As a general rule, however, human marriage is not necessarily contracted for life. The Indians of North America dissolve their unions as readily as they enter into them. The Wyandots had, it is said, marriages upon trial, which were binding for a few days only.[3258] In Greenland, husband and wife sometimes separate after living together for half a year.[3259] Among the Creeks, “marriage is considered only as a temporary convenience, not binding on the parties more than one year,” the consequence being that “a large portion of the old and middle-aged men, by frequently changing, have had many different wives, and their children, scattered around the country, are unknown to them.”[3260] Speaking of the Botocudos, Mr. Keane remarks that their marriages “are all of a purely temporary nature, contracted without formalities of any sort, dissolved on the slightest pretext, or without any pretext, merely through love of change or caprice.”[3261] In Ruk, it frequently happens that newly married husbands repudiate their wives;[3262] and, in the Pelew and Kingsmill Groups, and among the aborigines of Northern Queensland, divorces are of common occurrence.[3263] “Tasmanian lords,” says Dr. Milligan, “had no difficulty, and made no scruple, about a succession of wives.”[3264] Again, in Samoa, “if the marriage had been contracted merely for the sake of the property and festivities of the occasion, the wife was not likely to be more than a few days, or weeks, with her husband.”[3265] In several of the Islands of the Indian Archipelago, “in the regular marriages the parties are always betrothed to each other for a longer or shorter time, sometimes not for more than a month and at others for a period of years.”[3266] Among the Dyaks, there are few middle-aged men who have not had several wives, and instances have been known of young women of seventeen or eighteen who had already lived with three or four husbands.[3267] Among the Yendalines in Indo-China, it is rare for any woman to arrive at middle age without having a family by two or more husbands.[3268] The Maldivians, as we are informed by Mr. Rosset, are so fond of change that many a man marries and divorces the same woman three or four times in the course of his life.[3269] Among the Sinhalese, according to Knox, “both men and women have frequently to marry four or five times before they can settle down contented;”[3270] and Father Bourien says of the Mantras of the interior of the Malay Peninsula, that it is not uncommon to meet individuals who have married even forty or fifty different times.[3271] Among the Munda Kols, Khasias, Tartars,[3272] and most Mohammedan peoples,[3273] divorces are very frequent. According to Dr. van der Berg, an even more fatal influence is exercised on family life in the East by this laxity of the marriage tie than by polygyny.[3274] Burckhardt knew Bedouins forty-five years old who had had more than fifty wives.[3275] A “Sighe” wife in Persia is taken in marriage for a certain legally stipulated period, which may vary from one hour to ninety-nine years.[3276] In Cairo, according to Mr. Lane, there are not many persons who have not divorced one wife, if they have been married for a long time; and many men in Egypt have in the course of two years married as many as twenty, thirty, or more wives; whilst there are women, not far advanced in age, who have been wives to a dozen or more men successively. Mr. Lane has even heard of men who have been in the habit of marrying a new wife almost every month.[3277] In Morocco, Dr. Churcher writes to me, a terrible state of things springs from the ease with which divorce is obtained; a man repudiates his wife on the slightest provocation and marries again. “One of the servants here,” he continues, “is reported to have had nineteen wives already, though he is still only middle-aged.” Indeed, among the Moors of the Sahara, according to Mr. Reade, it is considered “low” for a couple to live too long together, and “the leaders of fashion are those who have been the oftenest divorced.”[3278] Lobo tells us that, in Abyssinia, marriage was usually entered upon for a term of years;[3279] and, among the Somals, separation is exceedingly common.[3280] Many negro peoples marry upon trial or for a fixed time.[3281] Among the Negroes of Bondo, a man may so often send away his wife and take a new one that it is difficult to know who is the father of the children born.[3282] Regarding the ancient Persians, Professor Rawlinson observes that the easiness of divorce among the Magians was in accordance with Eranian notions on the subject of marriage—“notions far less strict than those which have commonly prevailed among civilized nations.”[3283] Among the Greeks, especially the Athenians,[3284] and among the Teutons,[3285] divorce often occurred; and in Rome, at the close of the Republic and the commencement of the Empire, it prevailed to a frightful extent.[3286]
Among uncivilized races, as a rule, and among many advanced peoples, a man may divorce his wife whenever he likes. The Aleuts used to exchange their wives for food and clothes.[3287] In Tonga, a husband divorces his wife by simply telling her that she may go.[3288] Among the Hovas of Madagascar, until the spread of Christianity, marriage was compared to a knot so lightly tied that it could be undone with the slightest possible touch.[3289] In Yucatan, a man might divorce his wife for the merest trifle, even though he had children by her.[3290] Among the ancient Hebrews,[3291] Greeks,[3292] Romans,[3293] and Germans,[3294] dislike was considered a sufficient reason for divorce, which was regarded as merely a private act.
