Chapter XIII: Act 1895: has afforded a cheap and speedy remedy to all classes (1)

The framers of the act of 1857 were careful to avoid offending the scruples of clergymen who disapproved of the complete dissolution of marriage by a lay court. It was provided (secs. 57 and 58) that no clergyman should be compelled to solemnize the marriage of any person whose former marriage had been dissolved on the ground of his or her adultery, but should permit any other clergyman to solemnize the marriage in any church or chapel in which the parties were entitled to be married. It is to be feared that this concession, ample as it appears, has not allayed conscientious objections, which are perhaps from their nature insuperable. The act made no provision as to the name to be borne by a wife after a divorce; and this omission led to litigation in the case of a peer's wife, in _Cowley_ v. _Cowley_, in which Lady Cowley was allowed to retain her status.

_Modifications of the Act of 1857._--Subsequent legislation has made good many of the defects of the act of 1857. In 1859 power was given to the court, after a decree of dissolution or of nullity of marriage, to inquire into the existence of ante- and post-nuptial settlements, and to make orders with respect to the property settled either for the benefit of children of the marriage or their parents; and a subsequent act (41 & 42 Vict. c. 19, s. 3) removed a doubt which was entertained whether these powers could be exercised if there were no children of the marriage. In 1860 a very important change was made, having for its object a practical mode of preventing divorces in cases of connivance and collusion or of misconduct of the petitioner. It was provided that a claim of dissolution (a provision afterwards extended to decrees of nullity) should in the first instance be a decree nisi, which should not be made absolute until the expiration of a period then fixed at not less than three, but by subsequent legislation enlarged to not less than six, months. During the interval which elapsed between the decree nisi and such decree being made absolute, power was given to any person to intervene in the suit and show cause why the decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason of material facts not brought before the court; and it was also provided that, at any time before the decree was made absolute, the queen's proctor, if led to suspect that the parties were acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, might under the direction of the attorney-general intervene and allege such case of collusion. This enactment (extended in the year 1873 to suits for nullity) was ill drawn and unskilfully conceived. The power given to any person whomsoever to intervene is no doubt too wide, and practically has had little or no useful effect as employed by friends or enemies of parties to a suit. The limitation in terms of the express power of the queen's proctor to intervene in cases of collusion was undoubtedly too narrow. But the queen's proctor, or the official by whom that officer was afterwards represented, has in practice availed himself of the general authority given to any person to show cause why a decree _nisi_ should not be made absolute, and has thus been enabled to render such important service to the administration of justice that it is difficult to imagine the due execution of the law of divorce by a court without such assistance. By the Matrimonial Causes Act 1866 power was given to the court to order an allowance to be paid by a guilty husband to a wife on a dissolution of marriage. This act also can hardly be considered to have been drawn with sufficient care, inasmuch as while it provides that if the husband's means diminish, the allowance may be diminished or suspended, it makes no corresponding provision for increase of the allowance if the husband's means increase; nor, apparently, does it permit of an allowance in addition to, but only in substitution for, a settlement. The act makes no provision for allowance to a guilty wife, and it certainly is a serious defect that the power to grant an allowance does not extend to cases of nullity. In 1868 an appeal to the House of Lords was given in cases of decree for dissolution or nullity of marriage.

The great changes effected by the Judicature Acts included the court for divorce and matrimonial causes. Under their operation a division of the high court of justice was constituted, under the designation of the probate division and admiralty division, to which was assigned that class of legal administration governed mainly by the principles and practice of the canon and civil law. The division consists of a president, and a justice of the high court, with registrars representing each branch of the jurisdiction. Appeals lie to the court of appeal, and thence to the House of Lords.

In 1884 the legislature interfered to prevent imprisonment being the result of disobedience to an order for restitution of conjugal rights. That mode of enforcing the order of the court was abolished, and the matter was left to a proper adjustment of the pecuniary relations of the husband and wife; and a respondent disobeying such an order was held to be guilty of desertion without reasonable cause, such desertion having further given to it a similar effect to that assigned to desertion for two years or upwards. The effect of this provision has been that the suit for restitution of conjugal rights is most frequently brought for the purpose of shortening the time within which a wife can obtain a decree for dissolution of marriage.

