By a law of the 6th of February 1893 French jurisprudence, more complete at least, and perhaps wiser, than English, dealt with a matter previously in controversy, and decided that after a divorce the wife shall resume her maiden name, and may not continue to use the name of her divorced husband; nor may the husband, for business or other purposes, continue to use the name of his wife.
By the law of 1886 the special procedure in divorce previously in force under the Code and under the law of 1884 was abolished, and it was provided that matrimonial causes should be tried according to the ordinary rules of procedure. The action therefore, when brought, follows the methods of procedure common to other civil proceedings. But there still remain certain necessary preliminaries to an action of divorce. A petition must be presented by a petitioner in person to the president of the court sitting in chambers, with the object of a reconciliation being effected. This is known as the première comparation. If the petitioner still determines to proceed, there follows the seconde comparation, on which occasion both parties appear before the president. If the president fails to effect a reconciliation, he makes an order permitting the petitioner to proceed, and deals with the matters necessary to be dealt with pendente lite, such matters being (1) separate residence, (2) alimony, (3) possession of personal effects, (4) custody of children. As regards residence, the wife is compelled to adhere during the proceedings to the residence assigned to her, but no similar restriction is placed on the husband. Alimony pendente lite is in the discretion of the court, having regard to the means of the parties, and includes a proper provision for costs. As regards the custody of children, the Code and the law of 1884 gave it to the husband, unless the court otherwise orders, but the law of 1886 leaves the matter wholly in the discretion of the court.
There are certain technical rules of evidence on the trial of a divorce action. It is a general principle of the French law of evidence that documentary evidence is the best evidence, and oral testimony only secondary. In divorce cases adultery flagrante delicto can be proved by the official certificate of the commissary of police. Letters between the husband and wife are admissible in evidence. As to letters between the parties and third persons, the law, which has been doubtful, now appears to be that the wife may produce only such letters from third parties to her husband as have come into her possession accidentally, and without any ruse or artifice on her part; but the husband may put in evidence any letters written to or by his wife which he has obtained by any, short of criminal, means. If the documents put in evidence are not sufficient to satisfy the court, there follows an investigation by means of witnesses, termed an enquête. A schedule of allegations is drawn up, and a judge, termed a juge-commissaire, is specially appointed to conduct the inquiry. Relatives and servants, though not competent witnesses in ordinary civil actions, are so in divorce proceedings. Cross petitions may be entered; the substantiation of a cross petition, however, does not have the effect, in some cases given to it by English law, of barring a divorce, but a divorce may be, and often is, granted in favour of and against both parties pour torts réciproques. When a case comes on for trial, it is in the power of the court to order an adjournment for a period not exceeding six months, which is termed a temps d’épreuve, in order to afford an opportunity for reconciliation. It is said, however, that this power is seldom exercised. An appeal may be brought against a decree of divorce within two months; and a decree made on appeal is subject to revision by the court of cassation within two months. Both references to the court of appeal and the court of cassation operate as a stay of execution. A decree must, by the law of 1886, be transcribed on the register of marriages within two months from its date, and failing this transcription, the decree is void. The transcription must be made at the place of celebration of the marriage, or, if the parties are married abroad, at the place where the parties were last domiciled in France. If the parties, after having married abroad, return to France, it has been provided, by a circular of the Procureur de la République in 1887, that the transcription may be made at the place of their actual domicile at the time of action brought, a rule which has been held to apply to the divorce of aliens in France. The effect of transcription does not relate back to the date of the decree.
Opinions may differ as to the relative merits of the English and French law relating to divorce. But it cannot be denied that the French law presents a singularly complete and well-considered system, and one which, obviously with the English system in view, has endeavoured to graft on it provisions supplementing its omissions, and modifying certain of its terms in accordance with the light afforded by experience and the changed feelings of the modern world. The effect of the laws of 1884 and 1886 in France has been great. The act of 1907 dealing with divorce, coupled with that of the 21st of July of the same year dealing with marriage, may also be said to mark an epoch in the laws relating to women. During the five years from 1884 to 1888 the courts granted divorces in 21,064 cases, rejecting applications for divorce in 1524. In addition, there were 12,242 applications for judicial separation, of which 10,739 were granted. A distinguished French writer, the author of a work of singular completeness and accuracy on the judicial system of Great Britain has compared these figures with the corresponding result of the English act of 1857. His conclusion is expressed in these words: “On voit qu’en cinq années nos tribunaux out prononcé trois fois plus de divorces que la haute cour d’Angleterre n’en a prononcé en trente ans. Je n’insiste pas sur les conclusions morales à tirer de ce rapprochement” (Comte de Franqueville, Le Système judiciaire de la Grande-Bretagne, ii. p. 171). It is, however, practically impossible to compare the number of divorces in France and in England with exact justice, because, as will have been seen above, the causes of divorce in France materially exceed those recognized by English law; and the absence in France of any official performing the functions assigned to the king’s proctor in England cannot but have great influence on the number of applications for divorce, as well as on their results.
(St H.)
