Online Encyclopedia
Search over 40,000 articles from the original, classic Encyclopedia Britannica, 11th Edition.
OTHER EUROPEAN
Online EncyclopediaEncyclopedia Home :: ORC-PAI
del.icio.us it!
|
OTHER See also:EUROPEAN COUNTRIES
We may now turn to the See also:law of See also:divorce as administered in the other countries of the See also:modern See also:world. On the See also:main question whether See also:marriage is to be considered indissoluble they will be found to range themselves on one See also:side or the other according to the See also:influence upon them of the See also: (3) Obstinate refusal of the rights of marriage, which was considered as See also:equivalent to desertion. (4) Incapacity to perform the duties of marriage, even if arising subsequent to the marriage; and the same effect was assigned to other incur-able bodily defects that excited disgust and horror. (5) Lunacy, if after a See also:year there was no reasonable See also:hope of recovery. (6) An See also:attempt on the life of one See also:spouse by the other, or See also:gross and unlawful attack on the See also:honour or See also:personal See also:liberty. (7) Incompatibility of See also:temper and quarrelsome disposition, if rising to the height of endangering life or See also:health. (8) Opprobrious See also:crime for which either spouse has suffered imprisonment, or a knowingly false See also:accusation of such crime by one spouse of the other. (9) If either spouse by unlawful transactions endangers the life, honour, See also:office or See also:trade of the other, or commences an ignominious employment. (to) See also:Change of See also:religion. In addition to these causes, marriages, when there were no See also:children, could be dissolved by mutual consent if there be no reason to suspect levity, precipitation or compulsion; and a See also:judge had also power to dissolve a marriage in cases in which a strongly rooted dislike appeared to him to exist. In all cases of divorce, but sometimes subject to the See also:necessity of obtaining a See also:licence, remarriage was permissible (see Burge, Commentaries on Colonial and See also:Foreign Law, vol. i. 649). Before 1876 only a divorce a vincula could be obtained in some of the See also:German states, especially if the petitioner were a See also:Roman See also:Catholic. The only See also:relief afforded was a " perpetual separation." By the Personal Status Act 1875 perpetual separation orders were abolished and divorce decrees allowed in cases where the petitioners would, under the former law, have been entitled to a perpetual separation See also:order. However, two Drafting Commissions under the act declined to alter the new See also:rule, but under pressure from the Roman Catholic party the Reichstag passed a law introducing a modified separation order, termed " See also:dissolution of the conjugal community " (Aufhebung der ehelichen Gemeinschaft). This order can be converted into a dissolution of the marriage at the See also:option of either party. Under the See also:Civil Code of 1900 a petitioner can obtain a divorce or judicial
separation on " See also: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 See also:left to judicial discretion. The absolute grounds are adultery, See also:bigamy, sodomy, an attempt against the petitioner's life or wilful desertion. The relative grounds are (a) such See also:grave See also:breach of marital See also: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) See also: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 See also:maiden name.
By the law of See also:Denmark, according to the Code of See also: In See also:Italy certain articles of the Civil Code See also:deal with separation, voluntary and judicial, but divorce is not allowed in any See also:form. In See also:France the law of divorce has had a chequered See also:history. Before the Revolution the Roman canon law prevailed, marriage was considered indissoluble, and only divorce a mensa et thoro, known as la separation d'habitation, was permitted; though it would appear that in the earliest See also:age of the See also:monarchy divorce a vinculo matrimonii was allowed. La separation d'habitation was granted at the instance of a. wife for cruelty by her husband or false accusation of a See also:capital crime, or for habitual treatment with contempt before the inmates of the See also: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 See also: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 loth of See also: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 See also:Napoleon, yet even under that See also:system of law divorce remained comparatively easy. Mutual consent, expressed in the manner and continued for a See also: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 See also: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 See also: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 See also: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 See also:mistress to the See also:home. Both husband and wife could claim divorce on the ground of See also: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 See also:guilt. A divorce a mensa et thoro could be obtained on the same groundsas a divorce a vinculo, but not by mutual consent; and if the divorce a mensa et thoro continued in force for three years, the See also:defendant party could claim a divorce a vinculo. On the restoration of See also: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 See also:repeal of-the provisions respecting it in the Code Napoleon in 1816, was re-enacted by a law of the 27th of See also:July 1884, the provisions of which were simplified bylaws of 1886 and 1907. But a wide departure was made by these See also:laws from the terms of the Code Napoleon. 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 See also:aggravation of introduction of the concubine into the home required by the Code; (2) violence .