Argentine Republic.
The Civil Code of the Argentine Republic shows strong evidences of the Spanish origin of its precepts. As in the old motherland marriage is considered as indissoluble except by the death of one of the contracting parties. However, the Republic does not accept the decrees of the Council of Trent or the canonical law of the Catholic Church on the subject of marriage as parts of the law of the land.
As a matter of religion the people of Argentina may consider marriage as a sacrament or divine ordinance, or not, as it pleases their consciences, but as a matter of law marriage in the Argentine Republic is simply a civil contract.
Essentials of Marriage.—For the validity of marriage there must be the consent of two contracting parties declared before the public official in charge of the civil register. The contract can be declared by proxy, but only with a special authorization from the principal, in which the person with whom the proxy has to conclude the marriage is clearly described.
Impediments.—The existence of any of the following conditions make a marriage unlawful:
1. Consanguinity between ascendants and descendants without limitation, whether legitimate or illegitimate.
2. Consanguinity between brothers and sisters and half brothers and sisters, legitimate or illegitimate.
3. Affinity in the direct line in all degrees.
4. The woman not being twelve and the man fourteen years of age.
5. The existence of a previous marriage.
6. Where one of the parties has been voluntarily the author of, or the accomplice in the death of, the former husband or wife of the other.
7. Insanity.
8. A woman over twelve years of age and a man over fourteen, but minors, and the deaf and dumb who cannot write cannot bind themselves in marriage without the consent of their legitimate father, or, failing him, without their mother’s consent, or that of their guardian, or of the judicial consent or permission, in the absence of the above. The civil judge will decide in cases of disagreement.
9. A guardian, or his descendants under his power, cannot marry minors under his guardianship so long as the latter lasts.
Preliminaries.—Those who desire to marry must present themselves before the public official in charge of the civil register, at the domicile of one of the parties, and verbally declare their intention to marry. Two witnesses are required who, from their knowledge of the contracting parties, can declare as to their identity and that they consider them capable of being married.
Celebration.—The marriage must be celebrated before the official charged with the civil registry in his office, publicly, the bride and bridegroom, or their proxies, appearing in person, in the presence of two witnesses and with the formalities prescribed by law. If either of the contracting parties are unable to appear at the registry office the marriage may be celebrated at his (or her) residence.
If the marriage be celebrated in the registry office two witnesses must be present, and four witnesses if it is celebrated at the domicile of either of the contracting parties.
In celebrating the marriage the Public Registrar must read to the contracting parties those portions of the law which define the rights and obligations of married couples. He must also receive from each the declaration that they respectively desire to take each other as husband and wife. He must also formally declare the couple to be man and wife.
There is no legal objection to a religious celebration of marriage following the civil ceremony, which alone is treated as legally effective.
Husband and Wife.—The contracting parties are bound to be mutually faithful, but the infidelity of the one does not excuse the infidelity of the other. The one who breaks this obligation can be proceeded against by the other in the divorce courts without prejudice to what is laid down on the subject by the Penal Code.
The husband is bound to live in the same house as his wife and to give her all necessary assistance, protection and support.
If there be no marriage contract to the contrary, the husband is the legal administrator of all the property belonging to the married couple, including that of the wife, as well as that which they possessed at marriage as of that subsequently acquired by them in their own right.
The wife is bound to live with the husband wherever he may fix his residence.
A wife cannot, without her husband’s permission, go to law, make any contract, or acquire goods, nor alienate or pledge goods without such permission. The wife may, of course, in certain cases, such as divorce, acquire judicial authorization for prosecuting or defending a suit in the courts.
Divorce.—The courts of the Argentine Republic grant divorces, but in effect they only amountto a personal separation of the parties to a marriage, without the dissolution of the bonds of matrimony.
These so-called divorces are granted for the following causes:
1. Adultery of the husband or wife.
2. Attempt by one of the parties on the life of the other, either personally or as an accomplice.
3. The instigation of one of the parties by the other to commit adultery or other crimes.
4. Cruelty.
5. Serious injuries. In estimating the gravity of the injury the judge will take into consideration the education and social position of the parties.
6. Such ill-treatment, even if not serious, as renders married life unsupportable.
7. Wilful and malicious desertion.
Effects of the Divorce.—If the wife be of age she can exercise all the usual acts of civil life.
Each of the parties can fix his or her domicile or residence where he or she thinks fit, even if it be abroad. However, if the party have children under his or her care, they cannot be taken abroad without the permission of the court of their domicile.
The innocent party can revoke the donations or advantages which he or she may have made or promised to the other by the marriage contract, whether they were to have come into effect during the life of the party or after his or her death.
Children less than five years old remain in the mother’s custody. Those over that age shall be handed over to the party who, in the opinion of the judge, is most fitted to educate and care for them.
The husband who may have given cause for divorce must continue to support the wife if she have not sufficient means of her own. The judgeshall decide the amount and manner in which this shall be done, with due regard to the circumstances of both parties.
Whichever of the parties may have given cause for divorce will have the right to require the other, if he or she be able to do so, to provide him or her with subsistence, if such be absolutely necessary.
Dissolution of Marriage.—A legal marriage can only be dissolved by the death of one of the contracting parties.
A marriage which can be dissolved in accordance with the laws of the country in which it was celebrated cannot be dissolved in the Argentine Republic except by the death of one of the parties.