Proceedings in the divorce court have shown the improvement in the law of evidence which has been effected with regard to other legal proceedings. The act of 1857 made an inroad on the former law, which prohibited evidence being given by parties interested in the proceedings, by allowing a petitioner (sec. 43) to be called and examined by order of the court, absolving such petitioner, however, from the necessity of answering any question tending to show that he or she had been guilty of adultery. In the next year power was given to the court to dismiss any person, with whom a party to the suit was alleged to have committed adultery, from the suit if there should not appear to be sufficient evidence against him or her, the object being to allow such person to give evidence; and in 1859 it was provided that, on a petition by a wife for a divorce on the grounds of cruelty or desertion with adultery, the husband and wife could be competent and compellable witnesses as to the cruelty or desertion. A few years later, however, in 1869, the subject was finally dealt with by repealing all previous rules which limited the powers to give evidence on questions of adultery with the safeguard that no witness in any proceeding can be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless in the same proceeding such witness shall have given evidence in disproof of his or her alleged adultery. It has been held that the principles of these enactments apply to interrogatories as well as to evidence given in court.

It is a most remarkable omission in the act of 1857, especially when we remember the high legal authority from whom it proceeded, that the act nowhere defines the class of persons with regard to whom the jurisdiction of the court should be exercised. This omission has given rise to a misapprehension of the law which, though now set at rest, prevailed for a considerable period, and has undoubtedly led to the granting of divorce in several cases in which it could not legally be given. It was supposed that the court could grant a dissolution of marriage to all persons who had anything more than a casual and fleeting residence within the jurisdiction of the court; and this view, although its correctness was doubted by Lord Penzance, the judge of the divorce court, was upheld by a majority of the judges of the court of appeal in the case of _Niboyet_ v. _Niboyet_ (4 P. D. 1). It was supposed that such residence gave what was termed a matrimonial domicile. But this view was undoubtedly erroneous as regards dissolution of marriage, although probably correct as regards judicial separation, and the true view is no doubt that indicated with great learning and ability by Lord Watson in a judgment given by him in the privy council in the case of _Le Mesurier_ v. _Le Mesurier_ (1895, App. Cas. 517), that the only true test of jurisdiction for a decree of divorce altering the status of the parties to a marriage is to be found in the domicile of the spouses--that is to say, of the husband, as the domicile of a wife follows that of her husband--at the time of the divorce. Domicile means a person's permanent home, the place at which he resides with no intention of making his home elsewhere, and, if he leaves it, with the intention of returning to it.

It is now also clearly recognized as the law of England that the English courts will not recognize a divorce purporting to be made by a foreign tribunal with regard to persons domiciled in England. For a considerable time doubt appears to have clouded the law on this subject. In a famous case known as _Lolley's_ case, decided in 1812, the judges of England (the point arose in connexion with a criminal charge) unanimously held "that no sentence or act of any foreign country or any state could dissolve an English marriage _a vinculo matrimonii_ for grounds on which it was not liable to be dissolved _a vinculo matrimonii_ in England." This case has been frequently understood as deciding that a marriage celebrated in England cannot be dissolved elsewhere, and on this point the courts of Scotland differ from the view supposed to be taken by the English judges. But the matter has been fully explained in one of the most masterly of Lord Hannen's judgments (_Harvey_ v. _Fairnie_, 5. P. D. 154), afterwards upheld by the House of Lords in 1882 (8 App. Cas. 43); and it is now clear that while the parties are domiciled in this country no decree of any foreign court dissolving their marriage will be recognized here, unless it proceed on the grounds on which a divorce may be obtained in this country, and even the exception just mentioned appears to rest rather on reasoning and principle than on the authority of any decided case. This principle received the highest sanction in the prosecution of Earl Russell for bigamy before the House of Lords (1901), in which it was held that, where a divorce had been refused him in England, an American divorce would not relieve a man from the guilt of marrying again.