United States
According to American practice, divorce is the termination by proper legal authority, sometimes legislatively but usually judicially, of a marriage which up to the time of the decree was legal and binding. It is to be distinguished from a decree of nullity of marriage, which is simply a legal determination that no legal marriage has ever existed between the two parties. It is also to be distinguished from a decree of separation, which permits or commands the parties to live apart, but does not completely and for all purposes sever the marriage tie. The matrimonial law of England, as at the time of the declaration of independence, forms part of the common law of the United States. But as no ecclesiastical courts have ever existed there, the law must be considered to have been inoperative. There is no Federal jurisdiction in divorce, and it is a question for the law of each separate state; and though it is competent to Congress to authorize divorces in the Territories, still it appears that this subject like others is usually left to the territorial legislature. In the different states, and in England, divorces were at first granted by the legislatures, whether directly or by granting special authority to the tribunals to deal with particular cases. This practice fell into general disrepute, and by the constitution of some states such divorces are expressly prohibited.
Upon the subject of divorce in the United States, and, to some extent, in foreign countries, a careful investigation was made by the American Bureau of Labour, and its report covered the years 1867 to 1886; a further report for the period 1887 to 1906 has also been published by the Federal Census Bureau. The number of divorces was in 1886 over 25,000, and in 1906 was over 72,000, about double the number reported for that year from all the rest of the Christian world. As divorce presupposes a legal marriage, the amount of divorce, or the divorce-rate, is best stated as the ratio between the number of divorces decreed during a year and the number of subsisting marriages or married couples. The usual basis is 100,000 married couples. In 1898-1902 the divorce-rate was 200 divorces (400 people) to 100,000 married couples. This is equivalent to more than one divorce annually to each 1400 people. The several states differ in divorce-rate, from South Carolina, with no provision for legal divorce, to Montana and Washington, where the rate is two and a half times the average for the country. In general the rate is about the same in the North as in the South, but greater in the Central states than in the East, and in the Western than in the Central states; but to this rule the New England states, Louisiana, New Mexico and Arizona are exceptions. The New England states have a higher rate than their geographical position would lead one to expect, and the other three, owing doubtless, in part at least, to the influence of the Roman Catholic Church, have a lower rate than the states about them. The several state groups had in 1900 the following divorce-rates per 100,000: South Atlantic, 196; North Atlantic, 200; South Central, 558; North Central, 510; Western, 712. The divorce-rate in the United States increased rapidly and steadily in forty years from 27 in 1867 to 86 in 1906. But distinct tendencies are traceable in different regions. In the North Atlantic group the rate rose by 58%, in the North Central by 158%, in the Western by 223%, in the South Atlantic by 437%, and in the South Central by 685%. The great increase in the South was mainly due to the spread of divorce among the emancipated negroes. Each state determines for itself the causes for which divorce may be granted, and no general statement is therefore possible.
The ground pleaded for a divorce is seldom an index to the motives which caused the suit to be brought. This is determined by the character of the law rather than by the state of mind of the parties; and so far as the individuals are concerned, the ground alleged is thus a cloak rather than a clue or revelation. Still those causes which have been enacted into law by the various state legislatures do indicate the pleas which have been endorsed by the social judgment of the respective communities. In the United States exclusive of Alaska and the recent insular accessions there are forty-nine different jurisdictions in the matter of divorce. Six out of every seven allow divorce for desertion, adultery or cruelty; and of the 945,625 divorces reported with their causes during the twenty years 1887-1906 nearly 78% were granted for some one of these three causes, viz. 39% for desertion, 22% for adultery, and 16% for cruelty. Probably nearly 9% more were for some combination of these causes. Three other grounds for divorce are admitted as legal in many or most American states, viz. imprisonment in 39, habitual drunkenness in 38, and neglect to provide in 22. About 98% of American divorces are granted on some one or more of these six grounds. In general the legislation on the subject of the causes allowed for divorce is most restrictive in the states on the Atlantic coast, from New York to South Carolina inclusive, and is least so in the Western states. The slight expense of obtaining a divorce in many of the states, and the lack of publicity which is given to the suit, are also important reasons for the great number of decrees issued. The importance of the former consideration is reflected in the fact that the divorce-rate for the United States as a whole shows clearly, in its fluctuations, the influences of good and bad times. When times are good and the income of the working and industrial classes likely to be assured, the divorce-rate rises. In periods of industrial depression it falls, fluctuating thus in the same way and probably for the same reason that the marriage-rate in industrial communities fluctuates. In two-thirds of the divorce suits the wife is the plaintiff, and the proportion slightly increased in the forty years. In the Northern states the percentage issued to wives (1887-1906) was 71, while in the Southern states it was only 56. But where both parties desire a decree, and each has a legal ground to urge, a jury will usually listen more favourably to a woman’s suit.
Divorce is probably especially frequent among the native population of the United States, and among these probably more common in the city than in the country. This statement cannot be established absolutely, since statistics afford no means of distinguishing the native from the foreign-born applicants. It is, however, the most obvious reason for explaining the fact that, while in Europe the city divorce-rate is from three to five times as great as that of the surrounding country, the difference in the United States between the two regions is very much less. In other words, the great number of foreigners in American cities probably tends to obscure by a low divorce-rate the high rate of the native population. Divorce is certainly more common in the New England states than in any others on the Atlantic coast north of Florida, and it is not unlikely that wherever the New England families have gone divorce is more frequent than elsewhere. For example, it is much more common in the northern counties of Ohio settled largely from New England than in the southern counties settled largely from the Middle Atlantic states.