The supposed decease of one of the contracting parties, either through absence or disappearance, will not enable the other to marry again. So long as the decease of one of the contracting parties, either through absence or disappearance, has not been absolutely proved, the marriage is not considered as dissolved.
Annulment of Marriage.—A marriage may be annulled when it was contracted in violation of some legal impediment, or for want of proper consent.
Second or Further Marriages.—A woman cannot marry again for ten months after a dissolved or annulled marriage, unless she was left pregnant, in which case she may marry after having given birth to the child.
Proof of Marriage.—A marriage must be proved by certificate, or copy thereof, of such marriage. If it is impossible to produce the certificate, or its copy, all other means of proof will be allowed, but these other proofs will not be admitted unless it is previously established that such certificate or copy cannot be produced.
The United States of Brazil.
The United States of Brazil (Estados Unidos do Brazil), the largest country in South America and one of the most extensive political subdivisions of the world, is a Republic comprising twenty States and a Federal District.
Its present constitution was adopted February 24, 1891, and is in many respects similar to that of the United States of America.
The legislative power is vested in the President of the Republic and a National Congress, consisting of a Senate and Chamber of Deputies.
The individual States are governed by their governors and legislatures, and possess their own judicial systems.
The main body of the civil law has its origin in the Portuguese Code and in the judicial precedents of Portugal.
There is a Supreme Federal Court of Justice, which sits at the capital, Rio de Janeiro, and Federal Courts in each of the twenty States.
Ninety-nine per centum of the people of Brazil are Roman Catholics and consider marriage as a religious sacrament, but the law of the land considers it simply as a civil contract.
Marriage.—The Civil Code defines marriage as a perpetual contract between two persons of different sex to live together and establish a legitimate family.
A civil or legal celebration of marriage is compulsory for all persons, irrespective of race or creed. If after the civil marriage the parties may desire to satisfy their consciences and themandates of their church or sect by having the marriage solemnized in a religious form, there is no legal objection thereto.
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 or widow 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 a person bound by solemn vows of religion to a life of chastity.
The canon law of the Roman Catholic Church is accepted as defining the religious rules and spiritual effects of marriage, but the civil law defines the status and temporal effects of the marriage contract.
Prohibited Marriages.—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.
Preliminaries.—The intending parties must present themselves in person before the registrar and produce certificates showing:
A. Full names, ages, occupations and domiciles of the contracting parties.
B. The full names, ages, occupations and domiciles of their parents, or, if they are dead, the same particulars of those who replace themin loco parentis.
C. Proof of the consents of such persons who in law are entitled to give or withhold consent to the proposed marriage.
D. A declaration in writing by two respectable witnesses of full age, certifying acquaintance with the contracting parties, and knowledge that they are not related within the prohibited degrees of kinship.
If either of the contracting parties has been previously married, proof of the death of the former spouse must be given to the registrar.
Upon receiving satisfactory proof as stated above, the registrar must post a notice of the proposed marriage in a conspicuous place in his office, which notice informs all interested persons to file their objections, if any they have, in the registry within fifteen days. If at the end of this period no valid objection to the marriage has been formulated the civil officer proceeds to the celebration of the marriage.
A marriage concluded before a civil officer in the form established by the civil law of Brazil can only be annulled by a civil court.
Divorce.—The law of the Republic does not permit of an absolute divorce for any cause whatsoever. A true marriage can only be dissolved by the death of one of the parties.
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 bringshis concubine into the home he has established for his wife.
3. Sentence of one of the spouses to life imprisonment.
4. Cruel and ill-human treatment.
Foreign Marriages.—The courts of Brazil recognize as valid a marriage between two foreigners concluded in a foreign land, provided that such marriage is monogamous, is not between ascendants or descendants, or between persons related collaterally in the second degree, and if such marriage was regularly concluded according to the law of the country of its celebration.
A marriage abroad of a citizen of the Republic of Brazil must conform not only to the law of the place of its celebration, but must also be in strict accordance with the law of Brazil.
The Republic of Cuba.
A nation may in a day overthrow a dynasty which has ruled for centuries, it may in a few years completely revolutionize its system of government and methods of trading, but its ancient code of marriage will live on unchanged for ages.
It is a noteworthy fact that the law of Rome concerning marriage survived the Roman Empire by a thousand years, and even to-day it is the foundation of the law on that subject in all of the Continental countries of Europe and of the entire Western Hemisphere, with the exception of the United States of America and Canada.
In the Civil Code of Cuba we can see not only its recent origin from the Spanish Code, but traces of the Law of the Twelve Tables and the Institutes of Justinian.
Cuba is to-day a Republic composed of six Provinces. The seat of government is located at Havana, where sit the Senate and House of Representatives, which constitute the national legislature.
The Civil Code is theCodigo Civilof Spain, with such changes and modifications as have become effective since Spain lost its sovereignty over Cuba.
The statement of Cuban law which follows is, therefore, predicated upon theCodigo Civil, which by royal decree of May 11, 1888, was extended to the islands of Cuba, Porto Rico and the Philippines, upon proclamations and orders issued during the recent American military occupation and on the interpretation and construction of the positive law by Cuban courts and jurists.