_Summary Proceedings for Separation._--The legislature has sought to extend the relief afforded by the courts in matrimonial causes by a procedure fairly to be considered within the reach of all classes. In 1895 an act was passed which re-enacted in an improved form the provisions of an act of 1878 of similar effect. By the act of 1895 power was given to a married woman whose husband (1) has been guilty of an aggravated assault upon her within the Offences against the Person Act 1861, or (2) convicted on indictment of an assault on her and sentenced to pay a fine of more than L5 or to imprisonment for more than two months, or (3) shall have deserted her, or (4) been guilty of persistent cruelty to her or wilful neglect to maintain her or her infant children, and by such cruelty or neglect shall have caused her to leave and live apart from him, to apply to a court of summary jurisdiction and to obtain an order containing all or any of the following provisions:--(1) that the applicant be not forced to cohabit with her husband, (2) that the applicant have the custody of any children under sixteen years of age, (3) that the husband pay to her an allowance not exceeding L2 a week. The act provides that no married woman guilty of adultery should be granted relief, but with the very important proviso, altering as it does the rule of the common law, that the husband has not conduced or connived at, or by wilful neglect or misconduct conduced to, such adultery. The provisions of this act[2] have been largely put in force, and no doubt to the great advantage of the poorer classes of the community. It will be observed that the act is unilateral, and affords no relief to a husband against a wife; and the complaint is often heard that no misconduct of the wife, except adultery, relieves the husband from the necessity of maintaining her and allowing her to share his home, unless he can obtain access to the high court.[3]

_Separation Deeds._--Although nothing in the development of the law of divorce has tended to give to married persons the right absolutely to dissolve their marriage by consent, and, on the contrary, any such agreement would be held to be strong evidence of collusion, the view of the Church expressed in the ecclesiastical law has been entirely departed from as regards agreements for separation. Such agreements were embodied in deeds, and usually contained mutual covenants not to sue in the ecclesiastical courts for restitution of conjugal rights. The ecclesiastical courts, however, wholly disregarded such agreements, and considered them as affording no answer to a suit for restitution of conjugal rights. For a considerable period the court of chancery refused to enforce the covenant in such deeds by restraining the parties from proceeding to the ecclesiastical courts. But at last a memorable judgment of Lord Westbury (1861) asserted the right (_Hunt_ v. _Hunt_, 4 De G. F. & J. 221; see also _Marshall_ v. _Marshall_, 5 P. D. 19) of the court of chancery to maintain the claim of good faith in this as in other cases, and restrained a petitioner from suing in the ecclesiastical court contrary to his covenant. Thereafter these deeds became common, and no doubt often afford a solution of matrimonial difficulties of very great value. When the courts of the country became united under the Judicature Acts, it became practicable to set up in the divorce division a separation deed in answer to a suit for restitution of conjugal rights without the necessity of recourse to any other tribunal.

_Statistics._--The statistics of divorce in England have for some
years been regularly published in the volumes of judicial statistics
published annually by the Home Office.

The number of petitions for divorce (including in the term both
divorce _a mensa et thoro_ and divorce _a vinculo_) for the years from
1858 to 1905 inclusive are as follows:--

1858 326 | 1874 469 | 1890 644
1859 291 | 1875 451 | 1891 632
1860 272 | 1876 536 | 1892 629
1861 236 | 1877 551 | 1893 645
1862 248 | 1878 632 | 1894 652
1863 298 | 1879 555 | 1895 683
1864 297 | 1880 615 | 1896 772
1865 284 | 1881 589 | 1897 781
1866 279 | 1882 481 | 1898 750
1867 294 | 1883 561 | 1899 727
1868 303 | 1884 647 | 1900 698
1869 351 | 1885 541 | 1901 848
1870 351 | 1886 708 | 1902 987
1871 384 | 1887 662 | 1903 914
1872 374 | 1888 680 | 1904 822
1873 416 | 1889 654 | 1905 844

It is probably impossible to account for the variations which the
above table discloses. It was no doubt natural that the year
immediately succeeding the passing of the act which originated
facilities for divorces _a vinculo_ should exhibit a larger number of
divorces than its successors for a considerable period. But there does
not appear to be any adequate cause for the comparative increase which
seems to have prevailed in the decade between 1878 and 1888, unless it
be found in the increase of marriages which culminated in 1873 and
1883, falling after each of those years. The number of marriages again
rose high in 1891 and 1892, and this may account for the increased
number of divorces in 1896 and the following years. But it may
certainly be said with confidence that as compared with the growth of
population the number of divorces in England has shown no alarming
increase.

