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DIVORCE
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DIVORCE . (See also:Lat. divortium, derived from dis-, apart, and vertere, to turn), the See also:dissolution, in whole or in See also:part, of the tie of See also:marriage. It includes both the See also:complete See also:abrogation of the marriage relation known as a divorce a vinculo matrimonii, which carries with it a See also:power on the part of both parties to the marriage to remarry other persons or each other, and also that incomplete severance not involving See also:powers to remarry, which was formerly known as divorce a See also:mensa et thoro, and.has in See also:England been termed " judicial separation. Less strictly, divorce is commonly under-stood to include judicial declarations of nullity of marriage, whi. h, while practically- terminating the marriage relation, proceed in See also:law on the basis of the marriage never having been legally established. The conditions under which, in different communities; divorce has at different times been permitted, vary with the. aspects in which the relation of marriage (q.v.) has been regarded. When marriage has been deemed to be the acquisition by the See also:husband of See also:property in the wife, or when it has been regarded as a See also:mere agreement between persons capable both to See also:form and to dissolve that See also:contract, we find that marriage has been dissoluble at the will of the husband, or by agreement of the husband and wife. Yet even in these cases the See also:interest of the whole community in the purity of marriage relations, in the pecuniary See also:bearings of this particular contract, and' the See also:condition of See also:children, has led to the See also:imposition of restrictions on, and the See also:attachment of conditions to, the termination of the obligations consequent on a marriage legally contracted. But the See also:main restrictions on See also:liberty of divorce have arisen from the conception of marriage entertained by religions, and especially by one See also:religion. See also:Christianity has had no greater See also:practical effect on the See also:life of mankind than in its belief that marriage is no mere See also:civil contract, but a See also:vow in the sight of See also:God binding the parties by obligations of See also:conscience above and beyond those of civil law. Translating this conception into practice, Christianity not only profoundly modified the legal conditions of divorce as formulated in the See also:Roman civil law, but in its own See also:canon law defined its own See also:rule of divorce, going so far as in the Western (at least in its unreformed condition), though not the Eastern, See also:branch of Christendom to forbid all complete divorces, that is to say, all dissolutions of marriage carrying with them the right to remarry. See also:HISTORY The Roman Law of Divorce before Justinian.—The history of divorce, therefore, practically begins with the law of See also:Rome. It took its earliest See also:colour from that conception of the patria potestas, or the power of the See also:head of the See also:family over its members, which enters so deeply into the See also:jurisprudence of See also:ancient Rome. The wife was transferred at marriage to the authority of her husband, in means, and consequently became so far subject to him that he could, at his will, renounce his rule over her, and terminate his companionship, subject at least to an See also:adjustment of the pecuniary rights which were disturbed by such See also:action. So clearly was the power of the husband derived from that of the See also:father, that for a See also:long See also:period a father, in the exercise of his polestar, could take his daughter from her husband against the wishes of both. It may be presumed that this power, anomalous as it appears, was not unexercised, as we find that a constitution of See also:Antoninus See also:Pius prohibited a father from disturbing a harmonious See also:union, and See also:Marcus Aurelius afterwards limited this See also:prohibition by allowing the interference of a father for strong and just cause—magna et justa causa interveniente. Except in so far as it was restrained by See also:special legislation, the authority of a husband in the See also:matter of divorce was See also:absolute. As See also:early indeed, however, as the See also:time of See also:Romulus, it is said that the See also:state asserted its interest in the permanence of marriage by forbidding the repudiation of wives unless they were guilty of See also:adultery or of drinking See also:wine, on See also:pain of See also:forfeiture of the whole of an offender's property, one-See also:half of which went to the wife, the other to See