2. When the adultery was committed by the procurement, connivance, privity or consent of plaintiff.
3. If five years have elapsed since the plaintiff discovered the defendant’s guilt.
4. If there is existing any decree of any competent of any State or Territory of the United States granting an absolute divorce to the defendant and against the plaintiff.
5. If it appears that the plaintiff has also committed adultery.
Custody of Children.—During the pendency of an action for divorce, or on final judgment, the court may give such directions as justice requires for the custody, care and education of any of the children of the marriage.
Alimony.—The court has power during the pendency of an action for divorce to grant a woman plaintiff or defendant such allowance out of her husband’s estate as may be necessary and just for her support, and also that she may be able to procure counsel to prosecute or defend the suit in her behalf.
If the wife becomes successful in the action the court may in its discretion award her permanentalimony. The amount of alimony in all cases depends upon the wife’s needs, her social status, and her husband’s ability to make provision for her.
Form of Divorce Decree.—Decrees are first enterednisi, or provisionally, and cannot become absolute until the expiration of three months after the entry of the decreenisi.
North Carolina.
Marriage.—A male becomes capable of marrying at 16 years and a female at 14 years, but both if under 18 years require parental consent.
Impediments.—Marriage is prohibited between persons nearer of kin than first cousins of the whole or half blood.
So is marriage between whites and negroes or Indians, or between whites and persons of negro or Indian descent to the third generation, inclusive.
Causes for Divorce:
1. Husband’s fornication or adultery.
2. Wife’s adultery.
3. If either party at time of marriage was and still is naturally impotent.
4. Wife’s pregnancy at time of marriage by another man, without husband’s knowledge.
Limited Divorce.—A limited divorce may be obtained for the following causes:
1. If either party abandons his or her family.
2. If either party maliciously turns the other out of doors.
3. Cruel or barbarous treatment by one party endangering life of the other.
North Dakota.
Marriage.—No male can conclude marriage under 18 years of age or female under 15 years of age.
Impediments.—Marriage is prohibited between persons nearer of kin than second cousins of the whole blood.
Formalities.—License necessary. No particular form of ceremony is required, but the parties must express consent in presence of person solemnizing the marriage, and of at least one witness.
Causes for Divorce:
1. Adultery.
2. Extreme cruelty.
3. Wilful desertion for one year.
4. Wilful neglect for one year.
5. Habitual intemperance for one year.
6. Conviction of felony.
Plaintiff must have been in good faith, a resident of the State for six months before filing petition, and either a citizen of the United States or a person who has declared his or her intention to become such.
Ohio.
Marriage.—To marry, a male must be at least 18 years and a female 16 years of age. Parental consent is required for males under 21 years and females under 18 years.
Impediments.—Marriage between persons nearer of kin than second cousins is forbidden.
Formalities.—License is necessary unless banns be published in presence of congregation on two different days of public worship. No particular form of ceremony is required. The marriage may be solemnized by any ordained minister licensed by the State to perform marriages, or a justice of the peace in his county.
Causes for Divorce:
1. Upon proof that either party was already married at time of the marriage sought to be dissolved.
2. Wilful absence of one party from the other for three years.
3. Adultery.
4. Impotency.
5. Extreme cruelty.
6. Fraudulent contract.
7. Any gross neglect of duty.
8. Habitual drunkenness for three years.
9. Imprisonment in a penitentiary.
10. Procurement of a divorce without the State.
Actions for Separate Maintenance.—A wife may sue for separate maintenance because of:
1. Adultery.
2. Gross neglect of duty.
3. Abandonment without good cause.
4. Habitual drunkenness.
5. Sentence to imprisonment in a penitentiary.
Effects of Divorce.—If the divorce is granted to the wife, because of the aggression of the husband, she shall be allowed such alimony out of her husband’s property as the court deems reasonable. If the husband secures a divorce, on the aggression of the wife, he shall be allowed such alimony out of the wife’s property as the court deems reasonable.
The granting of a divorce does not affect the legitimacy of the children of the parties.
Upon granting a divorce, the court shall make such order for the care and support of the children as is just and proper.
Oklahoma.
Marriage.—The minimum age for marriage and the rule as to parental consent are the same as that stated for Nebraska.
Impediments.—Same as in Nebraska.
Formalities.—Same as in Nebraska.
Causes for Divorce:
1. Adultery.
2. Former husband or wife living.
3. Abandonment for one year.
4. Impotency.
5. Pregnancy by wife at time of marriage by another man.
6. Extreme cruelty.
7. Fraudulent contract.
8. Habitual drunkenness.
9. Gross neglect of duty.
10. Conviction of felony.
Action for Separate Maintenance.—This action may be maintained for any of the causes sufficient for divorce.
Oregon.
Marriage.—A male is capable of marrying at 18 years, a female at 15 years. Parental consent is required for males under 21 years and females under 18 years.
Impediments.—Marriages between first cousins of the whole or half blood or relatives nearer of kin are prohibited.
Marriages between whites and negroes or Mongolians, or persons of one-fourth or more negro or Mongolian blood.
