +8. False accusation of adultery. + +9. Wife's desertion of the husband continued for three years. + +DIVORCE PROCEDURE.--As before stated the suit for divorce must be brought +before the ecclesiastical court. + +EFFECTS OF DIVORCE.--If the guilty party is the wife, her husband has the +right to retain all her dowry which she brought to him, and to retake all +gifts made to her either before or after marriage. + +If the guilty party is the husband, the wife has the right to recover her +dowry, to keep any present she ever received from the husband, and to +exact suitable maintenance from her divorced husband until such time as +she remarries. + +The custody of the children is given to the winning suitor, except that +children under five years remain in the care of their mother. + + + + +CHAPTER XXIII. + +THE KINGDOM OF GREECE. + + +Because of its matchless philosophy, literature and art, ancient Greece is +still the marvel of the modern world, but little credit is given to old +Hellas as one of the principal sources of the jurisprudence of to-day. For +political reasons the Roman law was the overshadowing and dominating +system of ancient law, but the fountain head of the laws of Rome, even of +the Laws of the Twelve Tables, was the land of Demosthenes, Pericles, +Solon and Lycurgus. + +The great jurisconsults of the Roman Empire were not Roman but Greek +lawyers, not the least of whom was Gaius, the legal commentator who was +the Blackstone of his period. + +The Roman Empire was the physical expression of Grecian intellect. Not +only the first lawyers but the first popes of Rome were Greeks. + +The modern Kingdom of Greece has an excellent system of jurisprudence +based on the old Roman law, with modifications drawn from the Bavarian and +French. The commercial law has been adapted from the _Code Napoleon_, the +penal laws are of Bavarian origin, and the laws of marriage and divorce +are derived from the Roman law necessarily modified to harmonize with the +dogmas of the Orthodox Greek Church, which is the national church of the +kingdom. + +The Areopagus existed in Greece as a court of justice before the first +Messenian war, 740 B. C. This court was situated on the Hill of Ares +outside the city of Athens, the very "Hill of Mars" on which St. Paul +preached in the year A. D. 52. We find historical mention of the Court of +Areopagus as late as the year 880 of the Christian Era. It is unlikely +that the Areopagus of to-day, which is the supreme court of appeal in +modern Greece, has any other relationship than the same venerable name +with the court of ancient times. + +Besides the Court of the Areopagus, there are four other inferior courts +of appeal, one for each of the judicial districts of Greece. There are +also four commercial tribunals, seventeen courts of first instance, and +over two hundred justices of the peace. The standard of the Grecian +judiciary is very high, for only men of unblemished reputation who have +received the degree of doctor of law from a reputable European university +are eligible to the bench. + +There is no _habeas corpus_ act in Greece, but no one can be arrested, no +house can be entered, and no letter opened without a judicial warrant. + +The supreme power of the Church of Greece is vested in the Holy Hellenic +Synod which consists of five members, who are appointed annually by the +King, and the majority of whom must be prelates. The Metropolitan +Archbishop of Athens is _ex-officio_ president; two royal commissioners +attend without voting and the Synod's resolutions require to be confirmed +by them in the King's name. In all purely spiritual matters the Synod has +entire independence; but on questions having a civil side, such as +marriage and divorce, it can only act in concert with the civil +authorities. + +The Orthodox Greek Church as a matter of dogma treats marriage as a +sacrament or divine ordinance, but unlike the Latin Church, it holds that +for sufficient cause marriage may be legally dissolved, but not till a +probationary period has elapsed during which a bishop or priest mediates +with the purpose of reconciling the parties. + +MARRIAGE.--Both by the law of the land and the church law, marriage in +Greece is treated as a social status which can only be concluded by a +religious celebration. A civil ceremony has no validity. If both the +parties or one of them are baptized members of the Orthodox Greek church, +the marriage must be celebrated before a priest and in accordance with the +laws and rites of that church. + +When both of the parties are Roman Catholics they must be married by a +priest of their religion. If one of the parties is a Roman Catholic and +the other a member of the Orthodox Greek Church, the marriage must be +solemnized by a priest of the latter church. The rule is that mixed +marriages must be solemnized by a priest of the Greek Church. + +Jews and Protestants may be married by the ministers of their respective +denominations. + +AGE.--The marriageable age of males begins at the completion of their +fourteenth year, and that of females at the completion of their twelfth +year. + +CONSENTS.--The free consent of the contracting parties is essential. For a +man under twenty-one years of age, or a woman under eighteen years of age, +the parental consent is also necessary. + +MONOGAMY.--All persons are forbidden to contract a new marriage until a +previous marriage has been dissolved by death or divorce. + +CONSANGUINITY AND AFFINITY.--Marriage is prohibited between persons of +whom one is descended in a direct line from the other. Collateral kinsmen +are forbidden to marry within the sixth degree. The degrees are counted +according to the Roman law method of reckoning which counts the number of +descents between the persons on both sides from the common ancestor. The +authorities of the national church may upon such facts as to them seem +proper grant a dispensation allowing a marriage within the forbidden +degrees. + +SPIRITUAL RELATIONSHIP.--Marriage is expressly forbidden between +godparents and their godchildren, and between godchildren who have the +same godparent. A church dispensation is, however, easily obtained, +relieving the parties from the last mentioned impediment. + +SPECIAL PROHIBITIONS.--Persons suffering from defective intellect, +insanity, syphilis or epilepsy are forbidden to conclude marriage. + +Persons under religious vows to remain celibate cannot conclude marriage +unless dispensed from such vows. + +Accomplices in adultery may not marry each other. + +Persons in the military service may not conclude marriage without the +consent of the higher military authority. + +PRIESTS.--A priest of the Orthodox Greek Church is required to marry once, +but he cannot contract a second marriage even after the death of his first +wife. + +FOURTH MARRIAGE.--It is contrary to the law of the land as well as the law +of the church for any person to contract a fourth marriage. + +BANNS.--All marriages must be preceded by the publication of banns. + +FOREIGN MARRIAGES.--The Greek courts will not recognize the foreign +marriage of Greek subjects who are baptized members of the Orthodox Greek +Church unless the marriage was solemnized before a priest of that church. +This is the rule, even though in the country where the marriage was +concluded a civil ceremony is sufficient and obligatory. + +DIVORCE.--Absolute divorces are granted for the following causes: + +1. Adultery of either husband or wife. + +2. Cruel and inhuman treatment, endangering life or health. + +3. An attempt by either spouse to kill the other. + +4. Threat to kill. + +5. The condemnation and imprisonment of either spouse for an infamous or +degrading crime. + +6. Confirmed habits of drunkenness. + +7. Desertion. + +8. Incurable impotence of either party. + +PROCEDURE.--All suits for divorce must be instituted in the ecclesiastical +courts of the Orthodox Greek Church. + +EFFECTS OF DIVORCE.--Both parties are free to remarry, but the wife must +wait until a full year has elapsed from the granting of a decree before +contracting a new marriage. + +The wife must not use the surname of her divorced husband. + +If the wife is the successful suitor, she can recover from the defeated +party the dowry she brought to him at marriage. She has a right also to +retain any gifts she may have received from him either before or after +marriage. + +In some instances the husband is obliged to pay alimony to his divorced +wife during her lifetime, up to the time she contracts a new marriage. + +If the parties have children, such of them as are so young as to need a +mother's care are temporarily awarded to the woman's custody even though +she be the party declared to be guilty in the divorce suit. + + + + +CHAPTER XXIV. + +THE MOHAMMEDAN LAW OF TURKEY, PERSIA, EGYPT, INDIA, MOROCCO AND ALGERIA. + + +The laws of Mohammedanism which are founded on the Koran and the +Traditions of Mohammed to-day constitute the civil and religious code of +many millions of the world's inhabitants. + +A country that is subject to the government of Mohammedans is termed +_Dar-ool-Islam_, or a country of safety and salvation, and a country which +is not subject to such government is termed _Dar-ool-hurb_, or a country +of enmity. Though Mohammedans are no longer under the sway of one prince, +they are so bound together by the common tie of Islam that as between +themselves there is no difference of country, and they may therefore be +said to compose but one _dar_ or commonwealth. + +A Mohammedan is subject to the law of Islam absolutely, that is without +distinction of place or otherwise. + +Every unbeliever in the Mohammedan religion is termed a _kafir_, or +infidel, and infidels who are not in subjection to some Mohammedan state +are generally treated by Islamic lawyers as _hurbees_, or enemies. + +The Mohammedans are taught to believe that their system of jurisprudence +is of divine origin, is incapable of improvement, and can never be changed +in any material particular. The fact is that with all its alleged source, +perfection and immutability Mohammedan law has not been able to escape the +inevitable rule of change which seems to affect everything and everybody +in this world. + +There are certain countries where the entire legal and religious system is +based on the laws of Mohammedanism; such countries are: Turkey, Persia and +Morocco. There are other countries, such as Egypt, India and Algeria, +where the law of Islam operates side by side with other legal systems. + +In India there are four distinct systems of jurisprudence, all in full +operation and effect. These are: + +1. English law created by the British Parliament. + +2. Anglo-Indian law, which is created in India by the Legislative Councils +of the British Government. + +3. Hindu law, which applies to every one in British India who is a Hindu, +and to no one else. + +4. Mohammedan law, which applies to every one in British India who is a +Mohammedan, and to no one else. + +If a Mohammedan in India abandons his religion he ceases to be governed by +Mohammedan law. + +Since the promulgation of the Regulations of Warren Hastings in 1772, all +suits in British India regarding inheritance, marriage, caste and other +religious usages and institutions with respect to Mohammedans have been +decided invariably according to Mohammedan law. + +EGYPT.--There are four kinds of legal tribunals in Egypt, namely: + +1. The Native Courts, which have civil and criminal jurisdiction over +natives. + +2. The Consular Courts, which have jurisdiction over foreigners charged +with crime. + +3. The Mixed Tribunals, which have civil and criminal jurisdiction over +persons of diverse citizenship. + +4. The Mohammedan Courts, which deal with the questions of the personal +rights of the Mohammedan inhabitants according to the laws of Islam. + +As over ninety _per centum_ of the people of Egypt are Mohammedans, the +importance of the Mohammedan Courts is apparent. + +The Mohammedan law of marriage and divorce is also recognized as +controlling and effective when the parties to a marriage are Mohammedans, +in Russia, Roumania, Servia, Bulgaria and Greece. + +MARRIAGE.--Marriage is enjoined on every Mohammedan, and celibacy is +frequently condemned by Mohammed. "When the servant of God marries, he +perfects half of his religion," said the Prophet. Once Mohammed inquired +of a man if he was married, and being answered in the negative, he asked, +"Art thou sound and healthy?" When the man answered that he was the +Prophet angrily said, "Then thou art one of the brothers of the devil." + +VALIDITY OF MARRIAGE.--Marriage, according to Mohammedan law, is simply a +civil contract, and its validity does not depend upon any religious +ceremony. Though the civil contract is not required to be reduced to +writing, its validity depends upon the consent of the parties, which is +called "_ijab_" and "_gabul_," meaning declaration and acceptance; the +presence of two male witnesses (or one male and two female witnesses); and +a dower of not less than ten _dirhams_ to be settled on the woman. The +omission of the settlement does not, however, invalidate the contract, for +under any circumstances, the woman becomes entitled to her dower of ten +_dirhams_ or more. + +It is a recognized principle that the capacity of each of the parties to a +marriage is to be judged of by their respective _lex domicilii_. + +The capacity of a Mussulman domiciled in England will be regulated by the +English law, but the capacity of one who is domiciled in the +_Belad-ul-Islam_, or Mohammedan country, by the provisions of Mohammedan +law. + +We are told by the highest authorities on Islamic law that the three +principal conditions which are requisite for a proper marriage are: +understanding, puberty and freedom in the contracting parties. + +The Mohammedan law fixes no arbitrary age at which either male or female +is competent to marry. + +Besides understanding, puberty and freedom, the capacity to marry requires +that there should be no legal disability or bar to the union of the +parties; that in fact they should not be within the prohibited degrees of +relationship. + +LEGAL DISABILITIES.--There are nine prohibitions to marry, namely: + +1. Consanguinity, which includes mother, grandmother, sister, niece and +aunt. + +2. Affinity, which includes mother-in-law, step-grandmother, +daughter-in-law and step-granddaughter. + +3. Fosterage. A man cannot marry his foster-mother, nor foster-sister, +unless the foster-brother and sister were nursed by the same mother at +intervals widely separated. But a man may marry the mother of his +foster-sister, or the foster-mother of his sister. + +4. Sister-in-law. A man may not marry his wife's sister during his wife's +lifetime, unless she be divorced. + +5. A man married to a free woman cannot marry a slave. + +6. It is not lawful for a man to marry the wife or _mu'taddah_ of another, +whether the _'iddah_ be on account of repudiation or death. That is, he +cannot marry until the expiration of the woman's _'iddah_, or period of +probation. + +7. A Mohammedan cannot marry a Polytheist, but he may marry a Christian, +Jewess, or a Sabean. + +8. It is not lawful for a man to marry his own slave, or a woman her +bondsman. + +9. If a man pronounces three divorces upon a wife who is free, or two upon +a slave, she is not lawful to him until she shall have been regularly +espoused by another man, who having duly consummated the marriage, +afterwards divorces her, or dies, and her _'iddah_ from him be +accomplished. + +In the _Koran_ or _El-Kor'an_ we find in the chapter on women (Sura IV.) +the law expressed as to certain prohibitions: + +"Forbidden to you are your mothers, and your daughters, and your sisters, +and your aunts, both on the father's and mother's side, and your nieces on +the brother's and sister's side, and your foster-mothers, and your +foster-sisters, and the mothers of your wives, and your stepdaughters who +are your wards, born of your wives to whom you have gone in: (but if ye +have not gone in unto them, it shall be no sin in you to marry them) and +the wives of your sons who proceed out of your loins; and ye may not have +two sisters; except where it is already done. Verily, God is Indulgent, +Merciful!" + +POLYGAMY.--According to Mohammedanism polygamy is a divine institution, +and has the express sanction of the law. Mohammed restrained the practice +of polygamy by limiting the maximum number of contemporaneous marriages, +and by making absolute equity toward all obligatory on the man. A +Mohammedan may marry four wives but no more. The law is thus stated: "You +may marry two, three, or four wives, but not more." However, all true +believers are enjoined that, "if you cannot deal equitably and justly with +all you shall marry only one." + +In India more than ninety-five _per centum_ of the Mohammedans are at the +present, either by conviction or necessity, monogamists. In Persia only +two _per centum_ of the population enjoy the questionable luxury of +plurality of wives. + +CELEBRATION OF MARRIAGE.--The _Nikah_, or celebration of the marriage +contract, is preceded and followed by festive rejoicings, which have been +variously described by Oriental travellers, but they are not parts of +either the civil or religious ceremonies. The Mohammedan law appoints no +specific religious ceremony, nor are any religious rites necessary for the +contraction of a valid marriage. Legally, a marriage contracted between +two persons possessing the capacity to enter into the contract is valid +and binding, if entered into by mutual consent in the presence of +witnesses. As a matter of practice a Mohammedan marriage is generally +concluded by a formal ceremony which is ended by the _Qazi_ offering the +following prayer: + +"O Great God! grant that mutual love may reign between this couple, as it +existed between Adam and Eve, Abraham and Sarah, Joseph and Zalikha, Moses +and Zipporah, his highness Mohammed and Ayishah, and his highness Ali +al-Murtaza and Fatimatu'z-Zahra." + +HUSBAND AND WIFE.--A husband is not guardian over his wife any further +than respects the rights of marriage, nor does the provision for her rest +upon him any further than with respect to food, clothing and lodging. + +A husband must reside equally with each of his wives, unless one wife +bestow her right upon another wife. + +A wife cannot give evidence in a court of law against her husband. If she +becomes a widow she must observe mourning for the space of four months and +ten days. + +In the event of her husband's death a wife is entitled to a portion of her +husband's estate, in addition to her claim of dower, the claim of dower +taking precedence of all other claims on the estate. + +"The women," says the Koran, "ought to behave toward their husbands in +like manner as their husbands toward them, according to what is just." + +When the husband has left the place of conjugal domicile without making +any arrangements for his wife's support, the judge is authorized by law to +make an order that her maintenance shall be paid out of any fund or +property which the husband may have left in deposit or in trust, or +invested in any trade or business. + +When a woman abandons the conjugal domicile without any valid reason, she +is not entitled to maintenance from her husband. + +The Mohammedan law lays down distinctly that a wife is bound to live with +her husband, and to follow him wherever he wishes to go; and that on her +refusing to do so without sufficient or valid reason, the courts of +justice, on a suit for restitution of conjugal rights by the husband, +would order her to live with her husband. + +The obligation of the wife, however, to live with her husband is not +absolute. The law recognizes circumstances which justify her refusal to +live with him. + +Although the condition of women under Mohammedan law is most +unsatisfactory, it must be admitted that Mohammed effected a vast and +marked improvement in the condition of the female population of Arabia. +Amongst the Arabs who inhabited the peninsula of Arabia the condition of +women was extremely degraded, for amongst the pagan Arabs a woman was a +mere chattel. The Koran created a great reformation in the condition of +women. For the first time in the history of Oriental legislation the +principle of equality between the sexes was approached. + +DIVORCE.--The Mohammedan law of divorce is founded upon express +injunctions contained in the Koran, as well as in the Traditions, and its +rules occupy an important part of all Mohammedan works on jurisprudence. + +These rules may be summarized thus: + +The thing which is lawful but disliked by God is divorce. + +A husband may divorce his wife without any misbehaviour on her part, or +without assigning any cause. + +There is an irregular form of divorce in which the husband repudiates his +wife by three sentences, either express or metaphorical, as for example: +"Thou art divorced! Thou art divorced! Thou art divorced!" The Mohammedan +who thus divorces his wife is held in the _Hidayah_ to violate the law, +but the divorce is legal. + +A sick man may divorce his wife, even though he be on his death-bed. + +An agent or agents may be appointed by a husband to divorce his wife. + +In addition to the will or caprice of the husband, there are also certain +conditions which require a divorce. + +The following are causes for divorce, but generally require to be ratified +by a decree from the _Qazi_ or judge: + +1. _Jubb._ That is, when the husband has been by any cause deprived of his +organ of generation. This condition is called _majbub_, and if it existed +before the marriage the wife can obtain instant divorce. + +2. _Unnah._ Impotence of either husband or wife. + +3. Inequality of race or tribe. + +4. Insufficient dower. (If the stipulated dowry is not given when +demanded.) + +5. Refusal of Islam. If one of the parties embrace Islam, the judge must +offer it to the other three distinct times, and if he or she refuse to +embrace the faith, divorce follows. + +6. Unjust accusation of adultery by a husband against his wife. + +7. If a wife becomes the proprietor of her husband or the husband becomes +the proprietor of his slave wife divorce takes place. + +8. An invalid marriage of any kind, arising from consanguinity or affinity +of parties, or other causes. + +9. The executed vow of a husband not to have sexual intercourse with his +wife for as long as four months. + +10. Difference of country. As, for example, if a husband flee from a +non-Moslem country to a country of Islam and his wife refuses to accompany +him. + +11. Apostasy from Islam. + +The Greek Church holds that marriage is dissoluble in case of adultery, +but not till a probationary period has elapsed during which a bishop or +priest mediates with a view to reconciliation. + +A fourth marriage is unlawful. + +When a man or woman apostatizes from Islam, then an immediate dissolution +of the marriage takes place, whether the apostasy be of the man or of the +woman, without a judicial decree. If both husband and wife apostatize at +the same time, their marriage bond remains; and if at any future time the +parties again return to Islam, no remarriage is necessary to constitute +them man and wife. + +There is a form of divorce known as _khula_ which is when a husband and +wife disagreeing, or for any other cause, the wife on payment of a +compensation or ransom to the husband, is permitted by law to obtain from +him a release from the marriage tie. + +_Mubara'ah_ is a divorce which is effected by mutual release. + +A COMPARISON.--When compared with the Mosaic law it will be seen that by +the latter, divorce was only sanctioned when there was "_some +uncleanness_" in the wife, and whilst in Islam a husband can take back his +divorced wife, in the law of Moses it was not permitted. See Deut. xxiv., +1-4. + +IDDAH OR IDDAT.--This is the term of probation incumbent upon a woman in +consequence of a dissolution of marriage, either by divorce or the death +of her husband. After a divorce the period is three months, and after the +death of her husband four months and ten days, both periods being enjoined +by the Koran. + +EFFECTS OF DIVORCE: + +1. Sexual intercourse between the divorced persons becomes unlawful. + +2. The wife is free to marry another husband after the completion of her +_iddah_; or immediately if the marriage was never consummated. + +3. The husband may complete his legal number of four wives without +counting the divorced one, or may marry a woman who could not be lawfully +joined with the divorced one, for example, her sister, after the +completion of her _iddah_ but not before. + +4. If the marriage has been consummated before the divorce, the whole of +the unpaid dower becomes immediately payable by the husband to the wife, +and is enforceable like any other debt if the marriage had not been +consummated and the amount of dower was specified in the contract, he is +liable for half that amount; if none was specified, he must give the +divorced wife a present suitable to her rank, or their value. But the wife +has no right to anything if the divorce took place by her wish, or in +consequence of any disqualifications on her side, as for instance, her +apostasy. + +5. The wife is entitled to be maintained by her husband during the _iddah_ +on the same scale as before the divorce, conditionally on submitting to +her husband's control as regards her place of residence and general +behaviour. But on completion of her _iddah_ she ceases to have any claim +for maintenance. + + + + +CHAPTER XXV. + +THE UNITED STATES OF AMERICA. + + +The United States as such, that is, in its Federal capacity, has no single +system of marriage and divorce laws applicable to all the States and +Territories. + +The purpose of the Constitution of the United States is to maintain by its +federal structure a strong national government, while recognizing each of +the States which make up the federation to be so far as is consistent with +the motive of the Union, sovereign commonwealth. + +When one considers this wonderful federation of States and Territories, +with nearly half a hundred separate governments each making and +interpreting its domestic laws, and yet all parts of, and working in +harmony with, the central or Federal Government, the justice of +Gladstone's tribute to the American Constitution as "the most wonderful +work ever struck off at a given time by the brain and purpose of man" is +apparent. + +The laws of marriage and divorce in the various States and Territories +cannot therefore be ascertained from a single legislative or judicial +source. The law of the several jurisdictions consists not only of +legislative enactments, but of judicial construction and interpretation of +such legislation. + +Fortunately the tendency is toward uniformity of legislation among the +States, especially on the important subject of marriage and divorce, and +such differences as exist are pointed out substantially in this chapter +when each State or Territory is considered separately. + +The Congress, or national legislature, has power to legislate only upon +such subjects as the Federal Constitution marks out for it, and all powers +not granted to the Federal government remain with the several States. + +The regulation of marriage and divorce is one of the most important +domestic concerns which remains within the jurisdiction of a State. + +Article IV., Section 3, of the Constitution of the United States expressly +grants to Congress exclusive power to prescribe laws for the Territories +of the United States. + +Just as each State has a separate judicial system so the Federal +Government has its separate courts, which have no power to interfere with +the proceedings or judgments of the State courts unless some principle of +the Federal Constitution or a national law is challenged. + +ESSENTIALS TO MARRIAGE.