Nevertheless, among a great many peoples, although a husband may divorce his wife, he does so only under certain exceptional conditions, marriage, as a rule, being concluded for life.[3295] The Greenlanders seldom repudiate wives who have had children.[3296] Among the Californian Wintun, according to Mr. Powers, it is very uncommon for a man to expel his wife. “In a moment of passion he may strike her dead, or ... ignominiously slink away with another, but the idea of divorcing and sending away a wife does not occur to him.”[3297] Among the Naudowessies, divorce is so rare that Carver had no opportunity of learning how it is accomplished.[3298] Speaking of several tribes on the eastern side of the Rocky Mountains, Harmon remarks that separation between husband and wife is seldom permanent, the parties, after a few days’ absence from one another, generally having an inclination to come together again.[3299] The Iroquois, in ancient times, regarded separation as discreditable to both man and woman, hence it was not frequently practised.[3300] If an Uaupé takes a new wife, the elder one is never turned away, but remains the mistress of the house.[3301] Among the Charruas and Patagonians, marriage lasts, as a rule, during the whole of life, if there are children.[3302] And, concerning the Yahgans, Mr. Bridges writes that there have been many instances amongst them of husband and wife living together until separated by death. The same is the case in Lifu, as I am informed by Mr. Radfield. In Tonga, according to Mariner, more than half of the number of married women were parted from their husbands only by death.[3303] Among the Maoris[3304] and the Solomon Islanders,[3305] and in New Guinea,[3306] divorce is exceptional; and, even in Tahiti, the birth of children generally prevented the dissolution of marriage.[3307] In many of the islands of the Indian Archipelago, divorce may, by law or custom, be readily obtained, but Mr. Crawfurd says that it is very rarely sued for.[3308] The Garos, according to Colonel Dalton, “will not hastily make engagements, because, when they do make them, they intend to keep them.”[3309] Among the Karens, Dr. Bunker writes, separations, save by death, are rare. Mr. Ingham informs me that, among the Bakongo, there are plenty of instances of husband and wife living together till death. Archdeacon Hodgson states the same regarding the Eastern Central Africans, Mr. Swann regarding the Waguha, Mr. Eyles regarding the Zulus. Among the Cis-Natalian Kafirs, according to Mr. Cousins, marriage, in the majority of instances, is contracted for life.[3310] In the early days of Hebrew history, says Ewald, it was only in exceptional cases that husbands made an evil use of the right to divorce a wife.[3311] Among the Greeks of the Homeric age, divorce seems to have been almost unknown, though it afterwards became an everyday event in Greece;[3312] and in Rome, in the earliest times, it was probably very little used.[3313]
Among many peoples custom or law has limited the husband’s power to dispose of his wife, permitting divorce only under certain conditions. Thus, among the Kukis, “if a woman has a son by her husband, the marriage is indissoluble,” though, if they do not agree, and have no son, the husband can cast off his wife and take another.[3314] The Red Karens in Indo-China allow divorce if there are no children; “but should there be one child, the parents are not permitted to separate.”[3315] In the tribes of Western Victoria, described by Mr. Dawson, a man can divorce a childless wife for serious misconduct, but in every case the charge against her must first be laid before the chiefs of his own and his wife’s tribes, and their consent to her punishment obtained. If the wife has children, she cannot be divorced.[3316] Among the Santals and the Tipperahs, divorce can be effected only with the consent of the husband’s clansmen, or a jury of village elders.[3317] Several tribes of the Indian Archipelago do not allow a man to repudiate his wife, except in case of adultery;[3318] and certain negro peoples have a similar rule, so far as the chief or first wife is concerned.[3319] Among the Hottentots, according to Kolben, a man may divorce his wife only “upon showing such cause as shall be satisfactory to the men of the kraal where they live.”[3320] Mr. Casalis states that, among the Basutos, “sterility is the only cause of divorce which is not subject to litigation;”[3321] and, according to Toda custom, the separation of married couples does not seem to be lightly tolerated.[3322] Among certain lower races the consent of the wife appears generally to be necessary for separation.[3323]
