In Sweden complete divorce is granted by judicial sentence for adultery, and in Russia for that cause and also for incompatibility of temper (Ayliffe, Par. 49). On the other hand, in Spain marriage is indissoluble, and the ecclesiastical courts have retained their exclusive cognizance of matrimonial causes. In Italy certain articles of the Civil Code deal with separation, voluntary and judicial, but divorce is not allowed in any form.
In France the law of divorce has had a chequered history. Before the Revolution the Roman canon law prevailed, marriage was considered indissoluble, and only divorce a mensa et thoro, known as la séparation d’habitation, was permitted; though it would appear that in the earliest age of the monarchy divorce a vinculo matrimonii was allowed. La séparation d’habitation was granted at the instance of a wife for cruelty by her husband or false accusation of a capital crime, or for habitual treatment with contempt before the inmates of the house; but a wife could not obtain a separation for adultery by her husband, although he had his remedy in case of adultery by his wife. In every case the sentence of a judicial tribunal, which took precautions against collusion, was necessary. But the Revolution may be said to have swept away marriage among the institutions which it overwhelmed, and by the law of the 20th of September 1792 so great facility was given for divorce a vinculo matrimonii as practically to terminate the obligations of marriage. A reaction came with the Code Napoléon, yet even under that system of law divorce remained comparatively easy. Mutual consent, expressed in the manner and continued for a period specified by the law, was cause for a divorce (the principle of the Roman law being adopted on this point), but such consent could not take place unless the husband was twenty-five years of age and the wife twenty-one, unless they had been married for two years, nor after twenty years of marriage, nor after the wife had completed her forty-fifth year; and further, the approval of the parents of both parties was required. In case of divorce by consent, the law required that a proper agreement should be made for the maintenance of the wife and the custody of the children. A husband could obtain a divorce a vinculo matrimonii for adultery, but the wife had no such power unless the husband had brought his mistress to the home. Both husband and wife could claim divorce on the ground of outrage, or grievous bodily injury, or condemnation for an infamous crime. If the divorce was for adultery, the erring party could not marry the partner of his or her guilt. A divorce a mensa et thoro could be obtained on the same grounds as a divorce a vinculo, but not by mutual consent; and if the divorce a mensa et thoro continued in force for three years, the defendant party could claim a divorce a vinculo. On the restoration of royalty in 1816 divorce a vinculo was abolished, and pending suits for divorce a vinculo were converted into suits for separation only.
Divorce in France, after the repeal of the provisions respecting it in the Code Napoléon in 1816, was re-enacted by a law of the 27th of July 1884, the provisions of which were simplified by laws of 1886 and 1907. But a wide departure was made by these laws from the terms of the Code Napoléon. Divorce by consent disappeared, and the following became the causes for which divorce was allowed: (1) Adultery by either party to the marriage at the suit of the other, without, in the case of adultery by the husband, the aggravation of introduction of the concubine into the home required by the Code; (2) violence (excès) or cruelty (sévices); (3) injures graves; and (4) peine afflictive et infamante. Excès is defined by Locié as “a generic expression comprising all acts tending to compromise the safety of the person, without distinction as to their object or motive, premeditation as well as furious anger, attempts upon life as well as serious woundings.” Sévices are acts of ill-treatment less grave in character, which, while not endangering life, render existence in common intolerable (Kelly’s French Law of Marriage, p. 122). Injures graves, as to which the courts have considered themselves entitled to exercise a wide discretion, have been defined as acts, writings or words which reflect upon the honour or the reputation of the party against whom they are directed. The courts have held that retraction at the trial does not relieve the party from the consequences of an injure grave, and that publicity is an aggravating but not a necessary element. A letter from one spouse to the other may constitute an injure and the courts have further held themselves at liberty to consider letters written after divorce proceedings have been commenced. Injures graves have also been considered to include material injuries, and among these have been classed habitual and groundless refusal of matrimonial rights, communication of disease and refusal to consent to a religious ceremony of marriage. Habitual but not occasional drunkenness has also been held to fall within the definition of an injure grave. Peine afflictive et infamante signifies a legal punishment involving corporal confinement and moral degradation.[4]
In addition to its recognition of full divorce, the French law recognizes separation of two kinds, one séparation de biens and the other séparation de corps. The effect of séparation de biens is merely to put an end to the community of goods between the spouses. It necessarily follows, but may be decreed independently of séparation de corps. The grounds of séparation de corps are the same as those for a divorce; and if a séparation de corps has existed for three years, it may be turned into a divorce upon the application of either party to the court.
Until 1893 a wife séparée de corps obtained only the capacity attaching to a concomitant séparation de biens; that is to say, she recovered the enjoyment and management of her separate property, but could not deal with real property, nor take legal proceedings, without the sanction of her husband or of the court. But by a law of the 6th of February 1893 a wife séparée de corps obtains “the full exercise of her civil capacity, so that she shall not need to resort to the authority of her husband or of the court.” In case of reconciliation, the wife returns to the limited capacity of a wife séparée de biens, and after the prescribed notification of such change of status it becomes binding on third persons.
The provisions of French law with regard to the custody of the children of a dissolved marriage, and with regard to property, do not differ materially from those prescribed by the English acts. The custody of children is given to the party who has obtained the divorce, unless the court, on the application of the family, or the ministère public, consider it better, in the interests of the children, that custody should be given to the other party or a third person; but in every case the right of both father and mother to supervise the maintenance and education of the children, and their liability to contribute to their support, are continued.
The law in France as to property on a divorce has been accurately stated as follows:—
“Divorce in France effects a dissolution of the matrimonial régime of property as well as of the marriage itself. The decree appoints a notary, who is charged with the settlement of the pecuniary interests of the parties. By a stereotyped form of procedure the appointment is made invariably for the purpose of liquidating la communauté ayant existé entre les époux, irrespective of whether the régime really was that of community or another. In the case of aliens, therefore, married under the rule of separate property, it is necessary carefully to set this out in the notarial deed of liquidation, in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pronounced loses the benefit of all settlements made upon him or her by the other party, either by the marriage contract or since the marriage. On the other hand, the party in whose favour the divorce has been pronounced preserves the benefit of all settlements made in his or her favour by the unsuccessful party. If no such settlements were made, or if those made appear inadequate to ensure the subsistence of the successful party, the court may grant him or her permanent alimony out of the property of the other party, not to exceed one-third of the income, and revocable in case it ceases to be necessary” (Kelly, p. 130).
On a divorce both parties are at liberty to remarry. The husband could remarry at once; but the wife (art. 296 of the Code) was only allowed to remarry after an interval of ten months. By the act of 1907, this article was abolished, and the wife allowed to remarry as soon as the judgment or decree granting the divorce has been entered, providing 300 days have elapsed since the first judgment was pronounced. A divorced husband may remarry his divorced wife, but if he does so, he cannot be again divorced, except on the ground of a sentence to a peine afflictive et infamante passed on one of them since their remarriage. There is, however, this limitation on the power of remarriage of divorced persons, that the party to the marriage against whom the decree has been pronounced is not allowed to marry the person with whom his or her guilt has been established. Such person, however, has no such rights as are recognized in him or her according to English law, and cannot take any part in the proceedings. But his or her name is referred to in the proceedings only by an initial; and French law goes even further in the avoidance of publicity, inasmuch as the publication of divorce proceedings in the press is forbidden, under heavy penalties.