--There are three requisites to a lawful marriage +in all of the States and Territories of the United States. These are: + +1. First, that the marriage is _monogamous_. That is, the Federal courts +and the courts of the several States only recognize as a true marriage one +which in addition to being valid in other respects is a voluntary union of +one man and one woman for life to the exclusion of all others. + +2. The parties must be competent according to the _lex loci contractus_, +or the law where the contract was concluded. + +3. There must be free consent on the part of both of the contracting +parties. + +INTERSTATE COMITY.--As Wharton points out in his "Conflict of Laws," +marriage is not merely a contract but an international institution of +Christendom. + +Often complications arise out of some difference between the law of +marriage and divorce in the State where a marriage is concluded, or a +divorce effected, and the law of the State where one or both of the +parties may after the marriage or divorce acquire a domicile. The guiding +rule in such cases is that if a marriage or divorce is valid in the State +or Territory where it was concluded or effected, it is valid in all of the +States and Territories of the United States. + +PROOF OF MARRIAGE.--There are various methods of proving the existence of +a marriage. + +Where the parties live together ostensibly as husband and wife, demeaning +themselves toward each other as such, and are received into society and +treated by their friends and relations as having and being entitled to +that status, the law will, in favour of morality and decency, presume that +they have been legally married. This is the rule accepted with but slight +qualifications in all of the States. The cohabitation of the parties +coupled with the general reputation of being husband and wife is, however, +at the best _prima facie_ evidence sufficient for the purposes of a civil +suit. In criminal prosecutions for adultery or bigamy, marriage is a +necessary ingredient of the offence, and must be directly established. + +PROOF OF MARRIAGES ABROAD.--In the absence of special statutes requiring a +marriage abroad, or in another State to be proven in a particular manner, +a foreign marriage can only be established by authenticated copies of the +original records, or by proving as a matter of fact what the legal +requirements for marriage are in the other country or State, together with +proof that such requirements have been complied with. Of course, it is +always necessary to identify the parties to any record. + +CONSANGUINITY AND AFFINITY.--By an Act of Congress applicable to all the +Territories marriage within and not including the fourth degree of +consanguinity computed according to the civil law is forbidden. This is +with but slight variation the rule adopted by each of the States. + +SOURCES OF LAW.--The laws of marriage in the several States and +Territories originate from the law on that subject as it existed in +England at the time of the adoption of the Federal Constitution, as +subsequently modified by State legislation and local judicial +interpretation. + +The law of divorce as it exists in the several States is entirely of local +creation. + +In the remainder of this chapter each State and Territory of the United +States and the District of Columbia is considered separately. + + +ALABAMA. + +MARRIAGE.--The marriageable age for males begins at 17 years and for +females at 14 years of age. + +Males under twenty-one years and females under eighteen years require the +consent of their parents to lawfully conclude marriage. + +The essence of marriage which is considered as a civil contract is the +free consent of both parties. + +IMPEDIMENTS.--The son must not marry his mother or stepmother, or the +sister of his father or mother, or the widow of his uncle. The brother +must not marry his sister or half-sister, or the daughter of his brother +or half-brother, or of his sister or half-sister. The father must not +marry his daughter or granddaughter, or the widow of his son. No man shall +marry the daughter of his wife, or the daughter of the son or daughter of +his wife; and all such marriages are declared incestuous. + +FORBIDDEN MARRIAGES.--Bigamous marriages; incestuous marriages; +miscegenation--between blacks and whites; and marriage of a female +compelled by menace, force or duress. Such marriages involve a criminal +prosecution. + +CELEBRATION.--A marriage may be concluded before any regular minister of +religion, any judge of a court of record, or a justice of the peace. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Voluntary abandonment from bed and board for two years. + +4. Imprisonment in the penitentiary for two years, the sentence being for +seven years or longer. + +5. The commission of the crime against nature. + +6. Habitual drunkenness. + +7. In favour of the husband, when the wife was pregnant at the time of +marriage without his knowledge or agency. + +8. In favour of the wife, when the husband has committed actual violence +on her person attended with danger to life or health, or when from his +conduct there is reasonable apprehension of such violence. + +LIMITED DIVORCES.--Decrees of separation from bed and board are granted to +either spouse on the ground of cruelty. + +REMARRIAGE.--On February 13, 1903, an act was approved making it unlawful +for either party to marry again after a decree of divorce has been +granted, until after the expiration of the time allowed for taking an +appeal (sixty days from the date of the decree), as well as during the +pendency of an appeal, if one is taken. + + +ALASKA. + +In the Territory of Alaska marriage is deemed a civil contract. + +Marriages may be solemnized before a qualified clergyman, judge or +magistrate. + +Marriage is forbidden between persons who are related to each other +within, but not including, the fourth degree of consanguinity. These +degrees are computed according to the rules of the Roman Law. + +DIVORCE.--The following are legal causes for an absolute divorce: +Impotency existing at the time of marriage and continuing to the +commencement of the suit; adultery; conviction of felony; wilful desertion +continued for the period of two years, or more; cruel and inhuman +treatment calculated to impair health or endanger life; and gross and +habitual drunkenness. + + +ARIZONA. + +MARRIAGE.--In this newly admitted State marriage is treated as a purely +civil contract. + +A male must be at least eighteen and a female at least fourteen years of +age to lawfully contract marriage. + +The consent of the parents is required in the case of males under 21 and +females under 18. + +CONSANGUINITY AND AFFINITY.--All marriages between parents and children, +including grandparents and grandchildren of every degree; between brothers +and sisters of the half as well as the whole blood; between uncles and +nieces, aunts and nephews; and between first cousins are declared to be +incestuous and void. + +The preceding paragraph extends to illegitimate as well as legitimate +children and relations. + +NEGROES, MONGOLIANS AND INDIANS.--Marriage between whites and negroes, +between whites and Mongolians, or between whites and Indians are +absolutely void. + +PRELIMINARIES.--A marriage license is required. + +CELEBRATION.--Marriage may be concluded before any minister of the Gospel, +judge of a court of record, or justice of the peace. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. When adultery has been committed by either husband or wife. + +2. When one of the parties was physically incompetent at the time of +marriage. + +3. When the husband or wife is guilty of excesses, cruel treatment, or +outrages toward the other. + +4. In favour of the husband, when the wife shall have voluntarily left his +bed or board for the space of six months with the intention of +abandonment. + +5. In favour of the wife, when the husband shall have left her for six +months with the intention of abandonment. + +6. For habitual intemperance. + +7. Wilful neglect to provide for his wife the necessaries and comforts of +life for six months. + +8. When the husband shall have been taken in adultery with another woman. + +9. In favour of either husband or wife, when the other shall have been +convicted, after marriage, of a felony, and imprisonment in any prison. + + +ARKANSAS. + +The minimum age for marriage is 17 for males; 14 for females. + +Parental consent is required for males under 21 years and females under 18 +years of age. + +The prohibited degrees are the same as in Alabama. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Impotency. + +2. Desertion for one year. + +3. Previous existing marriage. + +4. Conviction of felony or infamous crime. + +5. Habitual drunkenness continued for one year. + +6. Cruel and barbarous treatment endangering life. + +7. Indignities which render condition and cohabitation intolerable. + +8. Adultery. + +LIMITED DIVORCE.--Limited divorces are granted for the same causes. + + +CALIFORNIA. + +MARRIAGE.--Marriage is defined as a personal relation arising out of a +civil contract, to which the consent of parties capable of making it is +necessary. Consent alone will not constitute marriage; it must be followed +by a solemnization authorized by the code. A male must be at least +eighteen and a female at least fifteen to conclude marriage. + +Parental consent is required if the male is under twenty-one years or the +female under eighteen years. Such consent is not required if the minor has +been previously lawfully married. + +IMPEDIMENTS.--Marriages between parents and children, ancestors and +descendants of every degree, and between brothers and sisters of the half +as well as the whole blood, and between uncles and nieces or aunts and +nephews are incestuous and void, whether the relationship is legitimate or +illegitimate. + +Marriages between white persons and mulattoes or between white persons and +Mongolians are prohibited. + +CELEBRATION.--Marriages may be celebrated before any justice of the +supreme court, any judge of the superior court, any justice of the peace; +or before a priest or minister of the Gospel of any sect. + +HUSBAND AND WIFE.--A married woman may acquire, hold and control property +of every description the same as a single woman. + +DIVORCE.--The following are legal causes for an absolute divorce: +Adultery; extreme cruelty; wilful desertion; wilful neglect; habitual +intemperance; and conviction by either party of a felony. + +All decrees of divorce are first granted _nisi_, and an absolute or final +decree cannot be secured until one year after the entry of the decree +_nisi_. + +Marriages may be annulled on the following grounds: That the party +petitioning for annulment was under age at the date of marriage; that the +former husband or wife of either party was living and the former marriage +undissolved at the time of the marriage in question; that one of the +parties was of unsound mind when the marriage was concluded; that the +marriage was procured by fraud; that the marriage was procured by +coercion; that at the time of the marriage one of the parties was +impotent, and such physical incapacity continues to the date of bringing +the suit for annulment. + + +COLORADO. + +MARRIAGE.--Marriage is a civil contract. The minimum marriageable age for +males and for females has not been fixed by statute. + +Parental consent is required for males under 21 years or for females under +18 years. + +IMPEDIMENTS.--All marriages between parents and children, including +grandparents and grandchildren, of every degree; between brothers and +sisters of the half as well as of the whole blood; and between uncles and +nieces and aunts and nephews are declared to be incestuous and void. This +provision applies to illegitimate as well as to legitimate children. + +The statute contains a provision that persons living in that portion of +the State acquired from Mexico are permitted to marry according to the +custom of that country. + +No person can lawfully conclude marriage within one year after divorce. + +Marriages are also forbidden between whites and negroes or mulattoes. + +A marriage license is required. + +ABSOLUTE DIVORCE: + +1. Impotency. + +2. A husband or wife living. + +3. Adultery. + +4. Desertion for one year. + +5. Cruelty. + +6. Failure to support for one year. + +7. Habitual drunkenness for one year. + +8. Conviction of felony. + + +DISTRICT OF COLUMBIA. + +MARRIAGE.--A civil contract. The minimum age for males is 16 years, for +females 14 years. + +The consent of the father or mother is necessary in marriages of males +under the age of twenty-one years, and of females under the age of +eighteen years, unless the party under age has been previously lawfully +married. + +IMPEDIMENTS.--A man shall not marry his grandmother, grandfather's wife, +wife's grandmother, father's sister, mother's sister, mother, stepmother, +wife's mother, daughter, wife's daughter, son's wife, sister, son's +daughter, daughter's daughter, son's son's wife, daughter's son's wife, +wife's son's daughter, wife's daughter's daughter, brother's daughter, +sister's daughter. A woman shall not marry her grandfather, grandmother's +husband, husband's grandfather, father's brother, mother's brother, +father, stepfather, husband's father, son, husband's son, daughter's +husband, brother, son's son, daughter's son, son's daughter's husband, +daughter's daughter's husband, husband's son's son, husband's daughter's +son, brother's son, sister's son. + +CELEBRATION.--Marriage may be solemnized before a judge of any court of +record, or any justice of the peace, or by any minister or ordained person +who has furnished proof of his official capacity to the Supreme Court of +the District of Columbia. + +Licenses to marry are issued by the clerk of the Supreme Court upon an +affidavit showing that the contracting parties are competent and that all +the requirements of law have been complied with. + +DIVORCE.--There is only one cause for a divorce, namely, adultery. A +judicial separation or divorce from bed and board may be granted because +of cruelty, unjustifiable desertion or drunkenness. + +Marriages procured by fraud or coercion, or between parties incapable by +reason of insanity or non-age of concluding the contract, can be annulled. + +Petitioners in matrimonial causes must have been bona fide residents of +the District of Columbia before instituting proceedings. + + +CONNECTICUT. + +MARRIAGE.--No age is fixed by statute at which minors are capable of +contracting marriage. + +The parents or guardians must give consent in writing to the registrar +before a license is issued if either party is a minor. + +CONSANGUINITY AND AFFINITY.--No man shall marry his mother, grandmother, +daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter; +no woman shall marry her father, grandfather, son, grandson, brother, +uncle, nephew, stepfather or stepson. All such marriages are declared to +be incestuous. + +CELEBRATION.--Any ordained clergyman of any State, any judge or justice of +the peace may solemnize marriage. No special form of celebration is +required. + +ANNULMENT.--Whenever, from any cause, any marriage is void the superior +court has jurisdiction, upon complaint, to pass a decree declaring it so. + +LEGITIMACY OF CHILDREN.--Children born before marriage whose parents +afterwards intermarry are deemed legitimate and inherit equally with other +children. + +DIVORCE.--The Superior Court has exclusive jurisdiction and may grant +absolute divorce to any man or woman for the following offences committed +by the other: Adultery, fraudulent contract, wilful desertion for three +years with total neglect of duty, seven years' absence unheard from, +habitual intemperance, intolerable cruelty, sentence to imprisonment for +life, or any infamous crime involving a violation of conjugal duty and +punishable by imprisonment in State prison. + +Parties divorced may marry again. + +There is no limited divorce recognized by the laws of Connecticut. + + +DELAWARE. + +MARRIAGE.--While no age is fixed by statute as to when males or females +may conclude marriage, in case of a marriage under the age of 18 years +for males and 16 years for females a divorce can be obtained for fraud for +want of age, in the absence of voluntary ratification after reaching that +age. + +Parental consent is required for males under 21 years and females under 18 +years. + +IMPEDIMENTS.--Degrees of consanguinity: A man may not marry his mother, +father's sister, mother's sister, sister, daughter or the daughter of his +son or daughter. A woman may not marry her father, father's brother, +mother's brother, brother, son, or the son of her son or daughter. Degrees +of affinity: A man may not marry his father's wife, son's wife, son's +daughter, wife's daughter, or the daughter of his wife's son or daughter. +A woman may not marry her mother's husband, daughter's husband, husband's +son, or the son of her husband's son or daughter. + +Marriages between whites and negroes or mulattoes are prohibited. + +CAUSES FOR DIVORCE.--They are adultery, bigamy, desertion for two years, +habitual drunkenness for two years, extreme cruelty, or conviction after +marriage of a crime, followed by continuous imprisonment for two years. + +The causes for divorce from bed and board are the same, with the addition +of one other, namely, hopeless insanity of the husband. + +A marriage may be annulled for any of the following causes, existing at +the time of the marriage: Incurable physical impotency; consanguinity; a +former husband or wife living at the time of the marriage; fraud, force or +coercion; insanity of either party; minority of either party, unless the +marriage be confirmed after reaching proper age, to wit.: wife, 16 years; +husband, 18 years. + + +FLORIDA. + +MARRIAGE.--In order to be valid marriages must be celebrated before a +qualified clergyman, judge, magistrate or notary public. + +Parties must be of sound mind, and the male at least seventeen years of +age and the female at least fourteen years of age. + +DIVORCE.--Absolute divorce dissolving a marriage is granted by the courts +for the following causes: + +1. That the parties are within the degrees prohibited by law. + +2. That the defendant is naturally impotent. + +3. That the defendant has been guilty of adultery. + +4. Extreme cruelty by defendant to complainant. + +5. Habitual indulgence by defendant in violent and ungovernable temper. + +6. Habitual intemperance of defendant. + +7. Wilful, obstinate and continued desertion by defendant for one year. + +8. That defendant has obtained a divorce in any other State or country. + +9. That either party had a husband or wife living at the time of marriage. + +Judicial separations or divorces from bed and board are not granted in +Florida. + +The petitioner called the complainant must have resided in the State two +years, except where the defendant has been guilty of the act of adultery +in the State, then any citizen of the State may obtain a divorce at any +time, and the two years' residence shall not be required of complainant. + +A suit of divorce is commenced by a bill in chancery, and the general +chancery practice of the State is followed throughout. + +A decree of divorce does not render illegitimate children born of the +marriage, except in the case of a decree obtained on the ground that one +of the parties had a previous spouse living at the time of the marriage. + + +GEORGIA. + +MARRIAGE.--The marriageable age for males begins at 17 years and for +females at 14 years. + +Females under 18 years of age require parental consent. + +To be able to contract marriage, a person must be of sound mind, of legal +age of consent, and labouring under neither of the following disabilities: + +1. Previous marriage undissolved. + +2. Nearness of relationship by blood or marriage. + +3. Impotency. + +To constitute an actual contract of marriage the parties must be +consenting thereto voluntarily, and without any fraud practiced upon +either. + +IMPEDIMENTS.--Marriages between whites and persons of African descent are +prohibited. + +A man shall not marry his stepmother, or mother-in-law, or +daughter-in-law, or stepdaughter, or granddaughter of his wife. + +A woman shall not marry her corresponding relatives. + +Marriage is forbidden between ascendants and descendants. Any marriage +within the Levitical degrees is a criminal offense. + +CELEBRATION.--Marriage is a civil contract and no form of solemnization is +prescribed by statute. + +DIVORCE.--There are two forms of divorce in Georgia, a total divorce and a +divorce from bed and board. The causes for total divorce are: + +1. Intermarriage by persons within the prohibited degrees of +relationship. + +2. Mental incapacity at time of marriage. + +3. Impotency at time of marriage. + +4. Force, menaces, duress or fraud in obtaining marriage. + +5. Pregnancy of wife at time of marriage, unknown to husband. + +6. Adultery in either party after marriage. + +7. Wilful and continued desertion for term of three years. + +8. Conviction for an offense involving moral turpitude where penalty is +two years or more in penitentiary. + +9. In cases of cruel treatment, or habitual intoxication, jury may grant +either total or partial divorce. + + +IDAHO. + +MARRIAGE.--The marriageable age for males begins at 18 years and for +females at the same age. + +IMPEDIMENTS.--Marriage is prohibited between ascendants and descendants of +every degree, and between brothers and sisters of the half as well as the +whole blood, and between uncles and nieces, or aunts and nephews, whether +the relationship is legitimate or illegitimate. + +Marriage of whites with negroes or mulattoes is also prohibited. + +A marriage license is required. + +CELEBRATION.--The law prescribes no particular form of solemnization, but +the parties must declare in the presence of the celebrant that they take +each other as husband and wife. Two witnesses must be present. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion for one year. + +4. Wilful neglect for one year. + +5. Habitual intemperance for one year. + +6. Conviction of felony. + +7. Permanent insanity. + +There is no limited form of divorce recognized. + +DEFENCES: + +1. Collusion. + +2. Condonation. + +3. Recrimination. + + +ILLINOIS. + +MARRIAGE.--To marry with parental consent, males must be at least 18 years +and females 16 years of age; without such consent, males must be at least +21 years and females 18 years. + +Marriage is a civil contract and may be celebrated before a qualified +clergyman or magistrate. + +IMPEDIMENTS.--Marriages between parents and children, including +grandparents and grandchildren of every degree, between brothers and +sisters of the half as well as of the whole blood, between uncles and +nieces, aunts and nephews, and between cousins of the first degree are +declared to be incestuous and void. This includes illegitimate as well as +legitimate children and relations. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. When either party at the time of marriage was and continues to be +naturally impotent. + +2. When he or she had a wife or husband living at the time of such +marriage. + +3. When either party has committed adultery subsequent to the marriage. + +4. When either party has wilfully deserted or absented himself or herself +from the wife or husband, without any reasonable cause, for the space of +two years. + +5. When either party has been guilty of habitual drunkenness for the space +of two years. + +6. When either party has attempted the life of the other by poison or +other means showing malice. + +7. When either party has been guilty of extreme and repeated cruelty. + +8. When either party has been convicted of felony or other infamous crime. + +Limited divorces are not granted in this State. + + +INDIAN TERRITORY. + +The laws of marriage and divorce in the Indian Territory are the same as +those of Arkansas, except in the matter of marriage impediments, and in a +few minor details. + +By an Act of Congress applicable to all Territories of the United States, +marriages within and not including the four degrees of consanguinity, +computed according to the civil law, are forbidden. + + +INDIANA. + +MARRIAGE.--Males must be at least 18 years and females 16 years of age. + +Marriage is a civil contract which can be celebrated before any qualified +clergyman, judge or magistrate. + +IMPEDIMENTS.--Marriages between ascendants and descendants, or being +persons of nearer kin than second cousin, are prohibited. + +A lawful marriage cannot be concluded between a white person and another +person possessed of one-eighth or more of negro blood. