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 DIVORCE

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DIVORCE

harm, because this verj' important right of the other party may not be set aside, or even partially Umited, for trivial reasons. The reasons for a temporary separation are as various as the evils which may be in- flicted. To judge the gravity correctly, reasonable consideration is demanded of all the circumstances. Danger to the soul, which is given as a reason for separation, almost always supposes a crime on the part of the other party. It consists in temptation to some mortal sin, either to the denial of the Cathohc Faith, or the neglect of the proper education of the cliildren, or to some other grievous sin and violation of the moral law. Dangerous solicitation, or pres- sure, or intimidation, or threats mflicted either by, or with the consent of, one party, or silent approbation to induce the other to a grievous violation of duty would give justification — and even the obUgation. if the dan- ger were great — to proceed to separation, which should last as long as the danger exists. Such a reason as this might later on justify a separation in the case of a mixed marriage. Danger to the body, which is a fur- ther reason for a separation, means any great danger to life or health, as well as other intolerable condi- tions. Such are, without doubt, plotting against one's life, ill-treatment which in the circumstances should be regarded as gross, well-grounded fear of dangerous contagion, insanity, serious and constant quarrelling, etc. It is to be noted that in everj- case there must be a very serious evil to justify separation for any length of time. Other inconveniences must be borne with Christian patience. Great crimes of one party, pro\"ided they are not against marital fidelity, or do not include anj' incentive to sin on the part of the other, do not, according to Cathohc law, of them- selves give any right to separation; neitlier do punish- ments that might be infhcted on the guilty party in consequence of such crimes, even when this punish- ment be joined ^\-ith dishonour. The Catholic view of this matter is directly opposed to the non-Catholic, which, as we have seen above under A. .3. (e). permits in such cases the dissolution of the marriage bond.

By private authority, i. e. without previous ap- plication to an ecclesiastical court and its decision, a temporarj' separation may take place when delay would bring danger. The church law does not allow a separation in other cases (^^"ernz, "Jus Decret.", IV, n. 714; St. .\lphonsus, "Theol. mor.",VI, n. 971), although, where there are evident and public reasons for separation, the non-obser\'ance of the Church's regulations can more easilj' be overlooked. Separa- tion because of the mere decision of a civU judge is never allowed to Catholics. (Cf. Ill Cone. plen. Baltim., tit. IV, c. ii.)

Fahrner, Geschichte der Ehesrhcidung (Freiburg, 1903). 1; ScHNEEM.VNX, Die Irrtunter iibcr du- Ehe in Die Encyclica Pius JX. torn 8 Dez., iseh (Freiburg. 1866), III; Avogr-U)0. Trorica delV 7s(i7uri<mc del matrimonio (Turin. 1S53-1860); Perrone, De matrimonio chrisliano (Rome. 1858); Pal\ueri, De matri- monio Christiana (Rome, ISSO); Ballerixi-Palmieri. Opus theol. mor. (Prato. 1900), \1; .Sasse, De sacramenlis (Friburs, 1898); Pesch, Pralectiones dogmal. (Friburg, 1900), VII; St. Alphonsus, Theologia moral., ^^; Wernz, Jus decretalium, IV: Jus matrimoniate (Rome, 1904), Ksmeix, Le manage en droit canonique (Paris, 1891); Laurentius. Institutiones juris eceles. (Friburg. 1908); Gasparri, De matrimonio tract, canon. (Paris. 1904); Rosset. De sacramento matrimonii tract, dogm. etc. (Paris. 1895-1896); Freisex. Geschichle der kalh. Eherechts bis sum VerfaUderGlossenliteraturCTHbineen. 1888); C^goi. Die Vnauftoslichkeit der christl. Ehe und die Ehescheidung nach Schrift und Tradition (Paderbom. 1895); Corxely. Commentar. in Ep. ad Rom. (Paris, 1896); Kxabexbaver, Commentar. in Malth. (Paris, 1903); Prat. La thcologie de S. PatU (Paris, 1908); ScH.vxz, Kommentar uber das Evang. d. hi. Malth. (Frei- burg. 1879); ScHXUTZ. Die Bussbucher utid die Bussdisciplin der Kirche (Mainz. 1SS3; Dusseldorf. 1893); Collectanea S. Congr. de Prop. Fide (Rome. 1893); Zhishmax. Das Eherecht der orien- talischen Kirchcn (Menna. 1S(>4>: Slater. Manual of Moral Theology (New York. 1908). II. 278 sqq.; Devise, The Law of Christian Marriage (New Yorlt. 1908). 85-114.