(exces) or cruelty (sevices) ; (3) injures See also:graves; and (4) See also:peine afflictive et infamante. Exces is defined by Locie as " a generic expression comprising all acts tending to See also:compromise the safety of the person, without distinction as to their See also:object or See also:motive, pre-meditation as well as furious anger, attempts upon life as well as serious woundings." Seaices are acts of See also:ill-treatment less grave in See also:character, which, while not endangering life, render existence in See also:common intolerable (See also:Kelly's See also: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 See also:element. A See also: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 See also:drunkenness has also been held to fall within the See also:definition of an injure grave. Peine afflictive et infamante signifies a legal See also:punishment involving See also:corporal confinement and moral degradation.) In addition to its recognition of full divorce, the French law recognizes separation of two kinds, one separation de biens and the other separation de See also:corps. The effect of separation de biens is merely to put an end to the community of goods between the spouses. It necessarily follows, but maybe decreed independently' of separation de corps. The grounds of separation de corps are the same as those for a divorce; and if a separation 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 separee de corps obtained only the capacity attaching to- a concomitant separation de biens; that is to say, she recovered the enjoyment and management of her See also:separate See also:property, but could not deal with real property, nor take legal proceedings, without the See also:sanction of her husband or of the court. But by a law of the 6th of See also:February 1893 a wife separee 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 separee 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 See also:English acts. The custody of children is given to the party who has obtained the divorce, unless the court, on the application of the See also:family, or the ministere 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 See also:father and See also:mother to supervise the maintenance and See also:education of the children, and their liability to contribute to their support, are continued. 1 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 See also: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 See also:Russell v. Russell, which would have included in the definition of cruelty all, or nearly all, of that which the French law See also:deems either sevices or injures graves, would not have better satisfied both the principles of English See also:jurisprudence and the feelings of modern life. 344 The law in France as to property on a divorce has been accurately stated as follows : " Divorce in France effects a dissolution of the matrimonial regime of property as well as of the marriage itself. The decree appoints a See also:notary, who is charged with the See also:settlement of the pecuniary interests of the parties. By a stereotyped form of See also:procedure the See also:appointment is made invariably for the purpose of liquidating la communaute ayant existe entre See also:les epoux, irrespective of whether the regime really was that of community or another. In the case of aliens, therefore, married under the rule of separate property, it is necessary carefully to set this out in the notarial See also:deed of See also:liquidation, in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pronounced loses the benefit t of all settlements made upon him or her by the other party, either by the marriage See also:contract or since the marriage. On the other hand, the party in whose favour the divorce has been pronounced preserves the benefit of all settlements made in his or her favour by the unsuccessful party. If no such settlements were made, or if those made appear inadequate to ensure the subsistence of the successful party, the court may See also: There is, however, this See also:limitation on the power of remarriage of divorced persons, that the party to the marriage against whom the decree has been pronounced is not allowed to marry the person with whom his or her guilt has been established. Such person, however, has no such rights as are recognized in him or her according to English law, and cannot take any See also:part in the proceedings. But his or her name is referred to in the proceedings only by an initial; and French law goes even further in the avoidance of publicity, inasmuch as the publication of divorce proceedings in the See also:press is forbidden, under heavy penalties. By a law of the 6th of February 1893 French jurisprudence, more complete at least, and perhaps wiser, than English, dealt with a See also:matter previously in controversy, and decided that after a divorce the wife shall resume her maiden name, and may not continue to use the name of her divorced husband; nor may the husband, for business or other purposes, continue to use the name of his wife. By the law of 1886 the See also:special procedure in divorce previously in force under the Code and under the law of 1884 was abolished, and it was provided that matrimonial causes should be tried according to the See also:ordinary rules of procedure. The See also:action there-fore, when brought, follows the methods of procedure common to other civil proceedings. But there still remain certain necessary preliminaries to an action of divorce. A See also:petition must be presented by a petitioner in person to the See also:president of the court sitting in See also:chambers, with the object of a reconciliation being effected. This is known as the premiere comparation. If the petitioner still determines to proceed, there follows the seconde comparation, on which occasion both parties appear before the president. If the president fails to effect a reconciliation, he makes an order permitting the petitioner to proceed, and deals with the matters necessary to be dealt with pendente lite, such matters being (r) separate See