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Encyclopedia Britannica - Main :: DIO-DRO |
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DIVORCE . (Lat. divortium, derived from dis-, apart, and vertere, to turn), the dissolution, in whole or in part, of the tie of marriage. It includes both the complete abrogation of the marriage relation known as a divorce a vinculo matrimonii, which carries with it a power on the part of both parties to the marriage to remarry other persons or each other, and also that incomplete severance not involving powers to remarry, which was formerly known as divorce a mensa et thoro, and.has in England been termed " judicial separation. Less strictly, divorce is commonly under-stood to include judicial declarations of nullity of marriage, whi. h, while practically- terminating the marriage relation, proceed in law on the basis of the marriage never having been legally established. The conditions under which, in different communities; divorce has at different times been permitted, vary with the. aspects in which the relation of marriage (q.v.) has been regarded. When marriage has been deemed to be the acquisition by the husband of property in the wife, or when it has been regarded as a mere agreement between persons capable both to form and to dissolve that contract, we find that marriage has been dissoluble at the will of the husband, or by agreement of the husband and wife. Yet even in these cases the interest
HISTORY The Roman Law of Divorce before Justinian.The history of divorce, therefore, practically begins with the law of Rome. It took its earliest colour from that conception of the patria potestas, or the power of the head of the family over its members, which enters so deeply into the jurisprudence of ancient Rome. The wife was transferred at marriage to the authority of her husband, in means, and consequently became so far subject to him that he could, at his will, renounce his rule over her, and terminate his companionship, subject at least to an adjustment of the pecuniary rights which were disturbed by such action. So clearly was the power of the husband derived from that of the father, that for a long period a father, in the exercise of his polestar, could take his daughter from her husband against the wishes of both. It may be presumed that this power, anomalous as it appears, was not unexercised, as we find that a constitution of Antoninus Pius prohibited a father from disturbing a harmonious union, and Marcus Aurelius afterwards limited this prohibition by allowing the interference of a father for strong and just causemagna et justa causa interveniente. Except in so far as it was restrained by special legislation, the authority of a husband in the matter of divorce was absolute. As early indeed, however, as the time of Romulus, it is said that the state asserted its interest
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series of enactments by which pecuniary consequences were imposed on divorce both by husbands and wives, whether the intention was to restrain divorce by penalties of this nature, or to readjust pecuniary relations settled on the basis of marriage and disturbed by its rupture. It was provided that if the wife was guilty of adultery
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series of acts of legislation extending and modifying its provisions. The legislation of Constantine; A.D. 331, specified certain causes for which alone a divorce could take place without the imposition of pecuniary penalties. There were three causes for which a wife could divorce her husband with impunity: (1) murder, (2) preparation of poisons, (3) violation of tombs; but if she divorced .him for any other cause, such as drunkenness, or gambling or immoral society, she forfeited her dowry and incurred the furtherpenalty of deportation. There were also three causes for which a husband could divorce his wife without incurring any penalty: (1) adultery, (2) preparation of poisons, (3) acting as a procuress. If he divorced her for any other cause, he forfeited all interest in her dowry; and if he married again, the first wife could take the dowry of the second. In A.D. 421 the emperors Honorius and Theodosius enacted a law of divorce which introduced limitations on the power of remarriage as an additional penalty in certain cases. As regards a wife: (1) if she divorced her husband for grave reasons or crime, she retained her dowry and could remarry after five years; (2) if she divorced him for criminal conduct or moderate faults, she forfeited her dowry, became incapable of remarriage, and liable to deportation, nor could the emperor's prerogative of pardon be exerted in her favour. As regards a husband: if he divorced his wife (r) for serious crime, he retained the dowry and could re-marry immediately; (2) for criminal conduct, he did not retain the dowry, but could remarry; (3) for mere dislike, he forfeited the property brought into the marriage and could not remarry. In A.D. 449 the law of divorce was rendered simpler and certainly more facile by Theodosius and Valentinian. It was provided that a wife could divorce her husband without incurring any penalty if he was convicted of any one of twelve offences: (1) treason, (2) adultery, (3) homicide, (4) poisoning, (5) forgery, (6) violating