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Impotency existing at the time of the marriage. + +3. Abandonment for two years. + +4. Cruel and inhuman treatment of either party by the other. + +5. Habitual drunkenness of either party. + +6. The failure of the husband to make reasonable provision for his family +for a period of two years. + +7. The conviction, subsequent to the marriage, in any country, of either +party, of an infamous crime. + +Limited divorces are granted for husband's desertion, or failure to +support his wife. + + +IOWA. + +MARRIAGE.--A male must be at least 16 and a female 14 to conclude +marriage. + +IMPEDIMENTS.--The prohibited degrees of consanguinity and affinity are the +same as those of Illinois. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Against the husband when he has committed adultery subsequent to the +marriage. + +2. When he wilfully deserts his wife and absents himself without a +reasonable cause for the space of two years. + +3. When he is convicted of a felony after the marriage. + +4. When, after marriage, he becomes addicted to habitual drunkenness. + +5. When he is guilty of such inhuman treatment as to endanger the life of +his wife. + +6. Against the wife for the causes above specified, and also when the wife +at the time of the marriage was pregnant by another than her husband, +unless such husband have an illegitimate child or children then living, +which was unknown to the wife at the time of their marriage. + +There is no limited divorce allowed in this State. + + +KANSAS. + +MARRIAGE.--No male under 17 years or female under 15 years of age may +contract marriage without the consent of their parents and the probate +judge of the district. + +IMPEDIMENTS.--The prohibited degrees are the same as those of Iowa. + +Marriage is a civil contract which may be celebrated before a clergyman or +magistrate. + +CAUSES FOR DIVORCE.--Abandonment for one year; adultery; impotency; +extreme cruelty; fraudulent contract; habitual drunkenness; gross neglect +of duty; the conviction of a felony and imprisonment in the penitentiary +therefor subsequent to the marriage. + + +KENTUCKY. + +MARRIAGE.--A male must be at least 14 years and a female 12 years. + +Marriages below these ages are prohibited and void, but the courts having +general equity jurisdiction may declare void a marriage when the male was +under 16, or the female under 14 years of age at the time of the marriage, +and the marriage was without the consent of the father, mother, guardian, +or other person having the proper charge of his or her person, and has not +been ratified by cohabitation after that age. + +As a civil contract marriage may be celebrated either civilly or +religiously. + +IMPEDIMENTS.--Same as in Kansas, with the addition that marriages between +whites and negroes or mulattoes are prohibited. + +CAUSES FOR DIVORCE: + +1. Abandonment for one year. + +2. Adulterous cohabitation. + +3. Condemnation for felony. + +4. Husband's confirmed drunkenness. + +5. Wife's habitual drunkenness. + +6. Wife's pregnancy by another man. + +7. Adultery on part of wife. + +Plaintiff must have been a resident of the State at least one year. + + +LOUISIANA. + +MARRIAGE.--A civil contract which may be celebrated by a minister, priest, +judge or magistrate. No special form required. + +Males must be at least 14 years and females 12 years. Parental consent +necessary unless minor is twenty-one years of age. + +The prohibited degrees of consanguinity and affinity are the same as those +of all the Southern States. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Condemnation of either spouse for infamous offence. + +3. Habitual intemperance. + +4. Cruel treatment. + +5. Abandonment. + +6. Attempt to kill. + +7. Public defamation. + +8. Flight from justice. + +In case of divorce on ground of adultery, the guilty party cannot marry +his or her accomplice. + + +MAINE. + +MARRIAGE.--Minimum age not fixed by statute. Parental consent necessary +for males under 21 years and females under 18 years. + +No special form of marriage ceremony required. + +IMPEDIMENTS.--Same as those of Massachusetts. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Impotency. + +3. Extreme cruelty. + +4. Three years' utter desertion. + +5. Gross and confirmed habits of intoxication. + +6. Cruel and abusive treatment. + +7. When the husband being of sufficient ability, grossly, or wantonly and +cruelly, refuses to provide suitable maintenance for his wife. + +The procedure and effects of divorce are almost identical with those of +Massachusetts. + + +MARYLAND. + +MARRIAGE.--The minimum age for marriage is not fixed by statute, but +parental consent is required for males under 21 years and females under 16 +years. + +IMPEDIMENTS.--Marriage is prohibited between ascendants and descendants, +and collaterally between all persons related by consanguinity and affinity +as set forth in the list of impediments in the statement of the law of +Massachusetts. + +Marriage is also forbidden between whites and negroes, or persons of negro +descent. + +FORMALITIES.--Marriage licenses are required, and a ceremonial +solemnization is essential. + +Marriage may be solemnized "by any minister of the Gospel, or other +officer or person authorized by the laws of this State to solemnize +marriage." + +CAUSES FOR ABSOLUTE DIVORCE: + +1. The impotence of either party at the time of the marriage. + +2. Any cause which renders a marriage null _ab initio_. + +3. Adultery. + +4. Abandonment continued uninterruptedly for at least three years. + +5. When the woman before marriage has been guilty of illicit carnal +intercourse with another man, the same being unknown to her husband at the +time of the marriage. + +Limited divorces granted for cruelty of treatment. + +All divorces are at first granted _nisi_--provisionally--to become +absolute on application six months afterward. + + +MASSACHUSETTS. + +MARRIAGE.--The minimum age for marriage is not fixed by law, but males +under 21 years and females under 18 years must have parental consent. + +IMPEDIMENTS.--No man shall marry his mother, grandmother, daughter, +granddaughter, stepmother, sister, grandfather's wife, son's wife, +grandson's wife, wife's mother, wife's grandmother, wife's daughter, +wife's granddaughter, brother's daughter, sister's daughter, father's +sister or mother's sister. + +No woman shall marry her father, grandfather, son, grandson, stepfather, +brother, grandmother's husband, daughter's husband, granddaughter's +husband, husband's father, husband's grandfather, husband's son, husband's +grandson, brother's son, sister's son, father's brother or mother's +brother. + +In all cases in which the relationship is founded on marriage the +prohibition continues, notwithstanding the dissolution by death or +divorce of the marriage by which the affinity is created, unless the +divorce is for a cause which shows such marriage to have been originally +unlawful or void. + +FORMALITIES.--Marriage may be solemnized by a minister of the Gospel, a +duly qualified rabbi, or a justice of the peace. No special form of +ceremony is required. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Adultery. + +2. Impotency. + +3. Extreme cruelty. + +4. Utter desertion continued for three consecutive years next prior to the +filing of the libel. + +5. Gross and confirmed habits of intoxication caused by the voluntary use +of intoxicating liquor, opium or other drugs. + +6. Cruel and abusive treatment. + +7. On the libel of the wife, when the husband, being of sufficient +ability, grossly, or wantonly and cruelly, refuses or neglects to provide +suitable maintenance for her. + +8. When either party has separated from the other without his or her +consent, and has united with a religious sect that professes to believe +the relation of husband and wife void or unlawful, and has continued +united with such sect or society for three years, refusing during that +term to cohabit with the other party. + +9. When either party has been sentenced to confinement at hard labour for +life or for five years or more in the State prison, or in jail, or house +of correction. + +ALIMONY.--Temporary and permanent alimony may be granted to the wife. + +FORM OF DECREE.--Decrees of divorces are in the first instance _nisi_, and +become absolute six months afterward upon application; unless the court +for sufficient cause, on the petition of any interested party, shall +otherwise order. + + +MICHIGAN. + +MARRIAGE.--The minimum age for males is 18 years and for females 16 years. +Parental consent is necessary for a female under 18 years. + +PROHIBITED DEGREES.--Same as in Massachusetts, with the exception that +marriages between first cousins are prohibited in Michigan. + +FORMALITIES.--License is required. No particular form of celebration +prescribed. + +Marriage may be solemnized by any qualified clergyman, judge or justice of +the peace. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Impotency at time of marriage. + +3. Sentence of either party to prison for three years or more. + +4. Desertion continued two years. + +5. Habitual drunkenness. + +6. In the court's discretion, a divorce may be granted to any resident +whose husband or wife has obtained a divorce in another State. + +Limited or absolute divorces may also be granted for extreme cruelty; +utter desertion for two years; and wanton failure of husband to support +his wife. + + +MINNESOTA. + +MARRIAGE.--The minimum age for males is 18 years, for females 15 years. +Parental consent is required for marriage of male under 21 years or female +under 18 years. + +The prohibited degrees of consanguinity and affinity are the same as in +Michigan. + +No particular form of marriage ceremony is prescribed, but a license is +necessary. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Impotency. + +3. Cruel and inhuman treatment. + +4. Sentence to State prison. + +5. Wilful desertion continued for three years. + +6. Habitual drunkenness. + +Limited divorces are granted to women only on the grounds of husband's +cruelty, abandonment, or such conduct on husband's part as makes +cohabitation unsafe. + + +MISSISSIPPI. + +MARRIAGE.--The minimum age for marriage is not fixed by statute. Parental +consent is required for males under 21 years and females under 18 years. + +The prohibited degrees of relationship are the same as in Massachusetts. + +Marriages of whites with negroes, mulattoes, or persons having more than +one-eighth negro blood, and marriages between Mongolians, or persons +having more than one-eighth Mongolian blood, are prohibited. + +Marriage cannot be concluded without a license duly issued. It may be +solemnized by either clergyman or magistrate. + +CAUSES FOR DIVORCE: + +1. Relationship within prohibited degrees. + +2. Impotency. + +3. Adultery. + +4. Sentence to penitentiary. + +5. Wilful desertion continued two years. + +6. Habitual drunkenness. + +7. Pregnancy of the wife at marriage, by another man, unknown to husband. + +8. Habitual cruelty. + +9. If either party had another husband or wife at time of second marriage. + +10. Insanity. + +11. Habitual use of opium, morphine or other drug. + +Limited divorces are not granted. + + +MISSOURI. + +MARRIAGE.--The minimum age at which marriage can be concluded is 15 years +for males and 12 years for females. + +Parental consent is necessary for males under 21 years or females under 18 +years. + +PROHIBITED DEGREES.--Marriage is forbidden between ascendants and +descendants, between brothers and sisters of the half as well as of the +whole blood, and between uncles and nieces, and aunts and nephews. This +applies to legitimate or illegitimate kindred. + +Marriage is also prohibited between whites and negroes. + +FORMALITIES.--No particular form of marriage is prescribed, but a license +is necessary. + +CAUSES FOR DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Absence without reasonable cause for one year. + +4. Former marriage undissolved. + +5. Conviction of felony or infamous crime. + +6. Habitual drunkenness. + +7. Cruel treatment. + +8. Intolerable indignities. + +9. Vagrancy of husband. + +10. Conviction prior to marriage by either party of felony or infamous +crime, unknown to the other spouse. + +11. Pregnancy at time of marriage of wife by another man. + +Upon granting a divorce the court will make such direction concerning +custody of children, and maintenance of wife, as justice may require. + + +MONTANA. + +MARRIAGE.--Males cannot marry under 18 years and females under 16 years. +If either party is a minor parental consent is required. + +IMPEDIMENTS.--Marriages between ancestors and descendants of every degree, +between brothers and sisters of whole or half blood, between uncles and +nieces, or aunts and nephews, legitimate or illegitimate, are forbidden. + +FORMALITIES.--Outside of license, no particular formalities are +prescribed. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion. + +4. Wilful neglect. + +5. Habitual intemperance. + +6. Conviction of felony. + + +NEBRASKA. + +MARRIAGE.--Males must be at least 18 and females 16 years of age to +conclude marriage. Parental consent is required for males under 21 years +and females under 18 years. + +IMPEDIMENTS.--Marriages between ascendants and descendants, between +brothers and sisters of whole or half blood, between uncles and nieces, +aunts and nephews, and first cousins of the whole blood, are prohibited. + +CELEBRATION.--A marriage license is necessary, but no particular form of +celebration is prescribed. + +GROUNDS FOR DIVORCE: + +1. Adultery. + +2. Impotency at time of marriage. + +3. Sentence to three years' imprisonment or more. + +4. Abandonment for two years. + +5. Habitual drunkenness. + +6. Extreme cruelty. + +7. Utter desertion. + +8. When husband unreasonably and cruelly refuses to provide maintenance +for wife. + +Limited divorce may be obtained on the three last grounds. + + +NEVADA. + +MARRIAGE.--Males cannot marry under 18 years or females under 16 years. +Parental consent is required for males under 21 years and females under 18 +years. + +PROHIBITED DEGREES.--Marriages between persons nearer of kin than second +cousins of the whole blood or cousins of the half blood. + +FORMALITIES.--No particular form prescribed, but it is unlawful for +clergyman or magistrate to solemnize marriage without having a license +presented. + +CAUSES FOR DIVORCE: + +1. Impotency at time of marriage. + +2. Adultery. + +3. Wilful desertion for one year. + +4. Conviction of felony or infamous crime. + +5. Habitual drunkenness. + +6. Extreme cruelty. + +7. Neglect of husband to provide necessaries of life. + +Upon granting a decree of divorce the court shall make such other +direction regarding disposition of property and custody of children as +justice may demand. + + +NEW HAMPSHIRE. + +MARRIAGE.--A male cannot marry under 14 years or a female under 13 years. +There is no statutory requirement for parental consent. + +PROHIBITED DEGREE.--Same as in Massachusetts. Common law marriage is +recognized. + +FORMALITIES.--License is necessary, but no particular form of ceremony is +required. + +CAUSES FOR DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Extreme cruelty. + +4. Conviction of crime punishable in this State for more than one year. + +5. Treatment detrimental to health. + +6. Treatment to endanger reason. + +7. Three years' absence. + +8. Habitual drunkenness. + +9. When either party joins a sect opposed to cohabitation between husband +and wife. + +10. Desertion for three years. + +Upon granting a decree of divorce the court will make such order as to +maintenance of wife and custody of children as the facts shall call for. + + +NEW JERSEY. + +MARRIAGE.--No minimum age is fixed for marriage. Males under 21 years and +females under 18 years must have consent of parents. + +IMPEDIMENTS.--A man shall not marry any of his ancestors or descendants, +or his sister, or the daughter of his brother or sister, or the sister of +his father or mother, whether such collateral kindred be of the whole or +half blood. A woman shall not marry any of her ancestors or descendants, +or her brother, or the son of her brother or sister, or the brother of her +father or mother, whether such collateral kindred be of the whole or half +blood. + +FORMALITIES.--A marriage license is necessary only for non-residents of +State. + +No special form of ceremony is prescribed, except that when solemnized by +a religious society it must be according to the rules and usages of such +society. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Wilful, continued and obstinate desertion for the term of two years. + +3. When either party was, at the time of marriage, incapable of consenting +thereto and the marriage has not been subsequently ratified. + +LIMITED DIVORCES. Granted for + +1. Desertion. + +2. Adultery. + +3. Extreme cruelty. + +In every case, except for extreme cruelty, the party asking for a limited +divorce must allege conscientious scruples against applying for an +absolute divorce. + +JURISDICTION.--The Court of Chancery has exclusive jurisdiction in divorce +matters. + +ANNULMENT.--A marriage may be annulled because: + +1. One of the parties had another wife or husband living at the time of +marriage. + +2. When the parties are within the degrees prohibited by law. + + +NEW MEXICO. + +MARRIAGE.--A male must be at least 18 years and a female 15 years to +conclude marriage. Parental consent is required for males under 21 years +and females under 18 years. + +PROHIBITED DEGREES.--Marriage between ascendants and descendants, between +brothers and sisters, of whole or half blood, between uncles and aunts, +and nieces and nephews are void. + +FORMALITIES.--License is necessary. No special form of ceremony required. +The marriage may be solemnized by an ordained clergyman, civil magistrate +or religious society. + +GROUNDS FOR DIVORCE: + +1. Adultery. + +2. Cruel and inhuman treatment. + +3. Abandonment. + +4. Habitual drunkenness. + +5. Neglect of husband to support his wife. + +6. Impotency. + +7. Pregnancy by wife, at the time of marriage, by another than her +husband, without husband's knowledge. + +8. Conviction and imprisonment for a felony. + + +NEW YORK. + +MARRIAGE.--Marriage is a civil contract, to which the consent of the +parties capable in law of making the contract is essential. Minors become +capable of contracting marriage upon completing their eighteenth year of +age. A marriage is void from the time its nullity is declared by a court +of competent jurisdiction if either party thereto was under the age of +eighteen at the time it was concluded. + +IMPEDIMENTS.--Marriage between an ancestor and a descendant, between a +brother and sister, of either the whole or half blood, between an uncle +and niece, or an aunt and nephew, whether the relatives are legitimate or +illegitimate, is incestuous and void. + +The defeated party in an action of divorce against whom a decree has been +granted on the grounds of adultery is prohibited from marrying again +during the lifetime of the successful party. However, the court which +granted the decree has power so to modify it as to permit such marriage +after five years. + +COMMON LAW MARRIAGE.--By an act which became effective April 12, 1901, the +law of New York has required a contract of marriage to be signed by the +parties and witnesses acknowledged and recorded. Since that time a "common +law" marriage, or one established simply by cohabitation and reputation, +has not been recognized. + +MARRIAGE LICENSES.--The legislature of New York, at its session in 1907, +passed an act providing for marriage licenses, which became effective +January 1, 1908. + +Written consent of both parents or guardian must be given to the town or +city clerk before he may issue license. If residents of the State, they +must personally appear and execute the consent; if non-residents, it must +be executed, acknowledged and certified. + +WHO MAY SOLEMNIZE MARRIAGE.--A clergyman or minister of any religion, or +the leader, or the two assistant leaders, of the Society for Ethical +Culture in New York City, justices and judges of courts of record, judges +of the county courts, justices of the peace, mayors, recorders and +aldermen of cities. + +MARRIAGE BY CONTRACT.--A lawful marriage may be concluded by a written +contract of marriage signed by both parties, and at least two witnesses +who shall subscribe the same, stating the place of residence of each of +the parties and witnesses and the date and place of marriage, and +acknowledged by the parties and witnesses in the manner required for the +acknowledgment of a conveyance of real estate to entitle the same to be +recorded. Such contract shall be filed, within six months after its +execution, in the office of the clerk of the town or city in which the +marriage was solemnized. + +JEWS AND QUAKERS.--Marriages among Quakers or Jews may be solemnized in +the manner and according to the regulations of their respective societies. + +ENCOURAGEMENT OF MARRIAGE.--No marriage shall be deemed or adjudged +invalid, nor shall the validity thereof be in any way affected on account +of any want of authority in any person solemnizing the same, if +consummated with a full belief on the part of the persons so married, or +either of them, that they were lawfully joined in marriage. + +DIVORCE.--The only cause for absolute divorce is the adultery of either +party. + +JURISDICTION.--The Supreme Court has exclusive original jurisdiction of +actions for divorce. + +In an action for absolute divorce, both parties must have been residents +of the State when the offense was committed; or must have been married +within the State; or the plaintiff must have been a resident when the +offense was committed, and also when the action was commenced; or when the +offense was committed within the State, the plaintiff must have been a +resident when the action was commenced. + +LIMITED DIVORCE.--A limited divorce, which is equivalent to a judicial +separation in England, may be granted because of: + +1. The cruel and inhuman treatment of the plaintiff by the defendant. + +2. Such conduct, on the part of the defendant toward the plaintiff, as may +render it unsafe and improper for the latter to cohabit with the former. + +3. The abandonment of the plaintiff by the defendant. + +4. When the wife is plaintiff, the neglect or refusal of the defendant to +provide for her. + +In actions for limited divorce both parties must have been residents of +the State when the action was commenced; or when the marriage took place +within the State, the plaintiff must have been a resident thereof, when +the action was commenced; or when the marriage took place out of the +State, the parties must have become residents thereof, and have continued +to be such at least one year, and the plaintiff must have been a resident +when the action was commenced. + +ANNULMENT OF MARRIAGE.--An action to procure a decree declaring the +marriage contract void and annulling the marriage may be maintained on any +of the following grounds: + +1. When either party was under the age of legal consent. + +2. When either party was an idiot or lunatic. + +3. When either party was physically incapable of entering into the +marriage state, and such incapacity continues, and is incurable. + +4. When the consent of either party was obtained by force, duress or +fraud. + +5. When either party had a former wife or husband living, the former +marriage being in force. + +By a woman plaintiff on the following grounds: + +1. Where the plaintiff had not attained the age of 16 years at the time of +marriage. + +2. When the marriage took place without the consent of the parent, +guardian, or other person having legal charge of her. + +3. Where it was not followed by consummation or cohabitation, and was not +ratified after attaining the age of 16 years. + +DEFENCES IN DIVORCE ACTIONS.--Divorce will not be granted for the cause of +adultery: + +1. When the offense alleged has been condoned or forgiven by plaintiff. + +2. When the adultery was committed by the procurement, connivance, privity +or consent of plaintiff. + +3. If five years have elapsed since the plaintiff discovered the +defendant's guilt. + +4. If there is existing any decree of any competent of any State or +Territory of the United States granting an absolute divorce to the +defendant and against the plaintiff. + +5. If it appears that the plaintiff has also committed adultery. + +CUSTODY OF CHILDREN.--During the pendency of an action for divorce, or on +final judgment, the court may give such directions as justice requires for +the custody, care and education of any of the children of the marriage. + +ALIMONY.--The court has power during the pendency of an action for divorce +to grant a woman plaintiff or defendant such allowance out of her +husband's estate as may be necessary and just for her support, and also +that she may be able to procure counsel to prosecute or defend the suit in +her behalf. + +If the wife becomes successful in the action the court may in its +discretion award her permanent alimony. The amount of alimony in all +cases depends upon the wife's needs, her social status, and her husband's +ability to make provision for her. + +FORM OF DIVORCE DECREE.--Decrees are first entered _nisi_, or +provisionally, and cannot become absolute until the expiration of three +months after the entry of the decree _nisi_. + + +NORTH CAROLINA. + +MARRIAGE.--A male becomes capable of marrying at 16 years and a female at +14 years, but both if under 18 years require parental consent. + +IMPEDIMENTS.--Marriage is prohibited between persons nearer of kin than +first cousins of the whole or half blood. + +So is marriage between whites and negroes or Indians, or between whites +and persons of negro or Indian descent to the third generation, inclusive. + +CAUSES FOR DIVORCE: + +1. Husband's fornication or adultery. + +2. Wife's adultery. + +3. If either party at time of marriage was and still is naturally +impotent. + +4. Wife's pregnancy at time of marriage by another man, without husband's +knowledge. + +LIMITED DIVORCE.