Page:Catholic Encyclopedia, volume 5.djvu/90

 DIVORCE

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DIVORCE

lished and shown to be permanent, the innocent party may be freed from the mere legal bond of what has in fact ceased to be marriage, and left at liberty to form another alliance. The guilty party would have no claim to be protected in a second marriage; and whether it should be permitted to him or not is a ques- tion, not of right with him, but of public expediency, upon which there is considerable diversity of opin- ion."

Modern European Legislation. — A full collection of laws and statistics relating to marriage and divorce in European countries will be found in the report of the United States Commissioner of Labor, Carroll D. Wright, for 1889. It is therein stated that "prior to 1868 the ecclesiastical courts had in most of the countries named more or less complete jurisdic- tion over matrimonial causes, but the civil courts have now exclusive jurisdiction over such matters in all of them". In Austria-Hungary absolute divorce is not allowed to members of the Catholic Church. Prior to 1 January, 1876, all the cantons of Switzerland had their own peculiar laws of divorce, but subsequent to that date a general law governing the subject took effect. In Germany perpetual separation equivalent to limited divorce was abolished throughout the em- pire, and the causes for such separation were made causes for absolute divorce. In Hungary divorce has been legal for Protestants since 1786 and for Hebrews since 186.3. The laws of their respective churches ap- ply to Latin Catholics, Greek Catholics, and Orthodox Greeks. Questions of divorce or validity of marriage among Protestants are subject to the jurisdiction of the civil courts. Excepting for Protestants and He- brews, the ecclesiastical courts of other bodies have jurisdiction. In case of mixed marriage the court of the defendant's confession has jurisdiction. In Italy, Spain, and Portugal, still Catholic countries, no abso- lute divorce is permitted. InArgentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, Mexico, and Cuba, limited divorce alone is permitted.

The following causes in Austria and in Hungary for absolute divorce are typical: in Austria, adultery; commission of a crime pimishable by five years im- prisonment; malicious abandonment or non-appear- ance after one year's solicitation where the absentee's residence is known; assault endangering life or health ; repeated crvielty; unconquerable aversion, on account of which both parties demand a divorce. In the last case a limited divorce or separation from bed and board must first be obtained. In Belgiimi, where the husband is at least twenty-five years of age and the wife twenty-one, and the parties have been married two years or longer, divorce may be obtained by mu- tual consent on certain terms and conditions, but must be approved by the courts. In France divorce was introduced by the law of 1792. This law was modified in 1798 and in 180.3 (Code Napol(5on), was subsequently abrogated in 1816, and reintroduced in 1884 ; the grounds of divorce being adulter)- of either party; excesses, cruelty, grave injury inflicted by one spouse on the other; condemnation to infamous pen- alty of either of the spouses; mutual and persevering agreement of the wedded to separate, if said consent is expressed and established as prescribed. By recent legislation, after the lapse of a fixed period of time, a decree of separation can be changed into a judgment of divorce on the application of either of the parties. (Civil Code, Sec. 307.) In the German Empire perpet- ual judicial separations have been abolished, and all subjects of the empire, without regard to their relig- ious status may avail themselves of the laws of di- vorce which exist in their respective states. In Prus- sia there are seven causes known as major causes for divorce and six as minor causes. Among the major cavLses are: false accusations of serious crimes pre- ferred by one of the parties against the other, and en- dangering the life, honour, or office of the other spouse ;

among the minor causes are : insanity, disorderly eon- duct or mode of living, refusal of maintenance or sup- port by the husband. It may be noted that in the divorce laws of European states there exists much similarity as regards the causes for divorce. In Scot- land divorce is granted for adultery and malicious de- sertion; the former since 1500; the latter since 1573. The injured party has the right to choose either a judi- cial separation or an absolute divorce. In Ireland the civil courts have no jurisdiction to grant decrees of absolute divorce. In Canada exclusive authority was conferred upon the Parliament by the British North America Act of 1867 (Sec. 91). At that time courts of divorce existed in Nova Scotia, New Bruns- wick, Prince Edward Island, and British Columbia, and they still continue to exercise their functions. Excepting in Prince Edward Island, the divorce courts appear to have been modelled upon the English court of divorce and matrimonial causes. A court of divorce and alimony was established in Prince Ed- ward Island as early as 1836. In the other provinces of Canada no divorce court has ever been constituted and divorces are granted only by special Act of Fed- eral Parliament. The courts of Quebec, however, can grant separation de corps under the English divorce court practice and annul marriage on the groimd of impotence.

In Australia, at the time of the formation of the Federal Commonwealth, there were divorce courts in all or almost all of the constituent states. Lender the Constitution (Act 63-64, Vict., ch. .xii,part. V, Sec. 51), power was granted to the Parliament of the Com- monwealth of Australia, comprising the states of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia, with respect to di- vorce and matrimonial causes and in relation to pa- rental rights and the custody and guardianship of in- fants. The object of this subsection is stated to have been to avoid " the great mistake made by the framers of the Constitution of the United States of America, ■who left the question to the states to deal with as they respectively thought proper" and " to pro\-ide for uni- formity in the law of divorce" (Quick and Garran, Aust. Const., pp. 262-609). The local statutes in the various states still prevail, however, with the right of appeal to the High Court with respect to judgments of the Supreme Court of a state (Act of 1903, 2 Com. Stat., p. 148). In New Zealand, which does not form a part of the Australian Commonwealth, divorce is allowed for adultery on the part of the wife, and adul- tery with certain aggravating circumstances, or with cruelty, on the part of the husband. (New Zealand Statutes, Vol. I, p. 229.)

Divorce in the United States. — Colonial Period (1607-1787).— At the time of the settlement of the various colonies which subsequentlj' declared their in- dependence of Great Britain, there were no ecclesias- tical courts; as in England, therefore, the practice of special acts of legislatures obtained. Sometimes it was in the form of a private statute directly dissolving the marriage; sometimes the court was empowered to investigate the cause and grant the divorce if the com- plaint was sustained. There are many instances of legislative divorces granted in the New England col- onies, all being divorces ii viticulo. Adultery and de- sertion were sufficient reasons, though male adultery would require additional circumstances. In the Southern colonies there was no court having jurisdic- tion to grant divorce, though in some of them an ap- peal for alimony would be considered in a court of equity. Under the Dutch government of New York divorce jurisdiction was exercised by the courts for absolute, as well as for limited, separation, but when the English took possession of the colony, this juris- diction was no longer recognized. In Pennsylvania under "The Great Law of 1682" divorce was author- ized for adultery. The legislature also granted di-