Marriage.—The law considers marriage as a civil contract, which may be concluded by either a civil (matrimonio civil) or a religious (matrimonio religioso) celebration.
A male cannot marry until he has completed his fourteenth year of age; a female until she has completed her twelfth year.
Marriages contracted by minors under the legal age become, however,ipso factolegal if a day after having arrived at the legal age the parties continue to live together without bringing suit to annul the marriage, or if the female becomes pregnant before the legal age or before the institution of a suit for annulment.
Only such persons as are in the full enjoyment of their reason can contract marriage.
Marriage is forbidden to all persons who suffer from absolute or relative physical impotency for the purposes of procreation.
Persons ordainedin sacrisand those professed in an approved canonical order, who are bound by a solemn pledge of chastity, cannot lawfully conclude marriage until they have obtained the proper canonical dispensation.
Those who are already bound in marriage cannot contract a new marriage.
Persons who are twenty-three years of age or upwards may conclude marriage, if otherwise of legal capacity, without parental consent or advice.
Persons under twenty years of age require the consent of their parents, or of such persons whose right it is to give or withhold such consent.
Persons who are more than twenty years of age, but under twenty-three, are under the obligation of asking the advice or counsel of their parents or of such persons standing in the parental relation before contracting marriage, and if the advice is refused, or it should be unfavourable, themarriage cannot take place until three months after the petition was made.
The consent and the favourable advice for the celebration of a marriage must be proven, if requested, by means of an instrument authenticated by a civil or ecclesiastical notary or by the municipal judge of the domicile of the petitioner.
When the advice has been proven the lapse of time shall be proven in the same manner.
If a marriage is concluded by persons more than twenty years of age, and under twenty-three years of age, without compliance with the rules just stated, the marriage will be recognized as valid, but the offender is subject to certain disabilities and penalties.
Consanguinity and Affinity.—The following persons are prohibited from contracting marriage with each other:
1. The ascendants and descendants by legitimate or natural consanguinity or affinity.
2. Collaterals by legitimate consanguinity up to the fourth degree.
3. Collaterals by legitimate affinity up to the fourth degree.
4. Collaterals by natural consanguinity or affinity up to the second degree.
The government, for sufficient cause, may on the petition of a party grant a dispensation permitting a marriage of minors who have not obtained the proper permission or advice of the persons whose legal right it is to authorize one or the other.
For grave reasons the government may also grant a dispensation relieving a party from the prohibition of marrying within the third and fourth degrees of collaterals by legitimate consanguinity; the impediments arising from legitimate or naturalaffinity between collaterals and those relating to the descendants of the adopter.
Special Prohibitions.—The following persons cannot contract marriage with each other:
1. The adopting father or mother and the adopted; the latter and the surviving spouse of the former, and the former and the surviving spouse of the latter.
2. The legitimate descendants of the adopter with the adopted, while the adoption lasts.
3. Adulterers who have been condemned by a final judgment.
4. Those who have been condemned as authors, or as the author and accomplice, of the death of the spouse of either of them.
Celebration of Marriage.—A civil marriage must be celebrated according to the requirements of the code, as changed or modified by subsequent orders, decrees and legislation.
Any clergyman, priest or minister, irrespective of faith or sect, who belongs to a religious denomination actually established in the Republic of Cuba, and who has been duly authorized, may solemnize marriage.
A register is kept in the office of the Secretary of Justice containing the names and addresses of all clergymen, priests and ministers who are qualified to solemnize marriage in the Republic.
Persons who desire to contract a religious marriage must present to the clergyman, priest or minister who is qualified to perform the ceremony a declaration signed by both of the contracting parties, stating:
1. The names, surnames, profession, domicile or residence of the contracting parties.
2. The names, surnames, profession, domicile or residence of the parents.
3. Certificates of birth and of the status of thecontracting parties, the consent or advice, if proper, and the dispensation, when it is necessary.
Upon the presentation of such a declaration the clergyman, priest or minister shall announce the future celebration of marriage between the parties according to the form or method prescribed by the rites and regulations of his religious denomination.
If the religions denomination of such clergyman, priest or minister has no established form for such announcement, then a publication must be made in the form established by the Civil Code. The method required by the Civil Code for proclaiming an intended marriage is set forth in Article 89, which directs a publication by posting the written declaration of the parties for fifteen days and calling upon those who have information of any obstacle to oppose the marriage.
A civil marriage can only be solemnized by a municipal judge (Juez Municipal), to whom must be presented as an indispensable preliminary such a signed declaration of the parties as is necessary in the case where the parties desire a religious ceremony.
A municipal judge chosen to celebrate a civil marriage will also direct as a preliminary to marriage such a proclamation as is required by Article 89 aforesaid.
A priest, minister or clergyman duly authorized to perform marriages may, for sufficient cause, dispense with the publication as before set forth; but in every case where a publication is made the marriage cannot be concluded after fifteen days after the first day of such publication.
No priest, clergyman or minister is now authorized to grant a dispensation permitting a marriage for any reason forbidden by the laws of the Republic.
An opposition to a marriage made by an interested person must be heard and determined by the municipal judge of the district before any person whatsoever is authorized to solemnize the nuptials.
The celebration itself must be witnessed by two adults, who may be relatives of the parties. Article 87 of the code, permitting one or both of the parties to a marriage to appear at the celebration, either personally or by proxies to whom a special power is given, is still in effect.