Civilized nations, more commonly than savages, consider marriage a union which must not be dissolved by the husband except for certain reasons stipulated by law. Among the Aztecs, it was looked upon as a tie binding for life, and divorce was always discouraged both by the magistrates and the community. The husband could repudiate even his concubines only for just cause and with the sanction of the courts, and the chief wife only for malevolence, dirtiness, or sterility.[3324] In Nicaragua, the sole offence for which a wife could be divorced was adultery.[3325] The Chinese code enumerates seven just causes of divorce—barrenness, lasciviousness, inattention to parents-in-law, loquacity, thievishness, ill-temper, and inveterate infirmity,—and a husband, except for one of these reasons, may not put away his wife on pain of receiving eighty blows.[3326] But these pretexts for divorce are very elastic. In one of the old Chinese books we read, “When a woman has any quality that is not good, it is but just and reasonable to turn her out of doors.... Among the ancients a wife was turned away if she allowed the house to be full of smoke, or if she frightened the dog with her disagreeable noise.”[3327] Nevertheless, according to Mr. Medhurst, divorce is rare in China.[3328] In Japan a man might repudiate his wife for the same reasons as in China. But Professor Rein remarks that the Japanese seldom made use of this privilege, especially if there were children, as education and custom required that, in such cases, the wife should be treated with kindness and consideration.[3329] In Arabia, Mohammed regulated the law of divorce. “In the absence of serious reasons,” says Ibrâhîm Halebî, “no Mussulman can justify divorce in the eyes either of religion or the law. If he abandon his wife or put her away from simple caprice, he draws down upon himself the divine anger, for ‘the curse of God,’ said the Prophet, 'rests on him who repudiates his wife capriciously.’”[3330] Practically, however, a Mohammedan may, whenever he pleases, without assigning any reason, say to his wife, “Thou art divorced,” and she must return to her parents or friends.[3331]
According to the ‘Laws of Manu,’ a wife “who drinks spirituous liquor, is of bad conduct, rebellious, diseased, mischievous, or wasteful, may at any time be superseded by another wife. A barren wife may be superseded in the eighth year; one whose children all die, in the tenth; one who bears only daughters, in the eleventh; but one who is quarrelsome, without delay.”[3332] At present, in Southern India, divorce is common among many of the lower castes; but it is not practised at all among the Brahmans and Kshatriyas, or among the higher classes of Śudras.[3333] In Rome under the Christian Emperors, the husband’s right to put away his wife was restricted by imperial constitutions, which pointed out what were considered just causes of divorce.[3334] The dogma of the indissoluble nature of marriage, early vindicated by many Fathers in accordance with the injunction, “What God hath joined together, let not man put asunder,” came into full force only by degrees. The Council of Trent definitely suppressed the last traces of divorce as a legal practice[3335]—a decree which has exercised a powerful influence on the legislation of Roman Catholic nations. In Spain, Portugal, and Italy, a husband can demand a judicial separation, a divorce a mensâ et thoro, but the marriage contract cannot be dissolved; in France divorce was reintroduced by the law of 27th July, 1884. In all Protestant countries divorce is allowed. In every one of them a man may be divorced from a wife who has committed adultery, but the other legal grounds on which a divorce, in most of them, may be obtained, vary in different States. According to the Prussian ‘Landrecht,’ the list includes, among other causes, drunkenness and a disorderly life, insanity lasting longer than a year, and the mutual consent of the husband and wife, if they have no children;[3336] in Norway and Denmark, mutual consent, if the parties have been judicially separated for three years previously;[3337] in Austria, aversion proved to be invincible through several preceding divorces from bed and board.[3338] The French law recognizes as causes of divorce, besides adultery, “excès, sévices, injures graves,” as also “condamnation à une peine afflictive et infamante.”[3339]
