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Originally appearing in Volume V08, Page 344 of the 1911 Encyclopedia Britannica.
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OTHER EUROPEAN COUNTRIES We may now turn to the law of divorce as administered in the other countries of the modern world. On the main question whether marriage is to be considered indissoluble they will be found to range themselves on one side or the other according to the influence upon them of the Church of Rome and its canon law. In Scotland it has long been the law that marriage can be dissolved at the instance of either party by judicial sentence on the grounds of adultery or of desertion, termed non-adherence, and the spouses could in such case remarry, except with the paramour, —at all events if the paramour was named in the decree (and the name is sometimes omitted for that reason). A divorce a mensa et thoro could also be granted for cruelty. By the Court of Session Act 183o, the jurisdiction in divorce was transferred from a body of commissaries to the court of session. By the law of Holland complete divorce could be granted by judicial sentence on the grounds of adultery or of wilful and malicious desertion, to which were added unnatural offences and imprisonment for life, and such divorce gave the power of re-marriage, except with the person with whom adultery was proved to have been committed, but there would seem to be a doubt whether this power extended to the guilty party (Voet, De divortiis, lit. 24, tit. 2). Divorce a mensa et thoro could be granted on the grounds allowed by the canon law. The Code of Prussia of 1794 contained elaborate provisions which gave great facility of divorce. A complete divorce could be obtained by judicial sentence for the following causes:—(1) Adultery or unnatural offences; and adultery by a husband formed no bar to his obtaining a divorce against his wife for adultery; and even an illicit intimacy, from which a presumption of adultery might arise, was held sufficient for a divorce. (2) Wilful desertion. (3) Obstinate refusal of the rights of marriage, which was considered as equivalent to desertion. (4) Incapacity to perform the duties of marriage, even if arising subsequent to the marriage; and the same effect was assigned to other incur-able bodily defects that excited disgust and horror. (5) Lunacy, if after a year there was no reasonable hope of recovery. (6) An attempt on the life of one spouse by the other, or gross and unlawful attack on the honour or personal liberty. (7) Incompatibility of temper and quarrelsome disposition, if rising to the height of endangering life or health. (8) Opprobrious crime for which either spouse has suffered imprisonment, or a knowingly false accusation of such crime by one spouse of the other. (9) If either spouse by unlawful transactions endangers the life, honour, office or trade of the other, or commences an ignominious employment. (to) Change of religion. In addition to these causes, marriages, when there were no children, could be dissolved by mutual consent if there be no reason to suspect levity, precipitation or compulsion; and a judge had also power to dissolve a marriage in cases in which a strongly rooted dislike appeared to him to exist. In all cases of divorce, but sometimes subject to the necessity of obtaining a licence, remarriage was permissible (see Burge, Commentaries on Colonial and Foreign Law, vol. i. 649). Before 1876 only a divorce a vincula could be obtained in some of the German states, especially if the petitioner were a Roman Catholic. The only relief afforded was a " perpetual separation." By the Personal Status Act 1875 perpetual separation orders were abolished and divorce decrees allowed in cases where the petitioners would, under the former law, have been entitled to a perpetual separation order. However, two Drafting Commissions under the act declined to alter the new rule, but under pressure from the Roman Catholic party the Reichstag passed a law introducing a modified separation order, termed " dissolution of the conjugal community " (Aufhebung der ehelichen Gemeinschaft). This order can be converted into a dissolution of the marriage at the option of either party. Under the Civil Code of 1900 a petitioner can obtain a divorce or judicial separation on " absolute " or " relative " grounds. In the former case if the facts are established the petitioner is entitled to the relief prayed for; in the latter case, it is left to judicial discretion. The absolute grounds are adultery, bigamy, sodomy, an attempt against the petitioner's life or wilful desertion. The relative grounds are (a) such grave breach of marital duty or dishonourable or immoral conduct as would disturb the marital relation to such an extent that the marriage could not reasonably be expected to continue; (b) insanity, continued for more than three years during the marriage, and of so severe a nature that intellectual community between the parties has ceased and is not likely to be re-established. A divorced wife, if not exclusively the guilty party, may retain her husband's name; but if exclusively guilty, her former husband may compel her to resume her maiden name. By the law of Denmark, according to the Code of King Christian the Fifth, complete divorce could be obtained for incest; for leprosy, whether contracted before or after marriage; for transportation for crime or flight from justice, after three years, though not for crime itself; and for exile not arising from crime, after seven years. In Sweden complete divorce is granted by judicial sentence for adultery, and in Russia for that cause and also for