Spain.
Spain is a constitutional and hereditary monarchy, the powers of which are defined by the fundamental law of June 30, 1876. The legislative authority is exercised by the sovereign in conjunction with a parliamentary body called the Cortes, which is composed of two houses, a Senate and a Chamber of Deputies.
Spanish law is founded on the Roman law, the Gothic common law, the National Code of 1501, and the Civil Code of 1888, with its subsequent amendments and additions.
Spanish law is binding in the Spanish Peninsula and adjacent islands, the Canary Islands and such African territory as is subject to Spain.
Marriage.—The law recognizes two forms of marriage: the canonical, which all who profess the Catholic religion should contract; and the civil, which must be celebrated in the manner hereinafter stated.
Marriage is forbidden to:
1. Minors who have not obtained parental consent.
2. To a widow, during the three hundred and one days following the death of her husband or before childbirth, if she has been left pregnant.
3. To a guardian and his or her descendants, with respect to persons who are the wards of such guardian until the ending of the guardianship, and a proper accounting has been rendered by the guardian. An exception to this rule exists when the father of the ward has in his will or in apublic instrument expressly authorized such a marriage.
Age.—A male cannot marry until he has completed his fourteenth year of age; a female until she has completed her twelfth year.
Marriage contracted by persons under puberty shall, nevertheless, beipso factomade legal if a day after having arrived at the legal age of puberty, the parties continue to live together without bringing a suit to set aside the marriage, or if the female becomes pregnant before the legal age, or before the institution of a suit for annulment.
Persons who are not in the full exercise of their reasoning faculties cannot contract marriage.
The law forbids the marriage of all those who suffer from absolute or relative impotency.
Priests and all other persons bound by a solemn pledge of celibacy in the approved canonical manner are forbidden to contract marriage, unless they have first received the necessary canonical dispensation.
Persons already lawfully married cannot contract a new marriage.
Consanguinity and Affinity.—The following persons cannot contract marriage between themselves:
1. The ascendants and descendants by legitimate or illegitimate blood or affinity.
2. Collaterals by legitimate consanguinity up to and including the fourth degree.
3. Collaterals by legitimate affinity up to and including the fourth degree.
4. Collaterals by natural consanguinity or affinity up to and including the second degree.
5. The adopting father or mother and the adopted child; the latter and the surviving spouse of the adoptees, and the adopters and the surviving spouse of the adopted.
6. The legitimate descendants of the adopter with the adopted, while the relation of adoption continues.
7. Accomplices in adultery who have been judicially sentenced.
Those who have been condemned as principals, or principal and accomplice, in the homicide of the spouse of any of the parties cannot conclude marriage between themselves.
The government for sufficient cause will, on petition of a party, grant a dispensation permitting marriage between collaterals by legitimate consanguinity within the fourth degree. Other dispensations may also be granted on a proper petition.
Parental Consent.—The consent of the father is required for the marriage of a legitimate minor; in his default, or where he cannot consent, the power to grant it devolves, in this order: upon the mother, the paternal and maternal grandparents, and in default of all these, upon the family council.
Recognized natural children or children legitimatized by royal concession must ask the consent of those who have recognized or legitimatized them or of their ascendants, or of the family council.
Adopted children must ask the consent of the adopting father, and in his default, of the persons of the natural family upon whom it may devolve.
Unrecognized illegitimate children must ask the consent of their mother, when she is known, and in her default consent must be asked of the maternal grandparents, and in their default, that of the family council.
Children of age are obliged to ask the advice of the father, and in his default, of the mother before contracting marriage. In case the advice given is against the proposed alliance, the marriagecannot be celebrated until three months after the petition is made.
Marriage in Spain is dissolved absolutely only by the death of one of the parties.
Canonical Marriage.—The requisites, form and solemnities for the celebration of canonical marriage is governed by the laws of the Catholic Church, and by the decrees of the Holy Council of Trent, which are accepted as part of the organic law of Spain. Canonical marriage produces all the civil effects in respect to persons and property of the spouses and their offspring. A magistrate is required to be present at the celebration of a canonical marriage simply for the purpose of making a verified record in the Civil Registry of the marriage. So that he may be present for the purpose above stated, the magistrate must be given notice in writing twenty-four hours at least before the intended celebration, telling him of the day, hour and place of the marriage.
Persons who contract canonical marriage inarticulo mortismay give notice to the officials in charge of the Civil Registry, at any time whatever prior to its celebration, and prove in any manner whatever that such duty has been performed.
Civil Marriage.—A civil marriage must be preceded by a declaration to the Municipal Judge, stating the names, ages, professions and domiciles of the contracting parties; also the names, professions and domiciles of the parents; and proper certificates of the births and status of the contracting parties; certificates of consent or advice of parents, and dispensations when required.
Marriages may be celebrated personally or by a substitute or proxy to whom a special authorization has been granted.
Civil marriages must be solemnized by the contracting parties appearing before the MunicipalJudge, or one of them, and the person whom the absent party may have appointed as proxy must appear before such magistrate, together with two competent witnesses.
The Municipal Judge, after reading articles 56 and 57 of the Civil Code to the parties (which point out the rights and obligations of married life), must ask each party if they desire to be married to each other, and if both answer in the affirmative, the judge shall declare the parties to be husband and wife, and prepare a record of the marriage.
Consuls and vice-consuls are empowered to exercise the function of municipal judges in marriages of Spaniards, celebrated in foreign countries.
Nullity of Marriage.—The following marriages are null and void:
1. Those concluded between persons related within the prohibited degrees.
2. Those concluded between persons under the age of puberty.
3. Marriages between persons, one or both of whom were of incurably unsound mind.
4. Incurably impotent persons.
5. Persons bound by canonical vows to chastity.
The proceeding to have such marriages judicially declared as null may be instituted by either spouse, the Public Attorney, or by any interested person.