--A limited divorce may be obtained for the following +causes: + +1. If either party abandons his or her family. + +2. If either party maliciously turns the other out of doors. + +3. Cruel or barbarous treatment by one party endangering life of the +other. + + +NORTH DAKOTA. + +MARRIAGE.--No male can conclude marriage under 18 years of age or female +under 15 years of age. + +IMPEDIMENTS.--Marriage is prohibited between persons nearer of kin than +second cousins of the whole blood. + +FORMALITIES.--License necessary. No particular form of ceremony is +required, but the parties must express consent in presence of person +solemnizing the marriage, and of at least one witness. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion for one year. + +4. Wilful neglect for one year. + +5. Habitual intemperance for one year. + +6. Conviction of felony. + +Plaintiff must have been in good faith, a resident of the State for six +months before filing petition, and either a citizen of the United States +or a person who has declared his or her intention to become such. + + +OHIO. + +MARRIAGE.--To marry, a male must be at least 18 years and a female 16 +years of age. Parental consent is required for males under 21 years and +females under 18 years. + +IMPEDIMENTS.--Marriage between persons nearer of kin than second cousins +is forbidden. + +FORMALITIES.--License is necessary unless banns be published in presence +of congregation on two different days of public worship. No particular +form of ceremony is required. The marriage may be solemnized by any +ordained minister licensed by the State to perform marriages, or a justice +of the peace in his county. + +CAUSES FOR DIVORCE: + +1. Upon proof that either party was already married at time of the +marriage sought to be dissolved. + +2. Wilful absence of one party from the other for three years. + +3. Adultery. + +4. Impotency. + +5. Extreme cruelty. + +6. Fraudulent contract. + +7. Any gross neglect of duty. + +8. Habitual drunkenness for three years. + +9. Imprisonment in a penitentiary. + +10. Procurement of a divorce without the State. + +ACTIONS FOR SEPARATE MAINTENANCE.--A wife may sue for separate maintenance +because of: + +1. Adultery. + +2. Gross neglect of duty. + +3. Abandonment without good cause. + +4. Habitual drunkenness. + +5. Sentence to imprisonment in a penitentiary. + +EFFECTS OF DIVORCE.--If the divorce is granted to the wife, because of the +aggression of the husband, she shall be allowed such alimony out of her +husband's property as the court deems reasonable. If the husband secures a +divorce, on the aggression of the wife, he shall be allowed such alimony +out of the wife's property as the court deems reasonable. + +The granting of a divorce does not affect the legitimacy of the children +of the parties. + +Upon granting a divorce, the court shall make such order for the care and +support of the children as is just and proper. + + +OKLAHOMA. + +MARRIAGE.--The minimum age for marriage and the rule as to parental +consent are the same as that stated for Nebraska. + +IMPEDIMENTS.--Same as in Nebraska. + +FORMALITIES.--Same as in Nebraska. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Former husband or wife living. + +3. Abandonment for one year. + +4. Impotency. + +5. Pregnancy by wife at time of marriage by another man. + +6. Extreme cruelty. + +7. Fraudulent contract. + +8. Habitual drunkenness. + +9. Gross neglect of duty. + +10. Conviction of felony. + +ACTION FOR SEPARATE MAINTENANCE.--This action may be maintained for any of +the causes sufficient for divorce. + + +OREGON. + +MARRIAGE.--A male is capable of marrying at 18 years, a female at 15 +years. Parental consent is required for males under 21 years and females +under 18 years. + +IMPEDIMENTS.--Marriages between first cousins of the whole or half blood +or relatives nearer of kin are prohibited. + +Marriages between whites and negroes or Mongolians, or persons of +one-fourth or more negro or Mongolian blood. + +CAUSES FOR DIVORCE: + +1. Impotency. + +2. Adultery. + +3. Conviction of felony. + +4. Habitual drunkenness. + +5. Wilful desertion for one year. + +6. Cruel and inhuman treatment, or personal indignities rendering life +burdensome. + + +PENNSYLVANIA. + +MARRIAGE.--The minimum age for marriage is not fixed by statute. Both +males and females require parental consent to marry under 21 years of +age. + +IMPEDIMENTS.--A man may not marry his mother, father's sister, mother's +sister, sister, daughter, granddaughter, father's wife, son's wife, son's +daughter, wife's daughter, daughter of wife's son or daughter. + +A woman may not marry her father, father's brother, mother's brother, +brother, son, grandson, mother's husband, daughter's husband, husband's +son, son of her husband's son or daughter. + +By the act effective January 1, 1902, marriage is prohibited between +persons who are of kin of the degree of first cousins. + +FORMALITIES.--License is necessary unless there is a publication of banns. + +The parties may solemnize their own marriage by obtaining from the clerk +of the orphans' court a formal declaration of their right to do so instead +of a license. + +Marriage may be solemnized by any minister of the Gospel, justice of the +peace, or alderman, or by the parties themselves. + +CAUSES FOR ABSOLUTE DIVORCE: + +1. Natural impotence or incapacity of procreation at time of marriage, and +still continuing. + +2. Former marriage still subsisting. + +3. Adultery. + +4. Wilful and malicious desertion for the space of two years. + +5. Husband's cruel and barbarous treatment endangering wife's life. + +6. Husband having offered such indignities to wife as to render her +condition intolerable and life burdensome. + +7. Relationship within prohibited degrees. + +8. Marriage procured by fraud, force or coercion. + +9. Wife's cruel and barbarous treatment of husband. + +10. That either of the parties has been convicted as principal or +accessory of the crime of arson, burglary, embezzlement, forgery, +kidnapping, larceny, murder in first or second degree, voluntary +manslaughter, perjury, rape, robbery, sodomy, buggery, treason, or +misprison of treason, and has been sentenced to prison for more than two +years. + +11. That either husband or wife is a hopeless lunatic or _non compos +mentis_. + +Confinement for ten years or more in an asylum for the insane is +conclusive proof of hopeless insanity. + +LIMITED DIVORCE.--This may be granted for: + +1. Husband turning wife out of doors. + +2. Husband's cruel and barbarous treatment of wife. + +3. Husband offering such indignities to his wife as to render her +condition intolerable and force her to leave his house. + +Upon hearing any cause for divorce the court may decree either a divorce +or a decree of nullity. + + +RHODE ISLAND. + +MARRIAGE.--No age fixed for marriage. Parental consent required for all +minors. + +IMPEDIMENTS.--Same as in Massachusetts. However, Jews are permitted to +marry within degrees permitted by their religion. + +CAUSES FOR DIVORCE: + +1. In case marriage was originally void or voidable by law. + +2. When either party is for crime deemed civilly dead. + +3. When party may be presumed dead. + +4. Impotency. + +5. Adultery. + +6. Extreme cruelty. + +7. Wilful desertion. + +8. Continued drunkenness. + +9. Neglect or refusal of husband, being able, to support wife. + +10. Any other gross misbehaviour and wickedness in either of the parties +repugnant to and in violation of the marriage covenant. + + +SOUTH CAROLINA. + +MARRIAGE.--No age is fixed by law for marriage of minors, nor when +parental consent is necessary. + +IMPEDIMENTS.--Same as to prohibited degrees of kinship as in +Massachusetts. + +Marriages of whites with Indians, negroes, mulattoes, mestizos, or +half-breeds, are forbidden. + +FORMALITIES.--No license is required, and no particular form of ceremony +necessary. + +DIVORCE.--By a provision of the State constitution divorces from the bonds +of matrimony are not allowed in South Carolina. + +Marriages may, however, be annulled for want of consent of either party, +or for any other cause showing that at the time of the supposed marriage +it was not a contract, provided such contract has not been consummated by +cohabitation. + + +SOUTH DAKOTA. + +MARRIAGE.--Minimum age at which males can marry is 18 years, females 15 +years. Parental consent is required for males under 21 years and females +under 18 years. + +PROHIBITED DEGREES.--Same as in Massachusetts. + +Common law marriages are recognized. + +Marriage may be solemnized by minister, priest, judge of supreme court or +probate court, justice of the peace, mayor, or by the parties themselves +making a joint declaration. + +CAUSES FOR DIVORCE: + +1. Adultery. + +2. Extreme cruelty. + +3. Wilful desertion for one year. + +4. Wilful neglect for one year. + +5. Habitual intemperance for one year. + +6. Conviction of felony. + +Limited divorces are not granted. + + +TENNESSEE. + +MARRIAGE.--The lowest age at which males can marry is 16 years, females 14 +years. Parental consent is necessary for males under 21 years and females +under 18 years. + +CONSANGUINITY AND AFFINITY.--The prohibited degrees are the same as in +Massachusetts. + +Marriages of whites with negroes, mulattoes or persons of mixed blood are +forbidden. A person declared guilty of adultery is forbidden his or her +accomplice during the lifetime of the former spouse. + +FORMALITIES.--License necessary. Marriage ceremony may be religious or +civil in form. + +CAUSES FOR DIVORCE: + +1. Natural impotence and incapacity of procreation at time of marriage, +and still existing. + +2. A previous marriage still subsisting. + +3. Adultery. + +4. Desertion for two years. + +5. Conviction of such crime as renders party infamous. + +6. Conviction of felony. + +7. Malicious attempt on life of other spouse. + +8. Wife's refusal to move with husband into this State, and wilful absence +from him for two years. + +9. Wife's pregnancy at time of marriage by another person, without +husband's knowledge. + +10. Habitual drunkenness. + +LIMITED DIVORCES.--Such relief is granted to a wife only, for the +following causes: + +1. Cruel and inhuman treatment, rendering it unsafe and improper for +continued cohabitation. + +2. Such indignities offered to wife as render condition intolerable, and +force her to leave husband. + +3. Husband's abandonment of wife, or his turning her out of doors, +refusing or neglecting to provide for her. + + +TEXAS. + +MARRIAGE.--Earliest age for males to marry is 16 years; females 14 years. +Parental consent required for males under 21 years and females under 18 +years. + +IMPEDIMENTS.--The prohibited degrees of kinship are the same as in New +York. + +Marriage is forbidden between persons of European blood or their +descendants and Africans or the descendants of Africans. + +FORMALITIES.--License required. Marriage may be solemnized by religious or +civil ceremony. + +CAUSES FOR DIVORCE.-- + +1. Excesses; cruel treatment. + +2. Wife taken in adultery. + +3. Wife's abandonment of husband for three years. + +4. Husband's desertion with intention of abandonment for three years. + +5. When husband abandons wife and lives in adultery. + +6. Conviction of felony and imprisonment therefor in State prison. + +There is no such thing as a limited divorce in this State. + + +UTAH. + +MARRIAGE.--Males may marry at 14 years and females at 12 years, but if the +former are under 21 years and the latter under 18 years parental consent +is required. + +PROHIBITED DEGREES.--Marriage between ascendants and descendants, between +brothers and sisters of the whole or half blood, between uncles and +nieces, or aunts and nephews, or between any persons related to each other +within the fourth degree of consanguinity is prohibited. + +Marriage is also forbidden between a white person and a negro or +Mongolian. + +FORMALITIES.--After a license has been procured the marriage may be +solemnized by a minister or priest, judge of the Supreme or District +Court, mayor of a city, or justice of the peace. + +CAUSES FOR DIVORCE.-- + +1. Impotency. + +2. Adultery. + +3. Wilful desertion for more than one year. + +4. Wilful neglect of husband to provide for wife. + +5. Habitual drunkenness. + +6. Conviction for felony. + +7. Cruel treatment. + +8. Permanent insanity of defendant. + +To maintain an action for the last cause the plaintiff must prove that +defendant has been adjudged insane at least five years before the +beginning of action and that the insanity is incurable. + + +VERMONT. + +MARRIAGE.--No minimum age is fixed by statute for marriage of minors, but +males under 21 years and females under 18 years require consent of +parents. + +IMPEDIMENTS.--The prohibited degrees of consanguinity and affinity are the +same as in Massachusetts. + +FORMALITIES.--License, called in Vermont a "certificate," is necessary. + +No special form of marriage ceremony is prescribed, except that if +solemnized by Quakers the ceremony must be in the form used in Quaker +societies. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. When either party is sentenced to confinement in the State prison for +life, or for three years or more, and is actually confined at the time. + +3. Intolerable severity of either party. + +4. Wilful desertion for three consecutive years. + +5. Absence of either party for seven years without being heard of during +that time. + +6. Husband's cruel refusal or neglect to provide suitable maintenance for +wife. + +LIMITED DIVORCES.--A limited divorce, which leaves the marriage +undissolved, may be granted for any of the causes for which an absolute +divorce may be granted. + + +VIRGINIA. + +MARRIAGE.--A male is deemed capable of marriage at 14 years and a female +at 12 years, but for all minors under 21 years parental consent is +required. + +PROHIBITIONS.--Marriage between ascendants and descendants, and between +persons nearer of kin than the fourth degree of consanguinity, is +prohibited. Marriage between white and colored persons is forbidden. + +FORMALITIES.--No marriage or attempted marriage, if it took place in this +State, can be held valid here unless shown to have been under a license +and solemnized according to statute. However, no particular marriage +ceremony is prescribed, except that, if solemnized by a religious society, +it must be in the manner practiced by such society. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Incurable impotency. + +3. Sentence to penitentiary. + +4. Conviction of one party (without the knowledge of the other) of an +infamous offence before marriage. + +5. Flight from justice. + +6. Desertion continued for three years. + +7. Wife's pregnancy at time of marriage by another man, unknown to +husband. + +8. Upon proof that prior to marriage wife had been, unknown to husband, a +prostitute. + +LIMITED DIVORCE.--May be granted for: + +1. Cruelty. + +2. Reasonable apprehension of bodily hurt. + +3. Abandonment. + +4. Desertion. + + +WASHINGTON. + +MARRIAGE.--Marriage is a civil contract which may be entered into by males +of the age of 21 years and females of the age of 18 years who are +otherwise capable. + +PROHIBITED DEGREES.--Marriage is prohibited between persons nearer of kin +than second cousins, whether of the whole or half blood, computing by the +rules of the civil law. + +CELEBRATION.--No particular form of ceremony prescribed, but license is +necessary. + +CAUSES FOR DIVORCE.-- + +1. Consent to marriage obtained by force and fraud and no subsequent +voluntary cohabitation. + +2. Adultery. + +3. Impotency. + +4. Abandonment for one year. + +5. Cruel treatment. + +6. Personal iniquities. + +7. Habitual drunkenness. + +8. Neglect to provide for wife or family. + +9. Present imprisonment in penitentiary. + +10. Any other cause in the court's discretion if it appears parties should +not continue the marriage relation. + +11. Incurable chronic mania or dementia existing for ten years or more. + + +WEST VIRGINIA. + +MARRIAGE.--Males may marry at 18 years and females at 16 years, but +parental consent is required for all persons under 21 years of age. + +PROHIBITED DEGREES.--Same as in the State of Washington. + +FORMALITIES.--As to issuance of license and celebration, same as in +Washington. + +If a man, having had a child by a woman, afterward intermarries with her, +such child is deemed legitimate. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Incurable impotency. + +3. Sentence to penitentiary. + +4. Conviction before marriage of an infamous offence, unknown to other +spouse. + +5. Desertion for three years. + +6. Pregnancy of wife at time of marriage by another man, unknown to +husband. + +7. Proof that wife, unknown to husband, had been before marriage a +notorious prostitute. Proof that husband, unknown to wife, had been before +marriage a licentious person. + +LIMITED DIVORCES.--Granted for: + +1. Cruel treatment. + +2. Reasonable apprehension of bodily hurt. + +3. Abandonment. + +4. Desertion. + +5. Habitual drunkenness. + + +WISCONSIN. + +MARRIAGE.--Males may marry at 18 years and females at 15 years, but +parental consent is required for males under 21 years and females under 18 +years. + +PROHIBITED DEGREES.--Marriage is forbidden between persons nearer of kin +than first cousins, of the whole or half blood, computing by the rules of +the civil law. + +FORMALITIES.--Since April 29, 1899, a marriage license is required, but no +particular form of celebration is necessary. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Impotency. + +3. Sentence to imprisonment for three years or more. + +4. Wilful desertion for one year. + +5. Cruel and inhuman treatment. + +6. Wife's intoxication. + +7. Husband's habitual drunkenness for one year. + +8. Voluntary separation of parties continued for five years. + +9. Extreme cruelty. + +10. Husband's refusal or wilful neglect to provide for wife. + +11. Husband's conduct such as to render it unsafe and improper for wife to +live with him. + +A limited divorce may be granted for all these causes except the first +three. + + +WYOMING. + +MARRIAGE.--A male may marry at 18 years and a female at 16 years. Parental +consent is required if either party is a minor. + +PROHIBITED DEGREES.--Marriage between ascendants and descendants, between +brothers and sisters of the whole or half blood, between uncle and niece, +or aunt and nephew, and between first cousins, is forbidden. This applies +to legitimate or illegitimate kindred, but only to persons related by +blood. + +FORMALITIES.--A license issued by county clerk is necessary. + +Parties must solemnly declare in the presence of a minister or magistrate, +and two witnesses, that they take each other as husband and wife. + +CAUSES FOR DIVORCE.-- + +1. Adultery. + +2. Physical incompetence at time of marriage continued to time of divorce. + +3. Conviction and sentence for felony. + +4. Wilful desertion for one year. + +5. Habitual drunkenness. + +6. Extreme cruelty. + +7. Neglect of husband for one year to provide common necessaries of life. + +8. Such indignities as render conditions intolerable. + +9. Vagrancy of husband. + +10. Conviction before marriage (unknown to other spouse) for felony or +infamous crime. + +11. Pregnancy of wife by another man at time of marriage, unknown to +husband. + +Limited divorces are not granted in this State. + + + + +CHAPTER XXVI. + +DOMINION OF CANADA AND NEWFOUNDLAND. + + +The Dominion of Canada now consists of the Provinces of Alberta, British +Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward +Island, Quebec and Saskatchewan, together with certain territories not as +yet included in any Province. + +The Canadian Constitution, similar in principle to that of Great Britain, +is embodied in the British North America Act of 1867 (30 Vict. c. 3). + +This act, which was passed by the Imperial Parliament, created the +federation now styled the Dominion of Canada, and assigned to the Dominion +Parliament power "to make laws for the peace, order and good government of +Canada, in relation to all matters not coming within the classes of +subjects by this act assigned exclusively to the Legislatures of the +Provinces." + +One great distinction between the Canadian Constitution and the +Constitution of the United States of America is that powers not +specifically granted to the Provinces are reserved to the Dominion +Government, whereas under the American Constitution powers not +specifically granted to the Federal Government are reserved to the States, +or to the people. + +Marriage and divorce are specifically set forth in the Canadian +Constitution as a branch of legislation exclusively within the control of +the Dominion Parliament, but although forty-three years have passed since +the act became operative the Dominion Parliament has so far enacted only +two statutes concerning the subject. The first act (May 17, 1882) +legalized the marriage of a man with his deceased wife's sister, and the +second (May 16, 1890) legalized the marriage of a man with his deceased +wife's sister's daughter. + +The Dominion of Canada shares with Ireland the distinction of having no +law permitting a judicial decree of divorce. + +However, by one clause of the British Act of North America there was +preserved in full force the laws and judicial system of the several +Provinces until the laws should be repealed or the courts abolished by +competent authority. + +Consequently, four of the nine Provinces, namely, British Columbia, New +Brunswick, Nova Scotia and Prince Edward Island, have their individual +laws of divorce and divorce courts. + +Of the eight millions of people living in Canada six millions have no +possibility of divorce except by a special act of the Dominion Parliament. + +The Dominion Parliament has power to grant an absolute divorce for any +cause, but it never has done so except for adultery. + +Divorce petitions or bills are, as a matter of practice, introduced first +in the Senate, where there is a standing committee to deal with them. + +For the Provinces of Ontario, Quebec and Manitoba, and the Northwest and +other Territories, the Dominion Parliament is the only authority which can +grant an absolute divorce. + +MARRIAGE.--Legislation concerning the formal requirements and +solemnizations of marriage is still within the exclusive authority of the +legislatures of the Provinces. + +As to the impediments which arise from blood and marriage, the law +throughout the Dominion of Canada is in agreement with the law of England, +which is based upon the 18th chapter of the Book of Leviticus. + +It is expressly provided by the act, 28 and 29 Vict. c. 64, that every law +made or to be made by the legislature of any British possession, "for the +purpose of establishing the validity of any marriage or marriages +contracted in such possession, shall have and be deemed to have had from +the date of the making of such law the same force and effect for the +purpose aforesaid within all parts of Her Majesty's dominions as such law +may have had or may hereafter have within the possession for which the +same was made. Provided that nothing in this law contained shall give any +effect or validity to any marriage unless at the time of such marriage +both of the parties thereto were, according to the law of England, +competent to contract the same." + +VALIDITY OF FOREIGN DIVORCES.--When the validity of a foreign divorce is +considered by the Canadian courts the judges apply the strict rule of +refusing to recognize a decree of divorce pronounced by a court within +whose jurisdiction the parties had not a bona fide domicile. + +The courts also hold that a marriage celebrated in Canada between persons +domiciled there is in its nature indissoluble except by death or by the +act or decree of the Dominion Parliament, or a Canadian court of competent +jurisdiction, and that no judgment of a foreign court dissolving such a +marriage will be recognized in Canada. + +This rule invites, and has received, such severe criticism for its +injustice that it cannot long be maintained by such tribunals of learning +and integrity as the courts of Canada. + +Suppose a Canadian man and woman domiciled in Toronto should intermarry +there, and afterwards acquire a joint domicile of twenty years' duration +in New York City. If, after that period, the wife should obtain in the +courts of the State of New York a divorce on the grounds of her husband's +adultery, and should remarry another man, upon her return to Canada it +would be manifestly unjust to treat the divorce and second marriage as +null and void. + +Some of these days the Canadian courts will be called upon to consider the +legal effect of a divorce obtained upon statutory grounds in England in a +suit between two persons who were married in Canada and at the time of +such marriage were domiciled in that country. Perhaps then the rule we +have mentioned and criticised will be relaxed. + +The Island and Colony of Newfoundland, although a British colony in North +America, is not yet incorporated as a part of the Dominion of Canada. It +has its own governor, legislature and judicial system entirely separate +from the Dominion and its own marriage and divorce law. + +The jurisdiction of Newfoundland extends not only over the island by that +name, but also over the whole of the Atlantic coast of Labrador. + +AGE REQUIREMENTS.--The legal age for marriage in British Columbia, +Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, the +Northwest Territories and Newfoundland is fourteen for a male and twelve +for a female. In Ontario both males and females must be at least fourteen +years of age. + +PARENTAL CONSENT.--In British Columbia, Manitoba, Nova Scotia, Prince +Edward Island, Quebec, the Northwest Territories and Newfoundland parental +consent is necessary for both males and females under twenty-one years of +age. + +In New Brunswick and Ontario parental consent is required for males and +females under eighteen years of age. + +In British Columbia an appeal may be taken to the courts if consent is +refused by parent or guardian. + +CELEBRATION.