4. Again it is very common among uncivilized as well as more advanced races for a man to have absolute right of divorce, putting away his wife when he likes, without the assignment of any reason, or on the most frivolous grounds.[743] Sometimes, even among the same peoples, the woman has a reciprocal right, as will presently appear; but very often divorce is the sole prerogative of the man, or else the woman is grudgingly allowed the privilege only for the most serious cause. The unfavorable position in which she is thus placed is no doubt largely due to wife-capture, and especially to wife-purchase, through which she too often sinks to the level of a mere chattel or beast of burden. Still even wife-purchase, as hereafter shown, may have its compensations; for the husband cannot act too harshly without danger of the blood-feud; and he may suffer a decided disadvantage with respect to property by summarily dismissing his wife. Unlimited right of divorce belongs to the man in some parts of China,[744] and with many African[745] and American[746] tribes. "The Aleuts used to exchange their wives for food and clothes. In Tonga a husband divorces his wife by simply telling her to go." In "Yucatan a man might divorce his wife for the merest trifle, even though he had children by her."[747] Among the California Yurok "divorce is very easily accomplished at the will of the husband, the only indispensable formality being that he must receive back from his father-in-law the money which he paid for his spouse."[748] If dissatisfied with his wife, the young Gallinomero of the same region may "strike a bargain with another man" and sell her "for a few strings of shell-money."[749] In the so-called "straw dance" the Dakota husband may "throw away" the wife whom he no longer desires. He may even take several wives in order to dispose of them in this way; thus adding to his importance and giving evidence of his "strong heart."[750] Among the Abipones divorces are as frequent "as changing of the dress in Europe." If "their wives displease them, it is sufficient; they are ordered to decamp." The husband's right is unrestrained by the law; but, "appointing a drinking-party, wherein the memory of injuries is refreshed in the minds of the intoxicated guests, the relations fiercely avenge the dishonor done to the repudiated wife."[751] The Tasmanian husband, when dissatisfied or when a liberal offer is made, may "transfer" his spouse like a slave; but in Luzon a divorce is more difficult, for the wedding gifts must be redistributed among the donors.[752] With "the ancient Hebrews, Greeks, Romans, and Germans, dislike was regarded as a sufficient reason for divorce."[753] Such is also the case on the island of Nias;[754] while among the Galela and Tobelorese the man may put away his wife on account of laziness; and elsewhere he may do the same because she is tiresome or because she lacks skill for household service.[755]
Under the existing law of Islâm the woman has gained a limited right of divorce. By the form called chol she may buy her release; and in this case "a restoration of the marriage bond is impossible." Again, for certain specified faults of the husband, she is granted a separation through fasch, or judicial decree.[756] On the other hand, by li'an, or solemn oath before the cadi, a husband is able to put away the spouse whom he believes to be unfaithful;[757] but in general the right of the man to reject the woman without assigning any cause whatever is absolutely unrestrained. The great majority of divorces among Moslem peoples take the form of talâq, or repudiation. It is only necessary for the husband who is tired of his wife to say to her "mutállaka," "Thou art dismissed."[758] In harmony with the old Arabian custom the procedure by talâq may consist of a "triple declaration" or three successive divorces. After the first pronouncement of the formula the repudiated woman remains three months in her harem at the man's cost, and he is at liberty to take her back if he will. Indeed, a single tender glance or word of concession is sufficient to restore the marriage. Should he not reclaim her until the specified term is passed, he may then do so only in case she has not already taken a new husband, and by paying her a "second time the full amount of the morning-gift as stipulated at their marriage." A second or even a third separation from the same wife may be had by repetition of this process; but the third declaration, unlike the other two, is irrevocable, definitively dissolving the marriage bond.[759]
Among a great many peoples, even those comparatively little advanced in general culture, the husband is permitted to divorce his wife only for definite reasons.[760] The causes of legal divorce most constantly recurring are adultery and sterility. In a great many cases divorce is absolutely forbidden after a child, usually a son, is born. It should be carefully noted that many of the alleged examples of divorce on the ground of sterility are, strictly speaking, not divorces at all; but rather illustrations of the so-called "proof-marriages" so often met with in all parts of the world. Not until the term of probation is "blessed" by the arrival of offspring is the "marriage" in such cases regarded as complete, though this may not always be the implied condition. With the proof-marriages are sometimes described as identical in character the "time-marriages" found among many peoples; but this form of union is, properly speaking, usually a real marriage not dependent for its consummation upon the birth of a child, being stipulated in advance for a certain term.