The municipal judge, priest, minister or clergyman who solemnizes a marriage must immediately furnish to the parties a certificate of marriage and cause a full and particular record of said marriage to be filed in the Civil Registry of the District (Registro Civil del Distrito), in default of which such judge, priest, minister or clergyman will be subject to a fine of one hundredpesos, or imprisoned for not less than 30 days, or not more than 90 days, by the Correctional Judge (Juez Correccional) of his domicile.
Annulment of Marriages.—The civil courts have exclusive jurisdiction to decree an annulment of marriage.
The following marriages are void:
1. Those celebrated between persons related within the prohibited degrees, except in cases of dispensation.
2. Those contracted by error as to the person or by compulsion or intimidation.
3. Those contracted by the abductor with the abducted while she is in his power.
4. Those which are not solemnized by an authorized official.
A marriage contracted in good faith produces civil effects, although it may be declared void.
If good faith existed on the part of only oneof the spouses it shall produce civil effects only with regard to said spouse and to the children.
Good faith is presumed if the contrary does not appear.
When bad faith existed on the part of both spouses the marriage shall only produce civil effects with relation to the children.
After the annulment of a marriage the sons over three years of age shall remain in the care of the father and the daughters in the care of the mother, provided there was good faith on the part of both spouses.
If either or both were guilty of bad faith the tribunal has power to make such disposition of the children as justice may require.
Rights and Obligations.—The spouses are obliged to live together, to be faithful to, and mutually assist, each other.
The husband must protect his wife, and the latter must obey her husband.
The wife is obliged to follow her husband wherever he may establish his residence. The tribunals may, for just cause, exempt her from this obligation when the husband removes his residence beyond the seas or to a foreign country.
The husband is the administrator of the property of the conjugal partnership, except when the contrary is stipulated.
The wife, however, retains ownership of the paraphernal property, which consists of such property as the wife brings to the marriage, not included in the dowry.
The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through an attorney.
Nevertheless, she does not require such permission to defend herself in a criminal suit or toproceed against or to defend herself in suits with her husband.
Neither may the wife, without the permission of her husband, acquire property for a good or valuable consideration, alienate her property, or bind herself, except in certain exceptional cases, and within the limitations established by law.
A wife may without her husband’s permission:
1. Execute a will.
2. Exercise the rights and perform the duties which appertain to her with regard to the legitimate and acknowledged natural children she may have had by another, and with relation to the property of the same.
Only the husband and his heirs can enforce the nullity of the acts executed by his wife without proper authorization.
Divorce.—Divorce only produces the suspension of the life in common of the spouses; it does not dissolve the marriage.
The legal causes for divorce are:
1. Adultery on the part of the wife in every case, and on the part of the husband when public scandal or disgrace of the wife results therefrom.
2. Personal violence actually inflicted or grave insults.
3. Violence exercised by the husband toward the wife in order to force her to change her religion.
4. The proposal of the husband to prostitute his wife.
5. The attempts of the husband or wife to corrupt their sons, or to prostitute their daughters, and connivance in their corruption or prostitution.
6. The condemnation of a spouse to penal servitude.
Effects of Divorce:
1. The separation of the spouses in every case.
2. The protection of the wife.
3. The placing of the children under the care of one or both of the spouses, as may be proper.
4. The provision for the support of the wife and of the children who do not remain under the authority of the father.
5. The adoption of the necessary measures to prevent the husband, who may have given cause for the divorce, from injuring the wife in the administration of her property.
Foreign Marriages.—A marriage contracted in a foreign country, according to the laws of such country, is generally treated as valid in Cuba. Such a marriage, however, must be monogamous and otherwise in conformity with the general laws and usages of Christendom.
If the parties are Cubans, and are married abroad while retaining their domiciles in Cuba, the foreign marriage must also conform to the requirements of Cuban law with regards to the capacity of the parties and the necessary parental consent or advice.
Proof of Marriage.—The ordinary manner to prove a marriage concluded in Cuba is to produce a certificate of the record of the civil registry, and this is the proof required unless the books of the civil registry never existed, or have disappeared, or a question is pending before the tribunals, in which case all kinds of direct evidence are admissible.
The uninterrupted status of the parents, together with the certificates of the birth of their children as legitimate, is one competent method of proving the marriage of said parents, unless it is shown that one of the two was bound by a prior marriage.
A marriage contracted in a foreign country may be established by showing an authenticatedcopy of its registration. If such foreign country does not require a regular or authenticated registration the marriage must be proved by competent evidence of the regulations of marriage in the foreign country in question, together with proof that all such regulations were complied with.
Should a marriage be contracted in a foreign country between a Cuban and a foreign woman, or between a foreigner and a Cuban woman, and the contracting parties do not make special stipulations with regard to their property, it is understood, when the husband is a Cuban, that he marries under the system of the legal conjugal partnership; and when the wife is a Cuban that she marries under the system of laws in force in the husband’s country.
Engagements To Marry.—Future espousals do not give rise to an obligation to contract marriage. No court will admit a complaint in which their performance is demanded.
However, if the promise has been made in a public or private instrument by a person of age, or by a minor in the presence of the person whose consent is necessary for the celebration of the marriage, or when banns have been published, the person who refuses to marry, without just cause, can be obliged to indemnify the other party for the expenses which he or she may have incurred by reason of the promised marriage.