--Marriages may be solemnized by duly qualified clergymen of +every religious denomination, or by a judge, justice of the peace or other +magistrate. + +Unless banns are published a license must be produced for each marriage, +and can only be obtained from the proper local authority upon affidavit or +declaration of one of the parties to the intended marriage, showing that +no legal impediment exists and that the proper consents have been +obtained. + +The competency of a Protestant minister to marry two Roman Catholics in +the Province of Quebec was called in question by the leading case of +Delphit v. Cote, reported in the Quebec Reports, 20 S. C. 338. The +plaintiff, who had been baptized as a member of the Roman Catholic Church, +was married to the defendant, who, at the time at least, professed the +same belief, by a minister of a Protestant denomination, by virtue of a +license issued in due form. Subsequently an ecclesiastical court of the +Catholic Church declared the marriage null on the ground that two Roman +Catholics could only be married by a Roman Catholic priest. Upon appealing +to the civil court for an annulment of the marriage because of the +ecclesiastical decree, it was held that the ecclesiastical court was +entirely without jurisdiction and that the marriage was in all legal +respects good and binding. + +MARRIAGES WITH INDIANS.--A Christian who marries an aboriginal native or +Indian cannot exercise in Canada the right of divorce or repudiation of +his wife at will, although following the usages of the tribe or "nation" +to which his Indian wife belongs such divorces and repudiations are +customary and regular. + +ANNULMENT OF MARRIAGE.--In any of the Provinces, or in Newfoundland, the +courts may annul marriages on the ground of fraud, mistake, coercion, +duress or lunacy. + +FOREIGN MARRIAGES.--The courts of Canada and Newfoundland recognize a +marriage concluded in a foreign country as valid if it was performed in +accordance with the laws of the foreign country, if each person was +competent to marry, according to the laws of the country of his and her +citizenship, and if the marriage was not in violation of the general laws +and usages of Christendom. + +ONTARIO.--The High Court of Justice in this Province has jurisdiction +where a marriage correct in form is ascertained to be void _de jure_ by +reason of the absence of some essential preliminary to declare the same +null and void _ab initio_; but nothing short of the most clear and +convincing testimony will justify the interposition of the court. + +As we have observed before, there is no divorce court in the Province. + +Every married woman is entitled to hold and alienate as her separate +property all wages and profits acquired by her in any separate occupation +which she may conduct on her separate account. + +QUEBEC.--This Province, which is composed largely of Roman Catholic +inhabitants of French ancestry, treats marriage as a religious contract. + +The system of jurisprudence in Quebec is an admixture of the Code +Napoleon, the _coutume de Paris_, and the common law of England. The +provisions of the Civil Code and Code of Civil Procedure of the Province +are largely of French origin. + +Marriage must be solemnized openly by a competent officer recognized by +law and must be preceded by the publication of banns, unless a license is +obtained. A license for a marriage by a Protestant clergyman must be +issued from the office of the Provincial Secretary. + +A marriage contracted without the free consent of both parties, or of one +of them, can only be attacked by such parties themselves or by the one +whose consent was not free. + +A marriage contracted before the parties, or either of them, have attained +the age required can no longer be contested if six months have elapsed +since the party or parties have attained the proper age; or if the wife +under that age has conceived before the termination of six months. + +The laws in this Province concerning the rights of married women to own +property separate from their husbands are almost mediaeval. + +A married woman cannot take judicial proceedings without being authorized +so to do by her husband or the court. + +A husband and wife cannot contract with each other even with the +assistance of a third person. They cannot even make donations to each +other during the marriage. + +Husband and wife are not competent witnesses against each other in a court +of law. + +Neither the courts nor the Provincial legislature grant divorces which +dissolve the marriage bond. Applications for such relief must be addressed +to the Dominion Parliament. + +A separation from bed and board is granted by the courts to either party +to a marriage upon proof of adultery, cruelty, desertion or confirmed +drunkenness; and to a wife for the failure of her husband to provide her +proper support. + +Where a husband keeps a concubine in the same house with his wife the +latter is justified in leaving him to live elsewhere, and in so doing the +wife does not lose any of her marital rights. + +Quebec is the only Province in the Dominion of Canada where a child born +out of wedlock is legitimatized by the subsequent marriage of the parents. + +BRITISH COLUMBIA.--The Divorce and Matrimonial Act of 1857, passed by the +Imperial Parliament, is in full effect in this Province. + +The Supreme Court has jurisdiction to entertain a petition for divorce +between persons domiciled in the Province and in respect of matrimonial +offences alleged to have been committed therein. + +Absolute divorces are granted on the application of the husband on the +ground of adultery; on the application of the wife on the ground of +incestuous adultery, bigamy with adultery, rape, sodomy or bestiality, +adultery coupled with such cruelty as without adultery would have entitled +her to a judicial separation, or adultery coupled with desertion, without +reasonable excuse, for two years or upwards. Alimony may be ordered to be +paid to the wife, by the decree dissolving the marriage or granting a +separation, or it may be sued for separately if the wife has either +obtained or is entitled to such a decree. After absolute divorce either +party may marry again. The procedure in divorce matters is almost +identical with that of England. + +A judicial separation may be obtained by either spouse because of: + +1. Adultery. + +2. Cruelty. + +3. Desertion without cause for two years or more. + +NEW BRUNSWICK.--It is interesting to note that in this Province a married +woman may acquire, hold and dispose of, by will or otherwise (except that +husband's curtsey will not therefore be affected), any real or personal +property as her separate property, in the same manner as if she were a +_femme sole_, without the intervention of any trustee, and may enter into +and render herself liable in respect of and to the extent of her separate +property on any contract, and of suing and being sued in all respects as +if she were a _femme sole_. + +The grounds for absolute divorce are: + +1. Impotency. + +2. Adultery. + +3. Consanguinity. + +NOVA SCOTIA.--This old Province, originally called Acadia, has a judiciary +which consists of a chief justice, an equity judge and five puisne judges, +a supreme court having law and equity jurisdiction throughout the +Province, a vice-admiralty court and a court of marriage and divorce. + +The rules as to consanguinity and affinity, the causes for divorce and +judicial separation and the civil effects of marriage and divorce are the +same as in England. + +ALBERTA.--The Supreme Court Act (February 11, 1907) established the +Supreme Court of the Province and provided that the court "shall have +jurisdiction to grant alimony to any wife who would be entitled to alimony +by the law of England, or to any wife who would be entitled by the law of +England to a divorce and to alimony as incident thereto, or to any wife +whose husband was separate from her without any sufficient cause and under +circumstances which would entitle her by the laws of England to a decree +for restitution of conjugal rights; and alimony, when granted, continue +until further order of the court." + +NORTHWEST TERRITORIES.--The term "Northwest Territories" originally +referred to the region over which the Northwest Company exercised +authority, the territorial limits of which were not clearly defined. The +term is now used to designate the Canadian territories and districts of +Yukon, Keewatin, Mackenzie, Ungava and Franklin. + +As we have before observed, the law of marriage and divorce in the +Northwest Territories is substantially the same as that of England. + +NEWFOUNDLAND.--This, the oldest British colony in North America, is the +most modern in its law of domestic relations. + +Marriage is considered a civil contract, which may be solemnized before a +qualified clergyman of any sect, or a judge, justice of the peace or other +magistrate. + +A married woman has the same right of buying, selling, owning and +controlling any kind of real or personal property as a single woman. She +has also the fullest right to make any lawful contract without adding her +husband as a party. She may sue and be sued as if she were a single woman +or a man. + +There being no divorce courts, the Provincial legislature having no power +to grant divorces, and the Colony of Newfoundland being outside of the +jurisdiction of the Dominion Parliament of Canada, an absolute divorce +cannot be obtained in the colony. + + + + +CHAPTER XXVII. + +THE REPUBLIC OF MEXICO. + + +Mexico is a federative Republic composed of twenty-seven States, three +Territories and a Federal District. + +Under the present Constitution, which is dated February 5, 1857, each +State has the power to control its own local domestic concerns and to have +its own separate executive, legislature and judiciary. + +The Civil Code of the Federal District (_El Codigo Civil de Distrito +Federal_) was enacted simply for the Federal District and the Territories +of Lower California, Tepic and Quintana Roo, but each of the twenty-seven +States have in their respective Civil Codes adopted the provisions of the +Federal Civil Code, especially with reference to the law of marriage and +divorce. Therefore, we find it unnecessary to deal with each State +separately. + +MARRIAGE.--The courts of Mexico, following the Federal Code, define +marriage as the lawful co-partnership of one man and one woman united for +life in an indissoluble bond to perpetuate their species and to render +each other mutual assistance, fidelity and sympathy in bearing together +the burdens of life. + +The law does not recognize in any manner future espousals, nor any +conditions contrary to the legitimate purposes of marriage. + +Marriage must be preceded by the statutory preliminaries and be celebrated +before authorized officials with all such formalities as are by law +required. + +A male must be at least 14 years of age and a female at least 12 years of +age to contract marriage, unless a dispensation from the superior +political authority is obtained permitting marriage at an earlier age. +Such a dispensation can only be obtained in exceptional cases and for good +cause. + +Parental consent is required for the marriage of both males and females +under the age of 21 years. If the father is dead the consent of the mother +is sufficient. If both the father and mother are dead then the consent of +the paternal grandfather will suffice. If he is also dead the paternal +grandmother must give consent. In the event of both paternal grandparents +being dead the maternal grandparents take their place and exercise the +_patria potestad_. + +IMPEDIMENTS.--The impediments to marriage are: + +1. Incapacity of the parties, as when one or both are under age. + +2. Absence of the consent of parents or of the person exercising the +rights of a parent. + +3. Mistake as to the identity of either party. + +4. Relationship within the prohibited degrees. + +CONSANGUINITY AND AFFINITY.--Marriages are prohibited between ascendants +and descendants; between brothers and sisters of the whole or half blood; +between uncles and nieces; aunts and nephews, and all other persons +related by blood or marriage within the third degree. + +The laws of Mexico recognize no relationship other than one by +consanguinity and affinity. + +Each generation constitutes a degree, and the series of degrees constitute +the line of relationship. + +OTHER PROHIBITIONS: + +A. A marriage is prohibited when either of the intending parties has a +husband or wife still living. + +B. If one of the parties has made an attempt against the life of the +husband or wife of the other with the intention of marrying the survivor. + +C. If one of the parties has obtained the apparent consent of the other by +fear, coercion or duress. + +D. If either of the parties is permanently and incurably insane. + +FORMALITIES.--Parties intending to conclude marriage must personally +appear before the judge of civil status of the domicile of either party, +and state their intention. The judge will thereupon make an entry in a +register kept for that purpose of the names, occupations and domiciles of +both of the contracting parties, the names, occupations and domiciles of +their parents, if the same be ascertainable, the names, occupations and +domiciles of the witnesses whom the parties present to the judge as +knowing the legal capacity of the parties, and proof of the consents of +the parents, or of such persons as are lawfully exercising the rights of +the parents. + +If either of the contracting parties has been previously married the judge +must require proper evidence that the former consort is dead. + +If it appears that there exists any impediment to the intended marriage +which could be removed by a dispensation from the superior political +authority such dispensation must be exhibited. + +Upon the judge receiving the required proof that the parties may be +legally married he will cause a copy of the record to be posted in a +conspicuous place in his office for 15 days, and two similar copies must +be posted in the usual public places. If, during the publication as +aforesaid, and for three days thereafter, no valid opposition is made by +any one to the marriage, it becomes the duty of the judge, upon request of +the parties, to fix the place, day and hour for the celebration. + +A marriage must be celebrated in public at the place and time previously +fixed by the judge. The parties must appear in person or by their +specially appointed proxies, and be attended by at least three adult +witnesses, who may be relatives. + +The parties, by themselves, or by their specially appointed proxies, must +formally declare to the judge in the presence of the witnesses their +intention to take each other as husband and wife, upon which declaration +the judge shall pronounce them man and wife and make an official record of +the marriage. + +RIGHTS AND OBLIGATIONS OF MARRIAGE.--Husband and wife are obliged to be +faithful to each other, and each must contribute his or her part to the +objects of the marriage. They are under mutual obligation to succor and +protect one another and to render each to the other affection and +sympathy. + +It is a wife's duty to live with her husband and to follow him wherever he +may choose to go and accept his selection of a conjugal home. + +A husband is obligated to provide alimentation (_alimentos_) to his wife +even though she may have brought no property into the marital community. +By alimentation is meant not only necessary food, but raiment and things +of personal necessity and comfort commensurate with the husband's ability +to make such provision. The husband owes his wife the duty of protecting +her person and reputation. + +The wife must obey her husband in domestic concerns, in the matter of +training and educating the children of the marriage and in all affairs +connected with the common property and the household. + +If the wife has property of her own she must furnish alimentation (food, +clothing and lodging) to her husband when he is in want and cannot obtain +it for himself. + +If a husband proposes to leave the Republic to live in a foreign land the +wife may apply to the courts to be relieved from the usual duty of +adopting her husband's residence. + +The husband is the legitimate representative and manager of all of the +property of the marriage. He is ordinarily his wife's representative in +legal proceedings. A wife generally cannot appear either personally or by +attorney in a suit at law without her husband's authorization in writing. + +If she is of full age a wife does not require her husband's authorization +in the following instances: + +A. To defend herself in a criminal action. + +B. To bring a suit against her husband. + +C. To devise or bequeath her own separate property by a will. + +D. When her husband is in what the Mexican lawyers call a state of +interdiction, as, for example, when he is under guardianship or insane. + +E. When she is in business on her separate account and the suit or +proceeding relates to such business. + +DIVORCE.--It is in the chapter of the Civil Code entitled "_Del divorcio_" +that we find the statutory provisions concerning divorce. The chapter +begins by stating positively that divorce (_divorcio_) does not dissolve +the bonds of matrimony. We must remember that the Federal Code is founded +upon the Spanish Code, and that both Mexico and Spain, being historically +Roman Catholic countries, reflect the leading dogmas of the Catholic +Church in their civil jurisprudence. What is called a divorce in Mexican +law is at the most a separation from bed and board. It simply suspends +certain of the civil obligations and effects of marriage. + +CAUSES FOR DIVORCE: + +1. Adultery of the wife under any circumstances. + +2. Adultery of the husband, if the adultery is committed in the conjugal +home, or if the husband is living in concubinage, or if the husband's +adultery causes a public scandal and attracts public contempt or insult to +the wife, or if the wife has been ill used by word or deed by her +husband's paramour or on account of her. + +3. If the husband proposes or plans to prostitute his wife, or accepts +from a third person any money, article or valuable consideration for the +purpose of effecting such prostitution. + +4. When either spouse instigates or encourages the other to commit a +crime. + +5. The attempt by positive acts by either husband or wife to corrupt their +children or by deliberately permitting third persons to practice such +corruption. + +6. Abandonment without just and legal cause of the conjugal home (_casa +comun_), or if there is just and legal cause for such abandonment, to +remain away for one year or more without beginning a suit for divorce. + +7. Cruelty, threats or injury of a serious nature by one spouse against +the other. + +8. False accusation of a grave nature made by either party against the +other. + +9. The refusal, or wilful neglect, of one spouse to furnish alimentation, +or support, to the other, in accordance with law. + +10. Incorrigible vices of gambling or drunkenness. + +11. The existence of a chronic and incurable disease which is hereditary +or contagious afflicting one of the spouses previous to the marriage, of +which the other spouse had no knowledge when the marriage was concluded. + +12. If the wife gives birth to a child conceived before marriage, which +child has been judicially declared illegitimate. + +13. An infringement or violation of the marriage settlements +(_capitulaciones matrimoniales_). + +14. Mutual consent of the parties. + +PROCEEDINGS FOR DIVORCE.--Even if the spouses consent to a divorce there +must be a formal legal proceeding. In such a case the suit is begun by a +petition to the judge setting forth clearly the consent to divorce and the +agreement of the parties as to the maintenance of the wife, the custody of +the children and the disposition or division of the property held in +common. + +When such a petition is filed it becomes the duty of the judge to summon +the parties before him and to endeavour to effect a reconciliation. + +In a suit where the spouses do not mutually consent to a divorce, it is +still the legal duty of the judge to attempt a reconciliation of the +parties. + +ANNULMENT OF MARRIAGE.--While the Mexican law does not recognize absolute +divorce it does provide for the annulment or setting aside absolutely of +certain marriages. Marriages are voidable and may be annulled in the +courts on the following grounds: + +A. If the parties are related within the prohibited degrees of +consanguinity and affinity. + +B. If the parties, or either of them, were incapable by reason of non-age +or otherwise of legally concluding marriage. + +C. If the necessary parental consent, or consent of the person exercising +the _patria potestad_, was not had. + +D. If the marriage was irregular or contrary to law, as, for example, if +the proper publication was omitted, or no witnesses attended the +celebration. + +E. If there exists in either party, and existed before the marriage, an +incurable impotency for copulation. + +Want of legal age of either party is not a ground for annulment if a child +is born, the issue of the union. + +And if either party, or both, were under the legal age at the time of +marriage, a decree of annulment will not be granted if, upon becoming +twenty-one years of age, the spouses continue to cohabit together. + +Such marriages as we have pointed out above are not void, but voidable, +and any of the grounds sufficient for annulment may be waived by the +aggrieved spouse. + +EFFECTS OF DIVORCE.--Divorce can only be granted to the innocent party, +and suit therefor must be brought within one year after the petitioner +discovers the facts which constitute a legal cause for a decree. + +The innocent party, pending the action, or even after the final decree, +may require the other party to resume the marriage relationship. + +The most usual effect of a divorce is a physical separation of the +spouses. + +If the wife is the guilty party she may, on her husband's suggestion, be +directed by the judge to live in a certain house, for the protection of +the good name of the husband. + +Upon the finding of a decree of divorce, if the parties have not reached +an appropriate agreement, the judge will make such directions as to the +maintenance of the wife, custody of children and division of common +property as justice may require. + +FOREIGN MARRIAGES.--Marriages concluded between foreigners in a foreign +country, which are valid in that country, will be recognized as valid for +all civil effects in Mexico. + +A marriage between a Mexican citizen and a foreigner, or between two +Mexican citizens, and concluded in a foreign country, will be valid for +all civil effects in Mexico, provided such marriage was concluded +according to the law of the foreign country and is not in violation of the +Mexican laws as to the prohibited degrees of relationship, capacity to +contract and consent of persons in _loco parentis_. + +Foreign laws (_leyes extranjeras_) must be established as matters of fact +by the persons relying upon their existence, and their application to +questions at issue must also be shown. + +Within three months after a Mexican citizen who has concluded marriage in +a foreign country returns to the Republic, he or she must cause the +inscription of the celebration to be entered in the Civil Register of his +or her domicile. + + + + +CHAPTER XXVIII. + +ARGENTINE REPUBLIC. + + +The Civil Code of the Argentine Republic shows strong evidences of the +Spanish origin of its precepts. As in the old motherland marriage is +considered as indissoluble except by the death of one of the contracting +parties. However, the Republic does not accept the decrees of the Council +of Trent or the canonical law of the Catholic Church on the subject of +marriage as parts of the law of the land. + +As a matter of religion the people of Argentina may consider marriage as a +sacrament or divine ordinance, or not, as it pleases their consciences, +but as a matter of law marriage in the Argentine Republic is simply a +civil contract. + +ESSENTIALS OF MARRIAGE.--For the validity of marriage there must be the +consent of two contracting parties declared before the public official in +charge of the civil register. The contract can be declared by proxy, but +only with a special authorization from the principal, in which the person +with whom the proxy has to conclude the marriage is clearly described. + +IMPEDIMENTS.--The existence of any of the following conditions make a +marriage unlawful: + +1. Consanguinity between ascendants and descendants without limitation, +whether legitimate or illegitimate. + +2. Consanguinity between brothers and sisters and half brothers and +sisters, legitimate or illegitimate. + +3. Affinity in the direct line in all degrees. + +4. The woman not being twelve and the man fourteen years of age. + +5. The existence of a previous marriage. + +6. Where one of the parties has been voluntarily the author of, or the +accomplice in the death of, the former husband or wife of the other. + +7. Insanity. + +8. A woman over twelve years of age and a man over fourteen, but minors, +and the deaf and dumb who cannot write cannot bind themselves in marriage +without the consent of their legitimate father, or, failing him, without +their mother's consent, or that of their guardian, or of the judicial +consent or permission, in the absence of the above. The civil judge will +decide in cases of disagreement. + +9. A guardian, or his descendants under his power, cannot marry minors +under his guardianship so long as the latter lasts. + +PRELIMINARIES.--Those who desire to marry must present themselves before +the public official in charge of the civil register, at the domicile of +one of the parties, and verbally declare their intention to marry. Two +witnesses are required who, from their knowledge of the contracting +parties, can declare as to their identity and that they consider them +capable of being married. + +CELEBRATION.