incompatibility of temper (Ayliffe, Par. 49). On the other hand, in Spain marriage is indissoluble, and the ecclesiastical courts have retained their exclusive cognizance of matrimonial causes. In Italy certain articles of the Civil Code deal with separation, voluntary and judicial, but divorce is not allowed in any form. In France the law of divorce has had a chequered history. Before the Revolution the Roman canon law prevailed, marriage was considered indissoluble, and only divorce a mensa et thoro, known as la separation d'habitation, was permitted; though it would appear that in the earliest age of the monarchy divorce a vinculo matrimonii was allowed. La separation d'habitation was granted at the instance of a. wife for cruelty by her husband or false accusation of a capital crime, or for habitual treatment with contempt before the inmates of the house; but a wife could not obtain a separation for adultery by her husband, although he had his remedy in case of adultery by his wife. In every case the sentence of a judicial tribunal, which took precautions against collusion, was necessary. But the Revolution may be said to have swept away marriage among the institutions which it overwhelmed, and by the law of the loth of September 1792 so great facility was given for divorce a vinculo matrimonii as practically to terminate the obligations of marriage. A reaction came with the Code Napoleon, yet even under that system of law divorce remained comparatively easy. Mutual consent, expressed in the manner and continued for a period specified by the law, was cause for a divorce (the principle of the Roman law being adopted on this point), but such consent could not take place unless the husband was twenty-five years of age and the wife twenty-one, unless they had been married for two years, nor after twenty years of marriage, nor after the wife had completed her forty-fifth year; and further, the approval of the parents of both parties was required. In case of divorce by consent, the law required that a proper agreement should be made for the maintenance of the wife and the custody of the children. A husband could obtain a divorce a vinculo matrimonii for adultery, but the wife had no such power unless the husband had brought his mistress to the home. Both husband and wife could claim divorce on the ground of outrage, or grievous bodily injury, or condemnation for an infamous crime. If the divorce was for adultery, the erring party could not marry the partner of his or her guilt. A divorce a mensa et thoro could be obtained on the same groundsas a divorce a vinculo, but not by mutual consent; and if the divorce a mensa et thoro continued in force for three years, the defendant party could claim a divorce a vinculo. On the restoration of royalty in 1816 divorce a vinculo was abolished, and pending suits for divorce a vinculo were converted into suits for separation only. Divorce in France, after the repeal of-the provisions respecting it in the Code Napoleon in 1816, was re-enacted by a law of the 27th of July 1884, the provisions of which were simplified bylaws of 1886 and 1907. But a wide departure was made by these laws from the terms of the Code Napoleon. Divorce by consent disappeared, and the following became the causes for which divorce was allowed: (1) Adultery by either party , to the marriage at the suit of the other, without, in the case of adultery by the husband, the aggravation of introduction of the concubine into the home required by the Code; (2) violence .(exces) or cruelty (sevices) ; (3) injures graves; and (4) peine afflictive et infamante. Exces is defined by Locie as " a generic expression comprising all acts tending to compromise the safety of the person, without distinction as to their object or motive, pre-meditation as well as furious anger, attempts upon life as well as serious woundings." Seaices are acts of ill-treatment less grave in character, which, while not endangering life, render existence in common intolerable (Kelly's French Law of Marriage, p. 122). Injures graves, as to which the courts have considered themselves entitled to exercise a wide discretion, have been defined as acts, writings or words which reflect upon the honour or the reputation of the party against whom they are directed. The courts have held that retraction at the trial does not relieve the party from the consequences of an injure grave, and that publicity is an aggravating but not a necessary element. A letter from one spouse to the other may constitute an injure and the courts have further held themselves at liberty to consider letters written after divorce proceedings have been commenced. Injures graves have also been considered to include material injuries, and among these have been classed habitual and groundless refusal of matrimonial rights, communication of disease and refusal to consent to a religious ceremony of marriage. Habitual but not occasional drunkenness has also been held to fall within the definition of an injure grave. Peine afflictive et infamante signifies a legal punishment involving corporal confinement and moral degradation.) In addition to its recognition of full divorce, the French law recognizes separation of two kinds, one separation de biens and the other separation de corps. The effect of separation de biens is merely to put an end to the community of goods between the spouses. It necessarily follows, but maybe decreed independently' of separation de corps. The grounds of separation de corps are the same as those for a divorce; and if a separation de corps has existed for three years, it may be turned into a divorce upon the application of either party