Further, in common conjugal life, the domestic work of the wife should not be considered as obligatory and requiring no special remuneration. Her work has as much right to be considered as that of the husband, and should be entered to the wife as an asset.
Community of property is so immoral that it should be considered invalid in case of ulterior dispute, when it has been instituted by private contract. It is the business of the conjoints to put it in practice if they wish, so long as they are of one mind. But when dissensions or divorce take place, it only injures the one who has remained honest, and at the same time the children.
This is why such contracts ought never be definitely binding to the conjoints. Even if the marriage is not unhappy, the extravagances or blunders of one of the conjoints may ruin the whole family, in the case of common property.
The duration of marriage is very important. If a marriage contract exacts sexual fidelity till death, divorce is nonsense. Yet, in practice, it is obvious cruelty to keep two individuals legally bound together who can no longer live with each other. Thus, the provision and license of divorce are necessities of civil law which are certainly not ideal, but which cannot be passed over without favoring family disturbance and without sanctioning illegality and evil.
Among the most frequent causes of divorce are desire for change in the husband, venereal diseases, disputes, incompatibility of temper, mental disorders, immorality, ill-treatment and crime. The sterility of one of the conjoints and incapacity for coitus may also be mentioned as reasons for divorce, although in certain circumstances, as we shall see, limited polyandry or polygyny may be much more humane than divorce.
As soon as divorce is admitted, important and complicated questions of law arise when there are children. We shall refer to these later. The legal license of complete divorce thus transforms marriage into a temporary contract, which is not so far removed as one would think from the ideal relations of free love.
We will examine the circumstances which, apart from the procreation of children, may attribute legal importance to the sexual relations of two persons. I must first of all observe that, if it wishes, civil legislation can very well create a state of things which gives to children born outside marriage the same rights and the same social position as legitimate children, and I will even add that such social equality would respond to the most elementary sentiments of human rights, if these were not already influenced in advance by prejudice and mysticism.
Minors.—Civil law should stipulate that minors have not the right to marry. This may appear cruel in certain cases, but society has the right and the duty to intervene. Minors should be protected against all sexual abuse. A young girl under the age of seventeen and a boy under eighteen or twenty should be prevented from all sexual relations. This is a postulate of individual and social hygiene and consequently of all healthy matrimonial law.
Lunatics.—The same applies to lunatics, who are legally comparable to minors. Have we the right to forcibly separate a married couple, or a couple living in concubinage, because one of the conjoints has become insane, when the other does not wish for separation? In Germany the procedure of nullity of marriage has been invented for these cases, but without gaining much. I shall return to this point in connection with another subject, but I may remark here that it is not the continuation of marriage nor that of sexual connection which injures society, but only the procreation of children. Therefore it is only the procreation of children, which should be legally prohibited, and sexual connection only when the healthy conjoint agrees to its suppression, or when the interests of the afflicted one necessitate it.
In the future these particular cases may be regulated in the most convenient and humane way possible.