Causes for Divorce:
1. Impotency.
2. Adultery.
3. Conviction of felony.
4. Habitual drunkenness.
5. Wilful desertion for one year.
6. Cruel and inhuman treatment, or personal indignities rendering life burdensome.
Pennsylvania.
Marriage.—The minimum age for marriage is not fixed by statute. Both males and femalesrequire parental consent to marry under 21 years of age.
Impediments.—A man may not marry his mother, father’s sister, mother’s sister, sister, daughter, granddaughter, father’s wife, son’s wife, son’s daughter, wife’s daughter, daughter of wife’s son or daughter.
A woman may not marry her father, father’s brother, mother’s brother, brother, son, grandson, mother’s husband, daughter’s husband, husband’s son, son of her husband’s son or daughter.
By the act effective January 1, 1902, marriage is prohibited between persons who are of kin of the degree of first cousins.
Formalities.—License is necessary unless there is a publication of banns.
The parties may solemnize their own marriage by obtaining from the clerk of the orphans’ court a formal declaration of their right to do so instead of a license.
Marriage may be solemnized by any minister of the Gospel, justice of the peace, or alderman, or by the parties themselves.
Causes for Absolute Divorce:
1. Natural impotence or incapacity of procreation at time of marriage, and still continuing.
2. Former marriage still subsisting.
3. Adultery.
4. Wilful and malicious desertion for the space of two years.
5. Husband’s cruel and barbarous treatment endangering wife’s life.
6. Husband having offered such indignities to wife as to render her condition intolerable and life burdensome.
7. Relationship within prohibited degrees.
8. Marriage procured by fraud, force or coercion.
9. Wife’s cruel and barbarous treatment of husband.
10. That either of the parties has been convicted as principal or accessory of the crime of arson, burglary, embezzlement, forgery, kidnapping, larceny, murder in first or second degree, voluntary manslaughter, perjury, rape, robbery, sodomy, buggery, treason, or misprison of treason, and has been sentenced to prison for more than two years.
11. That either husband or wife is a hopeless lunatic ornon compos mentis.
Confinement for ten years or more in an asylum for the insane is conclusive proof of hopeless insanity.
Limited Divorce.—This may be granted for:
1. Husband turning wife out of doors.
2. Husband’s cruel and barbarous treatment of wife.
3. Husband offering such indignities to his wife as to render her condition intolerable and force her to leave his house.
Upon hearing any cause for divorce the court may decree either a divorce or a decree of nullity.
Rhode Island.
Marriage.—No age fixed for marriage. Parental consent required for all minors.
Impediments.—Same as in Massachusetts. However, Jews are permitted to marry within degrees permitted by their religion.
Causes for Divorce:
1. In case marriage was originally void or voidable by law.
2. When either party is for crime deemed civilly dead.
3. When party may be presumed dead.
4. Impotency.
5. Adultery.
6. Extreme cruelty.
7. Wilful desertion.
8. Continued drunkenness.
9. Neglect or refusal of husband, being able, to support wife.
10. Any other gross misbehaviour and wickedness in either of the parties repugnant to and in violation of the marriage covenant.
South Carolina.
Marriage.—No age is fixed by law for marriage of minors, nor when parental consent is necessary.
Impediments.—Same as to prohibited degrees of kinship as in Massachusetts.
Marriages of whites with Indians, negroes, mulattoes, mestizos, or half-breeds, are forbidden.
Formalities.—No license is required, and no particular form of ceremony necessary.
Divorce.—By a provision of the State constitution divorces from the bonds of matrimony are not allowed in South Carolina.
Marriages may, however, be annulled for want of consent of either party, or for any other cause showing that at the time of the supposed marriage it was not a contract, provided such contract has not been consummated by cohabitation.
South Dakota.
Marriage.—Minimum age at which males can marry is 18 years, females 15 years. Parental consent is required for males under 21 years and females under 18 years.
Prohibited Degrees.—Same as in Massachusetts.
Common law marriages are recognized.
Marriage may be solemnized by minister, priest, judge of supreme court or probate court, justice of the peace, mayor, or by the parties themselves making a joint declaration.
Causes for Divorce:
1. Adultery.
2. Extreme cruelty.
3. Wilful desertion for one year.
4. Wilful neglect for one year.
5. Habitual intemperance for one year.
6. Conviction of felony.
Limited divorces are not granted.
Tennessee.
Marriage.—The lowest age at which males can marry is 16 years, females 14 years. Parental consent is necessary for males under 21 years and females under 18 years.
Consanguinity and Affinity.—The prohibited degrees are the same as in Massachusetts.
Marriages of whites with negroes, mulattoes or persons of mixed blood are forbidden. A person declared guilty of adultery is forbidden his or her accomplice during the lifetime of the former spouse.
Formalities.—License necessary. Marriage ceremony may be religious or civil in form.
