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 DIVORCE

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DIVORCE

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a divorce to make his declaration in the presence of seven witnesses, all Roman citizens of full age. Di- vorce remained, however, a private legal act. Women could obtain divorce without any fault of their hu.s- bands. Under t!ie Roman law of the early imperial period, there was a separation pronounced, first, be- tween parties whose marriage engagement was not legally contracted; second, where parties were separ- ated when the contract of espousals had been made but not consummated by actual marriage. This was known as repudium. Divortium was a separation of persons already married, and included divorce a inenalt et loro and a vimnilo matrimonii.

Imperial Christian Legislation. — In .331 Constantine the (ireat restricted the causes for divorce to three on the part of the man, viz., if he was a mur- derer, a poisoner, or a robber of graves ; and three on the part of the woman, viz., if she was an adulteress, a poisoner, or a corrupter of youth. Among soldiers an absence of four years was sufficient to entitle the petitioner to a divorce. This edict was ratified by Theodosius the Great and Honorius. Under Justinian several reasons for divorce were added, and liberty of divorce by mutual consent was restored by his nephew Justin (5(35-78). No change was now made in the Roman law until after a lapse of 340 years, when Leo the Philosopher (886-912) made a collection of laws known as the " Libri Basilici ' ', from which he excluded the edicts of Justin.

English Legislation. — According as Catholic doc- trine penetrated more profoundly the medieval life, the laws of European nations were gradually accom- modated to its demands. In this way, for example, the teaching of the Council of Trent (1563), which anathe- matized the error that matrimony could so far be dissolved by divorce that it was lawful to marry again, was universally accepted among the nations adhering to the Catholic Church. This council, however, in- troduced thereby no essential change in the divorce law of the Church. Originally, under the common law of England, there was no jurisdiction on the subject of divorce excepting in the ecclesiastical courts, they having jurisdiction in all matters re- lating to marriage and divorce, the restitution of conjugal rights, suits for limited divorce and for annulment of marriage. This followed from the Catholic doctrine that marriage, being a sacrament, could not be dissolved; for the same reason any question relative to its validity or to a suspension of conjugal relations must necessarily pertain to the ecclesiastical courts. The ecclesiastical law of England, though originating differently from the other branches of the common law and distinguished by special rules, was part of the unwritten law of the State, just as what are technically called the common law, the law of admiralty, and equity.

The Protestant Reformers rejected the sacramental theory of marriage, and agreed that absolute divorce should be granted for adultery and for malicious de- sertion, and that the innocent party might then re- marry. As they also rejected the jurisdiction of the ecclesiastical courts it was for some time a question among them whether marriage was dissolved ipso facto by the commission of one of these offences, or whether it was necessary to have the dissolution declared by public authority. Luther recommended the parish priest as the proper tribunal. Appeals were some- times taken to the prince or sovereign. Gradually "consistorium courts" were created, of both lay and ecclesiastical members, under sanction of the civil power. In England under Henry VIII, after his sepa- ration from the Catholic Church, the law relative to divorce remained practically unchanged. An effort was made in the time of Edward VI to secure the adoption of a new code of ecclesiastical laws, drafted mainly Ijy Cranmer, under which separation a mensd et toro was not recognized and complete divorce was V— 5

granted in cases of extreme conjugal faithlessness; in cases of conjugal desertion or cruelty; in cases where a husband not guilty of desertion of his wife, had been several years absent from her, provided there were reason to believe him dead ; and in cases of such vio- lent hatred as rendered it in the highest degree im- probable that the husband and wife would survive their animosities and again love one another. Di- vorce was denied when both parties were guilty of un- faithfulness, and when only one was guilty the inno- cent party might marry again. The ecclesiastical court was to decide all questions concerning these causes. It is said by Howard (Hist, of Matrim. Insti- tutions, p. 80) that the principles of this code, known as the " Reformatio Legum ", were carried out in practice, though not enacted into law. He adds that " according to the ancient form of judgment divorce was prob- ably still pronounced only a mensaetthoro; but what- ever the shape of the decrees, there is strong evidence that from about 1548 to 1602, except for the short period of Mary's reign, 'the community, in cases of adultery, relied upon them as justifying a second act of matrimony'". He says also that throughout nearly the whole of Elizabeth's reign new marriages were freely contracted after obtaining divorce from unfaithful partners. However, in 1602 the Star Chamber pronounced a marriage invalid which had been contracted after separation from bed and board by the decree of an ecclesiastical judge (Foljambe's case, 3 Salk. 138).

Following this decision the canon law was adminis- tered in the English spiritual courts with such rigour that it required an Act of Parliament to permit a re- marriage after divorce. In the tenth year of James I (1613) an Act was passed to restrain remarriage by one party while the other was alive, excepting, however, cases where sentences of divorce had been pronounced by ecclesiastical courts. There were some cases where, after sentences had been pronounced by an ec- clesiastical court, a second marriage was upheld, but the decisions are generally to the effect that a perfect marriage cannot be dissolved excepting by death. Oughton says (tit. 215) "that the marriage tie once perfected cannot be dissolved by man, but only by natiu-al death. The parties may be separated, but they remain man and wife". The Puritans of Eng- land strongly advocated the right of divorce, but with- out effect, and until 1857 there was no English statute which permitted the granting of a decree of absolute divorce by any court, the only jurisdiction being vested in Parliament. Precedents of divorce by Par- liament strictly so called are not found e .rlier than 1698, but it came to be understood that if a divorce a mensd had been granted by the spiritual court, a di- vorce would be granted by Parliament absolutely dis- solving the marriage, though only for the cause of adultery on the part of the wife. By the Act of 1857 the entire jurisdiction in matrimonial questions was transferred to a new civil court for divorce and matri- monial causes, and since the judicature Act of 1873 this jurisdiction has been vested in the probate, di- vorce, and admiralty division of the High Court of Ju.stice. Its power is restricted, however, to England alone. The principles upon which divorce legislation may be based and which may be traced in the legisla- tion of those countries that permit divorce, are stated by Bishop (Marriage, Divorce and Separation, §46, ed. of 1891) as follows:—

" Matrimony is a natural right, to be forfeited only by some wrongful act. Therefore the government should permit every suitable person to be tlie husband or wife of another, who will substantially perform the duties of the matrimonial relation; and when it is in good faith entered into, and one of the parties without the other's fault so far fails in those duties as prac- tically to frustrate its ends, the government should provide some means whereby, the failure being estab-