separation on “absolute” or “relative” grounds. In the former case if the facts are established the petitioner is entitled to the relief prayed for; in the latter case, it is left to judicial discretion. The absolute grounds are adultery, bigamy, sodomy, an attempt against the petitioner’s life or wilful desertion. The relative grounds are (a) such grave breach of marital duty or dishonourable or immoral conduct as would disturb the marital relation to such an extent that the marriage could not reasonably be expected to continue; (b) insanity, continued for more than three years during the marriage, and of so severe a nature that intellectual community between the parties has ceased and is not likely to be re-established. A divorced wife, if not exclusively the guilty party, may retain her husband’s name; but if exclusively guilty, her former husband may compel her to resume her maiden name.
By the law of Denmark, according to the Code of King Christian the Fifth, complete divorce could be obtained for incest; for leprosy, whether contracted before or after marriage; for transportation for crime or flight from justice, after three years, though not for crime itself; and for exile not arising from crime, after seven years.
In Sweden complete divorce is granted by judicial sentence for adultery, and in Russia for that cause and also for incompatibility of temper (Ayliffe, Par. 49). On the other hand, in Spain marriage is indissoluble, and the ecclesiastical courts have retained their exclusive cognizance of matrimonial causes. In Italy certain articles of the Civil Code deal with separation, voluntary and judicial, but divorce is not allowed in any form.
In France the law of divorce has had a chequered history. Before the Revolution the Roman canon law prevailed, marriage was considered indissoluble, and only divorce a mensa et thoro, known as la séparation d’habitation, was permitted; though it would appear that in the earliest age of the monarchy divorce a vinculo matrimonii was allowed. La séparation d’habitation was granted at the instance of a wife for cruelty by her husband or false accusation of a capital crime, or for habitual treatment with contempt before the inmates of the house; but a wife could not obtain a separation for adultery by her husband, although he had his remedy in case of adultery by his wife. In every case the sentence of a judicial tribunal, which took precautions against collusion, was necessary. But the Revolution may be said to have swept away marriage among the institutions which it overwhelmed, and by the law of the 20th of September 1792 so great facility was given for divorce a vinculo matrimonii as practically to terminate the obligations of marriage. A reaction came with the Code Napoléon, yet even under that system of law divorce remained comparatively easy. Mutual consent, expressed in the manner and continued for a period specified by the law, was cause for a divorce (the principle of the Roman law being adopted on this point), but such consent could not take place unless the husband was twenty-five years of age and the wife twenty-one, unless they had been married for two years, nor after twenty years of marriage, nor after the wife had completed her forty-fifth year; and further, the approval of the parents of both parties was required. In case of divorce by consent, the law required that a proper agreement should be made for the maintenance of the wife and the custody of the children. A husband could obtain a divorce a vinculo matrimonii for adultery, but the wife had no such power unless the husband had brought his mistress to the home. Both husband and wife could claim divorce on the ground of outrage, or grievous bodily injury, or condemnation for an infamous crime. If the divorce was for adultery, the erring party could not marry the partner of his or her guilt. A divorce a mensa et thoro could be obtained on the same grounds as a divorce a vinculo, but not by mutual consent; and if the divorce a mensa et thoro continued in force for three years, the defendant party could claim a divorce a vinculo. On the restoration of royalty in 1816 divorce a vinculo was abolished, and pending suits for divorce a vinculo were converted into suits for separation only.
Divorce in France, after the repeal of the provisions respecting it in the Code Napoléon in 1816, was re-enacted by a law of the 27th of July 1884, the provisions of which were simplified by laws of 1886 and 1907. But a wide departure was made by these laws from the terms of the Code Napoléon. Divorce by consent disappeared, and the following became the causes for which divorce was allowed: (1) Adultery by either party to the marriage at the suit of the other, without, in the case of adultery by the husband, the aggravation of introduction of the concubine into the home required by the Code; (2) violence (excès) or cruelty (sévices); (3) injures graves; and (4) peine afflictive et infamante. Excès is defined by Locié as “a generic expression comprising all acts tending to compromise the safety of the person, without distinction as to their object or motive, premeditation as well as furious anger, attempts upon life as well as serious woundings.” Sévices are acts of ill-treatment less grave in character, which, while not endangering life, render existence in common intolerable (Kelly’s French Law of Marriage, p. 122). Injures graves, as to which the courts have considered themselves entitled to exercise a wide discretion, have been defined as acts, writings or words which reflect upon the honour or the reputation of the party against whom they are directed. The courts have held that retraction at the trial does not relieve the party from the consequences of an injure grave, and that publicity is an aggravating but not a necessary element. A letter from one spouse to the other may constitute an injure and the courts have further held themselves at liberty to consider letters written after divorce proceedings have been commenced. Injures graves have also been considered to include material injuries, and among these have been classed habitual and groundless refusal of matrimonial rights, communication of disease and refusal to consent to a religious ceremony of marriage. Habitual but not occasional drunkenness has also been held to fall within the definition of an injure grave. Peine afflictive et infamante signifies a legal punishment involving corporal confinement and moral degradation.[1]
In addition to its recognition of full divorce, the French law recognizes separation of two kinds, one séparation de biens and the other séparation de corps. The effect of séparation de biens is merely to put an end to the community of goods between the spouses. It necessarily follows, but may be decreed independently of séparation de corps. The grounds of séparation de corps are the same as those for a divorce; and if a séparation de corps has existed for three years, it may be turned into a divorce upon the application of either party to the court.
Until 1893 a wife séparée de corps obtained only the capacity attaching to a concomitant séparation de biens; that is to say, she recovered the enjoyment and management of her separate property, but could not deal with real property, nor take legal proceedings, without the sanction of her husband or of the court. But by a law of the 6th of February 1893 a wife séparée de corps obtains “the full exercise of her civil capacity, so that she shall not need to resort to the authority of her husband or of the court.” In case of reconciliation, the wife returns to the limited capacity of a wife séparée de biens, and after the prescribed notification of such change of status it becomes binding on third persons.
The provisions of French law with regard to the custody of the children of a dissolved marriage, and with regard to property, do not differ materially from those prescribed by the English acts. The custody of children is given to the party who has obtained the divorce, unless the court, on the application of the family, or the ministère public, consider it better, in the interests of the children, that custody should be given to the other party or a third person; but in every case the right of both father and mother to supervise the maintenance and education of the children, and their liability to contribute to their support, are continued.
- ↑ It is interesting to observe how, according to the latest decisions of the House of Lords, cruelty, according to English law, includes some but not others of the forms of injury for which, under the term of injures graves, the French law affords a remedy. It may well be doubted whether the view taken by the minority of the peers in Russell v. Russell, which would have included in the definition of cruelty all, or nearly all, of that which the French law deems either sévices or injures graves, would not have better satisfied both the principles of English jurisprudence and the feelings of modern life.