also:Ceres. But the law of the XII. Tables, in turn, allowed freedom of divorce. It would appear, however, that the sense of the community was so far shocked by the inhumanity of treating a wife as mere property, or the See also:risk of regarding marriage as a mere terminable contract, that, without crystallizing into See also:positive enactment, it operated to prevent the exercise of so harsh and dangerous a power. It is said that for 500 years no husband took See also:advantage of his power, and it was then only by an See also:order of a See also:censor, however obtained, that Spurius Carvilius Ruga repudiated his wife for barrenness. We may, however, be permitted to doubt the genuineness of this censorial order, or at least to conjecture the See also:influence under which the censor was induced to intervene, when we find that in another instance, that of L. See also:Antonius, a censor punished an unjust divorce by See also:expulsion from the See also:senate, and that the exercise of their power by husbands increased to a See also:great and alarming extent. Probably few of the admirers of the greatest of Roman orators have not regretted his See also:summary and wholly informal repudiation of Terentia. At last the lex Julia de adulteriis, while recognizing a power of divorce both in the husband and in the wife, imposed on it, in the public interest, serious restrictions and consequences. It required a written See also:bill of divorce (libellus repudii) to be given in the presence of seven witnesses, who must be Roman citizens of See also:age, and the divorce must be publicly registered. The See also:act was, however, purely an act of the party performing it, and no See also:idea of judicial interference or contract seems to have been entertained. It was not necessary for either husband or wife giving the bill to acquaint the other with it before its See also:execution, though it was considered proper to deliver the bill, when made, to the other party. In this way a wife could divorce a lunatic husband, or the paterfamilias of a lunatic wife could divorce her from her husband. But the lex Julia was also the first of a See also:series of enactments by which pecuniary consequences were imposed on divorce both by husbands and wives, whether the intention was to restrain divorce by penalties of this nature, or to readjust pecuniary relations settled on the basis of marriage and disturbed by its rupture. It was provided that if the wife was guilty of adultery, her husband in divorcing her could retain one-See also:sixth of her dos, but if she had committed a less serious offence, one-eighth. If the husband was guilty of adultery, he had to make immediate restitution of her See also:dowry, or if it consisted of See also:land, the See also:annual proceeds for three years; if he was guilty of a less serious offence, he had six months within which to restore the dos. If both parties were in See also:fault, no See also:penalty See also:fell on either. The lex Julia was followed by a series of acts of legislation extending and modifying its provisions. The legislation of See also:Constantine; A.D. 331, specified certain causes for which alone a divorce could take See also:place without the imposition of pecuniary penalties. There were three causes for which a wife could divorce her husband with impunity: (1) See also:murder, (2) preparation of poisons, (3) violation of tombs; but if she divorced .him for any other cause, such as See also:drunkenness, or gambling or immoral society, she forfeited her dowry and incurred the further
penalty of See also:deportation. There were also three causes for which a husband could divorce his wife without incurring any penalty:
(1) adultery, (2) preparation of poisons, (3) acting as a procuress. If he divorced her for any other cause, he forfeited all interest in her dowry; and if he married again, the first wife could take the dowry of the second.
In A.D. 421 the emperors See also:Honorius and See also:Theodosius enacted a law of divorce which introduced limitations on the power of remarriage as an additional penalty in certain cases. As regards a wife: (1) if she divorced her husband for See also:grave reasons or See also:crime, she retained her dowry and could remarry after five years;
(2) if she divorced him for criminal conduct or moderate faults, she forfeited her dowry, became incapable of remarriage, and liable to deportation, nor could the See also:emperor's See also:prerogative of See also:pardon be exerted in her favour. As regards a husband: if he divorced his wife (r) for serious crime, he retained the dowry and could re-marry immediately; (2) for criminal conduct, he did not retain the dowry, but could remarry; (3) for mere dislike, he forfeited the property brought into the marriage and could not remarry.