The action lapses, and the marriage will be confirmed in cases based on abduction, error, force or fear, when the spouses have lived together six months after the error became known, or after the force or fear has ceased.
Divorce.—A divorce in Spain only amounts to what in other countries is called a judicial separation. Accepting the decrees of the Council of Trent as law for Spain, marriage is treated as asacramental contract which can only be dissolved by death.
The Civil Code, Article 104, states the following causes for divorce:
1. Adultery on the wife’s part.
2. Adultery on the part of the husband, when public scandal or disgrace of the wife is a result.
3. Violence exercised by the husband over the wife in order to force her to abandon her religious faith.
4. Cruelty actually inflicted, or grave acts of contumely.
5. The attempt or proposal of a husband to prostitute his wife.
6. The attempts of either husband or wife to corrupt the morals of the sons, or to prostitute the daughters.
7. Condemnation of either spouse to imprisonment for life.
Effects of Divorce or Nullification.—The civil effects of a divorce or annulment of marriage are as follows:
1. Separation of the parties.
2. To place the custody of the children with one or both of the parties, as justice may require.
3. To determine the responsibility for the support of the woman and children.
4. To place the woman under the special protection of the law.
5. To decree the necessary measures to prevent the husband, who may have given cause for divorce, or against whom the petition for nullity of the marriage has been instituted, from interfering with the wife in the administration of her separate property.
Husband and Wife.—The spouses are under mutual obligation to live together, to be faithful to,and help each other. The husband is bound to protect his wife and the wife to obey her husband.
The wife is required to follow her husband wherever he may establish his residence. The courts, however, will in some cases release her from this requirement when the husband changes his residence to a foreign land.
The husband is the manager of the property of the conjugal union, except when there is a mutual agreement to the contrary.
The husband is the legal representative of the wife. She cannot, without his permission, appear in a suit by herself or through an attorney. However, she does not need such permission to defend herself in a criminal case or to bring a suit against her husband, or to defend herself in a suit brought by her husband against her.
A wife cannot, without her husband’s permission, acquire property in trade or by her labour. Neither can she, without such consent, alienate her property.
The wife can, without her husband’s permission, perform the following acts:
1. Execute a will.
2. Exercise the rights and perform the duties which pertain to her with regard to legitimate and recognized illegitimate children, the issue of herself and another not now her husband.
Foreign Marriages.—The Spanish courts recognize as valid in Spain any marriage performed in a foreign country in accordance with the laws of such country, provided such marriage also meets with all the requirements of the Civil Code of Spain.
Civil Code of Portugal.
On the third day of October, 1910, King Manuel II. of Portugal was dethroned and a Republic was proclaimed throughout the country. At the present time the affairs of the Republic are being administered by a provisional government. Until this temporary administration is followed by a permanent government, based on a national constitution, the Civil Code promulgated in 1867 will continue to be Portuguese law.
Marriage.—Marriage is defined in the Civil Code as a perpetual contract between two persons of different sex to live together and establish a legitimate family.
Catholics must celebrate marriage according to the rules and form prescribed by their church. Those who are not Catholics are required to have their marriage celebrated before a civil officer of the State according to the rules and form prescribed by the civil law of the land.
Marriage is forbidden:
1. Of minors under the age of 21 years, unless with parental consent.
2. Of persons of adult age who are incapable of properly governing themselves or their estates, without the authorization of their legal representatives.
3. Of an adulterous wife with her accomplice who has been condemned for the offence.
4. Of a wife who has been condemned as the principal or accomplice of the crime of homicide with a principal or accomplice in the same crime.
5. Of any person bound by solemn vows of religion to a life of chastity.
The canon law of the Catholic Church defines the religious rules and spiritual effects of marriage, while the civil law defines the civil rules and temporal effects of the contract.
A minister of the church who celebrates a marriage contrary to the requirements of Article 1058 of the Civil Code incurs criminal penalties.
Marriage between Portuguese subjects who are non-Catholics is recognized as producing full civil effects.
Consanguinity and Affinity.—The following persons are forbidden to marry each other:
1. Ascendants and descendants.
2. Persons related collaterally in the second degree.
3. Males who have not completed their fourteenth year and females who have not completed their twelfth year of age.
4. Persons already bound by marriage.
Any infraction of these prohibitions makes a marriage voidable.
Marriage Preliminaries.—Whoever desires to contract marriage according to the manner provided by the civil law of the land must present to the civil officer of the State acting in the place of the applicant’s domicile a declaration setting forth:
1. The full names, ages, occupations and domiciles of the contracting parties.
2. The full names, professions and domiciles of the parents.
Upon receiving this declaration the civil officer publishes a notice of the intended marriage and informs all interested persons to file their objections, if any exist, within fifteen days. If at the end of this period no valid objection to themarriage has been formulated the civil officer proceeds to the celebration of the marriage.
Celebration.—For the civil celebration of marriage the contracting parties, or their duly empowered proxies, appear before the civil officer of the commune, attended by competent witnesses. If the marriage is celebrated in the official bureau of the commune two witnesses are sufficient; if outside of such bureau six witnesses are required.
Any civil officer celebrating a marriage contrary to these provisions incurs penal punishment.
Annulment of Marriage.—A Catholic marriage—that is, one solemnized according to the canonical law—can only be annulled by an ecclesiastical tribunal and according to the laws of the Catholic Church enforceable in Portugal.
A sentence of an ecclesiastical tribunal annulling a marriage is executed by the civil authority of the land.
A marriage concluded before a civil officer in the form established by the civil law of the land can only be annulled by a civil court.