Causes for Divorce:
1. Natural impotence and incapacity of procreation at time of marriage, and still existing.
2. A previous marriage still subsisting.
3. Adultery.
4. Desertion for two years.
5. Conviction of such crime as renders party infamous.
6. Conviction of felony.
7. Malicious attempt on life of other spouse.
8. Wife’s refusal to move with husband into this State, and wilful absence from him for two years.
9. Wife’s pregnancy at time of marriage by another person, without husband’s knowledge.
10. Habitual drunkenness.
Limited Divorces.—Such relief is granted to a wife only, for the following causes:
1. Cruel and inhuman treatment, rendering it unsafe and improper for continued cohabitation.
2. Such indignities offered to wife as render condition intolerable, and force her to leave husband.
3. Husband’s abandonment of wife, or his turning her out of doors, refusing or neglecting to provide for her.
Texas.
Marriage.—Earliest age for males to marry is 16 years; females 14 years. Parental consent required for males under 21 years and females under 18 years.
Impediments.—The prohibited degrees of kinship are the same as in New York.
Marriage is forbidden between persons of European blood or their descendants and Africans or the descendants of Africans.
Formalities.—License required. Marriage may be solemnized by religious or civil ceremony.
Causes for Divorce.—
1. Excesses; cruel treatment.
2. Wife taken in adultery.
3. Wife’s abandonment of husband for three years.
4. Husband’s desertion with intention of abandonment for three years.
5. When husband abandons wife and lives in adultery.
6. Conviction of felony and imprisonment therefor in State prison.
There is no such thing as a limited divorce in this State.
Utah.
Marriage.—Males may marry at 14 years and females at 12 years, but if the former are under 21 years and the latter under 18 years parental consent is required.
Prohibited Degrees.—Marriage between ascendants and descendants, between brothers and sisters of the whole or half blood, between uncles and nieces, or aunts and nephews, or between any persons related to each other within the fourth degree of consanguinity is prohibited.
Marriage is also forbidden between a white person and a negro or Mongolian.
Formalities.—After a license has been procured the marriage may be solemnized by a minister or priest, judge of the Supreme or District Court, mayor of a city, or justice of the peace.
Causes for Divorce.—
1. Impotency.
2. Adultery.
3. Wilful desertion for more than one year.
4. Wilful neglect of husband to provide for wife.
5. Habitual drunkenness.
6. Conviction for felony.
7. Cruel treatment.
8. Permanent insanity of defendant.
To maintain an action for the last cause the plaintiff must prove that defendant has been adjudged insane at least five years before the beginning of action and that the insanity is incurable.
Vermont.
Marriage.—No minimum age is fixed by statute for marriage of minors, but males under 21 yearsand females under 18 years require consent of parents.
Impediments.—The prohibited degrees of consanguinity and affinity are the same as in Massachusetts.
Formalities.—License, called in Vermont a “certificate,” is necessary.
No special form of marriage ceremony is prescribed, except that if solemnized by Quakers the ceremony must be in the form used in Quaker societies.
Causes for Divorce.—
1. Adultery.
2. When either party is sentenced to confinement in the State prison for life, or for three years or more, and is actually confined at the time.
3. Intolerable severity of either party.
4. Wilful desertion for three consecutive years.
5. Absence of either party for seven years without being heard of during that time.
6. Husband’s cruel refusal or neglect to provide suitable maintenance for wife.
Limited Divorces.—A limited divorce, which leaves the marriage undissolved, may be granted for any of the causes for which an absolute divorce may be granted.
Virginia.
Marriage.—A male is deemed capable of marriage at 14 years and a female at 12 years, but for all minors under 21 years parental consent is required.
Prohibitions.—Marriage between ascendants and descendants, and between persons nearer of kin than the fourth degree of consanguinity, is prohibited. Marriage between white and colored persons is forbidden.
Formalities.—No marriage or attempted marriage, if it took place in this State, can be held valid here unless shown to have been under a license and solemnized according to statute. However, no particular marriage ceremony is prescribed, except that, if solemnized by a religious society, it must be in the manner practiced by such society.
Causes for Divorce.—
1. Adultery.
2. Incurable impotency.
3. Sentence to penitentiary.
4. Conviction of one party (without the knowledge of the other) of an infamous offence before marriage.
5. Flight from justice.
6. Desertion continued for three years.
7. Wife’s pregnancy at time of marriage by another man, unknown to husband.
8. Upon proof that prior to marriage wife had been, unknown to husband, a prostitute.
Limited Divorce.—May be granted for:
1. Cruelty.
2. Reasonable apprehension of bodily hurt.
3. Abandonment.
4. Desertion.
Washington.
Marriage.—Marriage is a civil contract which may be entered into by males of the age of 21 years and females of the age of 18 years who are otherwise capable.
Prohibited Degrees.—Marriage is prohibited between persons nearer of kin than second cousins, whether of the whole or half blood, computing by the rules of the civil law.
Celebration.—No particular form of ceremony prescribed, but license is necessary.
Causes for Divorce.—
1. Consent to marriage obtained by force and fraud and no subsequent voluntary cohabitation.
2. Adultery.
3. Impotency.
4. Abandonment for one year.
5. Cruel treatment.
6. Personal iniquities.
7. Habitual drunkenness.
8. Neglect to provide for wife or family.
9. Present imprisonment in penitentiary.
10. Any other cause in the court’s discretion if it appears parties should not continue the marriage relation.
11. Incurable chronic mania or dementia existing for ten years or more.
West Virginia.