--The marriage must be celebrated before the official charged +with the civil registry in his office, publicly, the bride and bridegroom, +or their proxies, appearing in person, in the presence of two witnesses +and with the formalities prescribed by law. If either of the contracting +parties are unable to appear at the registry office the marriage may be +celebrated at his (or her) residence. + +If the marriage be celebrated in the registry office two witnesses must be +present, and four witnesses if it is celebrated at the domicile of either +of the contracting parties. + +In celebrating the marriage the Public Registrar must read to the +contracting parties those portions of the law which define the rights and +obligations of married couples. He must also receive from each the +declaration that they respectively desire to take each other as husband +and wife. He must also formally declare the couple to be man and wife. + +There is no legal objection to a religious celebration of marriage +following the civil ceremony, which alone is treated as legally effective. + +HUSBAND AND WIFE.--The contracting parties are bound to be mutually +faithful, but the infidelity of the one does not excuse the infidelity of +the other. The one who breaks this obligation can be proceeded against by +the other in the divorce courts without prejudice to what is laid down on +the subject by the Penal Code. + +The husband is bound to live in the same house as his wife and to give her +all necessary assistance, protection and support. + +If there be no marriage contract to the contrary, the husband is the legal +administrator of all the property belonging to the married couple, +including that of the wife, as well as that which they possessed at +marriage as of that subsequently acquired by them in their own right. + +The wife is bound to live with the husband wherever he may fix his +residence. + +A wife cannot, without her husband's permission, go to law, make any +contract, or acquire goods, nor alienate or pledge goods without such +permission. The wife may, of course, in certain cases, such as divorce, +acquire judicial authorization for prosecuting or defending a suit in the +courts. + +DIVORCE.--The courts of the Argentine Republic grant divorces, but in +effect they only amount to a personal separation of the parties to a +marriage, without the dissolution of the bonds of matrimony. + +These so-called divorces are granted for the following causes: + +1. Adultery of the husband or wife. + +2. Attempt by one of the parties on the life of the other, either +personally or as an accomplice. + +3. The instigation of one of the parties by the other to commit adultery +or other crimes. + +4. Cruelty. + +5. Serious injuries. In estimating the gravity of the injury the judge +will take into consideration the education and social position of the +parties. + +6. Such ill-treatment, even if not serious, as renders married life +unsupportable. + +7. Wilful and malicious desertion. + +EFFECTS OF THE DIVORCE.--If the wife be of age she can exercise all the +usual acts of civil life. + +Each of the parties can fix his or her domicile or residence where he or +she thinks fit, even if it be abroad. However, if the party have children +under his or her care, they cannot be taken abroad without the permission +of the court of their domicile. + +The innocent party can revoke the donations or advantages which he or she +may have made or promised to the other by the marriage contract, whether +they were to have come into effect during the life of the party or after +his or her death. + +Children less than five years old remain in the mother's custody. Those +over that age shall be handed over to the party who, in the opinion of the +judge, is most fitted to educate and care for them. + +The husband who may have given cause for divorce must continue to support +the wife if she have not sufficient means of her own. The judge shall +decide the amount and manner in which this shall be done, with due regard +to the circumstances of both parties. + +Whichever of the parties may have given cause for divorce will have the +right to require the other, if he or she be able to do so, to provide him +or her with subsistence, if such be absolutely necessary. + +DISSOLUTION OF MARRIAGE.--A legal marriage can only be dissolved by the +death of one of the contracting parties. + +A marriage which can be dissolved in accordance with the laws of the +country in which it was celebrated cannot be dissolved in the Argentine +Republic except by the death of one of the parties. + +The supposed decease of one of the contracting parties, either through +absence or disappearance, will not enable the other to marry again. So +long as the decease of one of the contracting parties, either through +absence or disappearance, has not been absolutely proved, the marriage is +not considered as dissolved. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled when it was contracted +in violation of some legal impediment, or for want of proper consent. + +SECOND OR FURTHER MARRIAGES.--A woman cannot marry again for ten months +after a dissolved or annulled marriage, unless she was left pregnant, in +which case she may marry after having given birth to the child. + +PROOF OF MARRIAGE.--A marriage must be proved by certificate, or copy +thereof, of such marriage. If it is impossible to produce the certificate, +or its copy, all other means of proof will be allowed, but these other +proofs will not be admitted unless it is previously established that such +certificate or copy cannot be produced. + + + + +CHAPTER XXIX. + +THE UNITED STATES OF BRAZIL. + + +The United States of Brazil (_Estados Unidos do Brazil_), the largest +country in South America and one of the most extensive political +subdivisions of the world, is a Republic comprising twenty States and a +Federal District. + +Its present constitution was adopted February 24, 1891, and is in many +respects similar to that of the United States of America. + +The legislative power is vested in the President of the Republic and a +National Congress, consisting of a Senate and Chamber of Deputies. + +The individual States are governed by their governors and legislatures, +and possess their own judicial systems. + +The main body of the civil law has its origin in the Portuguese Code and +in the judicial precedents of Portugal. + +There is a Supreme Federal Court of Justice, which sits at the capital, +Rio de Janeiro, and Federal Courts in each of the twenty States. + +Ninety-nine per centum of the people of Brazil are Roman Catholics and +consider marriage as a religious sacrament, but the law of the land +considers it simply as a civil contract. + +MARRIAGE.--The Civil Code defines marriage as a perpetual contract between +two persons of different sex to live together and establish a legitimate +family. + +A civil or legal celebration of marriage is compulsory for all persons, +irrespective of race or creed. If after the civil marriage the parties may +desire to satisfy their consciences and the mandates of their church or +sect by having the marriage solemnized in a religious form, there is no +legal objection thereto. + +Marriage is forbidden: + +1. Of minors under the age of 21 years, unless with parental consent. + +2. Of persons of adult age who are incapable of properly governing +themselves or their estates, without the authorization of their legal +representatives. + +3. Of an adulterous wife with her accomplice who has been condemned for +the offence. + +4. Of a wife or widow who has been condemned as the principal or +accomplice of the crime of homicide with a principal or accomplice in the +same crime. + +5. Of a person bound by solemn vows of religion to a life of chastity. + +The canon law of the Roman Catholic Church is accepted as defining the +religious rules and spiritual effects of marriage, but the civil law +defines the status and temporal effects of the marriage contract. + +PROHIBITED MARRIAGES.--The following persons are forbidden to marry each +other: + +1. Ascendants and descendants. + +2. Persons related collaterally in the second degree. + +3. Males who have not completed their fourteenth year and females who have +not completed their twelfth year of age. + +4. Persons already bound by marriage. + +PRELIMINARIES.--The intending parties must present themselves in person +before the registrar and produce certificates showing: + +A. Full names, ages, occupations and domiciles of the contracting +parties. + +B. The full names, ages, occupations and domiciles of their parents, or, +if they are dead, the same particulars of those who replace them _in loco +parentis_. + +C. Proof of the consents of such persons who in law are entitled to give +or withhold consent to the proposed marriage. + +D. A declaration in writing by two respectable witnesses of full age, +certifying acquaintance with the contracting parties, and knowledge that +they are not related within the prohibited degrees of kinship. + +If either of the contracting parties has been previously married, proof of +the death of the former spouse must be given to the registrar. + +Upon receiving satisfactory proof as stated above, the registrar must post +a notice of the proposed marriage in a conspicuous place in his office, +which notice informs all interested persons to file their objections, if +any they have, in the registry within fifteen days. If at the end of this +period no valid objection to the marriage has been formulated the civil +officer proceeds to the celebration of the marriage. + +A marriage concluded before a civil officer in the form established by the +civil law of Brazil can only be annulled by a civil court. + +DIVORCE.--The law of the Republic does not permit of an absolute divorce +for any cause whatsoever. A true marriage can only be dissolved by the +death of one of the parties. + +JUDICIAL SEPARATION.--A separation of the person and goods may be had for +the following causes: + +1. Adultery of the wife. + +2. Adultery of the husband, if such adultery creates a public scandal, or +if the husband brings his concubine into the home he has established for +his wife. + +3. Sentence of one of the spouses to life imprisonment. + +4. Cruel and ill-human treatment. + +FOREIGN MARRIAGES.--The courts of Brazil recognize as valid a marriage +between two foreigners concluded in a foreign land, provided that such +marriage is monogamous, is not between ascendants or descendants, or +between persons related collaterally in the second degree, and if such +marriage was regularly concluded according to the law of the country of +its celebration. + +A marriage abroad of a citizen of the Republic of Brazil must conform not +only to the law of the place of its celebration, but must also be in +strict accordance with the law of Brazil. + + + + +CHAPTER XXX. + +THE REPUBLIC OF CUBA. + + +A nation may in a day overthrow a dynasty which has ruled for centuries, +it may in a few years completely revolutionize its system of government +and methods of trading, but its ancient code of marriage will live on +unchanged for ages. + +It is a noteworthy fact that the law of Rome concerning marriage survived +the Roman Empire by a thousand years, and even to-day it is the foundation +of the law on that subject in all of the Continental countries of Europe +and of the entire Western Hemisphere, with the exception of the United +States of America and Canada. + +In the Civil Code of Cuba we can see not only its recent origin from the +Spanish Code, but traces of the Law of the Twelve Tables and the +Institutes of Justinian. + +Cuba is to-day a Republic composed of six Provinces. The seat of +government is located at Havana, where sit the Senate and House of +Representatives, which constitute the national legislature. + +The Civil Code is the _Codigo Civil_ of Spain, with such changes and +modifications as have become effective since Spain lost its sovereignty +over Cuba. + +The statement of Cuban law which follows is, therefore, predicated upon +the _Codigo Civil_, which by royal decree of May 11, 1888, was extended to +the islands of Cuba, Porto Rico and the Philippines, upon proclamations +and orders issued during the recent American military occupation and on +the interpretation and construction of the positive law by Cuban courts +and jurists. + +MARRIAGE.--The law considers marriage as a civil contract, which may be +concluded by either a civil (_matrimonio civil_) or a religious +(_matrimonio religioso_) celebration. + +A male cannot marry until he has completed his fourteenth year of age; a +female until she has completed her twelfth year. + +Marriages contracted by minors under the legal age become, however, _ipso +facto_ legal if a day after having arrived at the legal age the parties +continue to live together without bringing suit to annul the marriage, or +if the female becomes pregnant before the legal age or before the +institution of a suit for annulment. + +Only such persons as are in the full enjoyment of their reason can +contract marriage. + +Marriage is forbidden to all persons who suffer from absolute or relative +physical impotency for the purposes of procreation. + +Persons ordained _in sacris_ and those professed in an approved canonical +order, who are bound by a solemn pledge of chastity, cannot lawfully +conclude marriage until they have obtained the proper canonical +dispensation. + +Those who are already bound in marriage cannot contract a new marriage. + +Persons who are twenty-three years of age or upwards may conclude +marriage, if otherwise of legal capacity, without parental consent or +advice. + +Persons under twenty years of age require the consent of their parents, or +of such persons whose right it is to give or withhold such consent. + +Persons who are more than twenty years of age, but under twenty-three, are +under the obligation of asking the advice or counsel of their parents or +of such persons standing in the parental relation before contracting +marriage, and if the advice is refused, or it should be unfavourable, the +marriage cannot take place until three months after the petition was made. + +The consent and the favourable advice for the celebration of a marriage +must be proven, if requested, by means of an instrument authenticated by a +civil or ecclesiastical notary or by the municipal judge of the domicile +of the petitioner. + +When the advice has been proven the lapse of time shall be proven in the +same manner. + +If a marriage is concluded by persons more than twenty years of age, and +under twenty-three years of age, without compliance with the rules just +stated, the marriage will be recognized as valid, but the offender is +subject to certain disabilities and penalties. + +CONSANGUINITY AND AFFINITY.--The following persons are prohibited from +contracting marriage with each other: + +1. The ascendants and descendants by legitimate or natural consanguinity +or affinity. + +2. Collaterals by legitimate consanguinity up to the fourth degree. + +3. Collaterals by legitimate affinity up to the fourth degree. + +4. Collaterals by natural consanguinity or affinity up to the second +degree. + +The government, for sufficient cause, may on the petition of a party grant +a dispensation permitting a marriage of minors who have not obtained the +proper permission or advice of the persons whose legal right it is to +authorize one or the other. + +For grave reasons the government may also grant a dispensation relieving a +party from the prohibition of marrying within the third and fourth degrees +of collaterals by legitimate consanguinity; the impediments arising from +legitimate or natural affinity between collaterals and those relating to +the descendants of the adopter. + +SPECIAL PROHIBITIONS.--The following persons cannot contract marriage with +each other: + +1. The adopting father or mother and the adopted; the latter and the +surviving spouse of the former, and the former and the surviving spouse of +the latter. + +2. The legitimate descendants of the adopter with the adopted, while the +adoption lasts. + +3. Adulterers who have been condemned by a final judgment. + +4. Those who have been condemned as authors, or as the author and +accomplice, of the death of the spouse of either of them. + +CELEBRATION OF MARRIAGE.--A civil marriage must be celebrated according to +the requirements of the code, as changed or modified by subsequent orders, +decrees and legislation. + +Any clergyman, priest or minister, irrespective of faith or sect, who +belongs to a religious denomination actually established in the Republic +of Cuba, and who has been duly authorized, may solemnize marriage. + +A register is kept in the office of the Secretary of Justice containing +the names and addresses of all clergymen, priests and ministers who are +qualified to solemnize marriage in the Republic. + +Persons who desire to contract a religious marriage must present to the +clergyman, priest or minister who is qualified to perform the ceremony a +declaration signed by both of the contracting parties, stating: + +1. The names, surnames, profession, domicile or residence of the +contracting parties. + +2. The names, surnames, profession, domicile or residence of the parents. + +3. Certificates of birth and of the status of the contracting parties, +the consent or advice, if proper, and the dispensation, when it is +necessary. + +Upon the presentation of such a declaration the clergyman, priest or +minister shall announce the future celebration of marriage between the +parties according to the form or method prescribed by the rites and +regulations of his religious denomination. + +If the religions denomination of such clergyman, priest or minister has no +established form for such announcement, then a publication must be made in +the form established by the Civil Code. The method required by the Civil +Code for proclaiming an intended marriage is set forth in Article 89, +which directs a publication by posting the written declaration of the +parties for fifteen days and calling upon those who have information of +any obstacle to oppose the marriage. + +A civil marriage can only be solemnized by a municipal judge (_Juez +Municipal_), to whom must be presented as an indispensable preliminary +such a signed declaration of the parties as is necessary in the case where +the parties desire a religious ceremony. + +A municipal judge chosen to celebrate a civil marriage will also direct as +a preliminary to marriage such a proclamation as is required by Article 89 +aforesaid. + +A priest, minister or clergyman duly authorized to perform marriages may, +for sufficient cause, dispense with the publication as before set forth; +but in every case where a publication is made the marriage cannot be +concluded after fifteen days after the first day of such publication. + +No priest, clergyman or minister is now authorized to grant a dispensation +permitting a marriage for any reason forbidden by the laws of the +Republic. + +An opposition to a marriage made by an interested person must be heard and +determined by the municipal judge of the district before any person +whatsoever is authorized to solemnize the nuptials. + +The celebration itself must be witnessed by two adults, who may be +relatives of the parties. Article 87 of the code, permitting one or both +of the parties to a marriage to appear at the celebration, either +personally or by proxies to whom a special power is given, is still in +effect. + +The municipal judge, priest, minister or clergyman who solemnizes a +marriage must immediately furnish to the parties a certificate of marriage +and cause a full and particular record of said marriage to be filed in the +Civil Registry of the District (_Registro Civil del Distrito_), in default +of which such judge, priest, minister or clergyman will be subject to a +fine of one hundred _pesos_, or imprisoned for not less than 30 days, or +not more than 90 days, by the Correctional Judge (_Juez Correccional_) of +his domicile. + +ANNULMENT OF MARRIAGES.--The civil courts have exclusive jurisdiction to +decree an annulment of marriage. + +The following marriages are void: + +1. Those celebrated between persons related within the prohibited degrees, +except in cases of dispensation. + +2. Those contracted by error as to the person or by compulsion or +intimidation. + +3. Those contracted by the abductor with the abducted while she is in his +power. + +4. Those which are not solemnized by an authorized official. + +A marriage contracted in good faith produces civil effects, although it +may be declared void. + +If good faith existed on the part of only one of the spouses it shall +produce civil effects only with regard to said spouse and to the children. + +Good faith is presumed if the contrary does not appear. + +When bad faith existed on the part of both spouses the marriage shall only +produce civil effects with relation to the children. + +After the annulment of a marriage the sons over three years of age shall +remain in the care of the father and the daughters in the care of the +mother, provided there was good faith on the part of both spouses. + +If either or both were guilty of bad faith the tribunal has power to make +such disposition of the children as justice may require. + +RIGHTS AND OBLIGATIONS.--The spouses are obliged to live together, to be +faithful to, and mutually assist, each other. + +The husband must protect his wife, and the latter must obey her husband. + +The wife is obliged to follow her husband wherever he may establish his +residence. The tribunals may, for just cause, exempt her from this +obligation when the husband removes his residence beyond the seas or to a +foreign country. + +The husband is the administrator of the property of the conjugal +partnership, except when the contrary is stipulated. + +The wife, however, retains ownership of the paraphernal property, which +consists of such property as the wife brings to the marriage, not included +in the dowry. + +The husband is the representative of his wife. The latter cannot, without +his permission, appear in a suit in person nor through an attorney. + +Nevertheless, she does not require such permission to defend herself in a +criminal suit or to proceed against or to defend herself in suits with +her husband. + +Neither may the wife, without the permission of her husband, acquire +property for a good or valuable consideration, alienate her property, or +bind herself, except in certain exceptional cases, and within the +limitations established by law. + +A wife may without her husband's permission: + +1. Execute a will. + +2. Exercise the rights and perform the duties which appertain to her with +regard to the legitimate and acknowledged natural children she may have +had by another, and with relation to the property of the same. + +Only the husband and his heirs can enforce the nullity of the acts +executed by his wife without proper authorization. + +DIVORCE.--Divorce only produces the suspension of the life in common of +the spouses; it does not dissolve the marriage. + +The legal causes for divorce are: + +1. Adultery on the part of the wife in every case, and on the part of the +husband when public scandal or disgrace of the wife results therefrom. + +2. Personal violence actually inflicted or grave insults. + +3. Violence exercised by the husband toward the wife in order to force her +to change her religion. + +4. The proposal of the husband to prostitute his wife. + +5. The attempts of the husband or wife to corrupt their sons, or to +prostitute their daughters, and connivance in their corruption or +prostitution. + +6. The condemnation of a spouse to penal servitude. + +EFFECTS OF DIVORCE: + +1. The separation of the spouses in every case. + +2. The protection of the wife. + +3. The placing of the children under the care of one or both of the +spouses, as may be proper. + +4. The provision for the support of the wife and of the children who do +not remain under the authority of the father. + +5. The adoption of the necessary measures to prevent the husband, who may +have given cause for the divorce, from injuring the wife in the +administration of her property. + +FOREIGN MARRIAGES.--A marriage contracted in a foreign country, according +to the laws of such country, is generally treated as valid in Cuba. Such a +marriage, however, must be monogamous and otherwise in conformity with the +general laws and usages of Christendom. + +If the parties are Cubans, and are married abroad while retaining their +domiciles in Cuba, the foreign marriage must also conform to the +requirements of Cuban law with regards to the capacity of the parties and +the necessary parental consent or advice. + +PROOF OF MARRIAGE.--The ordinary manner to prove a marriage concluded in +Cuba is to produce a certificate of the record of the civil registry, and +this is the proof required unless the books of the civil registry never +existed, or have disappeared, or a question is pending before the +tribunals, in which case all kinds of direct evidence are admissible. + +The uninterrupted status of the parents, together with the certificates of +the birth of their children as legitimate, is one competent method of +proving the marriage of said parents, unless it is shown that one of the +two was bound by a prior marriage. + +A marriage contracted in a foreign country may be established by showing +an authenticated copy of its registration. If such foreign country does +not require a regular or authenticated registration the marriage must be +proved by competent evidence of the regulations of marriage in the foreign +country in question, together with proof that all such regulations were +complied with. + +Should a marriage be contracted in a foreign country between a Cuban and a +foreign woman, or between a foreigner and a Cuban woman, and the +contracting parties do not make special stipulations with regard to their +property, it is understood, when the husband is a Cuban, that he marries +under the system of the legal conjugal partnership; and when the wife is a +Cuban that she marries under the system of laws in force in the husband's +country. + +ENGAGEMENTS TO MARRY.--Future espousals do not give rise to an obligation +to contract marriage. No court will admit a complaint in which their +performance is demanded. + +However, if the promise has been made in a public or private instrument by +a person of age, or by a minor in the presence of the person whose consent +is necessary for the celebration of the marriage, or when banns have been +published, the person who refuses to marry, without just cause, can be +obliged to indemnify the other party for the expenses which he or she may +have incurred by reason of the promised marriage. + +An action to recover indemnity for such expenses must be instituted within +a year, counted from the day of the refusal to celebrate the marriage. + +SPANISH PRECEDENTS.