Imperial laws to restrain practice. No judicial sentence required. Marriage was thoughtlessly entered upon and dissolved at pleasure. Sylla, Cæsar, Pompey, Cicero, and Antony put away their wives, and Augustus and his successor did not scruple to follow their example. At the same period divorces on the woman's part were extremely common. Seneca notices this laxity of manners; and Juvenal (6 Sat. 20) gives a remarkable instance of a Roman matron who is said to have gone the round of eight husbands in five years. To check this deplorable corruption, laws were passed inflicting severe penalties on those whose bad conduct led to divorce; and there are imperial constitutions pointing out what should be deemed just causes of divorce. These penalties are directed not only against the spouse whose misconduct furnished a just occasion for divorce, or who spontaneously repudiated without just cause, but also against both spouses, when, without sufficient lawful motives, they dissolved their union by common accord, bona gratia. Yet, notwithstanding these penal enactments, divorce was in all cases left entirely to the free-will of the spouses. Among the Romans divorce did not require the sentence of a judge, and no judicial proceedings were necessary. It was considered a private act, though some distinct notice or declaration of intention was usual. At one period it became the practice for one of the spouses to intimate the divorce to the other in an epistolary form, by means of a freedman, in presence of seven witnesses, all Roman citizens above the age of puberty; and this was no doubt intended to preserve clear evidence of a transaction which was attended with such important consequences on the civil rights of the parties concerned. When the marriage was dissolved by the death of the husband or by divorce, the wife was bound to wait a year before entering into a new marriage. In violating that prohibition a woman incurred infamy, besides being subject to other penalties.1 1 C. 5. 17. 8 and 9. N. 22, ch. 16, pr. Mackeldy, § 573. Compare with Code Civil, art. 228. II.-FRENCH LAW. In modern times there has been much difference of opinion among lawyers and theologians as to the lawfulness of dissolving marriage by divorce. Some of the early fathers of the Church allowed divorce in the case of adultery, as the Greek Church does to this day; but the Church of Rome adopted the views of St Augustine, and the Council of Trent declared that marriage was a sacrament and indissoluble. Hence the canonists only allowed a separation from bed and board even in the case of adultery. allowed lution. Before the Revolution the law of France adopted the prin- Divorce ciple which holds marriage to be indissoluble. Pothier after Revosays, emphatically, that "no power can break a marriage when it has been once validly contracted; for God himself having formed the bond of matrimony, no human power can dissolve it." 1 of Divorce The law of 20th September 1792 permitted divorce in France, and this was afterwards confirmed by the Civil Code (art. 229-231), which authorised divorce on the following grounds 1st, Adultery by the wife, or by the husband if he Grounds kept a concubine in the common dwelling-house; 2d, Out- under Code rageous conduct or ill-usage by either of the spouses; 3d, Civil. Condemnation to an infamous punishment; and, 4th, In a certain limited class of cases by mutual consent, but only upon the conditions and under the restrictions specified, which are of the most stringent character. After the restora- Divorce tion of the Bourbons, divorce was abolished by the law of 8th in 1816. May 1816, judicial separation for just causes assigned being still retained. In 1830 and 1848 attempts were made to re-establish divorce in France, but without success.2 1 Pothier, Traité du Contrat de çais, 8th ed., p. 69. Bouillet, Dict. Mariage, part 6, ch. 1, art. 3. 2 Pailliet, Manuel de Droit Fran des Sciences, voce Divorce. abolished III.-ENGLISH LAW. Prior to 1858 no divorce allowed. Divorce now sanc tioned under statute. At the Reformation the Protestants rejected the Popish tenet that marriage was a sacrament and indissoluble. In some Protestant countries, however, the ecclesiastical courts clung to the old canon law of Europe; and, down to a recent period, the law of England did not allow a marriage once validly contracted to be rescinded by divorce. Where there was no canonical disability, nothing short of an Act of Parliament could authorise divorce a vinculo matrimonii; but private Acts were occasionally obtained by persons of rank and condition, who could afford the expense, to dissolve marriages for adultery on the part of the wife, and for adultery accompanied by aggravated circumstances on the part of the husband.1 So deeply rooted was this principle in the law of England, that in Lolly's case, where the parties were married in England and divorced in Scotland, and the husband