Especially interesting among uncivilized or backward races are the effects of divorce with respect to second marriage or the remarriage of the parties to one another. Everywhere, apparently, the man who puts away his wife or has been divorced by her is allowed to contract a second marriage immediately, or, at any rate, after a very short interval.[813] This follows almost as a matter of course where wife-capture or wife-purchase exists, or where polygyny prevails.[814] But with regard to the second marriage of a divorced woman usage greatly varies. Among a number of peoples she is free to marry again, if she likes, even when she is responsible for the separation.[815] Generally, however, her freedom is restricted in this regard; and this is especially apt to be the case where wife-purchase exists; for then the legal rights of the husband in the woman are by no means extinguished by the dissolution of marriage. Her status as a wife must thus be distinguished from her position as property or as the object of contract. Accordingly for this or some other reason the woman who puts away her husband is sometimes absolutely forbidden to form a second marriage. Such is the case among peoples so little advanced as the Ashantees and Hottentots; while the Banjun wife who divorces her husband may not marry again in the same village where she found her first spouse.[816] Still more rigorous is the rule in Samoa, where the divorced woman is forbidden to remarry even after her husband's death.[817] Between the extremes of entire freedom and entire prohibition the remarriage of a woman is hampered by a variety of conditions, some simple and others severe. The Kafir woman may be married again by her father when she has divorced her husband with consent of the tribal chief. Sometimes the second marriage depends on the return of the marriage-gift or the purchase price; or the woman must wait a certain period, as three months or a year, before contracting it.[818] In several instances, doubtless as the result of purchase, after returning to her father's house she remains at her husband's disposal until he formally sets her free; while in yet other cases she may be reclaimed by him within a certain definite time. So with the old Arabians the purchased wife was looked upon as the husband's property, and hence divorce did not release her from his claims.[819] In Islam, as already explained, where the ancient Arabian rule of triple declaration of divorce still survives, a man who has divorced his wife by a single or even a second declaration of the formula "can take her again within three months without asking her consent."[820] Among the Bedouins, in like spirit, when the divorce takes place at the instance of the woman, the man may refuse to repeat the formula of separation without which she cannot contract a second marriage.[821] Very frequently the second marriage, whether of a widow or a divorced woman, is not looked upon as so important as the first. The wedding ceremonial and festivities are less marked; the customary time of seclusion after the nuptials is shorter; the bride-price is much smaller; or the wife has a less advantageous position with respect to property.[822] On the other hand, the widow or divorced woman who will remarry has sometimes an important compensation for the loss of social prestige, since she may freely bestow her hand in choosing a second mate.[823]
Perhaps as a general rule the divorced man and woman are as free to remarry each other as they are to contract a second marriage with other persons;[824] but sometimes the reunion is dependent upon the observance of special legal formalities, or it can take place only after a fixed interval.[825] In rare instances, as among the ancient Aztecs, the remarriage of a divorced couple is absolutely forbidden.[826]
IV. FREQUENCY OF DIVORCE
The laws of divorce among backward races, it is thus perceived, are full of interest for the student of social institutions. One comes from the study with a clearer perception of the fact that such institutions are but the outward expression of human life—of slow experience and experimentation; and one gains a deeper respect for the concrete results of primitive culture. Especially important is the relation of divorce to the stability of society. The conservatism prevailing even among rude peoples with respect to the liberty of divorce is remarkable. This may be due in part to the fact that primarily marriage does not rest so much upon the sexual instinct as upon family needs.[827] In some instances, where dissolution of the marriage is free to either party, or where it is the peculiar right of the man, divorce is exceedingly rare.[828] The American Indian tribes are conspicuous in this regard.[829] Sometimes there is a strong social sentiment against it. Such is the case in China. Formerly among the Japanese, like the ancient Aztecs, divorces were infrequent;[830] and among many less advanced peoples, such as the Afghans, the Veddahs, or even the Zulus, the sentiment of love is doubtless a stronger check upon instability of the family than is commonly supposed.[831]
The rules governing the division of property are important in this connection; for, as Westermarck suggests, the selfish interests of the husband "prevent him from recklessly repudiating his wife. In many instances divorce implies for the man a loss of fortune."[832] In rare cases he is obliged to provide for the wife's support even after the separation.[833] Often, as already seen, the woman receives back her dotal gift and whatever she brought with her at the marriage; while frequently the husband is obliged to surrender a portion or all of the common property. Thus "among the Karens, if a man leaves his wife, the rule is that the house and all the property belong to her, nothing being his but what he takes with him. Among the Manipuris, according to Colonel Dalton, a wife who is put away without fault on her part, takes all the personal property of the husband, except one drinking cup and the cloth round his loins;" and "similar rules prevail among the Galela, and in the Marianne Group."[834]
The conservative influence of property is even more marked in connection with wife-purchase—a powerful deterrent of hasty divorce. In the case of a sale-marriage, even in the weakened form of dower to the woman, the guilty or responsible party usually suffers a decided disadvantage from the separation. The man who repudiates his wife without just cause, as already shown, may not only forfeit his right to reclaim the bride-money, and incur other losses on the division of the property; but often, particularly where the maternal system of kinship prevails, he may have to surrender his children as well; and the woman who unjustly leaves her husband may lose all that she brought with her into the home or compel her kindred to restore the purchase price.[835]
Here also the results of the genealogical organization must be considered. The blood-feud, paradoxical as it may seem, often acts as a conservative power among primitive men. The wife's kindred may protect her from the vengeance of a brutal husband whom she has deserted; or they may send her back when she has acted indiscreetly or when they dread the wrath of the husband's clan. The organization of society on the basis of kinship has another important bearing upon the effects of divorce. It appears to be practically a universal rule among uncivilized races that the repudiated wife or the woman who legally puts away her husband shall return to her own family or clan, whose duty it is to receive her. Accordingly, the lot even of the savage woman has mitigating conditions not always accorded by the laws of civilized society. "In savages," observes Mason, "where every man and woman and child is billeted somewhere, there is no such thing as thrusting man or woman out into nowhere.... Should the man wish to repudiate his wife, she cannot be sent out into the jungle or forest; she must be returned to somebody."[836]