Marriage.—Males may marry at 18 years and females at 16 years, but parental consent is required for all persons under 21 years of age.
Prohibited Degrees.—Same as in the State of Washington.
Formalities.—As to issuance of license and celebration, same as in Washington.
If a man, having had a child by a woman, afterward intermarries with her, such child is deemed legitimate.
Causes for Divorce.—
1. Adultery.
2. Incurable impotency.
3. Sentence to penitentiary.
4. Conviction before marriage of an infamous offence, unknown to other spouse.
5. Desertion for three years.
6. Pregnancy of wife at time of marriage by another man, unknown to husband.
7. Proof that wife, unknown to husband, had been before marriage a notorious prostitute. Proof that husband, unknown to wife, had been before marriage a licentious person.
Limited Divorces.—Granted for:
1. Cruel treatment.
2. Reasonable apprehension of bodily hurt.
3. Abandonment.
4. Desertion.
5. Habitual drunkenness.
Wisconsin.
Marriage.—Males may marry at 18 years and females at 15 years, but parental consent is required for males under 21 years and females under 18 years.
Prohibited Degrees.—Marriage is forbidden between persons nearer of kin than first cousins, of the whole or half blood, computing by the rules of the civil law.
Formalities.—Since April 29, 1899, a marriage license is required, but no particular form of celebration is necessary.
Causes for Divorce.—
1. Adultery.
2. Impotency.
3. Sentence to imprisonment for three years or more.
4. Wilful desertion for one year.
5. Cruel and inhuman treatment.
6. Wife’s intoxication.
7. Husband’s habitual drunkenness for one year.
8. Voluntary separation of parties continued for five years.
9. Extreme cruelty.
10. Husband’s refusal or wilful neglect to provide for wife.
11. Husband’s conduct such as to render it unsafe and improper for wife to live with him.
A limited divorce may be granted for all these causes except the first three.
Wyoming.
Marriage.—A male may marry at 18 years and a female at 16 years. Parental consent is required if either party is a minor.
Prohibited Degrees.—Marriage between ascendants and descendants, between brothers and sisters of the whole or half blood, between uncle and niece, or aunt and nephew, and between first cousins, is forbidden. This applies to legitimate or illegitimate kindred, but only to persons related by blood.
Formalities.—A license issued by county clerk is necessary.
Parties must solemnly declare in the presence of a minister or magistrate, and two witnesses, that they take each other as husband and wife.
Causes for Divorce.—
1. Adultery.
2. Physical incompetence at time of marriage continued to time of divorce.
3. Conviction and sentence for felony.
4. Wilful desertion for one year.
5. Habitual drunkenness.
6. Extreme cruelty.
7. Neglect of husband for one year to provide common necessaries of life.
8. Such indignities as render conditions intolerable.
9. Vagrancy of husband.
10. Conviction before marriage (unknown to other spouse) for felony or infamous crime.
11. Pregnancy of wife by another man at time of marriage, unknown to husband.
Limited divorces are not granted in this State.
Dominion of Canada and Newfoundland.
The Dominion of Canada now consists of the Provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan, together with certain territories not as yet included in any Province.
The Canadian Constitution, similar in principle to that of Great Britain, is embodied in the British North America Act of 1867 (30 Vict. c. 3).
This act, which was passed by the Imperial Parliament, created the federation now styled the Dominion of Canada, and assigned to the Dominion Parliament power “to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the Legislatures of the Provinces.”
One great distinction between the Canadian Constitution and the Constitution of the United States of America is that powers not specifically granted to the Provinces are reserved to the Dominion Government, whereas under the American Constitution powers not specifically granted to the Federal Government are reserved to the States, or to the people.
Marriage and divorce are specifically set forth in the Canadian Constitution as a branch of legislation exclusively within the control of the Dominion Parliament, but although forty-three years have passed since the act became operative the Dominion Parliament has so far enacted only two statutes concerning the subject. The first act(May 17, 1882) legalized the marriage of a man with his deceased wife’s sister, and the second (May 16, 1890) legalized the marriage of a man with his deceased wife’s sister’s daughter.
The Dominion of Canada shares with Ireland the distinction of having no law permitting a judicial decree of divorce.
However, by one clause of the British Act of North America there was preserved in full force the laws and judicial system of the several Provinces until the laws should be repealed or the courts abolished by competent authority.
Consequently, four of the nine Provinces, namely, British Columbia, New Brunswick, Nova Scotia and Prince Edward Island, have their individual laws of divorce and divorce courts.
Of the eight millions of people living in Canada six millions have no possibility of divorce except by a special act of the Dominion Parliament.
The Dominion Parliament has power to grant an absolute divorce for any cause, but it never has done so except for adultery.
Divorce petitions or bills are, as a matter of practice, introduced first in the Senate, where there is a standing committee to deal with them.
For the Provinces of Ontario, Quebec and Manitoba, and the Northwest and other Territories, the Dominion Parliament is the only authority which can grant an absolute divorce.
Marriage.—Legislation concerning the formal requirements and solemnizations of marriage is still within the exclusive authority of the legislatures of the Provinces.