subsequently married in England, he was tried and convicted there for bigamy, the conviction being affirmed by the unanimous opinion of the common-law judges. The English courts, however, recognised separation, or (as it was termed) divorce a mensa et toro, for certain conjugal wrongs, such as adultery and cruelty. Divorce is now sanctioned in England by the Act 20 and 21 Vict. c. 85, which came into operation in January 1858; and since that time the court established for the trial of matrimonial causes has not been idle. divorce on the Generally the and the court A husband may obtain from this court a ground of adultery committed by the wife. adulterer must be made a party to the suit; may order him to pay damages and also the costs, or may dismiss him from the suit; but it is no longer competent for the husband to sue the adulterer in a separate action for damages.2 Neither of the spouses can obtain a divorce on the ground of mere desertion by the other, however long continued. 1 Dr Harris's Justinian's Institutes, p. 30, note. 220 & 21 Vict. c. 85; 21 & 22 Vict. c. 108. As to the wife, a divorce cannot be obtained by her on the ground of the husband's adultery alone; but she may obtain a divorce if the husband has been guilty of incestuous adultery; or of bigamy with adultery; or of adultery coupled with gross cruelty, or with other aggravated circumstances; or of adultery, coupled with desertion for two years without reasonable cause.1 If the petitioner has been accessory to, or has connived at, the adultery, or has condoned it, or if the petition is presented or prosecuted by collusion, no decree of divorce can be granted. Farther, the court is not bound to grant such. decree, if the petitioner has been guilty of adultery during the marriage, or guilty of unreasonable delay in the petition, or of cruelty to the other party, or of desertion or wilful separation from the other party before the adultery and without reasonable excuse, or guilty of such wilful neglect or misconduct as has conduced to the adultery.2 After the decree of divorce has become final, the parties are at liberty to marry again, as if the previous marriage had been dissolved by death.3 From the same court, either the husband or the wife may Judicial obtain a judicial separation, formerly called a divorce a mensa separation. et toro, on the ground of adultery, or cruelty, or desertion without cause for two years and upwards. After a decree of judicial separation the wife is considered as a femme sole in regard to all property she may subsequently acquire, or which may come to or devolve upon her, and she can sue or be sued as if she were unmarried; and, on the other hand, the husband is not liable for her debts, except for necessaries supplied to her when he fails to pay the alimony decreed to her by the court.5 1 20 & 21 Vict. c. 85, s. 27. 2 Ibid. s. 30, 31. 3 Ibid. s. 57. 4 20 & 21 Vict. c. 85, s. 16. IV. SCOTTISH LAW. Divorce for adultery By the law of Scotland a divorce may be obtained by the adful husband or the wife on the ground of adultery, or of wilful wilful desertion. Husband and wife have equal rights. desertion for four years together without just cause, after adopting the forms of the Act 1573, c. 55, so far as these are still required.1 In suing for a divorce in Scotland the wife has precisely the same rights as the husband. If she can prove adultery or wilful desertion for four years by the husband, that entitles her to take proceedings for a divorce, in the same manner as adultery or wilful desertion on her part entitles him to a similar remedy. The action of divorce proceeds before the Court of Session, and the right to institute it is personal to the husband or the wife. As a preliminary the pursuer is required to make oath that the suit is not collusive. In this and all consistorial actions the summons must be served upon the defender personally when he is not resident in Scotland; yet, upon evidence to the satisfaction of the Court that the defender cannot be found, edictal citation will be held sufficient; but in every case where the citation is edictal the summons must be served on the children of the marriage, if any, and on one or more of the next of kin of the defender, exclusive of their children, when the children and next of kin are known and resident within the United Kingdom; and such children and next of kin, whether cited or so resident or not, may appear and state defences to the action.2 When the husband sues for divorce on the ground of adultery, he may cite the alleged adulterer as a co-defender, and the Court may order him to pay the whole or any part of the costs, or may dismiss him from the action, as may seem just.3 1 Ersk. 1. 6. 43. Fraser, Per. and Dom. Relations, vol i. p. 652 et seq. By the 24 & 25 Vict. c. 86, s. 11, it seems to have been intended to abolish the forms of the Act 1573; but the clause is not happily ex- 2 24 & 25 Vict. c. 86, s. 10. |