--It should be remembered that in throwing off the yoke +of Spanish rule the people of Cuba did not change their blood, language or +traditions. Just as the law of the United States of America is founded +upon the law of England as it existed at the time of the adoption of the +American Constitution, so the jurisprudence of the Republic of Cuba has as +its foundation the law of Spain as it existed at the time the Republic was +established. + +In both instances there have been changes and modifications by legislative +acts and judicial interpretations, but a Spanish judicial decision has +even more weight in a Cuban tribunal than an English decision has in an +American court because Cuba, being a younger Republic than the United +States, is much nearer to its motherland in point of time, besides its +closer resemblance in race, religion and customs. + + + + +CHAPTER XXXI. + +COMMONWEALTH OF AUSTRALIA. + + +The Commonwealth of Australia, created by an act of the Imperial +Parliament in 1900 (63 and 64 Vic. cap. 12), is a federal State under the +supreme authority of the Crown of Great Britain. + +This act of Parliament not only created a federal Commonwealth out of the +colonies of Queensland, New South Wales, Victoria, South Australia, West +Australia and Tasmania, but it also granted to the new Commonwealth a +written constitution which is obviously modeled upon that of the United +States of America. + +The constitution provides that "every law in force in a colony which has +become or becomes a State shall, unless it is by this constitution +exclusively vested in the Parliament of the Commonwealth or withdrawn from +the Parliament of the State, continue as at the establishment of the +Commonwealth or as at the admission or establishment of the State, as the +case may be." + +It is also provided that "when a law of a State is inconsistent with a law +of the Commonwealth the latter shall prevail and the former shall, to the +extent of the inconsistency, be invalid." + +All powers not delegated to the central or federal government are reserved +to the States. + +However, in spite of its resemblance to other federal systems, the +principle of the responsibility of ministers to Parliament proclaims its +English parentage. + +The judicial power is exercised under the constitution by a federal +supreme court, called the High Court of Justice, and other courts of +federal jurisdiction. + +It is expressly provided in the Australian constitution that the +Parliament of the Commonwealth shall, subject to the constitution, have +power to make laws for the peace, order and good government of the +Commonwealth with respect to "divorce and matrimonial causes, and in +relation thereto, parental rights, and the custody and guardianship of +infants." + +It will be observed that Parliament is given no power under the +constitution to make laws prescribing the qualifications for marriage, the +impediments thereto, and regulations concerning the celebration. All such +power is reserved by the respective States. + +Moreover, the grant of power to Parliament to make laws with regard to +"divorce and matrimonial causes" is not a power "by this constitution +exclusively vested in the Parliament of the Commonwealth or withdrawn from +the Parliament of the State." + +Until the Parliament of the Commonwealth shall legislate on the subject, +by passing enactments concerning divorce and matrimonial causes +superseding the existing statutes of the several States, the laws of each +State will continue in operation. + +In this chapter we shall consider, first, such laws and regulations +concerning marriage and divorce as are in effect throughout the entire +Commonwealth, and then, under separate headings, discuss the laws and +regulations of each State. + +MARRIAGE.--The courts of Australia, following 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. + +The law of the place where marriage is celebrated--that is, the _lex loci +celebrationis_--alone guides the court in ascertaining whether or not a +marriage is regular. All the formal preliminaries, such as the publication +of banns, or license, the consent of the parties entitled to give or +withhold consent and the solemn declaration of the contracting parties +before competent authority, according to the law of the place of +celebration, must be complied with. + +LEGAL AGE.--The legal age for marriage throughout the Commonwealth of +Australia begins with fourteen years for a male and twelve years for a +female. + +PARENTAL CONSENT.--In all of the States parental consent is required for +the marriage of males and females under twenty-one years of age. + +BANNS OR LICENSE.--Unless a marriage license is procured banns must be +published in the parish in which the parties reside, and if they live in +different parishes the banns must be published in each parish. + +Where a man has caused the banns to be published or has procured a license +under a false name or names, or has been married under a false name or +names, he will not be allowed to annul the marriage on that account. A +party cannot take advantage of his own fraud for the purpose of +invalidating a marriage. + +CONSANGUINITY AND AFFINITY.--The law considers it against public policy +and morality, and contrary to the well-being of the parties, that persons +closely related by blood or marriage should intermarry. Marriages are +therefore prohibited between all ascendants and descendants, legitimate or +illegitimate. + +A man is also prohibited from marrying his stepmother, wife's mother, +stepdaughter, daughter-in-law, son's daughter-in-law, daughter's +daughter-in-law, stepson's daughter, stepdaughter's daughter, niece by +blood, niece by affinity, or nephew's wife. + +A woman is prohibited from marrying her uncle by blood or affinity, +husband's uncle, father-in-law, stepson, son-in-law, son's son-in-law, +daughter's son-in-law, stepson's son, stepdaughter's son, nephew by blood +or affinity, or niece's husband. + +ANNULMENT OF MARRIAGE.--A marriage may be annulled in any of the States of +the Commonwealth upon competent proof showing: + +1. A prior and existing marriage of one of the parties. + +2. Impotency or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse. + +3. Relationship within the prohibited degrees. + +4. That the marriage was procured by fraud, violence or mistake as to +identity. + +5. That one of the parties was insane at the time the marriage was +concluded. + +6. That the marriage was celebrated without the consent of the persons by +law entitled to give or withhold consent. + +7. That the marriage was performed without legal license, or the +publication of banns, or solemnized before a person not having authority +to officiate. + +A marriage will not be annulled on the last ground stated if it appears +that one of the parties acted in good faith and honestly believed that the +person who solemnized the marriage had the required authority. + +JUDICIAL SEPARATION.--A decree of judicial separation, which is equivalent +to the old form of limited divorce (_a mensa et thoro_) may be obtained +in any of the States for the following causes: + +1. Adultery of either husband or wife. + +2. Desertion without legal cause for two years or more. + +3. Cruelty or abusive treatment of one spouse by the other. + +It is an absolute bar to a suit for judicial separation that the +petitioner has committed adultery since the marriage. + +DIVORCE.--Absolute divorces completely dissolving the marriage bond are +granted by the courts of every State in Australia. As every State has its +separate statutes on the subject, which set forth the legal causes for +divorce, we shall consider such causes in our discussion of each State +separately. + +DEFENCES.--In all the States condonation of a matrimonial offence, which +is a legal cause for divorce, is a good defence to the petition. + +It is also a sufficient defence for the respondent to show that the +offence complained of was committed by the connivance or active consent of +the petitioner. + +Connivance in adultery as a bar to divorce is founded on the doctrine +_volenti non fit injuria_, the consent consisting in acquiescence, active +or passive, in the adulterous intercourse. Passive acquiescence is a +sufficient bar, provided it was carried out with the intention that the +husband or wife would be guilty; but it must be something more than mere +inattention, indifference or dulness of apprehension. The presumption, +where the facts are equivocal, is in favour of absence of intention. + +One spouse must not invite the other to commit adultery; but he or she may +permit the licentiousness of the other spouse to have its full scope +without being guilty of connivance. + +It is not connivance to watch for the purpose of discovering a suspected +fact so as to make conviction certain. + +COLLUSION.--An illegal agreement and co-operation between a petitioner and +a respondent in a divorce action to enable the petitioner to obtain a +judicial dissolution is a fraud upon the court. Upon such collusion +appearing the court, at its own instance, will dismiss the petition. + +DESERTION.--The High Court of Justice of the Commonwealth has defined +desertion, which in several of the States is a legal cause for absolute +divorce, as follows: "Desertion involves an actual and wilful bringing to +an end of an existing state of cohabitation by one party without the +consent of the other. Such 'consent' must be shown by something more than +a mere mute acquiescence in an existing state of separation or +non-resistance to abandonment. What is necessary is some communication of +the intended acquiescence or non-resistance to the other by express words +or by conduct." + +FORM OF DIVORCE DECREE.--A decree of divorce in any of the States is +granted _nisi_, or provisionally, and cannot be made absolute until three +months have elapsed after the decree _nisi_ is entered. + +A judicial separation may be granted, even if the suit is for an absolute +divorce, if the court deems such a decree better meets the law and facts +of the case. + +VICTORIA.--The Marriage Act of 1890 (54 Victoria, No. 1166), entitled "An +act to consolidate the laws relating to marriage and to the custody of +children and to deserted wives and children and to divorce and matrimonial +causes," is practically a short code on the subject of marriage and +divorce. + +CELEBRATION OF MARRIAGE.--The following persons, and none other, may +celebrate marriages: + +1. A minister of religion ordinarily officiating as such, whose name, +designation and usual place of residence, together with the church, chapel +or other place of worship in which he officiates, is at the time of the +celebration of the marriage duly registered according to law in the office +of the Registrar-General. + +2. A minister of religion being the recognized head of a religious +denomination. + +3. A minister of religion holding a registered certificate that he is a +duly authorized minister, priest or deacon from the head of the religious +denomination to which he belongs, or, if there be no such religious head, +from two or more officiating ministers of places of worship duly +registered according to law. + +4. The Registrar-General or other officer appointed for that purpose. + +JEWS AND QUAKERS.--The law permits Jews and Quakers to be married by such +persons and in such manner as is considered regular and lawful according +to their respective beliefs and usages. + +FORMALITIES.--A marriage must be preceded by a license or the publication +of banns. + +A marriage celebration requires the attendance of two witnesses of full +age. + +DIVORCE.--A domicile of two years or more is a condition precedent to +bringing a suit for divorce. + +The following are legal grounds for a divorce or dissolution of the +marriage bond: + +1. Adultery on part of the wife. + +2. Adultery on part of the husband if committed in the conjugal residence +or if it is coupled with circumstances or conduct of aggravation or of a +repeated act of adultery. + +3. Desertion without just cause continued for three years or more. + +4. The habitual drunkenness of a husband for three years, if the husband +has habitually left his wife without support, or has habitually been +guilty of cruelty to her. + +5. Habitual drunkenness of a wife for three years, if the wife has +habitually neglected her domestic duties, or rendered herself unfit to +discharge them. + +6. Imprisonment of either spouse for not less than three years, and being +still in prison under a commuted sentence for a capital crime, or under +sentence to penal servitude for seven years or more. + +7. If the husband has within five years undergone frequent convictions for +crime and has been sentenced in the aggregate to imprisonment for three +years or more, leaving his wife habitually without means of support. + +8. That within a year previously the respondent has been convicted of +having attempted to murder the petitioner, or of having assaulted him or +her with intent to inflict grievous bodily harm, or that repeatedly during +that period the respondent has assaulted and cruelly beaten the +petitioner. + +FORM OF DECREE.--Divorce decrees are entered, in the first instance, +_nisi_, or provisionally, and cannot be made absolute until after the +expiration of three months following the decree _nisi_. + +IN FORMA PAUPERIS.--Special provision is made enabling poor persons to +prosecute suits for divorce by an interlocutory order in _forma pauperis_, +which relieves the person in whose favour it is granted from certain +charges and expenses, but does not furnish him or her with the free +services of a solicitor or barrister. + +RECENT DECISIONS.--An important divorce decision holds that visits to +brothels by a petitioner who seeks a divorce on the ground of his wife's +adultery constitute misconduct conducing to the adultery of the wife and +bars the petitioner from a decree, without entering into the question of +whether or not adultery was committed by the petitioner in the course of +such visits. + +However, the fact that a husband has conduced to an act of adultery by his +wife is not a bar to him obtaining a divorce based on subsequent acts of +adultery. + +NEW SOUTH WALES.--The requirements as to age, consent of parents, or of +persons standing in _loco parentis_ are the same in this State as +throughout the rest of the Commonwealth and have been set forth in the +first part of this chapter. + +No marriage can be celebrated except by a minister of religion ordinarily +officiating as such, whose name, designation and usual residence have been +and continue registered in the office of the Registrar-General for +Marriages in Sydney or by a district registrar. + +Parental consent is not required of persons who have previously been +lawfully married and whose former marriage has been dissolved by death or +divorce. + +A marriage must be attended by two adult witnesses. + +By the Matrimonial Causes Act of 1899 jurisdiction in respect of divorces +_a mensa et thoro_ (judicial separations), suits for nullity of marriage, +suits for dissolution of marriage (absolute divorce), suits for +restitution of conjugal rights, suits for jactitation of marriage, and all +causes, suits and matters matrimonial are vested in the Supreme Court of +the State. + +CAUSES FOR ABSOLUTE DIVORCE.--A husband who has been domiciled for three +years or more in the State may petition for a dissolution of the marriage +on the following grounds: + +A. That the wife has committed adultery. + +B. That the wife has, without just cause or excuse, wilfully deserted the +petitioner and without any such cause or excuse left him so deserted for +three years or more. + +C. That the wife has, during three years and upwards, been an habitual +drunkard and habitually neglected her domestic duties or rendered herself +unfit to discharge them. + +D. That within one year the wife has been imprisoned for a period of not +less than three years and is still in prison under a commuted sentence for +a capital crime, or under sentence to penal servitude for seven years or +more. + +E. That within one year the wife has been convicted of having attempted to +murder her husband, or having assaulted him with intent to inflict +grievous bodily harm. + +F. That during one year previously the wife has assaulted and cruelly +beaten her husband. + +A wife may obtain an absolute divorce from her husband by proving: + +A. That her husband has committed incestuous adultery. + +B. That the husband has committed bigamy with adultery. + +C. That the husband has committed rape, sodomy or bestiality. + +D. That the husband has committed adultery coupled with such cruelty as +without adultery would have entitled the wife to a divorce _a mensa et +thoro_ (divorce from bed and board) under the laws of England as existing +before the enactment of the Imperial Act 20 and 21, Vict. c. 85. + +E. Adultery of the husband coupled with desertion without reasonable +excuse for two years or upwards. + +JUDICIAL SEPARATION.--A judicial separation may be granted on the ground +of adultery, cruelty or desertion without legal cause or excuse continued +for two years and upwards. + +QUEENSLAND.--In this State marriage may be celebrated by any regular +officiating minister of religion, or by any district registrar, or by +specially authorized justices of the peace. + +CAUSES FOR ABSOLUTE DIVORCE.--A husband is entitled to an absolute divorce +if his wife has committed adultery, but a wife is not so entitled unless +her husband has committed incestuous adultery, bigamy, rape, sodomy, +bestiality, adultery coupled with cruelty, or adultery coupled with +desertion without reasonable excuse for two years or more. + +Incestuous adultery is adultery with a woman within the prohibited +degrees. + +JUDICIAL SEPARATION.--A limited divorce or judicial separation can be +obtained by either spouse on the following grounds: + +1. Adultery. + +2. Cruelty. + +3. Desertion without legal cause for two years. + +LEGITIMACY.--Illegitimate children are legitimatized by the subsequent +marriage of their parents. + +WEST AUSTRALIA.--The Marriage Act of 1894 is virtually an acceptance by +this State, so far as practicable, of the English Divorce Act of 1857. + +The causes for absolute divorce or for a judicial separation are the same +as those given above for the State of Queensland. + +SOUTH AUSTRALIA AND TASMANIA.--In these two States, by legislative +enactments, the causes for absolute divorce and judicial separation are +the same as those given on opposite page for Queensland, West Australia +and South Australia. + +The exercise of appellate jurisdiction by the High Court of Justice of the +Commonwealth in matrimonial causes has the beneficial effect of making the +several States more and more uniform in their local legislation and +judicial interpretation. + +The federal Parliament has express authority under the constitution to +enact a federal code of marriage and divorce which will operate throughout +the entire Commonwealth, and such a code in one form or another is +inevitable. + +The Commonwealth of Australia is not yet a dozen years old, but the need +of superseding six separate systems of law respecting marriage and divorce +by a national law on the subject is already apparent and under +constructive discussion. + +Of all the federative dependencies of the British Crown Australia is +perhaps the most homogenous in race, religion and traditions, and it will +probably be the first to adopt a federal law of marriage and divorce. + + + + +CHAPTER XXXII. + +DOMINION OF NEW ZEALAND. + + +The Dominion of New Zealand is a colony of Great Britain consisting of +North, South and Stewart Islands, or New Zealand proper, and certain +outlying islands, including Cook Island, in the Pacific Ocean. + +Its present form of government was established by an act of the Imperial +Parliament (15 and 16 Vict., cap. 27) passed in 1852. + +The legislative power is vested in the governor and a bicamera General +Assembly or Parliament, consisting of a Legislative Council and a House of +Representatives. The constitution provides that the General Assembly or +Parliament may make laws "not repugnant to the laws of England." + +The General Assembly, by an act passed in 1858, declared that: "Whereas, +the laws of England, as existing on the fourteenth day of June, 1840, have +been applied in New Zealand as far as applicable to the circumstances; +but, Whereas, doubt has arisen in respect to such application--Be it +declared and enacted, that the laws of England, as existing June 14, 1840, +be deemed and taken to have been in force on and after that day and shall +hereafter continue in force." + +Hence it is apparent that the body of the law of New Zealand is founded +upon the jurisprudence of England. + +The judicial system includes a Supreme Court of the Dominion, District +Courts and courts presided over by stipendiary magistrates. + +MARRIAGE.--Males under fourteen years of age and females under twelve +years cannot contract a lawful marriage. + +All persons, male or female, under twenty-one years of age, who have not +previously contracted a lawful marriage, require the consent of their +parents or guardians in order to marry. However, the marriage of males +fourteen years of age or more, or of females twelve years of age or more, +without the consent of parents or guardians, does not make such marriage +_ipso facto_ void. + +Parental consent to a marriage of a minor must be given by the father, if +living and competent to act; if not, then by the following persons in the +order stated: (a) the duly appointed guardian; (b) the mother if she has +not married again; (c) or a guardian specially appointed by a court +exercising chancery powers. + +No person can contract a new marriage who has a spouse by an existing +marriage still living. + +CONSANGUINITY AND AFFINITY.--Marriage is forbidden between all ascendants +and descendants _ad infinitum_ and between persons related to each other +by blood or marriage within the third degree, according to the method of +computation of the civil law. According to this reckoning a person cannot +marry a relative nearer than his or her own first cousin. + +PRELIMINARIES.--Notice of a proposed marriage must be given to the +registrar of the district in which one of the parties has resided for +three days at least. If the contracting parties live in different +districts notice must be given to the registrars of both districts. Such +notice must set forth the names, ages, status and occupations of each +party, together with their addresses, a statement of the period each party +has lived in the district, and the name and place of the church, chapel or +other building selected by the parties for the solemnization of the +marriage. The parties must also make solemn declaration to the registrar +or registrars to the truth of all statements of fact in said notice and +show that there is no legal impediment to the proposed marriage. + +Upon receiving the notice in due form the registrar will issue a +certificate at once addressed to any officiating minister, or to himself, +authorizing the solemnization of the marriage. All marriages must be +registered, and the officiating minister or officer who fails to have the +record made is subject to punishment. + +Ordinarily, the best proof of a marriage is to produce the marriage +certificate, together with proof identifying the parties, but if the +record is lost, destroyed or never existed proof of the marriage may be +given by direct oral evidence. + +In most instances it is necessary to produce clear evidence of a marriage +ceremony, but in some exceptional cases a marriage may be proved by long +reputation. That is, if two persons live together as husband and wife for +many years, and if they have always been regarded as such by their friends +and neighbours, the courts will presume a legal marriage unless evidence +is produced to prove that the parties were not lawfully married. + +DIVORCE.--An absolute divorce may be obtained according to the provisions +of the Divorce and Matrimonial Compilation Act of 1904 by a husband or +wife who has been domiciled in the Dominion of New Zealand for two years +or upwards on the following grounds: + +1. Adultery of either spouse. + +2. Wilful and continuous desertion without just cause for five years and +upwards. + +3. Habitual drunkenness for four years with habitual cruelty or desertion +on the part of the husband. + +4. Habitual drunkenness for four years with habitual neglect of her +household duties on the part of the wife. + +5. Conviction and sentence to imprisonment or to penal servitude for seven +years or upward for attempting to take the life of the petitioner. + +ANNULMENT OF MARRIAGE.--A marriage is annulled on the theory that true and +proper consent to the marriage contract has never been given by the +parties. The causes or grounds for such annulment are: + +1. A prior and existing marriage of one of the parties. + +2. Impotency or such physical malformation of one of the parties which +prevents him or her from consummating the marriage by sexual intercourse. + +3. Relationship of the parties within the forbidden degrees of +consanguinity or affinity. + +4. That the marriage was procured by fraud or violence of one of the +parties. + +5. Mistake as to identity. + +6. That the marriage was performed without the required legal +preliminaries. + +7. Insanity of one of the parties at the time the marriage was solemnized. + +Concerning the sixth cause the tendency of judicial interpretation and +construction is to treat the legal requirements concerning formalities to +be merely directory and to consider the marriage itself, if at least one +of the parties acted in good faith, to be valid. + +The courts of New Zealand view many of the statutory requirements +concerning marriage to be necessary and proper regulations, and which, if +disregarded, subject certain persons to fixed penalties, but are not +necessarily essential to the marriage contract. + +EFFECTS OF DIVORCE AND ANNULMENT.