As to the impediments which arise from blood and marriage, the law throughout the Dominion of Canada is in agreement with the law of England, which is based upon the 18th chapter of the Book of Leviticus.
It is expressly provided by the act, 28 and 29 Vict. c. 64, that every law made or to be made by the legislature of any British possession, “for the purpose of establishing the validity of any marriage or marriages contracted in such possession, shall have and be deemed to have had from the date of the making of such law the same force and effect for the purpose aforesaid within all parts of Her Majesty’s dominions as such law may have had or may hereafter have within the possession for which the same was made. Provided that nothing in this law contained shall give any effect or validity to any marriage unless at the time of such marriage both of the parties thereto were, according to the law of England, competent to contract the same.”
Validity of Foreign Divorces.—When the validity of a foreign divorce is considered by the Canadian courts the judges apply the strict rule of refusing to recognize a decree of divorce pronounced by a court within whose jurisdiction the parties had not a bona fide domicile.
The courts also hold that a marriage celebrated in Canada between persons domiciled there is in its nature indissoluble except by death or by the act or decree of the Dominion Parliament, or a Canadian court of competent jurisdiction, and that no judgment of a foreign court dissolving such a marriage will be recognized in Canada.
This rule invites, and has received, such severe criticism for its injustice that it cannot long be maintained by such tribunals of learning and integrity as the courts of Canada.
Suppose a Canadian man and woman domiciled in Toronto should intermarry there, and afterwards acquire a joint domicile of twenty years’ duration in New York City. If, after that period, the wife should obtain in the courts of the Stateof New York a divorce on the grounds of her husband’s adultery, and should remarry another man, upon her return to Canada it would be manifestly unjust to treat the divorce and second marriage as null and void.
Some of these days the Canadian courts will be called upon to consider the legal effect of a divorce obtained upon statutory grounds in England in a suit between two persons who were married in Canada and at the time of such marriage were domiciled in that country. Perhaps then the rule we have mentioned and criticised will be relaxed.
The Island and Colony of Newfoundland, although a British colony in North America, is not yet incorporated as a part of the Dominion of Canada. It has its own governor, legislature and judicial system entirely separate from the Dominion and its own marriage and divorce law.
The jurisdiction of Newfoundland extends not only over the island by that name, but also over the whole of the Atlantic coast of Labrador.
Age Requirements.—The legal age for marriage in British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland is fourteen for a male and twelve for a female. In Ontario both males and females must be at least fourteen years of age.
Parental Consent.—In British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland parental consent is necessary for both males and females under twenty-one years of age.
In New Brunswick and Ontario parental consent is required for males and females under eighteen years of age.
In British Columbia an appeal may be taken to the courts if consent is refused by parent or guardian.
Celebration.—Marriages may be solemnized by duly qualified clergymen of every religious denomination, or by a judge, justice of the peace or other magistrate.
Unless banns are published a license must be produced for each marriage, and can only be obtained from the proper local authority upon affidavit or declaration of one of the parties to the intended marriage, showing that no legal impediment exists and that the proper consents have been obtained.
The competency of a Protestant minister to marry two Roman Catholics in the Province of Quebec was called in question by the leading case of Delphit v. Coté, reported in the Quebec Reports, 20 S. C. 338. The plaintiff, who had been baptized as a member of the Roman Catholic Church, was married to the defendant, who, at the time at least, professed the same belief, by a minister of a Protestant denomination, by virtue of a license issued in due form. Subsequently an ecclesiastical court of the Catholic Church declared the marriage null on the ground that two Roman Catholics could only be married by a Roman Catholic priest. Upon appealing to the civil court for an annulment of the marriage because of the ecclesiastical decree, it was held that the ecclesiastical court was entirely without jurisdiction and that the marriage was in all legal respects good and binding.
Marriages with Indians.—A Christian who marries an aboriginal native or Indian cannot exercise in Canada the right of divorce or repudiation of his wife at will, although following the usages of the tribe or “nation” to which his Indianwife belongs such divorces and repudiations are customary and regular.
Annulment of Marriage.—In any of the Provinces, or in Newfoundland, the courts may annul marriages on the ground of fraud, mistake, coercion, duress or lunacy.
Foreign Marriages.—The courts of Canada and Newfoundland recognize a marriage concluded in a foreign country as valid if it was performed in accordance with the laws of the foreign country, if each person was competent to marry, according to the laws of the country of his and her citizenship, and if the marriage was not in violation of the general laws and usages of Christendom.
Ontario.—The High Court of Justice in this Province has jurisdiction where a marriage correct in form is ascertained to be voidde jureby reason of the absence of some essential preliminary to declare the same null and voidab initio; but nothing short of the most clear and convincing testimony will justify the interposition of the court.
As we have observed before, there is no divorce court in the Province.
Every married woman is entitled to hold and alienate as her separate property all wages and profits acquired by her in any separate occupation which she may conduct on her separate account.
Quebec.—This Province, which is composed largely of Roman Catholic inhabitants of French ancestry, treats marriage as a religious contract.
The system of jurisprudence in Quebec is an admixture of the Code Napoleon, thecoutume de Paris, and the common law of England. The provisions of the Civil Code and Code of Civil Procedure of the Province are largely of French origin.