Judicial Separation.—A separation of the person and goods may be had for the following causes:
1. Adultery of the wife.
2. Adultery of the husband, if such adultery creates a public scandal or if the husband brings his concubine into the home he has established for his wife.
3. Sentence of one of the spouses to life imprisonment.
4. Cruel and abusive treatment.
Divorce.—Under the law of Portugal as it existed down to the day when King Manuel II. was dethroned and a Republic declared there was no such thing as divorce recognized. Portugal has been for centuries a Catholic country, and the decrees ofthe Council of Trent, as well as all the other rules and regulations concerning marriage stated by the Catholic Church, have been accepted by Portugal as part of the law of the land. However, since December 1, 1910, when the present provisional government was constituted, certain new laws have been promulgated by government decree. One of these new laws relates to divorce and is most modern and radical in its scope. It permits the courts to grant absolute divorces for a number of reasons, including “mutual consent of the parties.”
Whether such laws, created by proclamation instead of legislation, will be incorporated into the inevitable new Civil Code of Portugal is a problem for the future. Our endeavour in this chapter has been to state the organic law of Portugal as it at present exists, untouched by legislation on the statute books of that ancient land.
Roumania.
Roumania is the name officially adopted by the united kingdom that comprises the former principalities of Walachia and Moldavia. In its native form it appears simply as “Roumania,” representing the claim to Roman descent put forward by its inhabitants.
The Roumanian Civil Code from which we summarize in this chapter the law of marriage and divorce of Roumania is practically a copy of the French Civil Code.
Marriage.—A man must be eighteen years of age and a woman fifteen in order to contract lawful marriage, except a dispensation is granted by the King.
The free consent by both contracting parties is essential.
Men under twenty-five years of age and women under twenty-one cannot marry without the parental consent. Men under the age of thirty and women under the age of twenty-five are obliged to ask the consent of their parents.
A man or woman is allowed but one spouse at a time.
Consanguinity and Affinity.—Marriage is forbidden between relatives, whether by blood or by marriage, in the direct line, and in the collateral line to the fourth degree, inclusive, by the Roman method of counting. The prohibition obtains whether the relationship arises from legitimate or illegitimate birth. A dispensation from such impediments may, in special cases, be granted, by the King.
Marriage is forbidden between relatives byadoption and between godparents and their godchildren.
Marriage is forbidden between guardians and wards, or between trustees and wards, and the father, son or brother of a guardian or trust cannot marry the ward until the accounts of the guardianship or trust have been properly audited and settled.
Soldiers cannot marry without the consent of the military authorities.
Marriage is expressly forbidden to priests, monks and nuns.
Divorced persons are forbidden to remarry each other.
A woman whose marriage has been dissolved by death or divorce may not marry again until the expiration of ten months after such dissolution.
Marriage Preliminaries.—A marriage must be preceded by the publication of the names, occupations and residences of the parties themselves, and of their parents, on two Sundays before the celebration. Such publication of banns must be made before the door of the parish church and the door of the town hall of the commune where the marriage is to be concluded. The marriage cannot be solemnized until the fourth day after the second publication of banns. If a year passes after such publication without marriage a new publication is necessary. If, upon the publication of banns, the intended marriage is opposed, as it may be, by any person, the registrar of the commune must defer the celebration of marriage until the opposition has been withdrawn or overruled.
Celebration.—The marriage must be celebrated by the registrar in the town hall of the commune in which one of the parties had had continuous residence for at least six months. The registrar, in the presence of four witnesses, reads to theparties that chapter of the Civil Code of Roumania which defines the rights and duties of marriage. The parties must then declare to the registrar their intention to marry each other. After this the officiating registrar pronounces the parties to be husband and wife.
If a religious celebration is desired it must in all cases be preceded by the civil ceremony.
Annulment of Marriage.—A marriage may be annulled on any of the following grounds:
1. That it was not regularly celebrated before a registrar.
2. That free consent of one or both parties did not exist.
3. Lack of proper age.
4. An existing marriage.
5. Relationship within prohibited degrees.
6. Lack of parental consent.
7. In the case of a soldier, lack of proper consent from the necessary military authorities.
Where a marriage has been contracted in good faith the parties thereto and the issue of the marriage are entitled to all civil rights resulting therefrom; but if only one party was in good faith, only that party and the issue of the marriage are entitled to these rights.
Divorce.—The great majority of the people of the kingdom belong to the Roumanian branch of the Orthodox Greek Church, which in practice does not hold to the doctrine of the indissolubility of marriage.
The law of the land permits absolute divorce for the following causes:
1. By mutual consent of the parties. The parties on such an application appear before a judge with a written inventory of their goods, showing the division agreed upon, and with certificates of their birth and marriage, of the birthsand deaths of their children, and, when necessary, the consent of their parents.
The judge then endeavours to reconcile the parties. If at the end of one year and fifteen days no reconciliation has been effected a divorce is granted.
2. Adultery of husband or wife.
3. Cruel and abusive treatment of one spouse toward the other.
4. A judicial condemnation of either party to a prison sentence for an infamous crime.
5. An attempt of one party on the life of the other.
6. Intentional omission of one spouse to warn the other of an attempt by a third person on the life of the other spouse.
Separation.—Judicial separations are not granted by the courts of Roumania.
Effects of Divorce.—Divorced parties are forbidden to remarry each other.
A divorced woman may not marry again within ten months after her divorcement, and the guilty party in a suit for divorce on the ground of adultery may not marry his or her accomplice in adultery.
Otherwise divorced parties are free to marry again.
A divorced woman may not retain her husband’s surname.
All property rights granted by the innocent party to the guilty party are extinguished by the decree of divorce. The guilty party may be ordered to contribute to the support of the innocent party.