The total number of petitions in matrimonial causes presented by
husbands exceed those presented by wives, but in no marked degree.
This excess would seem to be due to the fact that the larger number of
petitions for dissolution presented by husbands, owing no doubt to the
difference in the law affecting the two sexes, is not entirely
counterbalanced by the much larger number of petitions for judicial
separation presented by wives. The following figures for various years
may be taken as typical:--

+------------------------------------+------+------+------+------+------+------+
| | 1895 | 1896 | 1897 | 1898 | 1899 | 1905 |
+------------------------------------+------+------+------+------+------+------+
| Petitions for Dissolution-- | | | | | | |
| Presented by husbands | 353 | 393 | 414 | 401 | 383 | 429 |
| Presented by wives | 220 | 280 | 269 | 243 | 262 | 323 |
| Petitions for Judicial Separation--| | | | | | |
| Presented by husbands | 4 | 3 | 2 | 4 | 4 | 5 |
| Presented by wives | 106 | 96 | 96 | 102 | 78 | 87 |
| Totals-- | | | | | | |
| Presented by husbands | 357 | 396 | 416 | 405 | 387 | 434 |
| Presented by wives | 326 | 376 | 365 | 345 | 340 | 410 |
+------------------------------------+------+------+------+------+------+------+

Speaking generally, it may be said that about 70% of the petitions
presented are successful and result in decrees. This percentage has a
tendency, however, to rise.

Attempts have been made to ascertain the classes which supply the
petitioners for divorce, but this cannot be done with such certainty
as to warrant any but the most general conclusions. It may, however,
safely be said that while all classes, professions and occupations are
represented, it is certainly not those highest in the scale that are
the largest contributors. The principles of the act of 1857 have
beyond question been justified by the relief required by and afforded
to the general community.

OTHER EUROPEAN COUNTRIES

We may now turn to the law of divorce as administered in the other countries of the modern world. On the main question whether marriage is to be considered indissoluble they will be found to range themselves on one side or the other according to the influence upon them of the Church of Rome and its canon law.

In _Scotland_ it has long been the law that marriage can be dissolved at the instance of either party by judicial sentence on the grounds of adultery or of desertion, termed non-adherence, and the spouses could in such case remarry, except with the paramour,--at all events if the paramour was named in the decree (and the name is sometimes omitted for that reason). A divorce _a mensa et thoro_ could also be granted for cruelty. By the Court of Session Act 1830, the jurisdiction in divorce was transferred from a body of commissaries to the court of session.

By the law of _Holland_ complete divorce could be granted by judicial sentence on the grounds of adultery or of wilful and malicious desertion, to which were added unnatural offences and imprisonment for life, and such divorce gave the power of remarriage, except with the person with whom adultery was proved to have been committed, but there would seem to be a doubt whether this power extended to the guilty party (Voet, _De divortiis_, lit. 24, tit. 2). Divorce _a mensa et thoro_ could be granted on the grounds allowed by the canon law.

The Code of _Prussia_ of 1794 contained elaborate provisions which gave great facility of divorce. A complete divorce could be obtained by judicial sentence for the following causes:--(1) Adultery or unnatural offences; and adultery by a husband formed no bar to his obtaining a divorce against his wife for adultery; and even an illicit intimacy, from which a presumption of adultery might arise, was held sufficient for a divorce. (2) Wilful desertion. (3) Obstinate refusal of the rights of marriage, which was considered as 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 incurable bodily defects that excited disgust and horror. (5) Lunacy, if after a year there was no reasonable hope of recovery. (6) An attempt on the life of one spouse by the other, or gross and unlawful attack on the honour or personal liberty. (7) Incompatibility of temper and quarrelsome disposition, if rising to the height of endangering life or health. (8) Opprobrious crime for which either spouse has suffered imprisonment, or a knowingly false accusation of such crime by one spouse of the other. (9) If either spouse by unlawful transactions endangers the life, honour, office or trade of the other, or commences an ignominious employment. (10) Change of religion. In addition to these causes, marriages, when there were no children, could be dissolved by mutual consent if there be no reason to suspect levity, precipitation or compulsion; and a 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 necessity of obtaining a licence, remarriage was permissible (see Burge, _Commentaries on Colonial and Foreign Law_, vol. i. 649).