Marriage must be solemnized openly by a competent officer recognized by law and must bepreceded by the publication of banns, unless a license is obtained. A license for a marriage by a Protestant clergyman must be issued from the office of the Provincial Secretary.
A marriage contracted without the free consent of both parties, or of one of them, can only be attacked by such parties themselves or by the one whose consent was not free.
A marriage contracted before the parties, or either of them, have attained the age required can no longer be contested if six months have elapsed since the party or parties have attained the proper age; or if the wife under that age has conceived before the termination of six months.
The laws in this Province concerning the rights of married women to own property separate from their husbands are almost mediæval.
A married woman cannot take judicial proceedings without being authorized so to do by her husband or the court.
A husband and wife cannot contract with each other even with the assistance of a third person. They cannot even make donations to each other during the marriage.
Husband and wife are not competent witnesses against each other in a court of law.
Neither the courts nor the Provincial legislature grant divorces which dissolve the marriage bond. Applications for such relief must be addressed to the Dominion Parliament.
A separation from bed and board is granted by the courts to either party to a marriage upon proof of adultery, cruelty, desertion or confirmed drunkenness; and to a wife for the failure of her husband to provide her proper support.
Where a husband keeps a concubine in the same house with his wife the latter is justified inleaving him to live elsewhere, and in so doing the wife does not lose any of her marital rights.
Quebec is the only Province in the Dominion of Canada where a child born out of wedlock is legitimatized by the subsequent marriage of the parents.
British Columbia.—The Divorce and Matrimonial Act of 1857, passed by the Imperial Parliament, is in full effect in this Province.
The Supreme Court has jurisdiction to entertain a petition for divorce between persons domiciled in the Province and in respect of matrimonial offences alleged to have been committed therein.
Absolute divorces are granted on the application of the husband on the ground of adultery; on the application of the wife on the ground of incestuous adultery, bigamy with adultery, rape, sodomy or bestiality, adultery coupled with such cruelty as without adultery would have entitled her to a judicial separation, or adultery coupled with desertion, without reasonable excuse, for two years or upwards. Alimony may be ordered to be paid to the wife, by the decree dissolving the marriage or granting a separation, or it may be sued for separately if the wife has either obtained or is entitled to such a decree. After absolute divorce either party may marry again. The procedure in divorce matters is almost identical with that of England.
A judicial separation may be obtained by either spouse because of:
1. Adultery.
2. Cruelty.
3. Desertion without cause for two years or more.
New Brunswick.—It is interesting to note that in this Province a married woman may acquire, hold and dispose of, by will or otherwise (exceptthat husband’s curtsey will not therefore be affected), any real or personal property as her separate property, in the same manner as if she were afemme sole, without the intervention of any trustee, and may enter into and render herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued in all respects as if she were afemme sole.
The grounds for absolute divorce are:
1. Impotency.
2. Adultery.
3. Consanguinity.
Nova Scotia.—This old Province, originally called Acadia, has a judiciary which consists of a chief justice, an equity judge and five puisne judges, a supreme court having law and equity jurisdiction throughout the Province, a vice-admiralty court and a court of marriage and divorce.
The rules as to consanguinity and affinity, the causes for divorce and judicial separation and the civil effects of marriage and divorce are the same as in England.
Alberta.—The Supreme Court Act (February 11, 1907) established the Supreme Court of the Province and provided that the court “shall have jurisdiction to grant alimony to any wife who would be entitled to alimony by the law of England, or to any wife who would be entitled by the law of England to a divorce and to alimony as incident thereto, or to any wife whose husband was separate from her without any sufficient cause and under circumstances which would entitle her by the laws of England to a decree for restitution of conjugal rights; and alimony, when granted, continue until further order of the court.”
Northwest Territories.—The term “Northwest Territories” originally referred to the region overwhich the Northwest Company exercised authority, the territorial limits of which were not clearly defined. The term is now used to designate the Canadian territories and districts of Yukon, Keewatin, Mackenzie, Ungava and Franklin.
As we have before observed, the law of marriage and divorce in the Northwest Territories is substantially the same as that of England.
Newfoundland.—This, the oldest British colony in North America, is the most modern in its law of domestic relations.
Marriage is considered a civil contract, which may be solemnized before a qualified clergyman of any sect, or a judge, justice of the peace or other magistrate.
A married woman has the same right of buying, selling, owning and controlling any kind of real or personal property as a single woman. She has also the fullest right to make any lawful contract without adding her husband as a party. She may sue and be sued as if she were a single woman or a man.
There being no divorce courts, the Provincial legislature having no power to grant divorces, and the Colony of Newfoundland being outside of the jurisdiction of the Dominion Parliament of Canada, an absolute divorce cannot be obtained in the colony.
The Republic of Mexico.
Mexico is a federative Republic composed of twenty-seven States, three Territories and a Federal District.
Under the present Constitution, which is dated February 5, 1857, each State has the power to control its own local domestic concerns and to have its own separate executive, legislature and judiciary.