An action to recover indemnity for such expenses must be instituted within a year, counted from the day of the refusal to celebrate the marriage.
Spanish Precedents.—It should be remembered that in throwing off the yoke of Spanish rule the people of Cuba did not change their blood, language or traditions. Just as the law of the United States of America is founded upon the law of Englandas it existed at the time of the adoption of the American Constitution, so the jurisprudence of the Republic of Cuba has as its foundation the law of Spain as it existed at the time the Republic was established.
In both instances there have been changes and modifications by legislative acts and judicial interpretations, but a Spanish judicial decision has even more weight in a Cuban tribunal than an English decision has in an American court because Cuba, being a younger Republic than the United States, is much nearer to its motherland in point of time, besides its closer resemblance in race, religion and customs.
Commonwealth of Australia.
The Commonwealth of Australia, created by an act of the Imperial Parliament in 1900 (63 and 64 Vic. cap. 12), is a federal State under the supreme authority of the Crown of Great Britain.
This act of Parliament not only created a federal Commonwealth out of the colonies of Queensland, New South Wales, Victoria, South Australia, West Australia and Tasmania, but it also granted to the new Commonwealth a written constitution which is obviously modeled upon that of the United States of America.
The constitution provides that “every law in force in a colony which has become or becomes a State shall, unless it is by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be.â€
It is also provided that “when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.â€
All powers not delegated to the central or federal government are reserved to the States.
However, in spite of its resemblance to other federal systems, the principle of the responsibility of ministers to Parliament proclaims its English parentage.
The judicial power is exercised under the constitution by a federal supreme court, called theHigh Court of Justice, and other courts of federal jurisdiction.
It is expressly provided in the Australian constitution that the Parliament of the Commonwealth shall, subject to the constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to “divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants.â€
It will be observed that Parliament is given no power under the constitution to make laws prescribing the qualifications for marriage, the impediments thereto, and regulations concerning the celebration. All such power is reserved by the respective States.
Moreover, the grant of power to Parliament to make laws with regard to “divorce and matrimonial causes†is not a power “by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State.â€
Until the Parliament of the Commonwealth shall legislate on the subject, by passing enactments concerning divorce and matrimonial causes superseding the existing statutes of the several States, the laws of each State will continue in operation.
In this chapter we shall consider, first, such laws and regulations concerning marriage and divorce as are in effect throughout the entire Commonwealth, and then, under separate headings, discuss the laws and regulations of each State.
Marriage.—The courts of Australia, following the English courts, only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement thatit is a voluntary union of one man and one woman for life to the exclusion of all others.
The law of the place where marriage is celebrated—that is, thelex loci celebrationis—alone guides the court in ascertaining whether or not a marriage is regular. All the formal preliminaries, such as the publication of banns, or license, the consent of the parties entitled to give or withhold consent and the solemn declaration of the contracting parties before competent authority, according to the law of the place of celebration, must be complied with.
Legal Age.—The legal age for marriage throughout the Commonwealth of Australia begins with fourteen years for a male and twelve years for a female.
Parental Consent.—In all of the States parental consent is required for the marriage of males and females under twenty-one years of age.
Banns or License.—Unless a marriage license is procured banns must be published in the parish in which the parties reside, and if they live in different parishes the banns must be published in each parish.
Where a man has caused the banns to be published or has procured a license under a false name or names, or has been married under a false name or names, he will not be allowed to annul the marriage on that account. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage.
Consanguinity and Affinity.—The law considers it against public policy and morality, and contrary to the well-being of the parties, that persons closely related by blood or marriage should intermarry. Marriages are therefore prohibited between all ascendants and descendants, legitimate or illegitimate.
A man is also prohibited from marrying his stepmother, wife’s mother, stepdaughter, daughter-in-law, son’s daughter-in-law, daughter’s daughter-in-law, stepson’s daughter, stepdaughter’s daughter, niece by blood, niece by affinity, or nephew’s wife.
A woman is prohibited from marrying her uncle by blood or affinity, husband’s uncle, father-in-law, stepson, son-in-law, son’s son-in-law, daughter’s son-in-law, stepson’s son, stepdaughter’s son, nephew by blood or affinity, or niece’s husband.
Annulment of Marriage.—A marriage may be annulled in any of the States of the Commonwealth upon competent proof showing:
1. A prior and existing marriage of one of the parties.
2. Impotency or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse.
3. Relationship within the prohibited degrees.
4. That the marriage was procured by fraud, violence or mistake as to identity.
5. That one of the parties was insane at the time the marriage was concluded.
6. That the marriage was celebrated without the consent of the persons by law entitled to give or withhold consent.
7. That the marriage was performed without legal license, or the publication of banns, or solemnized before a person not having authority to officiate.
A marriage will not be annulled on the last ground stated if it appears that one of the parties acted in good faith and honestly believed that the person who solemnized the marriage had the required authority.
Judicial Separation.—A decree of judicial separation, which is equivalent to the old form oflimited divorce (a mensa et thoro) may be obtained in any of the States for the following causes:
1. Adultery of either husband or wife.
2. Desertion without legal cause for two years or more.
3. Cruelty or abusive treatment of one spouse by the other.
It is an absolute bar to a suit for judicial separation that the petitioner has committed adultery since the marriage.