The custody of the children is usually given to the successful suitor. The court may, however, if circumstances require, entrust the children to the guilty party or to a third person.
Servia.
Servia is a kingdom in the northwestern part of the Balkan Peninsula. In 1882 it became a constitutional monarchy. The judiciary is vested in a High Court of Appeal, a Court of Cassation, a Commercial Court and twenty-three courts of the first instance.
The Servian laws of marriage and divorce are substantially the same as those of the Orthodox Greek Church. All marital suits in which one or both parties belong to this church are governed by State law, although jurisdiction lies with the ecclesiastical courts. Matters pertaining to property settlement are, however, entirely within the jurisdiction of the civil courts, as are all marital suits in which neither party belongs to the Greek Church.
When the parties to a marital suit are Roman Catholics decisions are rendered according to the canon law; and when both parties are Protestants, according to the principles of the sect to which the parties belong.
In the case of a mixed marriage of others than adherents of the Greek Church the decision is rendered according to the principles of the church in which the marriage was celebrated.
Marriage Qualifications.—A man cannot marry until he has completed his seventeenth year; a woman until she has completed her fifteenth year of age. By the dispensation of the church, granted by a bishop, a man of fifteen years or a woman of thirteen years may conclude marriage.
The free consent of both parties is essential to a valid marriage.
If both the contracting parties are over eighteen years of age parental consent to a marriage is not obligatory. Where both parties are under eighteen years, or the intended bride is under that age and the intended bridegroom is under twenty-one years, the consent of parents is necessary.
All persons are forbidden to contract a new marriage until a previous existing marriage has been dissolved or judicially declared a nullity.
Consanguinity and Affinity.—Marriage is prohibited between relatives by blood in the direct line and in the collateral line as far as the eighth degree, inclusive—that is to say, as far as the degree of relationship of third cousins. Relatives in the seventh or eighth degree may marry by episcopal dispensation. Marriage is prohibited between relatives by marriage as far as the fifth degree, inclusive.
Marriage is prohibited between persons spiritually related, as between the godparent and the godchild or his descendants.
Impediments.—Persons who have been judicially condemned for adultery are forbidden to contract marriage with their accomplices in the offence.
The party declared guilty in a suit for divorce is prohibited from marrying again during the lifetime of the innocent party.
A woman may not, as a rule, marry again until nine months after the dissolution by death or divorce of her previous marriage.
Insane persons cannot contract a binding marriage.
Incurable impotence of either party, which existed at the time the marriage was concluded, is cause for a decree of nullity.
Marriage is expressly forbidden between Christians and Jews or between Christians and non-Christians of any sect whatever.
Marriage is prohibited between two persons one of whom has attempted the life of the husband or wife of the other.
A lawful marriage cannot be concluded with a woman who has been abducted and has not yet been restored to freedom.
Marriage cannot be concluded by a person who is under sentence to imprisonment.
Preliminaries.—Before the marriage the parish priest must, on three successive holy days, publish banns in the church, and if any member of the parish knows of any impediment it is his or her duty to inform the priest. If a priest fails thus to publish banns, and impediments later appear, he is amenable to punishment.
Celebration.—The law of Servia does not recognize a civil marriage. If the parties, or one of them, belong to the Orthodox Greek Church they must be married according to the rites of that church. Christians of other sects must be married by their clergy and Jews by their authorized ministers.
Children.—Marriage of the parents subsequent to their birth renders illegitimate children fully legitimate.
Annulment of Marriage.—A marriage may be declared null by a decree of a court of competent jurisdiction whenever it appears that some essential qualification to make the marriage valid was absent at the time it was concluded, or if it appears that the marriage was concluded in disregard of the impediments stated by law.
Absolute Divorce.—A complete divorce from the marriage bond is allowed by the courts for the following causes:
1. Adultery of either party.
2. Attempt by either spouse to kill the other.
3. The concealment by one spouse of information concerning a plot to kill the other spouse.
4. Penal servitude incurred by either spouse, under a sentence of at least eight years.
5. Apostasy from the Christian religion.
6. Deliberate desertion persisted in for three years.
7. Flight from Servia followed by absence of at least four years.
8. Absence without news for six years.
A decree of divorce or a decree annulling a marriage must always be submitted for the approval or disapproval of the ecclesiastical courts.
Effects of Divorcement.—The innocent party to a divorce suit may contract a new marriage, but the guilty party is forbidden to remarry during the lifetime of the innocent party.
Usually each party regains such goods and effects as he or she brought to the alliance.
Custody of Children.—Boys under four years and girls under seven are given, as a rule, to the mother’s custody. After that they are given to the custody of the father.
The divorced woman must not continue to use the surname of her ex-husband.
Judicial Separation.—A separation from bed and board may be granted by the court whenever the facts show such a decree to best promote the interests and well-being of the spouses.
Bulgaria.
The national religion of the Bulgarian people is that of the Orthodox Greek Church, and consequently the laws of that church on the subject of marriage and divorce is part of the organic law of Bulgaria.
Upon the political independence of the country the Bulgarian Church, which had hitherto been under the Patriarchate of Constantinople through an exarch, declared its independence and established the Bulgarian Exarchate. The ecclesiastical courts of this Exarchate have general jurisdiction of matrimonial causes except as concern Mohammedans, Jews, and Christians who are not adherents of any of the Eastern Orthodox churches.
Besides the laws of the Church, Bulgaria has a national law of marriage and divorce dating from 1897.
The matrimonial concerns of Mohammedans are governed by the law of the religion of Mohammed. Christians who are dissenters from the Orthodox Church are permitted to marry according to the rules and regulations of their sect.