In A.D. 449 the law of divorce was rendered simpler and certainly more facile by Theodosius and Valentinian. It was provided that a wife could divorce her husband without incurring any penalty if he was convicted of any one of twelve offences: (1) See also:treason, (2) adultery, (3) See also:homicide, (4) poisoning, (5) See also:forgery, (6) violating tombs, (7) stealing from a See also: If a husband divorced his wife for any other See also:reason, he forfeited all interest in his wife's dowry, and also any property he brought into the marriage. The above See also:sketch of the legislation See also:prior to the time of Justinian, while it indicates a See also:desire to place the husband and wife on something like terms of equality as regards divorce, indicates also, by its forbidding remarriage and by its pecuniary provisions in certain cases, a sense in the community of the importance in the public interest of restraining the violation of the contract of marriage. But to the Roman marriage was primarily a contract, and therefore See also:side by side with this legislation there always existed a power of divorce by mutual consent. We must now turn to those principles of the See also:Christian religion which, in See also:combination with the legislation above described, produced the law formulated by Justinian. The Christian View of Divorce.—The Christian law of divorce as enunciated by its Founder was expressed in a few words, but these, unfortunately, by no means of agreed See also:interpretation. To appreciate them it is necessary to consider the enactment of the See also:Mosaic law, which also was expressed in few words, but of a meaning involved in much doubt. The phrase in Deut. See also:xxiv. 1-4, which is translated in the Authorized Version " some uncleanness," but in the Revised Version, " some unseemly thing," and which is the only cause stated to justify the giving of a " bill of divorcement," was limited by the school of Shanmai to moral delinquency, but was extended by the See also:rival school of See also:Hillel to causes of trifling importance or even to motives of caprice. The wider interpretation would seem to be supported by the words of See also:Christ (Matt. v. 31), who, in indicating His own See also:doctrine in contradistinction to the law of See also:Moses, said, " Whosoever shall put away his wife, saving for the cause of fornication (ropvelas), causeth her to commit adultery; and whosoever shall marry her that is divorced committeth adultery." The meaning of these words of Christ Himself has been involved in controversy, which perhaps was nowhere carried on with greater acuteness or under 336 more See also:critical conditions than within the walls of the See also:British See also:parliament during the passage of the Divorce Act of 1857. That they justify divorce of a complete See also:kind for moral delinquency of some nature is supported by the See also:opinion probably of every competent See also:scholar. But scholars of See also:eminence have sought to restrict the meaning of the kbyos sropvsias to antenuptial incontinence concealed from the husband, and to exclude adultery. The effect of this view commends itself to theadherents of the Church of Rome, because it places the right to separation between husband and wife, not on a cause supervening after a marriage, which that Church seeks to regard as absolutely indissoluble, but on invalidity in the contract of marriage itself, and which may therefore render the marriage liable to be declared void without impugning its indissoluble See also:character when rightly contracted. The narrower view of the meaning of wropveias has been maintained by, among others, Dr Dellinger (First Ages of the Church, ii. 226); but those who will consider the arguments of See also:Professor See also:Conington in reply to Dr Dellinger (Contemp. See also:Review, May 186g) will probably assign the See also:palm to the See also:English scholar. A more See also:general view points in the same direction. It is quite true that under the Mosaic law antenuptial incontinence was, as was also adultery, punishable with See also:death. But when we consider the effect of adultery not only as a moral fault, but as violating the See also:solemn contract of marriage and vitiating its See also:objects, it is inconceivable that Christ, in employing a See also:term of general import, intended to limit it to one kind, and that the less serious, of incontinence. Effect of Christianity on the Law of Rome.—The modification in the civil law of Rome effected by Justinian under the See also:joint influence of the previous law of Rome and that of Christianity was remarkable. See also:Gibbon has summed up the See also:change effected in the law of Rome with characteristic accuracy: " The Christian princes were the first who specified the just causes of a private divorce; their institutions from Constantine to Justinian appear to fluctuate between the customs of the See also:empire and the wishes of the Church; and the author of the Novels too frequently reforms the jurisprudence of the See also:Code and See also:Pandects." Divorce by mutual consent, hitherto, as we have seen, absolutely See also:free, was prohibited (Nov. 117) except in three cases: (1) when the husband was impotent; (2) when either husband or wife desired to enter a monastery; and (3) when either of them was in captivity for a certain length of time. It is obvious that the two first of these exceptions might well commend themselves to the mind of the Church, the former as being rather a matter of nullity of marriage than of divorce, the latter as admitting the See also:paramount claims of the Church on its adherents, and not inconsistent with the spirit of the words of St See also:Paul himself, who clearly contemplated a separation between husband and wife as allowable in See also:case either