Page:The American Cyclopædia (1879) Volume VI.djvu/166

158 DIVORCE one party for an alleged assertion by the other that a marriage has taken place, whereupon the matter is tried, and unless the defendant proves that there was a marriage he is pro- hibited from averring the same, which is equiv- alent to a decree that there was no such mar- riage. A marriage accomplished by force may be annulled at the option of the party wronged, and so might a marriage one party to which was under the age of consent, or where the parties are within the prohibited degrees of consanguinity or affinity, or where one already has a wife or husband living from whom he or she is not divorced. In these cases judicial proceedings are not necessary, but they are permitted on grounds of prudence and pro- priety, and in order that any question which might be the subject of dispute may be con- clusively determined. The nature of the fraud that shall invalidate a marriage it is not easy to define ; but it may safely be assumed that it must be something entering into the very essentials of the relation, such as deception in respect to the person with whom the ceremony is performed. It has been held in some cases that if the woman, without the man's knowl- edge, is pregnant at the time of the ceremony, this is such a fraud as justifies a decree of nul- lity; but ante-nuptial unchastity is not suffi- cient, nor fraudulent representations in respect to other matters which may have constituted the inducement to the consent. Voluntary cohab- itation as husband and wife is a bar to dissolu- tion of the marriage, either for force or fraud, and it validates a marriage entered into before the age of consent, if continued after both parties have reached that age. In the English ecclesiastical courts there was formerly another ground upon which marriage could be annulled, viz., a prior engagement with another party. But this was abrogated by statute 26 George II., c. 33, which prohibited all suits to enforce performance of a marriage contract, the parties being thus left to an action for damages upon refusal to perform it. We have next to con- sider divorce for causes occurring after mar- riage. Under the Hebrew law, it seems that the husband might put away his wife at will, giving her a bill of divorcement, and the divorced wife was then at liberty to marry again. An exception to the liberty of divorce was made of husbands who had deflowered their wives while unbetrothed virgins, and husbands who slandered the ante-nuptial chastity of their wives. Among the Greeks at an early day wives appear to have been bought and sold, and in later times divorce was substan- tially at the pleasure of either party, though ft judicial form was gone through with. In Borne, for a long time, divorces appear to tare been opposed to public sentiment, and to have required the sanction of a council or court of the relatives of the parties. La- ter, when dissoluteness of life had become general, divorce was common, and was per- mitted to both parties, and resorted to for any cause or upon any caprice. Julius Caesar and Pompey each divorced two wives, and Cicero put away his first wife that he might marry another who was rich, a union which was more speedily dissolved. These were repre- sentative cases, and by no means exceptional. Things were no better under the emperors, though efforts were made to impose some re- straints, which, however, referred mainly to forms. Long after the empire became nomi- nally Christian, divorce was unrestricted if by mutual consent, and might be obtained without mutual consent, though if the cause assigned was deemed insufficient to justify it, the party obtaining it was visited with a pecuniary pen- alty in the adjustment of their property rights. By the law of Theodosius II., adopted substan- tially by Justinian, the justifiable causes of divorce to the wife were certain high crimes, including murder, treason, poisoning, assaults or attempts upon the life of the wife, intimacy with prostitutes, and adultery. The justifiable causes on the part of the husband were sub- stantially the same, with the addition of pass- ing the night out of his house, and visiting places of amusement without his consent. The theory of the sacramental nature of marriage gradually took possession of the Christian world ; and when the reformation of the 16th century began, it was the accepted doctrine of the church that no offence of either party justi- fied a dissolution of the marriage covenant, leav- ing the parties, or either of them, at liberty to marry again. This doctrine was supposed to be derived from the New Testament, and was confirmed by the council of Trent ; but the re- formers, who also planted themselves in this regard upon the gospel, though differing among themselves, generally agreed in permitting divorce for adultery and malicious desertion. Both Luther and Calvin thought that, though adultery ought to be punished with death, yet as the civil laws did not so provide, it was not wise to prohibit the divorced adulterer from marrying again. It may be said generally that from the beginning of the reformation to the present time the liberty of divorce in Prot- estant countries has been steadily enlarged. In Prussia it is permitted for adultery, sodomy and other unnatural vices, malicious desertion, persistent refusal of marital intercourse, plots or practices endangering life or health, ungov- ernable temper, drunkenness, extravagance, &c., unless corrected after admonition of the judge ; failure of the husband to support the wife, hopeless insanity continuing for more than a year, and, where there are no children, deliberate mutual consent. This is the ex- treme of liberality, and goes somewhat further than is permitted in any of the other German, states. Holland and Scotland allow divorce for adultery and desertion. The civil code of France allowed divorce 1, for adultery of the wife, but not for adultery of the husband ex- cept when he brought a paramour or concu- bine into his own house ; 2, to either party for