Divorce.—Absolute divorces completely dissolving the marriage bond are granted by the courts of every State in Australia. As every State has its separate statutes on the subject, which set forth the legal causes for divorce, we shall consider such causes in our discussion of each State separately.
Defences.—In all the States condonation of a matrimonial offence, which is a legal cause for divorce, is a good defence to the petition.
It is also a sufficient defence for the respondent to show that the offence complained of was committed by the connivance or active consent of the petitioner.
Connivance in adultery as a bar to divorce is founded on the doctrinevolenti non fit injuria, the consent consisting in acquiescence, active or passive, in the adulterous intercourse. Passive acquiescence is a sufficient bar, provided it was carried out with the intention that the husband or wife would be guilty; but it must be something more than mere inattention, indifference or dulness of apprehension. The presumption, where the facts are equivocal, is in favour of absence of intention.
One spouse must not invite the other to commit adultery; but he or she may permit the licentiousness of the other spouse to have its full scope without being guilty of connivance.
It is not connivance to watch for the purpose of discovering a suspected fact so as to make conviction certain.
Collusion.—An illegal agreement and co-operation between a petitioner and a respondent in a divorce action to enable the petitioner to obtain a judicial dissolution is a fraud upon the court. Upon such collusion appearing the court, at its own instance, will dismiss the petition.
Desertion.—The High Court of Justice of the Commonwealth has defined desertion, which in several of the States is a legal cause for absolute divorce, as follows: “Desertion involves an actual and wilful bringing to an end of an existing state of cohabitation by one party without the consent of the other. Such ‘consent’ must be shown by something more than a mere mute acquiescence in an existing state of separation or non-resistance to abandonment. What is necessary is some communication of the intended acquiescence or non-resistance to the other by express words or by conduct.â€
Form of Divorce Decree.—A decree of divorce in any of the States is grantednisi, or provisionally, and cannot be made absolute until three months have elapsed after the decreenisiis entered.
A judicial separation may be granted, even if the suit is for an absolute divorce, if the court deems such a decree better meets the law and facts of the case.
Victoria.—The Marriage Act of 1890 (54 Victoria, No. 1166), entitled “An act to consolidate the laws relating to marriage and to the custody of children and to deserted wives and children and to divorce and matrimonial causes,†is practically a short code on the subject of marriage and divorce.
Celebration of Marriage.—The following persons, and none other, may celebrate marriages:
1. A minister of religion ordinarily officiating as such, whose name, designation and usual place of residence, together with the church, chapel or other place of worship in which he officiates, is at the time of the celebration of the marriage duly registered according to law in the office of the Registrar-General.
2. A minister of religion being the recognized head of a religious denomination.
3. A minister of religion holding a registered certificate that he is a duly authorized minister, priest or deacon from the head of the religious denomination to which he belongs, or, if there be no such religious head, from two or more officiating ministers of places of worship duly registered according to law.
4. The Registrar-General or other officer appointed for that purpose.
Jews and Quakers.—The law permits Jews and Quakers to be married by such persons and in such manner as is considered regular and lawful according to their respective beliefs and usages.
Formalities.—A marriage must be preceded by a license or the publication of banns.
A marriage celebration requires the attendance of two witnesses of full age.
Divorce.—A domicile of two years or more is a condition precedent to bringing a suit for divorce.
The following are legal grounds for a divorce or dissolution of the marriage bond:
1. Adultery on part of the wife.
2. Adultery on part of the husband if committed in the conjugal residence or if it is coupled with circumstances or conduct of aggravation or of a repeated act of adultery.
3. Desertion without just cause continued for three years or more.
4. The habitual drunkenness of a husband for three years, if the husband has habitually left his wife without support, or has habitually been guilty of cruelty to her.
5. Habitual drunkenness of a wife for three years, if the wife has habitually neglected her domestic duties, or rendered herself unfit to discharge them.
6. Imprisonment of either spouse for not less than three years, and being still in prison under a commuted sentence for a capital crime, or under sentence to penal servitude for seven years or more.
7. If the husband has within five years undergone frequent convictions for crime and has been sentenced in the aggregate to imprisonment for three years or more, leaving his wife habitually without means of support.
8. That within a year previously the respondent has been convicted of having attempted to murder the petitioner, or of having assaulted him or her with intent to inflict grievous bodily harm, or that repeatedly during that period the respondent has assaulted and cruelly beaten the petitioner.
Form of Decree.—Divorce decrees are entered, in the first instance,nisi, or provisionally, and cannot be made absolute until after the expiration of three months following the decreenisi.
In Forma Pauperis.—Special provision is made enabling poor persons to prosecute suits for divorce by an interlocutory order informa pauperis, which relieves the person in whose favour it is granted from certain charges and expenses, but does not furnish him or her with the free services of a solicitor or barrister.
Recent Decisions.—An important divorce decision holds that visits to brothels by a petitioner who seeks a divorce on the ground of his wife’s adultery constitute misconduct conducing to the adultery of the wife and bars the petitioner from a decree, without entering into the question of whether or not adultery was committed by the petitioner in the course of such visits.
However, the fact that a husband has conduced to an act of adultery by his wife is not a bar to him obtaining a divorce based on subsequent acts of adultery.