Marriage may be dissolved not only by the man but by the woman. In Madagascar, says Mr. Sibree, although “the power of divorce is legally in the husband’s hand, a wife can practically divorce herself in several cases.[3340] The like holds true for many of the lower races;[3341] whilst, among others, custom or law seems to permit a wife to separate at least under certain conditions.[3342] Among the Inland Columbians, according to Mr. Bancroft, “either party may dissolve the marriage at will.”[3343] If a Bonak wife gets up and leaves the man, he has no claim ever after on her.[3344] Among the Navajos, when a woman marries, “she becomes free, and may leave her husband for sufficient cause.”[3345] Regarding the Guanas, Azara states, “Le divorce est libre aux deux sexes, comme tout le reste, et les femmes y sont très-portées.”[3346] In the Sandwich Islands, “a man and woman live together as long as they please, and may, at any time, separate, and make choice of other partners.”[3347] In Tahiti, parts of New Guinea, and in the Marianne Group, the marriage tie may, it is said, be dissolved whenever either of the parties desires it.[3348] In some of the smaller islands of the Indian Archipelago, a wife can sue for divorce if her husband ill-treats her, if he is unfaithful, or for other reasons.[3349] Among the Shans, “should the husband take to drinking, or otherwise misconducting himself, the woman has the right to turn him adrift, and to retain all the goods and money of the partnership.”[3350] In Burma, if one of the parties is unwilling to separate, “the other is free to go, provided all property except the clothes in wear is left behind;” and a wife can demand a divorce for ill-treatment, or if her husband cannot properly maintain her.[3351] Among the Irulas of the Neilgherries, the option of remaining in union, or of separating, rests principally with the woman.[3352] According to Kandh custom, a wife can return to her father’s house within six months after the marriage, on the articles which had been paid for her being restored; and, if childless, she can at any time quit her husband. “In no case,” says Sir W. W. Hunter, “can the husband forcibly reclaim her, but a wife separated on any grounds whatsoever from her husband cannot marry again.”[3353] In Eastern Central Africa, divorce may be effected if the husband neglects to sew his wife’s clothes, or if the partners do not please each other.[3354] And, among the Garenganze, according to Mr. Arnot, a wife “may leave her husband at any time, if she cares to do so.”[3355]
Passing to more advanced nations, we find that, among the ancient Mexicans, the wife, as well as the husband, might sue for separation.[3356] In Guatemala, she could leave him on grounds as slight as those on which he could leave her.[3357] In China, on the other hand, a woman cannot obtain legal separation; and the same was the case in Japan till the year 1873.[3358] According to the Talmudic Law, the wife is authorized to demand a divorce if the husband refuses to perform his conjugal duty, if he continues to lead a disorderly life after marriage, if he proves impotent during ten years, if he suffers from an insupportable disease, or if he leaves the country for ever.[3359] According to Mohammedan legislation, divorce may, in certain cases, take place at the instance of the wife, and, if cruelly treated or neglected by her husband, she has the right of demanding a divorce by authority of justice.[3360] The ancient Hindus[3361] and Teutons[3362] allowed a wife to separate from her husband only in certain exceptional cases. According to Gallic laws, a wife could quit her husband without losing her dos, “si leprosus sit vir; si habeat fetidum anhelatum, et si cum ea concumbere non possit.”[3363] Among the Saxons and Danes in England, marriage might be dissolved at the pleasure of either party, the wife, however, being obliged to return the price paid for her, if she deserted the husband without his consent.[3364] At Athens, a woman could demand a divorce if she was ill-treated by her husband, in which case she had merely to announce her wish before the ἄρχων.[3365] Rossbach thinks that, in Rome, a marriage with manus could be dissolved by the husband only, a marriage without manus by the wife’s father also.[3366] But Lord Mackenzie observes that, whatever effect conventio in manum may have had in ancient times, it did not, in the age of Gaius, limit the wife’s freedom to seek divorce.[3367] In those Christian States of Europe where absolute divorce is permitted, the grounds on which it may be sued for are nearly the same for the man and the woman—except in England, where the husband must be accused of one or other of several offences besides adultery. In Italy, Spain, and Portugal, a judicial separation may always be decreed on the ground of the adultery of the wife, but, on the ground of the adultery of the husband, only if it has been committed under certain aggravating circumstances.[3368]
The causes by which duration of human marriage is influenced are, on the whole, the same as those which determine the form of marriage.