Before 1876 only a divorce _a vinculo_ could be obtained in some of the German states, especially if the petitioner were a Roman Catholic. The only 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 order. However, two Drafting Commissions under the act declined to alter the new rule, but under pressure from the Roman Catholic party the Reichstag passed a law introducing a modified separation order, termed "dissolution of the conjugal community" (_Aufhebung der ehelichen Gemeinschaft_). This order can be converted into a dissolution of the marriage at the option of either party. Under the Civil Code of 1900 a petitioner can obtain a divorce or judicial 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 separation d'habitation_, was permitted; though it would appear that in the earliest age of the 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 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 Napoleon, 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 Napoleon 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 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 aggravation of introduction of the concubine into the home required by the Code; (2) violence (_exces_) or cruelty (_sevices_); (3) _injures graves_; and (4) _peine afflictive et infamante_. _Exces_ is defined by Locie 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." _Sevices_ 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.[4]

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 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 may be 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 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 _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 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 _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 father and mother to supervise the maintenance and education of the children, and their liability to contribute to their support, are continued.

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
notary, who is charged with the settlement of the pecuniary interests
of the parties. By a stereotyped form of procedure the appointment is
made invariably for the purpose of liquidating _la communaute ayant
existe entre 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 deed of 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 of all settlements made
upon him or her by the other party, either by the marriage 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 grant him or
her permanent alimony out of the property of the other party, not to
exceed one-third of the income, and revocable in case it ceases to be
necessary" (Kelly, p. 130).

On a divorce both parties are at liberty to remarry. The husband could remarry at once; but the wife (art. 296 of the Code) was only allowed to remarry after an interval of ten months. By the act of 1907, this article was abolished, and the wife allowed to remarry as soon as the judgment or decree granting the divorce has been entered, providing 300 days have elapsed since the first judgment was pronounced. A divorced husband may remarry his divorced wife, but if he does so, he cannot be again divorced, except on the ground of a sentence to a _peine afflictive et infamante_ passed on one of them since their remarriage. There is, however, this 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 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 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 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 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 ordinary rules of procedure. The action therefore, 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 petition must be presented by a petitioner in person to the president of the court sitting in 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 (1) separate residence, (2) alimony, (3) 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 lite_ is in the discretion of the court, having regard to the means of the parties, and includes a proper provision for 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 evidence on the trial of a divorce action. It is a 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 official certificate of the commissary of 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, 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 schedule of allegations is drawn up, and a judge, termed a _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. 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 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 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 execution. A decree must, by the law of 1886, be transcribed on the 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 domicile at the 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 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 graft on it provisions supplementing its omissions, and
modifying certain of its terms in accordance with the 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 mark an epoch in
the laws relating to 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 work of singular completeness and
accuracy on the judicial system of Great 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 cinq annees nos
tribunaux out prononce trois fois plus de divorces que la haute cour
d'Angleterre n'en a prononce en trente ans. Je n'insiste pas sur les
conclusions morales a tirer de ce rapprochement" (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 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 absence in France of
any official performing the functions assigned to the king's proctor
in England cannot but have great influence on the number of
applications for divorce, as well as on their results. (ST H.)

UNITED STATES

According to American practice, divorce is the termination by proper legal authority, sometimes legislatively but usually judicially, of a marriage which up to the time of the decree was legal and binding. It is to be distinguished from a decree of nullity of marriage, which is simply a legal determination that no legal marriage has ever existed between the two parties. It is also to be distinguished from a decree of separation, which permits or commands the parties to live apart, but does not completely and for all purposes sever the marriage tie. The matrimonial law of England, as at the time of the declaration of independence, forms part of the common law of the United States. But as no ecclesiastical courts have ever existed there, the law must be considered to have been inoperative. There is no Federal jurisdiction in divorce, and it is a question for the law of each separate state; and though it is competent to Congress to authorize divorces in the Territories, still it appears that this subject like others is usually left to the territorial legislature. In the different states, and in England, divorces were at first granted by the legislatures, whether directly or by granting special authority to the tribunals to deal with particular cases. This practice fell into general disrepute, and by the constitution of some states such divorces are expressly prohibited.