--The parties may remarry. During the +pendency of the suit for divorce the husband is liable to provide his wife +with maintenance or alimony. The amount granted is within the court's +discretion, but generally it is about twenty-five per centum of the +husband's income. + +Upon the granting of a divorce decree in the wife's favour the court has +power to grant the wife permanent alimony, the amount of which depends on +all such facts as the husband's fortune and income, the wife's income and +needs and the social status of the parties. + +If there are children under full age, the issue of the marriage, the court +will in the exercise of its discretion make such order concerning their +custody, support and education as the ends of justice may require. + +JUDICIAL SEPARATION.--Under the Divorce and Matrimonial Compilation Act a +decree of judicial separation, which is the same in effect as a divorce +from bed and board under the old law, may be obtained by either spouse +upon the following grounds: + +1. Adultery. + +2. Cruelty. + +3. Desertion without just cause continued for two years. + +SUMMARY JURISDICTION ACT.--Besides the ordinary suit for a judicial +separation a wife may obtain speedy and inexpensive relief by making an +application to a stipendiary magistrate for an order of separation and +maintenance. + +The causes sufficient for the granting of such relief are: + +A. Habitual drunkenness of the husband, coupled with habitual cruelty to, +or neglect of, the wife and family. + +B. Desertion by the husband of his wife. + +C. Habitual cruelty of the husband toward his wife. + +D. Neglect of the husband to provide reasonable maintenance for his wife +and minor children. + +A husband is entitled to summary relief permitting him a separation order +upon proof that his wife is an habitual drunkard who habitually neglects +her household duties. + + + + +CHAPTER XXXIII. + +THE HINDU LAW. + + +For every person in the world whose rule of civil conduct is based upon +the English system of jurisprudence there are two others to whom Hindu law +is both binding by political authority and the rule of conscience. + +The student of law and world politics will note with interest two +impressive facts concerning Hindu jurisprudence in India. The first is +that until the accession of British rule in that country the Hindu law was +not law in the sense in which the term is understood by lawyers. The +second fact is that the acknowledged jurisconsults and commentators upon +the Hindu law of to-day are not Hindus, but British and Anglo-Indian +jurists. + +Prof. Golapchandra Sarkar, in his admirable treatise, says: "The +administration of the Hindu law by the English judges shows forth in clear +light the administrative capacity, the indomitable energy, the scrupulous +care and the strong common sense of the English nation." + +In treating of the marriage and divorce laws of over two hundred and +twenty-five millions of human beings who are Hindus by race and religion, +the first question to be answered is: What is Hindu law? Hindu law is the +whole body of rules regulating the life of a Hindu in relation to his +civil conduct and the performance of his religious duties grouped together +under the general name of _Dharma Sastra_, or religious ordinances. + +The ultimate source of this wonderful system is the Veda, but the Hindu +also accepts an immemorial custom as transcendant law, contending that +such acceptance is approved in the sacred scripture and in the codes of +divine legislators. + +In the Mahabharat we read: "Reasoning is not reliable; the Vedas differ +from one another; and there is no sage whose doctrine can be safely +accepted; the true rule of law is not easy to be known; the ways of +venerable persons are, therefore, the best to follow." + +The Hindus have for centuries been governed by their own laws, which they +regard not as the edicts of a political sovereign, nor as the enactments +of a human legislature, but as the immutable commands of the Supreme Being +of the universe. With such reverence have these laws been regarded that no +Hindu king of whom we have any historical record ever dared to repeal, +alter or modify one of them. For the past century such progress as Hindu +law has made is due entirely to the action of the British courts in India. + +As we called attention to in the chapter on Mohammedan law, there are four +distinct systems of jurisprudence in India, all in full operation and +effect. Two of these systems, the English law created by the British +Parliament and Anglo-Indian law created by the legislative councils, are +territorial in jurisdiction, while the others, namely, the Hindu law and +the Mohammedan law, are purely personal. That is to say, the Hindu and +Mohammedan systems of law apply respectively to Hindus and Mohammedans, +and to no one else. + +At the beginning of British rule in India the government of the East India +Company gave the native inhabitants of the country the privilege of being +governed by their own laws in matters relating to marriage, inheritance +and religious usages. + +In the regulations promulgated by Warren Hastings in 1772, and since in +the various civil acts and charters establishing the law courts, the rule +is expressed that in cases relating to marriage, inheritance, succession +and religious usages the Hindu law shall apply to the Hindus. + +The Privy Council decided in the leading case of Abraham v. Abraham that +under the regulations and acts a Hindu is a man by both birth and religion +a Hindu. + +In the case of Raj Bahadur v. Bishen Dayal, Mr. Justice Straight said: "If +we are correct in our view that the status of a Hindu or Mohammedan under +the first paragraph of Section 24, Act VI., of 1871, to have the Hindu law +made the 'rule of decision,' depends upon his being an orthodox believer +in the Hindu or Mohammedan religion, the mere circumstance that he may +call himself or be termed by others a Hindu or Mohammedan, as the case may +be, is not enough." + +CASTE.--The idea of caste or class distinction so completely permeates +every religious and secular institution of India that one cannot +understand Hindu law without having in mind the principal features of this +social system. + +The Vedas, upon which the whole structure of Hindu religion and ethics +professes to be based, give no countenance to the present regulations of +caste. + +The Sanscrit word for caste is _verna_, meaning colour, and this leads us +to the true origin of caste distinctions. The _verna_, or colour, of the +light-complexioned Aryan invaders who entered India from the Northwest and +the _verna_ of the dark-skinned aborigines whom they subjugated +established the first distinctions of caste. + +There are four principal castes to-day among the Hindus, namely: + +1. _Brahmin_, or priest caste. + +2. _Kshatriya_, or warrior caste. + +3. _Vaisya_, or merchant caste. + +4. _Sudra_, or servant caste. + +A fifth class, called _Pariahs_, are of no caste, and are practically +outside the law. + +The first three upper classes or castes are also called "twice-born" men, +because they are supposed to be regenerated or "born in the Veda." + +So, generally, are the distinctions of caste recognized that Pope Gregory +XV. found it advisable to publish a bull sanctioning caste regulations in +the Christian churches of India. + +The Hindus attach great importance to the marriage. It is regarded by them +as one of the ten _sankars_, or sacraments, necessary for the regeneration +of men of the twice-born classes, and the only sacrament for women and +_Sudras_. + +The Veda says: "A Brahmin immediately upon being born is produced a debtor +in three obligations: to the holy saints for the practice of religious +duties; to the gods for the performance of sacrifice; to his forefathers +for offspring." + +Manu ordains that "after a man has read the Vedas in the form prescribed +by law, has legally begotten a son and has performed sacrifices to the +best of his power, he has paid his three debts and may then apply his +heart to eternal bliss." + +The Hindus hold the marriage relation in such respect that the question of +the validity of a marriage is rarely submitted to the courts for judicial +determination. + +The law of the Catholic Church treats marriage as a sacramental contract +dissoluble only by death, but the Hindu law goes further by declaring +against the remarriage of widows. + +This rule of Hindu has been legislated upon by Act XV. of 1856, which +makes a Hindu widow eligible for a new marriage, but the marriage of a +widow has never been the practice among Hindus. + +Mann says: "A widow who from a wish to bear children slights her deceased +husband by marrying again brings a disgrace on herself here below and +shall be excluded from the seat of her lord." + +Polygamy, or plurality of wives, is permitted by the Hindu law, but is +rarely practiced. + +Polyandry, or plurality of husbands, is contrary both to the Hindu law and +the provisions of the Indian Penal Code. + +The three higher castes are permitted to intermarry with the caste next +below their own, the issue taking the lower caste or sometimes forming a +new caste. + +In many ways the theoretical inferiority of the _Sudra_ absolves him from +the restraints which the letter of the law lays on the three higher +castes. + +AGE FOR MARRIAGE.--In the Hindu law want of age, though a disqualification +for other purposes, does not render a person incompetent to marry. + +Ordinarily the lowest age is eight years for females, but a girl may be +married before that age if a suitable husband is procured for her. If none +of the persons who ought to give a girl in marriage do so before she +completes her eleventh year she may choose a husband for herself. + +A girl must be given in marriage before she attains puberty. The reason +for marrying off a girl before she reaches the age of puberty is that the +marriage should be free from sexual desire. + +PARENTAL CONSENT.--The Hindu law vests the girl absolutely in her parents +and guardians, by whom the contract of her marriage is made, and her +consent or absence of consent is not material. The consent of the parents +is required for the marriage of minors--that is, persons under fifteen +years of age. The parties authorized to give or withhold such consent are +the father, the paternal grandfather, the brother, a _sakulya_ or kinsman +in succession. + +The want of parental consent, or the consent of the person standing in +_loco parentis_, does not invalidate a marriage otherwise legally +contracted. + +IMPEDIMENTS.--Disqualifications or impediments are absolute or relative. A +disqualification which renders a party incompetent to marry any person is +absolute, while one which simply renders a party incompetent to a +particular person is termed relative. + +A woman with a husband living is absolutely disqualified from contracting +a new marriage. + +Idiots and lunatics are disqualified for civil purposes only, although the +Hindu law permits a wife to desert or disobey an insane husband. + +Deaf and dumb persons, or those afflicted with incurable or loathsome +diseases, are competent to marry, but cannot insist upon conjugal rights. +Among the three highest castes (the twice-born) impotency is not an +impediment to marriage, but for those of the lowest caste (_Sudras_) it is +a disqualification. + +A twice-born husband who was impotent was for centuries permitted to +appoint a kinsman to beget issue by his wife, but this is now forbidden. + +The female must be younger than her husband and of the same caste. + +A girl whose elder sister is unmarried, or a man whose elder brother is +unmarried, is not eligible for marriage. + +MARRIAGE CEREMONIES.--Ceremonies of some sort, religious or secular, are +requisite to the concluding of a valid marriage. The ceremony may be that +of "walking seven steps" or merely the exchange of a garland of flowers. +The question as to whether or not a marriage is ceremonially complete +depends largely upon what ceremonies are customary among the parties +concerned. + +Consummation is not necessary to complete a marriage. In thousands of +cases girls under ten years of age have been married to males older than +themselves who have died before their wives were old enough for the +consummation of marriage. Such a situation has brought about the sad +plight of the tens of thousands of child widows in India. If a girl of +eight years of age is ceremoniously married to a man and immediately +thereafter returns to her father's home to await the time when she shall +be old enough to assume conjugal duties, she is from the moment the +ceremony of marriage is completed a married woman, and if her husband dies +the next day she is an eight-year-old widow whom no orthodox Hindu will +marry. + +When the British first came to India it was a general practice for widows +to voluntarily submit to be burned alive with the corpses of their +deceased husbands. This savage practice was called a _suttee_, and by it +millions of child and adult widows were burned to death. By a provision of +the Indian Penal Code such a death is treated as a suicide, and all who +participate in the offence are holden for homicide. We are glad to record +that the British Government has so thoroughly enforced the law in this +respect that _suttees_ have been entirely abandoned by the Hindus. + +CONSANGUINITY AND AFFINITY.--Baudhayana says: "He who inadvertently +marries a girl sprung from the same original stock with himself must +support her as a mother." + +Marriage between ascendants and descendants is unlawful. + +Marriage is also prohibited between a twice-born man and a woman who is of +the same _gotra_, or primitive stock. + +The woman must not be the daughter of one who is of the same _gotra_ with +the bridegroom's father or maternal grandfather. Neither must she be a +_sapinda_ of the bridegroom's father or maternal grandfather. _Sapinda_ in +the Hindu law means descended from ancestors within the sixth degree. That +is, from persons in the ascending line within the seventh degree from the +intending husband. The _sapinda_ relationship ceases after the fifth and +seventh degrees from the father and mother respectively. + +A _Sudra_ has no _gotra_ of his own. + +DIVORCE.--Divorce in the ordinary sense is unknown to the Hindu law. The +Hindus contend that even death does not dissolve the bond of marriage. + +The single case in which a dissolution of a Hindu marriage can be granted +by a court of law is under Act XXI. of 1860, which was enacted to meet the +complications which arise when one of the spouses becomes a Christian. If +the convert, after deliberation for a prescribed time, refuses to cohabit +further with the other spouse, the court may upon petition declare the +marriage to be dissolved, and either party is free to marry again. + +There are some low castes in the Bombay Presidency, in Assam and +elsewhere, among whom the practice of irregular divorce and remarriage of +the parties prevails. The causes for divorce are mutual consent of the +parties and ill-treatment. These divorces, although permitted by custom, +are not recognized by the courts. + +RESTITUTION OF CONJUGAL RIGHTS.--A Hindu husband or wife can maintain a +lawsuit to obtain a judicial separation against a deserting spouse for +restitution of conjugal rights, but a Hindu convert to Christianity cannot +obtain such a decree if his wife remains a Hindu. + + + + +CHAPTER XXXIV + +THE CHINESE EMPIRE. + + +A treatise on the marriage and divorce laws of the world would be +incomplete without a chapter dealing with the law of the most compact +nationality in history. + +Chinese law is the growth of many centuries and is based on immemorial +custom, but with all its antiquity and wealth of precedent, it has not yet +passed the system of exacting testimony from witnesses by physical +torture. + +The first evidence of civil law to be found in Chinese history or +tradition is the recognition and regulation of the status of marriage. Its +fundamental principle is parental authority. + +Though in a sense systematic, the laws of China are not as yet in a +concentrated or scientific form. Under the present dynasty the collection +of laws which is applied by the courts is called _Ta Ch'ing Lii Li_. + +Two things are to be said in favour of the laws of China--the first being +that every Chinese is within the law, and that the person is considered of +more importance than property. + +MARRIAGE.--A Chinese is not permitted to have more than one wife. He may, +however, in addition, keep concubines, or "secondary wives." Both wives +and concubines have a legal status. + +The wife is considered to be a relative of all her husband's family, but a +concubine is not so considered. It is an offence for a man to degrade his +wife to the level of a concubine, or to elevate a concubine to the level +of his wife. + +The consent of the parties, which is the first requisite of a valid +marriage in Christendom, is legally of no consequence in China. It is the +consent of the parents of the respective parties which is material and +necessary. + +The consent of the father of the woman is sufficient, and if he is dead +then the mother may give the necessary consent. + +The preliminary stages of a Chinese marriage are elaborately formal. It is +the duty of the families of the intended bride and bridegroom to ascertain +whether or not the parties have the capacity to conclude marriage. Certain +introductions and exchange of social courtesies follow. If everything +appears satisfactory the parties acting on behalf of the intended bride +send a note of "eight characters" to the parties acting in behalf of the +prospective bridegroom, which note is practically a proposal of marriage. +If the terms of the proposed marriage are agreed upon the next thing is +for the representatives of the parties to draft and execute the articles +of marriage. + +The courts will hold it to be a marriage if the betrothal is regular, even +if there is no consummation. + +It is essential to a legal marriage that the written consent of the woman +be obtained; it is not sufficient that the woman herself gives free +consent. + +Fraud makes the marriage a nullity. In his book, "Notes and Commentaries +on Chinese Criminal Law," Mr. Ernest Alabaster tells of the case of "Mrs. +Wang." It appears that an old reprobate, knowing that the girl's parents +would refuse him because of his ugliness of face and character, sent a +handsome young nephew to represent him in the marriage negotiations. The +impersonation brought about the signing of the contract, and the old man +secured possession of the bride. Soon after the wedding he ill-treated his +young wife and one night she strangled him. The court decided that the +woman had committed an unjustifiable homicide and that the victim was not +her husband. + +IMPEDIMENTS.--Intermarriage is forbidden between ascendants and +descendants and between kinsmen by consanguinity or affinity up to the +fourth degree. + +Marriage is also forbidden between persons having the same _Hsing_, or +surname. + +A free person cannot contract a valid marriage with a slave. + +A mother and daughter must not marry father and son. + +Marriage is absolutely forbidden to a Buddhist or Taoist priest. + +An official must not marry a wife or buy a concubine within his +jurisdiction. + +It is unlawful for a person of official rank to take as his secondary wife +or concubine an actress, singing woman or a prostitute. + +No one must marry a female fugitive from justice. + +Marriage of a deceased brother's widow is against the law. + +It should be remembered that it is a criminal offence to contract an +invalid marriage. For example, not very long ago a prince of the Imperial +family purchased a singing girl as his secondary wife or concubine. The +marriage was declared null and he was sentenced to receive sixty blows for +attempting to contract an illegal secondary marriage. + +WIDOWS.--A widow or divorced woman can contract a new marriage, but she +must first obtain consent of her parents and wait until the customary +period of mourning is completed. + +DIVORCE.--As an institution divorce is almost as ancient in China as +marriage. Marriage is not considered as in any respect a religious +contract, but as a status created principally for the comfort of man and +the continuance of the race. As woman is considered an inferior creature +to man she has not the same rights in or out of a court of law. However, +she can obtain, against her husband's will, an absolute divorce on the +following grounds: + +1. Impotency. If her husband is unable to perform the sexual act a wife +can compel him to grant her a deed of divorcement. + +2. If a man sells his wife to another the woman is _ipso facto_ divorced +from both men. + +3. If a man induces his wife to become a prostitute, or accepts her +earnings as such, the wife is entitled to a decree of absolute divorce. + +We can find no other causes which entitle a woman to a divorce from her +husband. His adultery, cruelty, abandonment, neglect or drunkenness +furnishes no ground for a dissolution of the marriage. + +For a husband divorce is very easy. The so-called "seven valid reasons" +enable any man so inclined to practically discard his wife when it pleases +him. The seven "reasons" or causes are: + +1. Talkativeness. + +2. Wantonness. + +3. Theft. + +4. Barrenness. + +5. Disobedience to parents of husband. + +6. Jealousy. + +7. Inveterate infirmity. + +The last of the seven reasons permits a man to get rid of a wife who is +incurably ill or infirm. + +MUTUAL CONSENT.--If husband and wife mutually agree upon divorce the +courts, by ancient custom, will ratify their agreement. Although the +Chinese law does not consider the consent or non-consent of the parties as +of any consequence in creating the status of marriage, it, by a peculiar +process of logic, permits them to end the relationship whenever they +mutually please so to do. + +Perhaps one can easier understand the marriage and divorce laws of the +Chinese Empire by remembering that all Chinese laws are supposed to follow +the instincts of the people (_Shun po hsing chi ching_). + +GENERAL OBSERVATIONS.--The present laws and customs of China are but +little changed from the time of the Tang Dynasty, which reigned nearly +thirteen hundred years ago. + +Then, as now, a poor man who finds himself unable to support his wife, +may, if she has no parents to take her back, sell her to his richer +neighbour. + +The judicial machinery of the Chinese Empire is the elaboration of +centuries of customs and precedents. In the first instance parties seeking +legal redress apply by complaint to the lowest court having jurisdiction +within the district of their domicile. If dissatisfied with the decision +an appeal can be made first to the District Magistracy, then to the +Prefecture, and after that to the Supreme Provincial Court. If the +questions involved are sufficiently important a further appeal may be +prosecuted before the Judiciary Board, which sits in Peking and is the +highest judicial court in the Empire. + +In theory a defeated suitor can appeal from the Judiciary Board to the +fountain of law and justice, His Imperial Majesty, the Emperor of China, +but there are few cases, according to the record, which have gone so far. + +We are of the opinion that Chinese law will never approach a scientific +system until China recognizes the necessity and value of having +professional advocates and jurists to point out the way to better things. + + + + +INDEX + + + A + + Alabama, 151 + + Alaska, 152 + + Alberta, 207 + + Algeria, 137 + + Argentina, 218 + + Arizona, 153 + + Arkansas, 154 + + Australia, 238 + + Austria, 67 + + + B + + Belgium, 53 + + Brazil, 223 + + British Columbia, 206 + + Bulgaria, 129 + + + C + + California, 155 + + Canada, 199 + + China, 265 + + Colorado, 156 + + Connecticut, 158 + + Cuba, 227 + + + D + + Delaware, 159 + + Denmark, 81 + + District of Columbia, 157 + + + E + + Egypt, 137 + + England, 16 + + + F + + Finland, 94 + + Florida, 161 + + France, 38 + + + G + + Georgia, 162 + + Germany, 60 + + Greece, 132 + + + H + + Hindu Law, 256 + + Holland, 100 + + Hungary, 72 + + + I + + Idaho, 163 + + Illinois, 164 + + India, 137 + + Indiana, 165 + + Indian Territory, 165 + + Iowa, 166 + + Ireland, 36 + + Italy, 46 + + + J + + Japan, 104 + + Jews, Laws for, 96 + + + K + + Kansas, 167 + + Kentucky, 167 + + + L + + Louisiana, 168 + + + M + + Maine, 169 + + Manitoba, 199 + + Maryland, 169 + + Massachusetts, 170 + + Mexico, 209 + + Michigan, 172 + + Minnesota, 172 + + Mississippi, 173 + + Missouri, 174 + + Mohammedan Law, 137 + + Montana, 175 + + Morocco, 137 + + + N + + Nebraska, 175 + + Nevada, 176 + + New Brunswick, 206 + + Newfoundland, 208 + + New Hampshire, 177 + + New Jersey, 177 + + New Mexico, 179 + + New South Wales, 246 + + New York, 179 + + New Zealand, 250 + + North Carolina, 184 + + North Dakota, 184 + + Northwest Territories, 207 + + Norway, 85 + + Nova Scotia, 207 + + + O + + Ohio, 185 + + Oklahoma, 186 + + Ontario, 204 + + Oregon, 187 + + + P + + Pennsylvania, 187 + + Persia, 137 + + Portugal, 117 + + Prince Edward Island, 199 + + + Q + + Quebec, 204 + + Queensland, 248 + + + R + + Rhode Island, 189 + + Roumania, 121 + + Russia, 89 + + + S + + Saskatchewan, 199 + + Scotland, 32 + + Servia, 125 + + South Australia, 248 + + South Carolina, 190 + + South Dakota, 190 + + Spain, 110 + + Sweden, 76 + + Switzerland, 57 + + + T + + Tasmania, 248 + + Tennessee, 191 + + Texas, 192 + + Transylvania, 72 + + Turkey, 137 + + + U + + United States of America, 148 + + Utah, 193 + + + V + + Vermont, 193 + + Victoria, 243 + + Virginia, 194 + + + W + + Washington, 195 + + West Australia, 248 + + West Virginia, 196 + + Wisconsin, 197 + + Wyoming, 198 + + + + + + +End of the Project Gutenberg EBook of Marriage and Divorce Laws of the World, by +Hyacinthe Ringrose + +*** END OF THIS PROJECT GUTENBERG EBOOK MARRIAGE/DIVORCE LAWS OF WORLD *** + +***** This file should be named 35760.txt or 35760.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/5/7/6/35760/ + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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