tombs, (7) stealing from a church, (8) robbery, (9) cattle-stealing, (ro) attempting his wife's life, (rr) beating his wife, (12) introducing immoral women to his house. If the wife divorced her husband for any other cause, she forfeited her dowry, and could not marry again for five years. A husband could divorce his wife without incurring a penalty for any of these reasons except the last, and also for the following reasons: (r) going to dine with men other than her relations without the knowledge or against the wish of her husband; (2) going from home at night against his wish without reasonable cause; (3) frequenting the circus , theatre or amphitheatre after being forbidden by her husband. If a husband divorced his wife for any other reason, he forfeited all interest in his wife's dowry, and also any property he brought into the marriage.The above sketch of the legislation prior to the time of Justinian, while it indicates a desire to place the husband and wife on something like terms of equality as regards divorce, indicates also, by its forbidding remarriage and by its pecuniary provisions in certain cases, a sense in the community of the importance in the public interest of restraining the violation of the contract of marriage. But to the Roman marriage was primarily a contract, and therefore side by side with this legislation there always existed a power of divorce by mutual consent. We must now turn to those principles of the Christian religion which, in combination with the legislation above described, produced the law formulated by Justinian. The Christian View of Divorce.The Christian law of divorce as enunciated by its Founder was expressed in a few words, but these, unfortunately, by no means of agreed interpretation. To appreciate them it is necessary to consider the enactment of the Mosaic law, which also was expressed in few words, but of a meaning involved in much doubt. The phrase in Deut. xxiv. 1-4, which is translated in the Authorized Version " some uncleanness," but in the Revised Version, " some unseemly thing," and which is the only cause stated to justify the giving of a " bill of divorcement," was limited by the school of Shanmai to moral delinquency, but was extended by the rival school of Hillel to causes of trifling importance or even to motives of caprice. The wider interpretation would seem to be supported by the words of Christ (Matt. v. 31), who, in indicating His own doctrine in contradistinction to the law of Moses, said, " Whosoever shall put away his wife, saving for the cause of fornication (ropvelas), causeth her to commit adultery; and whosoever shall marry her that is divorced committeth adultery." The meaning of these words of Christ Himself has been involved in controversy, which perhaps was nowhere carried on with greater acuteness or under 336 more critical conditions than within the walls of the British parliament during the passage of the Divorce Act of 1857. That they justify divorce of a complete kind for moral delinquency of some nature is supported by the opinion probably of every competent scholar. But scholars of eminence have sought to restrict the meaning of the kbyos sropvsias to antenuptial incontinence concealed from the husband, and to exclude adultery. The effect of this view commends itself to theadherents of the Church of Rome, because it places the right to separation between husband and wife, not on a cause supervening after a marriage, which that Church seeks to regard as absolutely indissoluble, but on invalidity in the contract of marriage itself, and which may therefore render the marriage liable to be declared void without impugning its indissoluble character when rightly contracted. The narrower view of the meaning of wropveias has been maintained by, among others, Dr Dellinger (First Ages of the Church, ii. 226); but those who will consider the arguments of Professor Conington in reply to Dr Dellinger (Contemp. Review, May 186g) will probably assign the palm to the English scholar. A more general view points in the same direction. It is quite true that under the Mosaic law antenuptial incontinence was, as was also adultery, punishable with death. But when we consider the effect of adultery not only as a moral fault, but as violating the solemn contract of marriage and vitiating its objects, it is inconceivable that Christ, in employing a term of general import, intended to limit it to one kind, and that the less serious, of incontinence.Effect of Christianity on the Law of Rome.The modification in the civil law of Rome effected by Justinian under the joint influence of the previous law of Rome and that of Christianity was remarkable. Gibbon has summed up the change effected in the law of Rome with characteristic accuracy: " The Christian princes were the first who specified the just causes of a private divorce; their institutions from Constantine to Justinian appear to fluctuate between the customs of the empire and the wishes of the Church; and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects." Divorce by mutual consent, hitherto, as we have seen, absolutely free, was prohibited (Nov. 117) except in three cases: (1) when the husband was impotent; (2) when either husband or wife desired to enter a monastery; and (3) when either of them