New South Wales.—The requirements as to age, consent of parents, or of persons standing inloco parentisare the same in this State as throughout the rest of the Commonwealth and have been set forth in the first part of this chapter.
No marriage can be celebrated except by a minister of religion ordinarily officiating as such, whose name, designation and usual residence have been and continue registered in the office of the Registrar-General for Marriages in Sydney or by a district registrar.
Parental consent is not required of persons who have previously been lawfully married and whose former marriage has been dissolved by death or divorce.
A marriage must be attended by two adult witnesses.
By the Matrimonial Causes Act of 1899 jurisdiction in respect of divorcesa mensa et thoro(judicial separations), suits for nullity of marriage, suits for dissolution of marriage (absolute divorce), suits for restitution of conjugal rights, suits for jactitation of marriage, and all causes, suits and matters matrimonial are vested in the Supreme Court of the State.
Causes for Absolute Divorce.—A husband who has been domiciled for three years or more in the State may petition for a dissolution of the marriage on the following grounds:
A. That the wife has committed adultery.
B. That the wife has, without just cause or excuse, wilfully deserted the petitioner and without any such cause or excuse left him so deserted for three years or more.
C. That the wife has, during three years and upwards, been an habitual drunkard and habitually neglected her domestic duties or rendered herself unfit to discharge them.
D. That within one year the wife has been imprisoned for a period of not less than three years and is still in prison under a commuted sentence for a capital crime, or under sentence to penal servitude for seven years or more.
E. That within one year the wife has been convicted of having attempted to murder her husband, or having assaulted him with intent to inflict grievous bodily harm.
F. That during one year previously the wife has assaulted and cruelly beaten her husband.
A wife may obtain an absolute divorce from her husband by proving:
A. That her husband has committed incestuous adultery.
B. That the husband has committed bigamy with adultery.
C. That the husband has committed rape, sodomy or bestiality.
D. That the husband has committed adultery coupled with such cruelty as without adultery would have entitled the wife to a divorcea mensa et thoro(divorce from bed and board) under the laws of England as existing before the enactment of the Imperial Act 20 and 21, Vict. c. 85.
E. Adultery of the husband coupled with desertion without reasonable excuse for two years or upwards.
Judicial Separation.—A judicial separation may be granted on the ground of adultery, cruelty or desertion without legal cause or excuse continued for two years and upwards.
Queensland.—In this State marriage may be celebrated by any regular officiating minister of religion, or by any district registrar, or by specially authorized justices of the peace.
Causes for Absolute Divorce.—A husband is entitled to an absolute divorce if his wife has committed adultery, but a wife is not so entitled unless her husband has committed incestuous adultery, bigamy, rape, sodomy, bestiality, adultery coupled with cruelty, or adultery coupled with desertion without reasonable excuse for two years or more.
Incestuous adultery is adultery with a woman within the prohibited degrees.
Judicial Separation.—A limited divorce or judicial separation can be obtained by either spouse on the following grounds:
1. Adultery.
2. Cruelty.
3. Desertion without legal cause for two years.
Legitimacy.—Illegitimate children are legitimatized by the subsequent marriage of their parents.
West Australia.—The Marriage Act of 1894 is virtually an acceptance by this State, so far as practicable, of the English Divorce Act of 1857.
The causes for absolute divorce or for a judicial separation are the same as those given above for the State of Queensland.
South Australia and Tasmania.—In these two States, by legislative enactments, the causes for absolute divorce and judicial separation are thesame as those given on opposite page for Queensland, West Australia and South Australia.
The exercise of appellate jurisdiction by the High Court of Justice of the Commonwealth in matrimonial causes has the beneficial effect of making the several States more and more uniform in their local legislation and judicial interpretation.
The federal Parliament has express authority under the constitution to enact a federal code of marriage and divorce which will operate throughout the entire Commonwealth, and such a code in one form or another is inevitable.
The Commonwealth of Australia is not yet a dozen years old, but the need of superseding six separate systems of law respecting marriage and divorce by a national law on the subject is already apparent and under constructive discussion.
Of all the federative dependencies of the British Crown Australia is perhaps the most homogenous in race, religion and traditions, and it will probably be the first to adopt a federal law of marriage and divorce.
Dominion of New Zealand.
The Dominion of New Zealand is a colony of Great Britain consisting of North, South and Stewart Islands, or New Zealand proper, and certain outlying islands, including Cook Island, in the Pacific Ocean.
Its present form of government was established by an act of the Imperial Parliament (15 and 16 Vict., cap. 27) passed in 1852.
The legislative power is vested in the governor and a bicamera General Assembly or Parliament, consisting of a Legislative Council and a House of Representatives. The constitution provides that the General Assembly or Parliament may make laws “not repugnant to the laws of England.â€
The General Assembly, by an act passed in 1858, declared that: “Whereas, the laws of England, as existing on the fourteenth day of June, 1840, have been applied in New Zealand as far as applicable to the circumstances; but, Whereas, doubt has arisen in respect to such application—Be it declared and enacted, that the laws of England, as existing June 14, 1840, be deemed and taken to have been in force on and after that day and shall hereafter continue in force.â€
Hence it is apparent that the body of the law of New Zealand is founded upon the jurisprudence of England.
The judicial system includes a Supreme Court of the Dominion, District Courts and courts presided over by stipendiary magistrates.
