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 ofLords 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.
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 civildomicile 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 partiesto 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 atranslation 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 theconsent 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 tomake 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, uponthe 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.
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 adjudgedof 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. Anyonemay 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 betweenwhom 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 withoutthe 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 inflagrante 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.
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 bothare 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 themarriage 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.
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 whosemarriage 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 togetherby 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.
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 theGermaniaof 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.
ThePersonenstandsgesetz, 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 lawon 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 factsas 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 175inclusive, 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 alsobound 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.
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 mindsby 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. Sucha 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.