Labouring as she is under many disadvantages, the Japanese wife does not get credit for her good qualities, because she always keeps in the background. Neither she nor her husband ever sings the other’s praises in public; on the contrary, mutual depreciation is the custom. And yet all her efforts are directed to her husband’s cutting a creditable figure among his acquaintances. A good, sensible, tactful wife is a jewel with us no less than with the wise man of yore; and her adroitness covers a multitude of defects in her husband. And for all his brave show, often, as our proverb says, “’tis the hen that tells the cock to crow.”
CHAPTER XVI.
DIVORCE.
Frequency of divorces—The new Civil Code on marriage and divorce—Conditions of a valid marriage—Invalid marriages—Cohabitation—The wife’s legal position—Her separate property—The rights of the head of the family—Care of the wife’s property—Forms of divorce—Grounds for divorce—Custody of children—No damages against the co-respondent—Breaches of promise of marriage—Few mercenary marriages—Widow-hunting also rare.
IN the old days divorces took place on the slightest pretext. Among the higher classes, it is true, the family connections which a marriage brought into existence could not be dissolved without more or less serious consequences, and the parties were, as in other countries, expected to sacrifice their personal happiness to family considerations; but among the other classes which were not influenced, as a rule, by such worldly motives in their marriages, divorces were of pretty frequent occurrence. And moreover, as they often took place from no fault of the persons divorced, they came to lose to some extent the stigma which usually attaches to them. Still, those women who had been brought up with a strict, old-world sense of honour, looked upon divorce as a stain upon their reputation; for if it did not necessarily imply misconduct, it was attributable to want of tact on the part of the divorcée, and although it arose not unfrequently from the husband’s caprice, she was not, until that could be proved, held altogether free from blame. As she was from the first supposed to be prepared for a wilful, cross-tempered mother-in-law, it signified a certain defect in her character that she should have failed to get into her good graces; and the girl, therefore, ashamed to be exposed to the ignominy of divorce, did her best to please her husband’s family and would put up with almost anything rather than be sent away. But the family relations sometimes became so strained that she ran away or was packed home. Divorce was, moreover, easy to effect; it needed nothing more than the re-transfer of the divorced wife’s domicile from her husband’s home to her father’s. There was no official inquiry, and a remarriage could take place at any time.
This unsatisfactory state of affairs was to a certain extent remedied by the new Civil Code which came into operation in 1898, though it is too early yet to say what permanent reform it has brought about in our system of marriage and divorce; and it may be well, before entering into the grounds on which a divorce may be sought under the new law, to consider the conditions requisite for a valid marriage as they will give some idea of the position taken by the legislature in regard to matrimonial relations and so help us to understand its attitude towards divorce.
A marriage, in the first place, is valid only if the parties are married of their own will. This condition may at first sight appear superfluous; but it is formulated to enable the parties concerned to nullify a marriage contracted through mistaken identity and to prevent unions with persons who have lost control of their will or are otherwise in a disordered state of mind. Only such marriages are valid as are contracted between those who are not deceived in making their choice and are in full possession of their faculties. The object of this condition is then to protect those persons who are joined in wedlock against their will; but, as a matter of fact, many marriages are arranged by the parents before their children are old enough to know their own minds, and the betrothed, upon coming of age, acquiesce in the engagement which they would consider unfilial to refuse to carry out. So that in many cases free will in marriage is merely formal. The second condition of a valid marriage is that it must be reported and registered at the local district office. The bride’s father reports to the local office of his district that she has ceased to be a member of his family and requests her name to be struck off and transferred to the local office of the district in which her husband lives. This is accordingly done, and at the same time the husband’s report confirms the father’s request and the girl’s name is registered as that of his wife. This transfer of the domicile constitutes the official act of marriage.
A defect in either of these two conditions naturally renders a marriage void, for it cannot then be recognised as a lawful union. But a marriage may subsequently to its registration be annulled in various ways. Such annulment is not, however, a divorce, because the marriage was not complete and cannot be said to have been consummated. In the first place, the parties must be of the legal age for marriage, which is for the male seventeen years and fifteen for the female. This is a great advance on the old limit which was fourteen years for the male and twelve for the female. The right of annulling a marriage in which either party is under the legal age expires in three months after the marriage or when the age-limit is reached. Marriages contracted by force or fraud may be annulled upon application by the victim. The application must be made to a court of justice within three months after the discovery of the fraud or removal of the force; the right of application is forfeited by condonation. A marriage is naturally invalidated by a previous marriage; the right of application for its annulment is vested in the aggrieved party, the head of that party’s family, the relatives, and the public procurator, and also in the first wife or husband; and as bigamy is a criminal offence, there is no time-limit for the application. One who has been judicially divorced for adultery cannot marry the other party to the offence; that is, marriage is forbidden between the respondent and the co-respondent. It may appear somewhat unjust that a man whose conduct has led to the divorce of a married woman should be disqualified from making to her the only reparation in his power for her loss of home and honour; but the idea is, as in the Scots law, that the ability to marry each other would rather encourage such illicit connections and make the offenders brave the ignominy of judicial divorce for the prospective pleasure of a lawful union. The prohibition is therefore intended to be a deterrent against infidelity. Marriage is also forbidden between ascendants and descendants in the direct line and between those down to the third degree of consanguinity in the collateral line, that is, it is prohibited with one’s parents, grand-parents, children, and grandchildren, and between brother and sister, uncle and niece, and aunt and nephew, but permitted between cousins-german and more distant blood-relations. It is also prohibited between similar relations of affinity in the direct line, but not between those in the collateral line, so that while one cannot marry a parent or a child of one’s deceased spouse, there is no impediment to a marriage with the deceased wife’s sister or the deceased husband’s brother, or their uncle, aunt, nephew, or niece.
A son up to thirty years of age and a daughter up to twenty-five years cannot marry without the consent of their parents. If either parent is dead, irresponsible, or has left the house, the consent of the other is deemed sufficient; but if both parents are dead or of unsound mind, or if their whereabouts are unknown, only those parties who have not yet reached the majority-age of twenty need ask for the consent of their guardians or appeal to the family council for approval. If the parties are afflicted with a stepfather or stepmother who refuses to consent to their marriage, the approval of the family council will suffice as these persons cannot always be presumed to have at heart the interests of their step-children. A woman cannot for obvious reasons remarry until after the lapse of six months from the annulment or dissolution of her first marriage; but if in the interval she gives birth to a child, there is no hindrance to the second marriage taking place immediately after. Lastly, in the case of a man who has been adopted as husband to the daughter, the severance of his connection as adopted son may be brought forward as a ground for the avoidance of the marriage. As he has twofold relations as son and husband, the dissolution of either relation would lead to that of the other, for the only alternative would be for the daughter to leave her family at the same time as her husband; but as it was to keep her in the family that the husband was adopted, her father would not consent to such a step. The usual procedure is to adopt for her another husband.