Marriage.—Males under fourteen years of ageand females under twelve years cannot contract a lawful marriage.
All persons, male or female, under twenty-one years of age, who have not previously contracted a lawful marriage, require the consent of their parents or guardians in order to marry. However, the marriage of males fourteen years of age or more, or of females twelve years of age or more, without the consent of parents or guardians, does not make such marriageipso factovoid.
Parental consent to a marriage of a minor must be given by the father, if living and competent to act; if not, then by the following persons in the order stated: (a) the duly appointed guardian; (b) the mother if she has not married again; (c) or a guardian specially appointed by a court exercising chancery powers.
No person can contract a new marriage who has a spouse by an existing marriage still living.
Consanguinity and Affinity.—Marriage is forbidden between all ascendants and descendantsad infinitumand between persons related to each other by blood or marriage within the third degree, according to the method of computation of the civil law. According to this reckoning a person cannot marry a relative nearer than his or her own first cousin.
Preliminaries.—Notice of a proposed marriage must be given to the registrar of the district in which one of the parties has resided for three days at least. If the contracting parties live in different districts notice must be given to the registrars of both districts. Such notice must set forth the names, ages, status and occupations of each party, together with their addresses, a statement of the period each party has lived in the district, and the name and place of the church, chapel or otherbuilding selected by the parties for the solemnization of the marriage. The parties must also make solemn declaration to the registrar or registrars to the truth of all statements of fact in said notice and show that there is no legal impediment to the proposed marriage.
Upon receiving the notice in due form the registrar will issue a certificate at once addressed to any officiating minister, or to himself, authorizing the solemnization of the marriage. All marriages must be registered, and the officiating minister or officer who fails to have the record made is subject to punishment.
Ordinarily, the best proof of a marriage is to produce the marriage certificate, together with proof identifying the parties, but if the record is lost, destroyed or never existed proof of the marriage may be given by direct oral evidence.
In most instances it is necessary to produce clear evidence of a marriage ceremony, but in some exceptional cases a marriage may be proved by long reputation. That is, if two persons live together as husband and wife for many years, and if they have always been regarded as such by their friends and neighbours, the courts will presume a legal marriage unless evidence is produced to prove that the parties were not lawfully married.
Divorce.—An absolute divorce may be obtained according to the provisions of the Divorce and Matrimonial Compilation Act of 1904 by a husband or wife who has been domiciled in the Dominion of New Zealand for two years or upwards on the following grounds:
1. Adultery of either spouse.
2. Wilful and continuous desertion without just cause for five years and upwards.
3. Habitual drunkenness for four years with habitual cruelty or desertion on the part of the husband.
4. Habitual drunkenness for four years with habitual neglect of her household duties on the part of the wife.
5. Conviction and sentence to imprisonment or to penal servitude for seven years or upward for attempting to take the life of the petitioner.
Annulment of Marriage.—A marriage is annulled on the theory that true and proper consent to the marriage contract has never been given by the parties. The causes or grounds for such annulment are:
1. A prior and existing marriage of one of the parties.
2. Impotency or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse.
3. Relationship of the parties within the forbidden degrees of consanguinity or affinity.
4. That the marriage was procured by fraud or violence of one of the parties.
5. Mistake as to identity.
6. That the marriage was performed without the required legal preliminaries.
7. Insanity of one of the parties at the time the marriage was solemnized.
Concerning the sixth cause the tendency of judicial interpretation and construction is to treat the legal requirements concerning formalities to be merely directory and to consider the marriage itself, if at least one of the parties acted in good faith, to be valid.
The courts of New Zealand view many of the statutory requirements concerning marriage to be necessary and proper regulations, and which, if disregarded, subject certain persons to fixedpenalties, but are not necessarily essential to the marriage contract.
Effects of Divorce and Annulment.—The parties may remarry. During the pendency of the suit for divorce the husband is liable to provide his wife with maintenance or alimony. The amount granted is within the court’s discretion, but generally it is about twenty-five per centum of the husband’s income.
Upon the granting of a divorce decree in the wife’s favour the court has power to grant the wife permanent alimony, the amount of which depends on all such facts as the husband’s fortune and income, the wife’s income and needs and the social status of the parties.
If there are children under full age, the issue of the marriage, the court will in the exercise of its discretion make such order concerning their custody, support and education as the ends of justice may require.
Judicial Separation.—Under the Divorce and Matrimonial Compilation Act a decree of judicial separation, which is the same in effect as a divorce from bed and board under the old law, may be obtained by either spouse upon the following grounds:
1. Adultery.
2. Cruelty.
3. Desertion without just cause continued for two years.
Summary Jurisdiction Act.—Besides the ordinary suit for a judicial separation a wife may obtain speedy and inexpensive relief by making an application to a stipendiary magistrate for an order of separation and maintenance.
The causes sufficient for the granting of such relief are:
A. Habitual drunkenness of the husband, coupled with habitual cruelty to, or neglect of, the wife and family.
B. Desertion by the husband of his wife.
C. Habitual cruelty of the husband toward his wife.
D. Neglect of the husband to provide reasonable maintenance for his wife and minor children.
A husband is entitled to summary relief permitting him a separation order upon proof that his wife is an habitual drunkard who habitually neglects her household duties.