Requirements for Marriage.—The marriageable age for men begins with twenty years, and for women with eighteen years.
Parental consent is required, but if it is arbitrarily denied the authorities of the church may give their consent in its stead.
A man or woman is permitted to have but one spouse at a time.
Consanguinity and Affinity.—Marriage is forbidden between ascendants and descendants. Inthe collateral line marriage is forbidden between persons related within the seventh degree. Under this rule a person cannot lawfully marry the child of his or her second cousin. The ecclesiastical authorities may upon such grounds as to them may seem sufficient grant a dispensation permitting a marriage within the prohibited degrees.
Marriage is also prohibited between godparents and godchildren, and between godchildren who have the same godparent. Here also the clergy may remove the impediment by dispensation.
Persons suffering from idiocy, insanity, epilepsy or syphilis cannot contract lawful marriage.
Marriage is forbidden when the parties are of different religious faiths.
A person under obligation by religious vow to remain celibate or one who has been sentenced to a state of celibacy by an ecclesiastical court cannot conclude marriage.
Accomplices in adultery may not marry each other. Persons in the military service must obtain the consent of their superiors to contract marriage.
Celebration.—The law of Bulgaria does not permit a civil marriage. If both or one of the contracting parties are baptized members of the Orthodox Greek Church, the marriage service must be in accordance with the rites of that church. Christians who belong to other churches are permitted to be married by the ministers of their faith. Three weeks at least must intervene between the betrothal and the wedding. All marriages must be preceded by the publication of banns.
Foreign Marriages.—The law of Bulgaria does not recognize the foreign marriage of Bulgarian subjects unless the following elements are present:
1. The foreign marriage must comply with all the laws and rules of the foreign country where it is concluded.
2. If the parties are baptized members of the Orthodox Greek Church the marriage must be solemnized by a priest of that church. This rule applies even though in the country where the marriage was concluded a civil ceremony is sufficient.
Divorce.—The Church and State both permit absolute divorces. The causes are:
1. Adultery of either spouse.
2. Drunkenness and disorderly conduct.
3. Cruel and abusive treatment.
4. Threat to kill.
5. Incurable impotence.
6. Absence of the husband for four years coupled with failure to support wife.
7. Sentence to prison for an infamous offense.
8. False accusation of adultery.
9. Wife’s desertion of the husband continued for three years.
Divorce Procedure.—As before stated the suit for divorce must be brought before the ecclesiastical court.
Effects of Divorce.—If the guilty party is the wife, her husband has the right to retain all her dowry which she brought to him, and to retake all gifts made to her either before or after marriage.
If the guilty party is the husband, the wife has the right to recover her dowry, to keep any present she ever received from the husband, and to exact suitable maintenance from her divorced husband until such time as she remarries.
The custody of the children is given to the winning suitor, except that children under five years remain in the care of their mother.
The Kingdom of Greece.
Because of its matchless philosophy, literature and art, ancient Greece is still the marvel of the modern world, but little credit is given to old Hellas as one of the principal sources of the jurisprudence of to-day. For political reasons the Roman law was the overshadowing and dominating system of ancient law, but the fountain head of the laws of Rome, even of the Laws of the Twelve Tables, was the land of Demosthenes, Pericles, Solon and Lycurgus.
The great jurisconsults of the Roman Empire were not Roman but Greek lawyers, not the least of whom was Gaius, the legal commentator who was the Blackstone of his period.
The Roman Empire was the physical expression of Grecian intellect. Not only the first lawyers but the first popes of Rome were Greeks.
The modern Kingdom of Greece has an excellent system of jurisprudence based on the old Roman law, with modifications drawn from the Bavarian and French. The commercial law has been adapted from theCode Napoleon, the penal laws are of Bavarian origin, and the laws of marriage and divorce are derived from the Roman law necessarily modified to harmonize with the dogmas of the Orthodox Greek Church, which is the national church of the kingdom.
The Areopagus existed in Greece as a court of justice before the first Messenian war, 740 B. C. This court was situated on the Hill of Ares outside the city of Athens, the very “Hill of Mars” on which St. Paul preached in the yearA. D. 52. We find historical mention of the Court of Areopagus as late as the year 880 of the Christian Era. It is unlikely that the Areopagus of to-day, which is the supreme court of appeal in modern Greece, has any other relationship than the same venerable name with the court of ancient times.
Besides the Court of the Areopagus, there are four other inferior courts of appeal, one for each of the judicial districts of Greece. There are also four commercial tribunals, seventeen courts of first instance, and over two hundred justices of the peace. The standard of the Grecian judiciary is very high, for only men of unblemished reputation who have received the degree of doctor of law from a reputable European university are eligible to the bench.
There is nohabeas corpusact in Greece, but no one can be arrested, no house can be entered, and no letter opened without a judicial warrant.
The supreme power of the Church of Greece is vested in the Holy Hellenic Synod which consists of five members, who are appointed annually by the King, and the majority of whom must be prelates. The Metropolitan Archbishop of Athens isex-officiopresident; two royal commissioners attend without voting and the Synod’s resolutions require to be confirmed by them in the King’s name. In all purely spiritual matters the Synod has entire independence; but on questions having a civil side, such as marriage and divorce, it can only act in concert with the civil authorities.
The Orthodox Greek Church as a matter of dogma treats marriage as a sacrament or divine ordinance, but unlike the Latin Church, it holds that for sufficient cause marriage may be legally dissolved, but not till a probationary period haselapsed during which a bishop or priest mediates with the purpose of reconciling the parties.
Marriage.—Both by the law of the land and the church law, marriage in Greece is treated as a social status which can only be concluded by a religious celebration. A civil ceremony has no validity. If both the parties or one of them are baptized members of the Orthodox Greek church, the marriage must be celebrated before a priest and in accordance with the laws and rites of that church.