[761] Besides the two leading grounds of divorce already mentioned, many others, some of them trivial, are prescribed by the laws of various peoples. Such are mistreatment, deformity, laziness, desertion, and incompatibility of temper. Sometimes the consent of the chief or other public authority is requisite. So, among the Hottentots, a man may divorce his wife only "upon shewing such cause as shall be satisfactory to the men of the kraal where they live;"[762] and among the aborigines of Victoria, as already seen, a childless wife may be dismissed for serious misconduct only when the sanction of the tribal chief is obtained.[763] By Chinese law divorce must be granted in case of any of the numerous impediments[764] to marriage; or when the wife is guilty of adultery. For that offense the aggrieved husband may kill the offending wife and her paramour, if he catch them in flagrante delicto. But should the woman not be slain, she is punished, and the husband may drive her away or even sell her as a concubine, provided he has not pandered to the crime or does not sell her to the guilty man.[765] Furthermore, a marriage may be dissolved by mutual agreement;[766] and the husband is entitled to a divorce when the wife strikes him, is addicted to drunkenness or opium smoking, has been defiled before marriage, or when she leaves his house against his will.[767] Besides all these grounds, established by statute or recent usage, Confucius allows the husband a divorce for any of seven faults of the wife: barrenness, wantonness, inattention to parents-in-law, talkativeness, theft, jealousy, and inveterate disease such as leprosy.[768] But these grounds will not always warrant a separation. "They may be outweighed by particular merits of the woman or by special circumstances. If the wife has mourned three years for the husband's parents; if the family has grown rich during the marriage; or if the wife has no longer relatives to receive her, then the seven assigned grounds fail, the divorce is not only forbidden but void, and the husband must retain his wife."[769] This is not the only wise and righteous provision of the Chinese law, however despotic as a rule may be the husband's power. Normally the wife cannot sue for divorce; still practically she enjoys the right of separation in several important contingencies. Under judicial approval, for instance, she may release herself from the marriage bond in case of three[770] years' desertion without word from her husband. So likewise, when she suffers grave insult from the husband's parents, she may return to her own family, reclaim her dotal gift, and demand a contribution for her support.[771]
In modern Japan divorce is regulated according to the principles of western law; but formerly the husband's power was governed, as in China, by the rules of Confucius.[772] Furthermore, in spirit the Aztec law of divorce bears a striking resemblance to that of China. Only in special cases, not now understood, had the woman a right of separation; and the husband could put away his wife only for definite reasons, such as sterility and certain defects of character, as when she proved herself careless, impatient, lazy, or quarrelsome. Divorce, however, was discouraged; and even when a legal reason was alleged, it could not be effected without a judicial decree. The decree did not declare the separation; it merely allowed the plaintiff in the matter "to do what he should find good." Thus permission was given for divorce; but the judge avoided pronouncing the separation in direct words.[773]
5. Finally, in further illustration of the endless variety of popular customs, it must be noted that among many peoples the wife also has the right of divorce. Often, as already seen, she may leave her husband at pleasure or on the slightest pretext. It needs but a glance at the usages of the American Indians in this regard to perceive that the lot of the married woman among barbarous or even savage tribes is not always so dark as it is frequently painted;[774] and many similar proofs elsewhere exist.[775] Among the inland Columbians, according to Bancroft, "either party may dissolve the marriage at will."[776] A similar rule prevails with the Moxos of South America, the tribes of California, as well as among the Iroquois and their neighbors.[777] "If a Bonak wife gets up and leaves the man, he has no claim ever after on her;"[778] and, according to Schoolcraft, when the Navajo woman marries, "she becomes free, and may leave her husband for sufficient cause."[779] The Guanan[780] and Guatemalan[781] wife is equally privileged; and the Sioux and other Dakota women are often notoriously independent, even beating their husbands for unfaithfulness, and for this or other just cause returning to their own kindred.[782] Sometimes the wife has the right of divorce only on definite grounds, which may differ from or be the same as those permitted to the husband.[783] Often the reasons which satisfy the moral sense of the community are very slight; at other times they are grave and few in number. 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."[784] 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."[785] Theoretically among the Athenians the woman could demand a divorce for mistreatment, "in which case she had merely to announce her wish to the archons;"[786] while the Kafir wife "who is beaten or not provided with sufficient food and clothes is entitled to return to her parents."[787] In fact, the right of the woman to repudiate her husband for mistreatment is alleged to be the general rule according to negro custom.[788] Even by modern 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 divorce by authority of justice."[789]