For divorce among the Jews: Amram. The Jewish Law of Divorce (Piiiladelphia, 1896; Ixjndon, 1897); Jewish Encyclope- dia, s. V. Divorce (New York and London, 1901-1906); SsLnEX, Uxor Ebraica absolvens nuplias et divortia Ebrsorum (Witten-

berg, 1712).

Aug. Lehmkuhl.

II. In Civil Jurisprudence. — Divorce is defined in ci\'il j urisprudence as " the dissolution or partial sus- pension by law of the marriage relation" (Bouvier's Law Dictionary). Strictly speaking, there is but one form of absolute divorce, known, under the name derived from the civil and canon law, as divorce a vinculo matrimonii, i. e. from the marriage tie. In the states where it is administered this form of divorce puts an end legally to the marriage relation. There is, however, a limited form of divorce which is, more accurately speaking, a suspension, either for a time or indefinitely, of the marriage relation, and is known as divorce a tnensd et toro, or from bed and board. In addition, in some states courts grant decrees declaring marriages absolutely void, ab initio, i. e. from the be- gimiing. Such marriages never ha\-ing been valid, the parties cannot be said to have been divorced; how- ever, proceedings for nullity are frequently provided for under divorce statutes.

Pre-ChriMian Divorce Legislation among the Hebrews. Greeks, and Romans. — Before the adoption of Christianity as the state religion of the Roman Empire, it would appear that divorce in some form existed among all ancient peoples from whom European civilization is derived. Among the Hebrews no precedent for divorce can be foiuid prior to the Mosaic Law. It became frequent aftenvards, though it would seem that the husband alone possessed the power, at least until the reign of Herod. Divorce was prevalent among the Greeks, especially in Athens, but the party suing had to appeal to the magistrate, state the grounds of complaint, and sub- mit to his judgment; if the wife was the prosecutor, she was obliged to appear in person. The lax cus- toms of the Spartans made divorce rare. Among the Romans the law of Romulus permitted divorce to men. but refused it to women. Adulterj', poisoning of children, and falsification or counterfeiting of keys, were sufficient grounds. While divorce was so far free that there was no one authorized by the civil power to oppose it, this freedom was restrained by the moral feeling of the people and their respect for the marriage bond. It w;is necessary to consult the family council and there was fear of the authority of the censors. There were three forms of marriage among the Romans: the confarreatio, which was cele- brated with certain highly religious ceremonies pecu- liar to that fonn of wedding; the conventio in manum, effected by a simulated purchase (coemptio), a much more simple ceremony; and the usus or prescription, where, after living with her husband for one year with- out being absent for three days, the woman came, as in the other forms of marriage, i)i itianum mariti, that is to say, under the control of her husband. No in- stance of divorce is known before a. u. c. 520 or 523. It is thought by many that this was the first instance of divorce under the Roman Republic, but it would seem probable that it was the first divorce for the .special piu'pose of retaining the wife's dower {dos). This is the suggestion of Becker, who points out that the divorce of Antonius took place in A. u. c. 447, and states that other proof exists that in much earlier times divorce was properly established and strictly or- dained by laws. He quotes also from Cicero (Phil., ii, 2S) where he says jokingly of Antonius. who had dismissed his wife Cjlheris under the same formalities as those of divorce, " that he commanded her to have her own property according to the Twelve Tables; he took away her keys and drove her out."

The causes for divorce on the part of the woman were capital offences, adulterj-, and drinking. After the Punic wars the nmnber of divorces reached scan- dalous proportions. Sulla, Caesar, Pompey, Cicero, Antony, Augustus, and Tiberius all put away their wives. Under Augustus an effort was made to curb the licence of divorce. In the interest of publicity, that emperor made it necessary for the party seeking