When both of the parties are Roman Catholics they must be married by a priest of their religion. If one of the parties is a Roman Catholic and the other a member of the Orthodox Greek Church, the marriage must be solemnized by a priest of the latter church. The rule is that mixed marriages must be solemnized by a priest of the Greek Church.
Jews and Protestants may be married by the ministers of their respective denominations.
Age.—The marriageable age of males begins at the completion of their fourteenth year, and that of females at the completion of their twelfth year.
Consents.—The free consent of the contracting parties is essential. For a man under twenty-one years of age, or a woman under eighteen years of age, the parental consent is also necessary.
Monogamy.—All persons are forbidden to contract a new marriage until a previous marriage has been dissolved by death or divorce.
Consanguinity and Affinity.—Marriage is prohibited between persons of whom one is descended in a direct line from the other. Collateral kinsmen are forbidden to marry within the sixth degree. The degrees are counted according to the Roman law method of reckoning which countsthe number of descents between the persons on both sides from the common ancestor. The authorities of the national church may upon such facts as to them seem proper grant a dispensation allowing a marriage within the forbidden degrees.
Spiritual Relationship.—Marriage is expressly forbidden between godparents and their godchildren, and between godchildren who have the same godparent. A church dispensation is, however, easily obtained, relieving the parties from the last mentioned impediment.
Special Prohibitions.—Persons suffering from defective intellect, insanity, syphilis or epilepsy are forbidden to conclude marriage.
Persons under religious vows to remain celibate cannot conclude marriage unless dispensed from such vows.
Accomplices in adultery may not marry each other.
Persons in the military service may not conclude marriage without the consent of the higher military authority.
Priests.—A priest of the Orthodox Greek Church is required to marry once, but he cannot contract a second marriage even after the death of his first wife.
Fourth Marriage.—It is contrary to the law of the land as well as the law of the church for any person to contract a fourth marriage.
Banns.—All marriages must be preceded by the publication of banns.
Foreign Marriages.—The Greek courts will not recognize the foreign marriage of Greek subjects who are baptized members of the Orthodox Greek Church unless the marriage was solemnized before a priest of that church. This is the rule, even though in the country where the marriage was concluded a civil ceremony is sufficient and obligatory.
Divorce.—Absolute divorces are granted for the following causes:
1. Adultery of either husband or wife.
2. Cruel and inhuman treatment, endangering life or health.
3. An attempt by either spouse to kill the other.
4. Threat to kill.
5. The condemnation and imprisonment of either spouse for an infamous or degrading crime.
6. Confirmed habits of drunkenness.
7. Desertion.
8. Incurable impotence of either party.
Procedure.—All suits for divorce must be instituted in the ecclesiastical courts of the Orthodox Greek Church.
Effects of Divorce.—Both parties are free to remarry, but the wife must wait until a full year has elapsed from the granting of a decree before contracting a new marriage.
The wife must not use the surname of her divorced husband.
If the wife is the successful suitor, she can recover from the defeated party the dowry she brought to him at marriage. She has a right also to retain any gifts she may have received from him either before or after marriage.
In some instances the husband is obliged to pay alimony to his divorced wife during her lifetime, up to the time she contracts a new marriage.
If the parties have children, such of them as are so young as to need a mother’s care are temporarily awarded to the woman’s custody even though she be the party declared to be guilty in the divorce suit.
The Mohammedan Law of Turkey, Persia, Egypt, India, Morocco and Algeria.
The laws of Mohammedanism which are founded on the Koran and the Traditions of Mohammed to-day constitute the civil and religious code of many millions of the world’s inhabitants.
A country that is subject to the government of Mohammedans is termedDar-ool-Islam, or a country of safety and salvation, and a country which is not subject to such government is termedDar-ool-hurb, or a country of enmity. Though Mohammedans are no longer under the sway of one prince, they are so bound together by the common tie of Islam that as between themselves there is no difference of country, and they may therefore be said to compose but onedaror commonwealth.
A Mohammedan is subject to the law of Islam absolutely, that is without distinction of place or otherwise.
Every unbeliever in the Mohammedan religion is termed akafir, or infidel, and infidels who are not in subjection to some Mohammedan state are generally treated by Islamic lawyers ashurbees, or enemies.
The Mohammedans are taught to believe that their system of jurisprudence is of divine origin, is incapable of improvement, and can never be changed in any material particular. The fact is that with all its alleged source, perfection and immutability Mohammedan law has not been able to escape the inevitable rule of change which seems to affect everything and everybody in this world.
There are certain countries where the entire legal and religious system is based on the laws of Mohammedanism; such countries are: Turkey, Persia and Morocco. There are other countries, such as Egypt, India and Algeria, where the law of Islam operates side by side with other legal systems.
In India there are four distinct systems of jurisprudence, all in full operation and effect. These are:
1. English law created by the British Parliament.
2. Anglo-Indian law, which is created in India by the Legislative Councils of the British Government.
3. Hindu law, which applies to every one in British India who is a Hindu, and to no one else.
4. Mohammedan law, which applies to every one in British India who is a Mohammedan, and to no one else.
If a Mohammedan in India abandons his religion he ceases to be governed by Mohammedan law.
Since the promulgation of the Regulations of Warren Hastings in 1772, all suits in British India regarding inheritance, marriage, caste and other religious usages and institutions with respect to Mohammedans have been decided invariably according to Mohammedan law.
Egypt.—There are four kinds of legal tribunals in Egypt, namely:
1. The Native Courts, which have civil and criminal jurisdiction over natives.
2. The Consular Courts, which have jurisdiction over foreigners charged with crime.
3. The Mixed Tribunals, which have civil and criminal jurisdiction over persons of diverse citizenship.
4. The Mohammedan Courts, which deal with the questions of the personal rights of the Mohammedan inhabitants according to the laws of Islam.