also:residence, (2) alimony, (3) See also:possession of personal effects, (4) custody of children. As regards residence, the wife is compelled to adhere during the proceedings to the residence assigned to her, but no similar restriction is placed on the husband. !Alimony pendente See also:tile is in the discretion of the court, having regard to the means of the parties, and includes a proper See also:provision for See also:costs. As regards the custody of children, the Code and the law of 1884 gave it to the husband, unless the court otherwise orders, but the law of 1886 leaves the matter wholly in the discretion of the court. There are certain technical rules of See also:evidence on the trial of[See also:UNITED STATES a divorce action. It is a See also:general principle of the French law of evidence that documentary evidence is the best evidence, and oral testimony only secondary. In divorce cases adultery flagrante delicto can be proved by the See also:official certificate of the See also:commissary of See also:police. Letters between the husband and wife are admissible in evidence. As to letters between the parties and third persons, the law, which has been doubtful, now appears to be that the wife may produce only such letters from third parties to her husband as have come into her possession accidentally, and without any ruse or artifice on her part; but the husband may put in evidence any letters written to or by his wife which he has obtained by any, See also:short of criminal, means. If the documents put in evidence are not sufficient to satisfy the court, there follows an investigation by means of witnesses, termed an enquete. A See also:schedule of allegations is See also:drawn up, and a judge, termed a See also:juge-commissaire, is specially appointed to conduct the inquiry. Relatives and servants, though not competent witnesses in ordinary civil actions, are so in divorce proceedings. See also:Cross petitions may be entered; the substantiation of a cross petition, however, does not have the effect, in some cases given to it by English law, of barring a divorce, but a divorce may be, and often is, granted in favour of and against both parties pour torts reciproques. When a case comes on for trial, it is in the power of the court to order an See also:adjournment for a period not exceeding six months, which is termed a temps d'epreuve, in order to afford an opportunity for reconciliation. It is said, however, that this power is seldom exercised. An See also:appeal may be brought against a decree of divorce within two months; and a decree made on appeal is subject to revision by the court of cassation within two months. Both references to the court of appeal and the court of cassation operate as a stay of See also:execution. A decree must, by the law of 1886, be transcribed on the See also:register of marriages within two months from its date, and failing this transcription, the decree is void. The transcription must be made at the place of celebration of the marriage, or, if the parties are married abroad, at the place where the parties were last domiciled in France. If the parties, after having married abroad, return to France, it has been provided, by a circular of the Procureur de la Republique in 1887, that the transcription may be made at the place of their actual See also:domicile at the See also:time of action brought, a rule which has been held to apply to the divorce of aliens in France. The effect of transcription does not relate back to the date of the decree. Opinions may differ as to the relative merits of the English and French law See also:relating to divorce. But it cannot be denied that the French law presents a singularly complete and well-considered system, and one which, obviously with the English system in view, has endeavoured to See also:graft on it provisions supplementing its omissions, and modifying certain of its terms in accordance with the See also:light afforded by experience and the changed feelings of the modern world. The effect of the laws of 1884 and 1886 in France has been great. The act of 1907 dealing with divorce, coupled with that of the 21st of July of the same year dealing with marriage, may also be said to See also:mark an See also:epoch in the laws relating to See also:women. During the five years from 1884 to 1888 the courts granted divorces in 21,064 cases, rejecting applications for divorce in 1524. In addition, there were 12,242 applications for judicial separation, of which 10,739 were granted. A distinguished French writer, the author of a See also:work of singular completeness and accuracy on the judicial system of Great See also:Britain has compared these figures with the corresponding result of the English act of 1857. His conclusion is expressed in these words: " On voit qu'en clnq annees nos tribunaux ont prononce trois fois plus de divorces See also:clue la haute cour d'Angleterre n'en a rononce en trente ans. Je n'insiste pas sur Ies conclusions morales a tirer de ce rapprochement " (See also:Comte de Franqueville, Le Systeme judiciaire de la Grande-Bretagne, ii. p. 171). It. is, however, practically impossible to compare the number of divorces in France and in See also:England with exact justice, because, as will have been seen above, the causes of divorce in France materially exceed those recognized by English law; and the See also:absence in France of any official performing the functions assigned to the king's See also:proctor in England cannot but have great influence on the number of applications for divorce, as well as on their results. Additional information and CommentsThere are no comments yet for this article.
» Add information or comments to this article.
Please link directly to this article:
Highlight the code below, right click, and select "copy." Then paste it into your website, email, or other HTML. Site content, images, and layout Copyright © 2006 - Net Industries, worldwide. |
|
|
[back] OTHER COUNT |
[next] OTHER GOSPELS MAINLY GNOSTIC AND ALMOST ALL LOST |