to the court. Until 1893 a wife separee de corps obtained only the capacity attaching to- a concomitant separation de biens; that is to say, she recovered the enjoyment and management of her separate property, but could not deal with real property, nor take legal proceedings, without the sanction of her husband or of the court. But by a law of the 6th of February 1893 a wife separee de corps obtains "the full exercise of her civil capacity, so that she shall not need to resort to the authority of her husband or of the court." In case of reconciliation, the wife returns to the limited capacity of a wife separee de biens, and after the prescribed notification of such change of status it becomes binding on third persons. The provisions of French law with regard to the custody of the children of a dissolved marriage, and with regard to property, do not differ materially from those prescribed by the English acts. The custody of children is given to the party who has obtained the divorce, unless the court, on the application of the family, or the ministere public, consider it better, in the interests of the children, that custody should be given to the other party or a third person; but in every case the right of both father and mother to supervise the maintenance and education of the children, and their liability to contribute to their support, are continued. 1 It is interesting to observe how, according to the latest decisions of the House of Lords, cruelty, according to English law, includes some but not others of the forms of injury for which, under the term of injures graves, the French law affords a remedy. It may well be doubted whether the view taken by the minority of the peers in Russell v. Russell, which would have included in the definition of cruelty all, or nearly all, of that which the French law deems either sevices or injures graves, would not have better satisfied both the principles of English jurisprudence and the feelings of modern life. 344 The law in France as to property on a divorce has been accurately stated as follows : " Divorce in France effects a dissolution of the matrimonial regime of property as well as of the marriage itself. The decree appoints a notary, who is charged with the settlement of the pecuniary interests of the parties. By a stereotyped form of procedure the appointment is made invariably for the purpose of liquidating la communaute ayant existe entre les epoux, irrespective of whether the regime really was that of community or another. In the case of aliens, therefore, married under the rule of separate property, it is necessary carefully to set this out in the notarial deed of liquidation, in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pronounced loses the benefit t of all settlements made upon him or her by the other party, either by the marriage contract or since the marriage. On the other hand, the party in whose favour the divorce has been pronounced preserves the benefit of all settlements made in his or her favour by the unsuccessful party. If no such settlements were made, or if those made appear inadequate to ensure the subsistence of the successful party, the court may grant him or her permanent alimony out of the property of the other party, not to exceed one-third of the income, and revocable in case it ceases to be necessary " (Kelly, p. 130). On a divorce both parties are at liberty to remarry. The husband could remarry at once; but the wife (art. 296 of the Code) was only allowed to remarry of ter an interval of ten months. By the act of 1907, this article was abolished, and the wife allowed to remarry as soon as the judgment or decree granting the divorce has been entered, providing 300 days have elapsed since the first judgment was pronounced. A divorced husband may remarry his divorced wife, but if he does so, he cannot be again divorced, except on the ground of a sentence to a peine afflictive et infamante passed on one of them since their remarriage. There is, however, this limitation on the power of remarriage of divorced persons, that the party to the marriage against whom the decree has been pronounced is not allowed to marry the person with whom his or her guilt has been established. Such person, however, has no such rights as are recognized in him or her according to English law, and cannot take any part in the proceedings. But his or her name is referred to in the proceedings only by an initial; and French law goes even further in the avoidance of publicity, inasmuch as the publication of divorce proceedings in the press is forbidden, under heavy penalties. By a law of the 6th of February 1893 French jurisprudence, more complete at least, and perhaps wiser, than English, dealt with a matter previously in controversy, and decided that after a divorce the wife shall resume her maiden name, and may not continue to use the name of her divorced husband; nor may the husband, for business or other purposes, continue to use the name of his wife. By the law of 1886 the special procedure in divorce previously in force under the Code and under the law of 1884 was abolished, and it was provided that matrimonial causes should be tried according to the ordinary rules of procedure. The action there-fore, when brought, follows the methods of procedure common to other civil proceedings. But there still remain certain necessary preliminaries to an action of divorce. A petition must be presented by a petitioner in person to the president of the court sitting in chambers, with the object of a reconciliation being effected. This is known as the premiere comparation. If the petitioner still determines to proceed, there follows