As over ninetyper centumof the people of Egypt are Mohammedans, the importance of the Mohammedan Courts is apparent.
The Mohammedan law of marriage and divorce is also recognized as controlling and effective when the parties to a marriage are Mohammedans, in Russia, Roumania, Servia, Bulgaria and Greece.
Marriage.—Marriage is enjoined on every Mohammedan, and celibacy is frequently condemned by Mohammed. “When the servant of God marries, he perfects half of his religion,” said the Prophet. Once Mohammed inquired of a man if he was married, and being answered in the negative, he asked, “Art thou sound and healthy?” When the man answered that he was the Prophet angrily said, “Then thou art one of the brothers of the devil.”
Validity of Marriage.—Marriage, according to Mohammedan law, is simply a civil contract, and its validity does not depend upon any religious ceremony. Though the civil contract is not required to be reduced to writing, its validity depends upon the consent of the parties, which is called “ijab” and “gabul,” meaning declaration and acceptance; the presence of two male witnesses (or one male and two female witnesses); and a dower of not less than tendirhamsto be settled on the woman. The omission of the settlement does not, however, invalidate the contract, for under any circumstances, the woman becomes entitled to her dower of tendirhamsor more.
It is a recognized principle that the capacity of each of the parties to a marriage is to be judged of by their respectivelex domicilii.
The capacity of a Mussulman domiciled inEngland will be regulated by the English law, but the capacity of one who is domiciled in theBelâd-ul-Islâm, or Mohammedan country, by the provisions of Mohammedan law.
We are told by the highest authorities on Islamic law that the three principal conditions which are requisite for a proper marriage are: understanding, puberty and freedom in the contracting parties.
The Mohammedan law fixes no arbitrary age at which either male or female is competent to marry.
Besides understanding, puberty and freedom, the capacity to marry requires that there should be no legal disability or bar to the union of the parties; that in fact they should not be within the prohibited degrees of relationship.
Legal Disabilities.—There are nine prohibitions to marry, namely:
1. Consanguinity, which includes mother, grandmother, sister, niece and aunt.
2. Affinity, which includes mother-in-law, step-grandmother, daughter-in-law and step-granddaughter.
3. Fosterage. A man cannot marry his foster-mother, nor foster-sister, unless the foster-brother and sister were nursed by the same mother at intervals widely separated. But a man may marry the mother of his foster-sister, or the foster-mother of his sister.
4. Sister-in-law. A man may not marry his wife’s sister during his wife’s lifetime, unless she be divorced.
5. A man married to a free woman cannot marry a slave.
6. It is not lawful for a man to marry the wife ormu’taddahof another, whether the’iddahbe on account of repudiation or death. That is,he cannot marry until the expiration of the woman’s’iddah, or period of probation.
7. A Mohammedan cannot marry a Polytheist, but he may marry a Christian, Jewess, or a Sabean.
8. It is not lawful for a man to marry his own slave, or a woman her bondsman.
9. If a man pronounces three divorces upon a wife who is free, or two upon a slave, she is not lawful to him until she shall have been regularly espoused by another man, who having duly consummated the marriage, afterwards divorces her, or dies, and her’iddahfrom him be accomplished.
In theKorânorEl-Kor’anwe find in the chapter on women (Sura IV.) the law expressed as to certain prohibitions:
“Forbidden to you are your mothers, and your daughters, and your sisters, and your aunts, both on the father’s and mother’s side, and your nieces on the brother’s and sister’s side, and your foster-mothers, and your foster-sisters, and the mothers of your wives, and your stepdaughters who are your wards, born of your wives to whom you have gone in: (but if ye have not gone in unto them, it shall be no sin in you to marry them) and the wives of your sons who proceed out of your loins; and ye may not have two sisters; except where it is already done. Verily, God is Indulgent, Merciful!”
Polygamy.—According to Mohammedanism polygamy is a divine institution, and has the express sanction of the law. Mohammed restrained the practice of polygamy by limiting the maximum number of contemporaneous marriages, and by making absolute equity toward all obligatory on the man. A Mohammedan may marry four wives but no more. The law is thus stated: “You may marry two, three, or four wives, but not more.”However, all true believers are enjoined that, “if you cannot deal equitably and justly with all you shall marry only one.”
In India more than ninety-fiveper centumof the Mohammedans are at the present, either by conviction or necessity, monogamists. In Persia only twoper centumof the population enjoy the questionable luxury of plurality of wives.
Celebration of Marriage.—TheNikah, or celebration of the marriage contract, is preceded and followed by festive rejoicings, which have been variously described by Oriental travellers, but they are not parts of either the civil or religious ceremonies. The Mohammedan law appoints no specific religious ceremony, nor are any religious rites necessary for the contraction of a valid marriage. Legally, a marriage contracted between two persons possessing the capacity to enter into the contract is valid and binding, if entered into by mutual consent in the presence of witnesses. As a matter of practice a Mohammedan marriage is generally concluded by a formal ceremony which is ended by theQazioffering the following prayer:
“O Great God! grant that mutual love may reign between this couple, as it existed between Adam and Eve, Abraham and Sarah, Joseph and Zalikha, Moses and Zipporah, his highness Mohammed and Ayishah, and his highness Ali al-Murtaza and Fatimatu’z-Zahra.”
Husband and Wife.—A husband is not guardian over his wife any further than respects the rights of marriage, nor does the provision for her rest upon him any further than with respect to food, clothing and lodging.
A husband must reside equally with each of his wives, unless one wife bestow her right upon another wife.