of them did not hold the Christian faith (1 See also:Cor. vii. I2). At a later period Justinian placed a further restriction or even prohibition on divorce by consent by enacting that spouses dissolving a marriage by mutual consent should forfeit all their property, and be confined for life in a monastery, which was to receive one-third of the forfeited property, the remaining two-thirds going to the children of the marriage. The cause stated for this remarkable alteration of the law, and the See also:abandonment of the conception of marriage as a civil contract ut non Dei judicium contemnatur (Nov. 134), indicates the influence of the Christian idea of marriage. That influence, however, did not long continue in its full force. The prohibitions of Justinian on divorce by consent were repealed by See also:Justin (Nov. 140), his successor. " He yielded," says Gibbon, " to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent; the civilians were unanimous, the theologians were divided, and the ambiguous word which contains the See also:precept of Christ is flexible to any interpretation that the See also:wisdom of a legislature can demand." It was difficult, the enactment stated, " to reconcile those who once came to hate each other, and who, if compelled to live together, frequently attempted each other's lives." Justinian further re-enacted, with . some modifications, the power of divorce by a husband or wife against the will of the other. Divorce by a wife was allowed in five cases (Nov. 117): (I) the[HISTORY husband being party or privy to See also:conspiracy against the state; (2) attempting his wife's life, or failing to disdose to her plots against it; (3) attempting to induce his wife to commit adultery; (4) accusing his wife falsely of adultery; (5) taking a woman, to live in the house with his wife, or, after warning, frequenting a house in the same See also:town with any woman other than his wife. If a wife divorced her husband for one of these reasons, she recovered her dowry and any property brought into the marriage by her husband for life with reversion to her children, or if there were no children, absolutely. But if she divorced him for any other reason, the provisions of the enactment of Theodosius and Valentinian were to apply. A husband was allowed to divorce his wife for any one of seven reasons: (I) failure to disclose to her husband plots against the state; (2) adultery; (3) attempting or failing to disclose plots against her husband's life; (4) frequenting dinners or balls with other men against her husband's wishes; (5) remaining from home against the wishes of her husband except with her parents; (6) going to the circus, theatre or amphitheatre without the knowledge or contrary to the prohibition of her husband; (7) procuring See also:abortion. If the husband divorced his wife for any one of these reasons he retained the dowry absolutely, or if there were children, with reversion to them. If he divorced her for any other reason, the enactments of Theodosius and Valentinian applied. In any case of a divorce, if the father or See also:mother of either See also:spouse had advanced the dowry and it would be forfeited by an unreasonable divorce, the consent of the father or mother was necessary to render the divorce valid. Effect of Divorce on Children in the Law of Rome.—The custody of the children of divorced parents was dealt with by the Roman law in a liberal manner. A constitution of See also:Diocletian and Maximian See also:left it to the See also:judge to determine in his discretion to which of the parents the children should go. Justinian enacted that divorce should not impair the rights of children either as to See also:inheritance or See also:maintenance. If a wife divorced her husband for See also:good cause, and she remained unmarried, the children were to be in her custody, but to be maintained by the father; but if the mother was in fault, the father obtained the custody. If he was unable, from want of means, to support them, but she was able to do so, she was obliged to take them and support them. It is interesting to compare these provisions as to childern with the practice at See also:present under English law, which in this respect reflects so closely the spirit of the law of Rome. The Canon Law of Divorce.—The canon law of Rome was based on two main principles: (I) That there could be no divorce a vinculo matrimonii, but only a mensa et thoro. The rule was stated in the most absolute terms: " Quamdiu vivit vir licet adulter sit, licet sodomita, licet flagitiis See also:omnibus coopertus, et ab uxore propter haec scelera derelictus, maritus ejus reputatur, cui alterum vivum accipere non licet " (Caus. 32, Quaest. 7, c. 7). (2) That no divorce could be had at the will of the parties, but only by the See also:sentence of a competent, that is to say, an ecclesiastical, See also:court. In this negation of a right to divorce a vinculo matrimonii lies the broad difference between the doctrines of the Eastern and Western Churches of Christendom. The See also:Greek Church, under-See also:standing the words of Christ in the broader sense above mentioned, has always allowed complete divorce with a right to remarry for the cause of adultery. And it is said that the form at least of an See also:anathema of the See also:council of See also:Trent was modified out of respect to difference on the part of the Greek Church (see See also:Pothier 5. 6. 21). The papal canon law allowed a divorce a mensa et thoro for six causes: (I) adultery or unnatural offences; (2) impotency;
(3) See also:cruelty; (4) infidelity; (5) entering into religion; (6) See also:con-sanguinity. The Church, however, always assumed to itself the right to See also: Additional information and CommentsThere are no comments yet for this article.
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