The Civil Code of the Federal District (El Codigo Civil de Distrito Federal) was enacted simply for the Federal District and the Territories of Lower California, Tepic and Quintana Roo, but each of the twenty-seven States have in their respective Civil Codes adopted the provisions of the Federal Civil Code, especially with reference to the law of marriage and divorce. Therefore, we find it unnecessary to deal with each State separately.
Marriage.—The courts of Mexico, following the Federal Code, define marriage as the lawful co-partnership of one man and one woman united for life in an indissoluble bond to perpetuate their species and to render each other mutual assistance, fidelity and sympathy in bearing together the burdens of life.
The law does not recognize in any manner future espousals, nor any conditions contrary to the legitimate purposes of marriage.
Marriage must be preceded by the statutory preliminaries and be celebrated before authorizedofficials with all such formalities as are by law required.
A male must be at least 14 years of age and a female at least 12 years of age to contract marriage, unless a dispensation from the superior political authority is obtained permitting marriage at an earlier age. Such a dispensation can only be obtained in exceptional cases and for good cause.
Parental consent is required for the marriage of both males and females under the age of 21 years. If the father is dead the consent of the mother is sufficient. If both the father and mother are dead then the consent of the paternal grandfather will suffice. If he is also dead the paternal grandmother must give consent. In the event of both paternal grandparents being dead the maternal grandparents take their place and exercise thepatria potestad.
Impediments.—The impediments to marriage are:
1. Incapacity of the parties, as when one or both are under age.
2. Absence of the consent of parents or of the person exercising the rights of a parent.
3. Mistake as to the identity of either party.
4. Relationship within the prohibited degrees.
Consanguinity and Affinity.—Marriages are prohibited between ascendants and descendants; between brothers and sisters of the whole or half blood; between uncles and nieces; aunts and nephews, and all other persons related by blood or marriage within the third degree.
The laws of Mexico recognize no relationship other than one by consanguinity and affinity.
Each generation constitutes a degree, and the series of degrees constitute the line of relationship.
Other Prohibitions:
A. A marriage is prohibited when either of the intending parties has a husband or wife still living.
B. If one of the parties has made an attempt against the life of the husband or wife of the other with the intention of marrying the survivor.
C. If one of the parties has obtained the apparent consent of the other by fear, coercion or duress.
D. If either of the parties is permanently and incurably insane.
Formalities.—Parties intending to conclude marriage must personally appear before the judge of civil status of the domicile of either party, and state their intention. The judge will thereupon make an entry in a register kept for that purpose of the names, occupations and domiciles of both of the contracting parties, the names, occupations and domiciles of their parents, if the same be ascertainable, the names, occupations and domiciles of the witnesses whom the parties present to the judge as knowing the legal capacity of the parties, and proof of the consents of the parents, or of such persons as are lawfully exercising the rights of the parents.
If either of the contracting parties has been previously married the judge must require proper evidence that the former consort is dead.
If it appears that there exists any impediment to the intended marriage which could be removed by a dispensation from the superior political authority such dispensation must be exhibited.
Upon the judge receiving the required proof that the parties may be legally married he will cause a copy of the record to be posted in a conspicuous place in his office for 15 days, and two similar copies must be posted in the usualpublic places. If, during the publication as aforesaid, and for three days thereafter, no valid opposition is made by any one to the marriage, it becomes the duty of the judge, upon request of the parties, to fix the place, day and hour for the celebration.
A marriage must be celebrated in public at the place and time previously fixed by the judge. The parties must appear in person or by their specially appointed proxies, and be attended by at least three adult witnesses, who may be relatives.
The parties, by themselves, or by their specially appointed proxies, must formally declare to the judge in the presence of the witnesses their intention to take each other as husband and wife, upon which declaration the judge shall pronounce them man and wife and make an official record of the marriage.
Rights and Obligations of Marriage.—Husband and wife are obliged to be faithful to each other, and each must contribute his or her part to the objects of the marriage. They are under mutual obligation to succor and protect one another and to render each to the other affection and sympathy.
It is a wife’s duty to live with her husband and to follow him wherever he may choose to go and accept his selection of a conjugal home.
A husband is obligated to provide alimentation (alimentos) to his wife even though she may have brought no property into the marital community. By alimentation is meant not only necessary food, but raiment and things of personal necessity and comfort commensurate with the husband’s ability to make such provision. The husband owes his wife the duty of protecting her person and reputation.
The wife must obey her husband in domestic concerns, in the matter of training and educatingthe children of the marriage and in all affairs connected with the common property and the household.
If the wife has property of her own she must furnish alimentation (food, clothing and lodging) to her husband when he is in want and cannot obtain it for himself.
If a husband proposes to leave the Republic to live in a foreign land the wife may apply to the courts to be relieved from the usual duty of adopting her husband’s residence.
The husband is the legitimate representative and manager of all of the property of the marriage. He is ordinarily his wife’s representative in legal proceedings. A wife generally cannot appear either personally or by attorney in a suit at law without her husband’s authorization in writing.
If she is of full age a wife does not require her husband’s authorization in the following instances:
A. To defend herself in a criminal action.
B. To bring a suit against her husband.
C. To devise or bequeath her own separate property by a will.
D. When her husband is in what the Mexican lawyers call a state of interdiction, as, for example, when he is under guardianship or insane.
