Marriage and Divorce Laws of the World

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

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.