Upon the subject of divorce in the United States, and, to some extent, in foreign countries, a careful investigation was made by the American Bureau of Labour, and its report covered the years 1867 to 1886; a further report for the period 1887 to 1906 has also been published by the Federal Census Bureau. The number of divorces was in 1886 over 25,000, and in 1906 was over 72,000, about double the number reported for that year from all the rest of the Christian world. As divorce presupposes a legal marriage, the amount of divorce, or the divorce-rate, is best stated as the ratio between the number of divorces decreed during a year and the number of subsisting marriages or married couples. The usual basis is 100,000 married couples. In 1898-1902 the divorce-rate was 200 divorces (400 people) to 100,000 married couples. This is equivalent to more than one divorce annually to each 1400 people. The several states differ in divorce-rate, from South Carolina, with no provision for legal divorce, to Montana and Washington, where the rate is two and a half times the average for the country. In general the rate is about the same in the North as in the South, but greater in the Central states than in the East, and in the Western than in the Central states; but to this rule the New England states, Louisiana, New Mexico and Arizona are exceptions. The New England states have a higher rate than their geographical position would lead one to expect, and the other three, owing doubtless, in part at least, to the influence of the Roman Catholic Church, have a lower rate than the states about them. The several state groups had in 1900 the following divorce-rates per 100,000: South Atlantic, 196; North Atlantic, 200; South Central, 558; North Central, 510; Western, 712. The divorce-rate in the United States increased rapidly and steadily in forty years from 27 in 1867 to 86 in 1906. But distinct tendencies are traceable in different regions. In the North Atlantic group the rate rose by 58%, in the North Central by 158%, in the Western by 223%, in the South Atlantic by 437%, and in the South Central by 685%. The great increase in the South was mainly due to the spread of divorce among the emancipated negroes. Each state determines for itself the causes for which divorce may be granted, and no general statement is therefore possible.

The ground pleaded for a divorce is seldom an index to the motives which caused the suit to be brought. This is determined by the character of the law rather than by the state of mind of the parties; and so far as the individuals are concerned, the ground alleged is thus a cloak rather than a clue or revelation. Still those causes which have been enacted into law by the various state legislatures do indicate the pleas which have been endorsed by the social judgment of the respective communities. In the United States exclusive of Alaska and the recent insular accessions there are forty-nine different jurisdictions in the matter of divorce. Six out of every seven allow divorce for desertion, adultery or cruelty; and of the 945,625 divorces reported with their causes during the twenty years 1887-1906 nearly 78% were granted for some one of these three causes, viz. 39% for desertion, 22% for adultery, and 16% for cruelty. Probably nearly 9% more were for some combination of these causes. Three other grounds for divorce are admitted as legal in many or most American states, viz. imprisonment in 39, habitual drunkenness in 38, and neglect to provide in 22. About 98% of American divorces are granted on some one or more of these six grounds. In general the legislation on the subject of the causes allowed for divorce is most restrictive in the states on the Atlantic coast, from New York to South Carolina inclusive, and is least so in the Western states. The slight expense of obtaining a divorce in many of the states, and the lack of publicity which is given to the suit, are also important reasons for the great number of decrees issued. The importance of the former consideration is reflected in the fact that the divorce-rate for the United States as a whole shows clearly, in its fluctuations, the influences of good and bad times. When times are good and the income of the working and industrial classes likely to be assured, the divorce-rate rises. In periods of industrial depression it falls, fluctuating thus in the same way and probably for the same reason that the marriage-rate in industrial communities fluctuates. In two-thirds of the divorce suits the wife is the plaintiff, and the proportion slightly increased in the forty years. In the Northern states the percentage issued to wives (1887-1906) was 71, while in the Southern states it was only 56. But where both parties desire a decree, and each has a legal ground to urge, a jury will usually listen more favourably to a woman's suit.