was in captivity for a certain length of time. It is obvious that the two first of these exceptions might well commend themselves to the mind of the Church, the former as being rather a matter of nullity of marriage than of divorce, the latter as admitting the paramount claims of the Church on its adherents, and not inconsistent with the spirit of the words of St Paul himself, who clearly contemplated a separation between husband and wife as allowable in case either of them did not hold the Christian faith (1 Cor. vii. I2). At a later period Justinian placed a further restriction or even prohibition on divorce by consent by enacting that spouses dissolving a marriage by mutual consent should forfeit all their property, and be confined for life in a monastery, which was to receive one-third of the forfeited property, the remaining two-thirds going to the children of the marriage. The cause stated for this remarkable alteration of the law, and the abandonment of the conception of marriage as a civil contract ut non Dei judicium contemnatur (Nov. 134), indicates the influence of the Christian idea of marriage. That influence, however, did not long continue in its full force. The prohibitions of Justinian on divorce by consent were repealed by Justin (Nov. 140), his successor. " He yielded," says Gibbon, " to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent; the civilians were unanimous, the theologians were divided, and the ambiguous word which contains the precept of Christ is flexible to any interpretation that the wisdom of a legislature can demand." It was difficult, the enactment stated, " to reconcile those who once came to hate each other, and who, if compelled to live together, frequently attempted each other's lives." Justinian further re-enacted, with . some modifications, the power of divorce by a husband or wife against the will of the other. Divorce by a wife was allowed in five cases (Nov. 117): (I) the[HISTORY husband being party or privy to conspiracy against the state; (2) attempting his wife's life, or failing to disdose to her plots against it; (3) attempting to induce his wife to commit adultery; (4) accusing his wife falsely of adultery; (5) taking a woman, to live in the house with his wife, or, after warning, frequenting a house in the same town with any woman other than his wife. If a wife divorced her husband for one of these reasons, she recovered her dowry and any property brought into the marriage by her husband for life with reversion to her children, or if there were no children, absolutely. But if she divorced him for any other reason, the provisions of the enactment of Theodosius and Valentinian were to apply. A husband was allowed to divorce his wife for any one of seven reasons: (I) failure to disclose to her husband plots against the state; (2) adultery; (3) attempting or failing to disclose plots against her husband's life; (4) frequenting dinners or balls with other men against her husband's wishes; (5) remaining from home against the wishes of her husband except with her parents; (6) going to the circus , theatre or amphitheatre without the knowledge or contrary to the prohibition of her husband; (7) procuring abortion. If the husband divorced his wife for any one of these reasons he retained the dowry absolutely, or if there were children, with reversion to them. If he divorced her for any other reason, the enactments of Theodosius and Valentinian applied. In any case of a divorce, if the father or mother of either spouse had advanced the dowry and it would be forfeited by an unreasonable divorce, the consent of the father or mother was necessary to render the divorce valid.Effect of Divorce on Children in the Law of Rome.The custody of the children of divorced parents was dealt with by the Roman law in a liberal manner. A constitution of Diocletian and Maximian left it to the judge to determine in his discretion to which of the parents the children should go. Justinian enacted that divorce should not impair the rights of children either as to inheritance or maintenance. If a wife divorced her husband for good cause, and she remained unmarried, the children were to be in her custody, but to be maintained by the father; but if the mother was in fault, the father obtained the custody. If he was unable, from want of means, to support them, but she was able to do so, she was obliged to take them and support them. It is interesting to compare these provisions as to childern with the practice at present under English law, which in this respect reflects so closely the spirit of the law of Rome. The Canon Law of Divorce.The canon law of Rome was based on two main principles: (I) That there could be no divorce a vinculo matrimonii, but only a mensa et thoro. The rule was stated in the most absolute terms: " Quamdiu vivit vir licet adulter sit, licet sodomita, licet flagitiis omnibus
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(3) cruelty; (4) infidelity; (5) entering into religion; (6) con-sanguinity. The Church, however, always assumed to itself the right to grant licences for an absolute divorce; and further, by claiming the power to declare marriages null a,nd void, though professedly this could be done only in cases where the original
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