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 amurder 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 allother 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.
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 ofthe 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.
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 ofhis 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 ProtestantChristians 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.
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 shortenedby 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 retainsall 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.
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 asno 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 theRaskolniken, 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 exerciseof 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 solemnizedbefore 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 divorceis 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 herkorobka, 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 akorobka, 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.
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 maybe 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 heardin 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.
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, hasquit 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 amukoyoshi, enters the house of his wife.
Amukoyoshiis 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 byeither 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 areipso factodivorced.
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 348et 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 amukoyoshi, 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.