E. When she is in business on her separate account and the suit or proceeding relates to such business.
Divorce.—It is in the chapter of the Civil Code entitled “Del divorcio” that we find the statutory provisions concerning divorce. The chapter begins by stating positively that divorce (divorcio) does not dissolve the bonds of matrimony. We must remember that the Federal Code is founded upon the Spanish Code, and that both Mexico and Spain,being historically Roman Catholic countries, reflect the leading dogmas of the Catholic Church in their civil jurisprudence. What is called a divorce in Mexican law is at the most a separation from bed and board. It simply suspends certain of the civil obligations and effects of marriage.
Causes for Divorce:
1. Adultery of the wife under any circumstances.
2. Adultery of the husband, if the adultery is committed in the conjugal home, or if the husband is living in concubinage, or if the husband’s adultery causes a public scandal and attracts public contempt or insult to the wife, or if the wife has been ill used by word or deed by her husband’s paramour or on account of her.
3. If the husband proposes or plans to prostitute his wife, or accepts from a third person any money, article or valuable consideration for the purpose of effecting such prostitution.
4. When either spouse instigates or encourages the other to commit a crime.
5. The attempt by positive acts by either husband or wife to corrupt their children or by deliberately permitting third persons to practice such corruption.
6. Abandonment without just and legal cause of the conjugal home (casa comun), or if there is just and legal cause for such abandonment, to remain away for one year or more without beginning a suit for divorce.
7. Cruelty, threats or injury of a serious nature by one spouse against the other.
8. False accusation of a grave nature made by either party against the other.
9. The refusal, or wilful neglect, of one spouse to furnish alimentation, or support, to the other, in accordance with law.
10. Incorrigible vices of gambling or drunkenness.
11. The existence of a chronic and incurable disease which is hereditary or contagious afflicting one of the spouses previous to the marriage, of which the other spouse had no knowledge when the marriage was concluded.
12. If the wife gives birth to a child conceived before marriage, which child has been judicially declared illegitimate.
13. An infringement or violation of the marriage settlements (capitulaciones matrimoniales).
14. Mutual consent of the parties.
Proceedings for Divorce.—Even if the spouses consent to a divorce there must be a formal legal proceeding. In such a case the suit is begun by a petition to the judge setting forth clearly the consent to divorce and the agreement of the parties as to the maintenance of the wife, the custody of the children and the disposition or division of the property held in common.
When such a petition is filed it becomes the duty of the judge to summon the parties before him and to endeavour to effect a reconciliation.
In a suit where the spouses do not mutually consent to a divorce, it is still the legal duty of the judge to attempt a reconciliation of the parties.
Annulment of Marriage.—While the Mexican law does not recognize absolute divorce it does provide for the annulment or setting aside absolutely of certain marriages. Marriages are voidable and may be annulled in the courts on the following grounds:
A. If the parties are related within the prohibited degrees of consanguinity and affinity.
B. If the parties, or either of them, were incapable by reason of non-age or otherwise of legally concluding marriage.
C. If the necessary parental consent, or consent of the person exercising thepatria potestad, was not had.
D. If the marriage was irregular or contrary to law, as, for example, if the proper publication was omitted, or no witnesses attended the celebration.
E. If there exists in either party, and existed before the marriage, an incurable impotency for copulation.
Want of legal age of either party is not a ground for annulment if a child is born, the issue of the union.
And if either party, or both, were under the legal age at the time of marriage, a decree of annulment will not be granted if, upon becoming twenty-one years of age, the spouses continue to cohabit together.
Such marriages as we have pointed out above are not void, but voidable, and any of the grounds sufficient for annulment may be waived by the aggrieved spouse.
Effects of Divorce.—Divorce can only be granted to the innocent party, and suit therefor must be brought within one year after the petitioner discovers the facts which constitute a legal cause for a decree.
The innocent party, pending the action, or even after the final decree, may require the other party to resume the marriage relationship.
The most usual effect of a divorce is a physical separation of the spouses.
If the wife is the guilty party she may, on her husband’s suggestion, be directed by the judge to live in a certain house, for the protection of the good name of the husband.
Upon the finding of a decree of divorce, if the parties have not reached an appropriateagreement, the judge will make such directions as to the maintenance of the wife, custody of children and division of common property as justice may require.
Foreign Marriages.—Marriages concluded between foreigners in a foreign country, which are valid in that country, will be recognized as valid for all civil effects in Mexico.
A marriage between a Mexican citizen and a foreigner, or between two Mexican citizens, and concluded in a foreign country, will be valid for all civil effects in Mexico, provided such marriage was concluded according to the law of the foreign country and is not in violation of the Mexican laws as to the prohibited degrees of relationship, capacity to contract and consent of persons inloco parentis.
Foreign laws (leyes extranjeras) must be established as matters of fact by the persons relying upon their existence, and their application to questions at issue must also be shown.
Within three months after a Mexican citizen who has concluded marriage in a foreign country returns to the Republic, he or she must cause the inscription of the celebration to be entered in the Civil Register of his or her domicile.