Divorce is probably especially frequent among the native population of the United States, and among these probably more common in the city than in the country. This statement cannot be established absolutely, since statistics afford no means of distinguishing the native from the foreign-born applicants. It is, however, the most obvious reason for explaining the fact that, while in Europe the city divorce-rate is from three to five times as great as that of the surrounding country, the difference in the United States between the two regions is very much less. In other words, the great number of foreigners in American cities probably tends to obscure by a low divorce-rate the high rate of the native population. Divorce is certainly more common in the New England states than in any others on the Atlantic coast north of Florida, and it is not unlikely that wherever the New England families have gone divorce is more frequent than elsewhere. For example, it is much more common in the northern counties of Ohio settled largely from New England than in the southern counties settled largely from the Middle Atlantic states.

There are two statements frequently made regarding divorce in the United States which do not find warrant in the statistics on the subject. The first is, that the real motive for divorce with one or both parties is the desire for marriage to a third person. The second is, that a very large proportion of divorces are granted to persons who move from one jurisdiction to another in order to avail themselves of lax divorce laws. On the first point the American statistics are practically silent, since, in issuing a marriage licence to parties one or both of whom have been previously divorced, no record is generally made of the fact. In Connecticut, however, for a number of years this information was required; and, if the statements were trustworthy, the number of persons remarrying each year was about one-third the total number of persons divorcing, which is probably a rate not widely different from that of widows and widowers of the same age. Foreign figures for Switzerland, Holland and Berlin indicate that in those regions the proportion of the divorced who remarry speedily is about the same as that of widows and widowers. What statistical evidence there is on the subject therefore tends to discredit this popular opinion. The evidence on the second point is more conclusive, and has gone far towards decreasing the demand for a constitutional amendment allowing a federal marriage and divorce law. About four-fifths of all the divorces granted in the United States were issued to parties who were married in the state in which the decree of divorce was later made; and when from the remaining one-fifth are deducted those in which the parties migrated for other reasons than a desire to obtain an easy divorce, the remainder would constitute a very small, almost a negligible, fraction of the total number.

It is difficult, perhaps impossible, to say how far the frequency of divorce in the United States has been or is a social injury; how far it has weakened or undermined the ideal of marriage as a lifelong union between man and woman. In this respect the question is very like that of illegitimacy; and as the most careful students of the latter subject agree that almost no trustworthy inference regarding the moral condition of a community can be derived from the proportion of illegitimate children born, so one may say regarding the prevalence of divorce that from this fact almost no inferences are warranted regarding the moral or social condition of the population. It is by no means impossible, for example, that the spread of divorce among the negro population in the South marks a step in advance from the condition of largely unregulated and illegal unions characteristic of the race immediately after the war. The prevalence of divorce in the United States among the native population, in urban communities, among the New England element, in the middle classes of society, and among those of the Protestant faith, indicates how closely this social phenomenon is interlaced with much that is characteristic and valuable in American civilization. In this respect, too, the United States perhaps represent the outcome of a tendency which has been at work in Europe at least since the Reformation. Certainly the divorce-rate is increasing in nearly every civilized country. Decrees of nullity of marriage and decrees of separation not absolutely terminating the marriage relation are relatively far less prevalent than they were in the medieval and early modern period, and many persons who under former conditions would have obtained relief from unsatisfactory unions through one or the other of these avenues now resort to divorce. The increasing proportion of the community who have an income sufficient to pay the requisite legal fees is also a factor of great importance. The belief in the family as an institution ordained of God, decreed to continue "till death us do part," and in its relations typifying and perpetuating many holy religious ideas, probably became weakened in the United States during the 19th century, along with a weakening of other religious conceptions; and it is yet to be determined whether a substitute for these ideas can be developed under the guidance of the motive of social utility or individual desire. In this respect the United States is, as Mr Gladstone once wrote, a _tribus praerogativa_, but one who knows anything of the family and home life of America will not readily despond of the outcome.