the seconde comparation, on which occasion both parties appear before the president. If the president fails to effect a reconciliation, he makes an order permitting the petitioner to proceed, and deals with the matters necessary to be dealt with pendente lite, such matters being (r) separate residence, (2) alimony, (3) possession of personal effects, (4) custody of children. As regards residence, the wife is compelled to adhere during the proceedings to the residence assigned to her, but no similar restriction is placed on the husband. !Alimony pendente tile is in the discretion of the court, having regard to the means of the parties, and includes a proper provision for costs. As regards the custody of children, the Code and the law of 1884 gave it to the husband, unless the court otherwise orders, but the law of 1886 leaves the matter wholly in the discretion of the court. There are certain technical rules of evidence on the trial of[UNITED STATES a divorce action. It is a general principle of the French law of evidence that documentary evidence is the best evidence, and oral testimony only secondary. In divorce cases adultery flagrante delicto can be proved by the official certificate of the commissary of police. Letters between the husband and wife are admissible in evidence. As to letters between the parties and third persons, the law, which has been doubtful, now appears to be that the wife may produce only such letters from third parties to her husband as have come into her possession accidentally, and without any ruse or artifice on her part; but the husband may put in evidence any letters written to or by his wife which he has obtained by any, short of criminal, means. If the documents put in evidence are not sufficient to satisfy the court, there follows an investigation by means of witnesses, termed an enquete. A schedule of allegations is drawn up, and a judge, termed a juge-commissaire, is specially appointed to conduct the inquiry. Relatives and servants, though not competent witnesses in ordinary civil actions, are so in divorce proceedings. Cross petitions may be entered; the substantiation of a cross petition, however, does not have the effect, in some cases given to it by English law, of barring a divorce, but a divorce may be, and often is, granted in favour of and against both parties pour torts reciproques. When a case comes on for trial, it is in the power of the court to order an adjournment for a period not exceeding six months, which is termed a temps d'epreuve, in order to afford an opportunity for reconciliation. It is said, however, that this power is seldom exercised. An appeal may be brought against a decree of divorce within two months; and a decree made on appeal is subject to revision by the court of cassation within two months. Both references to the court of appeal and the court of cassation operate as a stay of execution. A decree must, by the law of 1886, be transcribed on the register of marriages within two months from its date, and failing this transcription, the decree is void. The transcription must be made at the place of celebration of the marriage, or, if the parties are married abroad, at the place where the parties were last domiciled in France. If the parties, after having married abroad, return to France, it has been provided, by a circular of the Procureur de la Republique in 1887, that the transcription may be made at the place of their actual domicile at the time of action brought, a rule which has been held to apply to the divorce of aliens in France. The effect of transcription does not relate back to the date of the decree. Opinions may differ as to the relative merits of the English and French law relating to divorce. But it cannot be denied that the French law presents a singularly complete and well-considered system, and one which, obviously with the English system in view, has endeavoured to graft on it provisions supplementing its omissions, and modifying certain of its terms in accordance with the light afforded by experience and the changed feelings of the modern world. The effect of the laws of 1884 and 1886 in France has been great. The act of 1907 dealing with divorce, coupled with that of the 21st of July of the same year dealing with marriage, may also be said to mark an epoch in the laws relating to women. During the five years from 1884 to 1888 the courts granted divorces in 21,064 cases, rejecting applications for divorce in 1524. In addition, there were 12,242 applications for judicial separation, of which 10,739 were granted. A distinguished French writer, the author of a work of singular completeness and accuracy on the judicial system of Great Britain has compared these figures with the corresponding result of the English act of 1857. His conclusion is expressed in these words: " On voit qu'en clnq annees nos tribunaux ont prononce trois fois plus de divorces clue la haute cour d'Angleterre n'en a rononce en trente ans. Je n'insiste pas sur Ies conclusions morales a tirer de ce rapprochement " (Comte de Franqueville, Le Systeme judiciaire de la Grande-Bretagne, ii. p. 171). It. is, however, practically impossible to compare the number of divorces in France and in England with exact justice, because, as will have been seen above, the causes of divorce in France materially exceed those recognized by English law; and the absence in France of any official performing the functions assigned to the king's proctor in England cannot but have great influence on the number of applications for divorce, as well as on their results. (ST H.)
End of Article: OTHER EUROPEAN

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