A wife cannot give evidence in a court of law against her husband. If she becomes a widow she must observe mourning for the space of four months and ten days.
In the event of her husband’s death a wife is entitled to a portion of her husband’s estate, in addition to her claim of dower, the claim of dower taking precedence of all other claims on the estate.
“The women,” says the Koran, “ought to behave toward their husbands in like manner as their husbands toward them, according to what is just.”
When the husband has left the place of conjugal domicile without making any arrangements for his wife’s support, the judge is authorized by law to make an order that her maintenance shall be paid out of any fund or property which the husband may have left in deposit or in trust, or invested in any trade or business.
When a woman abandons the conjugal domicile without any valid reason, she is not entitled to maintenance from her husband.
The Mohammedan law lays down distinctly that a wife is bound to live with her husband, and to follow him wherever he wishes to go; and that on her refusing to do so without sufficient or valid reason, the courts of justice, on a suit for restitution of conjugal rights by the husband, would order her to live with her husband.
The obligation of the wife, however, to live with her husband is not absolute. The law recognizes circumstances which justify her refusal to live with him.
Although the condition of women under Mohammedan law is most unsatisfactory, it must be admitted that Mohammed effected a vast and marked improvement in the condition of the femalepopulation of Arabia. Amongst the Arabs who inhabited the peninsula of Arabia the condition of women was extremely degraded, for amongst the pagan Arabs a woman was a mere chattel. The Koran created a great reformation in the condition of women. For the first time in the history of Oriental legislation the principle of equality between the sexes was approached.
Divorce.—The Mohammedan law of divorce is founded upon express injunctions contained in the Koran, as well as in the Traditions, and its rules occupy an important part of all Mohammedan works on jurisprudence.
These rules may be summarized thus:
The thing which is lawful but disliked by God is divorce.
A husband may divorce his wife without any misbehaviour on her part, or without assigning any cause.
There is an irregular form of divorce in which the husband repudiates his wife by three sentences, either express or metaphorical, as for example: “Thou art divorced! Thou art divorced! Thou art divorced!” The Mohammedan who thus divorces his wife is held in theHidayahto violate the law, but the divorce is legal.
A sick man may divorce his wife, even though he be on his death-bed.
An agent or agents may be appointed by a husband to divorce his wife.
In addition to the will or caprice of the husband, there are also certain conditions which require a divorce.
The following are causes for divorce, but generally require to be ratified by a decree from theQazior judge:
1.Jubb.That is, when the husband has been by any cause deprived of his organ of generation.This condition is calledmajbub, and if it existed before the marriage the wife can obtain instant divorce.
2.Unnah.Impotence of either husband or wife.
3. Inequality of race or tribe.
4. Insufficient dower. (If the stipulated dowry is not given when demanded.)
5. Refusal of Islam. If one of the parties embrace Islam, the judge must offer it to the other three distinct times, and if he or she refuse to embrace the faith, divorce follows.
6. Unjust accusation of adultery by a husband against his wife.
7. If a wife becomes the proprietor of her husband or the husband becomes the proprietor of his slave wife divorce takes place.
8. An invalid marriage of any kind, arising from consanguinity or affinity of parties, or other causes.
9. The executed vow of a husband not to have sexual intercourse with his wife for as long as four months.
10. Difference of country. As, for example, if a husband flee from a non-Moslem country to a country of Islam and his wife refuses to accompany him.
11. Apostasy from Islam.
The Greek Church holds that marriage is dissoluble in case of adultery, but not till a probationary period has elapsed during which a bishop or priest mediates with a view to reconciliation.
A fourth marriage is unlawful.
When a man or woman apostatizes from Islam, then an immediate dissolution of the marriage takes place, whether the apostasy be of the man or of the woman, without a judicial decree. If both husband and wife apostatize at the sametime, their marriage bond remains; and if at any future time the parties again return to Islam, no remarriage is necessary to constitute them man and wife.
There is a form of divorce known askhulawhich is when a husband and wife disagreeing, or for any other cause, the wife on payment of a compensation or ransom to the husband, is permitted by law to obtain from him a release from the marriage tie.
Mubara’ahis a divorce which is effected by mutual release.
A Comparison.—When compared with the Mosaic law it will be seen that by the latter, divorce was only sanctioned when there was “some uncleanness” in the wife, and whilst in Islam a husband can take back his divorced wife, in the law of Moses it was not permitted. See Deut. xxiv., 1-4.
Iddah or Iddat.—This is the term of probation incumbent upon a woman in consequence of a dissolution of marriage, either by divorce or the death of her husband. After a divorce the period is three months, and after the death of her husband four months and ten days, both periods being enjoined by the Koran.
Effects of Divorce:
1. Sexual intercourse between the divorced persons becomes unlawful.
2. The wife is free to marry another husband after the completion of heriddah; or immediately if the marriage was never consummated.
3. The husband may complete his legal number of four wives without counting the divorced one, or may marry a woman who could not be lawfully joined with the divorced one, for example, her sister, after the completion of heriddahbut not before.
4. If the marriage has been consummated before the divorce, the whole of the unpaid dower becomes immediately payable by the husband to the wife, and is enforceable like any other debt if the marriage had not been consummated and the amount of dower was specified in the contract, he is liable for half that amount; if none was specified, he must give the divorced wife a present suitable to her rank, or their value. But the wife has no right to anything if the divorce took place by her wish, or in consequence of any disqualifications on her side, as for instance, her apostasy.
5. The wife is entitled to be maintained by her husband during theiddahon the same scale as before the divorce, conditionally on submitting to her husband’s control as regards her place of residence and general behaviour. But on completion of heriddahshe ceases to have any claim for maintenance.