II. THE FORM OF DIVORCE
The form of divorce, like the rules relating to the right and its conditions, varies greatly among the races of mankind. Very frequently, usually among the lowest peoples, it takes place without any ceremony.[790] Sometimes, however, the procedure is fixed by law or custom. A symbolical act is occasionally sufficient, as with the east African Wazaramo, where the husband by way of divorce hands the wife a piece of holcus reed, on receiving which she must at once leave the house or be driven out.[791] The Unyoro husband observes a similar rite.[792] It is likewise a private transaction in Morocco, where the man rejects the woman by a bill of divorce. The same procedure may be employed in China; and a three-fold proclamation before witnesses is adequate among the Somali.[793] In Dawan (west Timor) it takes place in a council composed of the relations of the man and wife, where the cause is weighed and determined; but in this assembly neither the chiefs nor the eldest have any voice.[794] Similar councils are common among African tribes.[795] In many instances, however, exactly the opposite rule prevails, the decision of the "eldest," the "chiefs," or of some other magisterial, priestly, or judicial authority being requisite for a legal separation.[796]
III. THE LEGAL EFFECTS OF DIVORCE
Not less diversified are the customs governing the effects of divorce; and here, as in the case of its varying forms and conditions, one is almost as often surprised by the reasonableness and stability of early institutions as he is shocked at their harshness or injustice when regarded from the civilized standpoint. In the disposal of the children the existing system of kinship is very widely determinative. Among a great many peoples, in case of separation, the children follow the father or the mother according as mother-right or father-right prevails;[797] and where a mixed system, or rather a coincidence of mother-right and paternal authority,[798] is found, or else relationship is cognatic, they are divided between the parents or their kindred.[799] The division is determined by a variety of rules among different peoples. Often they are equally divided, regardless of sex.[800] Sometimes, as in Bulgaria,[801] Burma,[802] and among the Natchez Indians,[803] the daughters follow the mother and the sons remain with the father. In still other cases, as in certain South Slavonian districts, the father takes the adult children, while those of tender years are left in the mother's hands. Such is the rule in Zara and in Bosnia.[804] In Lika, according to Krauss, when all the children are males, the mother receives the minors, if the father consents; but when they are of both sexes, the sons follow the father and the daughters the mother. In this last case, however, the man is required to pay the divorced woman whatever is needed to supply the bridal outfit of the daughters when they reach marriageable age. When it happens at the time of separation that all the children are grown-up daughters, they are allowed a free choice between the parents. Should none remain with the father, the mother and daughters are entitled to all the property gained during marriage.[805] Often in case of divorce the children belong to the innocent party;[806] unless children are regarded as a burden, when the opposite rule prevails;[807] or unless the system of kinship determines the disposition of the offspring, when an equitable adjustment is otherwise made. Thus among the African Fantis of the Gold Coast—where by law the children belong to the mother's family—in case of divorce through fault of the woman, the man is entitled to a sum equal to 22s. 6d. for each child; and when by stipulation the sons remain with the father, he is nevertheless not permitted to sell them or put them in pawn. If the divorced wife cannot restore to the husband the price paid for her, the children are left with him as a pledge for the debt until by their service they have paid it with 50 per cent. interest. In this way, we are told, children often become slaves for life to their own father and as such are even transmitted to his heirs.[808]
Very similar in variety and character are the rules governing the disposition of the property when a marriage is dissolved. These are mainly dependent in each case upon the general principles of the family law relating to property rights.[809] Sometimes, as among the South Slavonians,[810] each receives back the property which he had at the time of the marriage, while the common earnings are divided, though not always in equal portions.[811] But as the most general rule responsibility for the divorce is of vital importance in determining the course to be pursued. The man or the woman who arbitrarily dissolves the marriage, or whose guilty conduct is the cause of separation, usually suffers a decided disadvantage. Thus the woman must restore the dotal gift or the presents received from her husband; and the purchase price must be repaid by herself or by her kindred. On the other hand, the man who puts away his wife without just cause must often forfeit all claim to restitution of the bride-money, perhaps lose his children, and even suffer other penalties besides, such as the payment of alimony.[812]