Art. 5.-DIVORCE LAW REFORM. History of Marriage in England. By J. E. G. Montmorency. King Edward VII Prize Essay, 1912-1913. BEFORE embarking on this very controversial subject, it is well to give some of the notions which prevailed on marriage and divorce before the views of the Christian Fathers and early medieval theologians began largely to influence Western ideas. Among the Greeks marriage was treated as a free contract, and its dissolution was freely allowed, though definitely kept in check by rules as to the devolution of property on divorce. The Cretans allowed divorce at the will of the parties, but if it was capricious, heavy penalties were involved. The wife took with her on her departure not only the property she had brought to her husband, but also a portion of what that property had produced during the marriage, as well as the results of all work that she herself had done. If the husband was responsible for the divorce and was not justified, he had also to pay her a fine of five staters. By the Athenian Law divorce could be granted to the husband or to the wife, but when the husband repudiated, it was his duty to find her another husband. At Thurium both parties had the right to divorce, but in either case the party repudiating the other was not allowed to marry a younger person, and at Sparta an unsuccessful attempt was made to authorise divorce for sterility. The earliest forms of marriage known to ancient Rome comprised a holy relationship, and could only be contracted by patricians. The Servian reforms, however, later gave the plebeians the right to contract marriage. In the time of Domitian divorce was formally recognised and took place by a religious ceremony called diffarreatio. In the second century A.D. a coemptionate marriage might be dissolved by either party by simple repudiation. From the time of the Twelve Tables certain unions which were styled formless marriages were ended by a formal dismissal before witnesses. The Mæmian law, 167 B.с., displaced the family council as a divorce court and transferred its k functions to a court of inquiry nominated by the prætor, whose duty it was to decide to what extent there should be forfeiture of the nuptial provisions in case of separation. The tendency of the statute was - injurious, for not only did it facilitate divorce, but it rendered the idea of it familiar, and overthrew that respect for the family council which had hitherto been a check upon it. A little before the opening of the Christian era the law of marriage and divorce was fully dealt with by Augustus, who introduced legislation with a view of remedying the inconveniences arising in social life through uncertainty as to whether persons were single or married, and if married, to whom. No modern law of divorce has been so lax as the Roman. It led to constant repudiations, resumptions, and changings. St ابJerome recounts that there existed at Rome a wife who was married to her twenty-third husband, she herself being his twenty-first wife. This was almost equalled → by a case which came before me in Egypt where a witness had been married sixteen times and she could not even remember the names of all her husbands. From the time of Constantine to that of Justinian some check was placed on reckless divorce by mutual consent. He, as a penalty, forced the parties into the retirement of a religious house, and further forbade persons convicted of adultery to intermarry. There can be no doubt that the almost anti-social views of the Greek and Latin Fathers upon the question of marriage and divorce were the inevitable reaction from the moral and social results of an entirely corrupt social state in which the most evanescent unions were dignified by the name of marriage. In reality the law of marriage had been tightened rather than relaxed, and the abuse of the system of divorce was probably the result rather than the cause of the gradual decline of Roman morals which followed the Punic Wars. It was the desire for, not the opportunities of, divorce that had increased. Such shortly was the state of the law of divorce in the Roman world in the first centuries of the Christian era, and so it remained until it was profoundly modified by the doctrine and practices of the medieval Church. 1 By the earliest Jewish law the husband could discard his wife at will. Then the Pentateuch introduced the formality of the written letter of divorce, which constituted a limitation of its earlier freedom. According to the Pentateuch, divorce was the exclusive privilege of the husband, but the later Jews permitted the wife to claim a divorce if her husband were a leper, or afflicted with polypus, or engaged in a repulsive trade. The foundation of the formal Jewish law of divorce is to be found in Deuteronomy, ch. xxiv, vers. 1–4: '(1) When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her: then let him write her a bill of divorcement, and send her out of his house. '(2) And when she is departed out of his house, she may go and be another man's wife. '(3) And if the latter husband hate her, and write her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house; or if the latter husband die, which took her to be his wife; '(4) Her former husband, which sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the Lord: and thou shalt not cause the land to sin, which the Lord thy God giveth thee for an inheritance.' At the beginning of the Christian era while the wife's consent was necessary to marriage, neither it nor rabbinic sanction was necessary to divorce. The divorce of the insane husband according to Jewish law was impossible because he could not execute the deed of divorce. On the other hand, neither could the sane husband of an insane wife divorce her because she stood in all the greater need of his protection. But if the insanity were proved to have existed before the marriage, the marriage could be pronounced initially void, for the marriage of the insane was prohibited. The husband, however, was always expected to preserve the wife from want. The law of the Church is founded on Matthew, ch. xix, ver. 6, 'What therefore God hath joined together, let not man put asunder'; but even in the fourth century A.D. the mind of the Church was absolutely unsettled on the whole subject. St Augustine's attitude towards the question was absolutely uncompromising-he said there can be no divorce without the right of marriage. He gave the doctrine of indissolubility a solid and in a measure a scientific basis. He gave it a consistency forced from the sacrament of marriage. He set aside at one stroke all causes of divorce or dissolution, other than death, which were admitted by the secular law: sickness, captivity, or prolonged absence. The whole question of divorce became, as it has ever continued to be, a matter of Church policy, and it was said that the laxness of the age called for the higher expediency. It was an age when a celibate priesthood could impose its dogmas on the secular affairs of the nations, sometimes wisely, but always with an eye to the material as well as the spiritual welfare of the Church whose strength lay in the fidelity of the women. In 331 A.D. the edict of Constantine limited the cases in which divorce could take place to three in number. The wife could obtain a divorce without penalties where the husband had been guilty of (1) murder, (2) poisoning, and (3) the violation of the tombs. If she divorced her husband for any other reason, such as for being a drunkard or a gambler, or for frequenting the society of loose women, the divorce seems to have been good in law, but she forfeited her dowry and was punishable with deportation. The husband could obtain a divorce without penalties in cases of (1) adultery, (2) poisoning, and (3) acting as a procuress, but if he divorced his wife for any other reason, the divorce seems to have been good in law, but he forfeited all interest in his wife's dowry, and if he married again, the divorced wife was authorised to seize the dowry of the second wife. In 449 Theodosius II and Valentinian introduced further legislation, and made the following grounds for divorce: (1) treason; (2) adultery; (3) homicide; (4) poisoning; (5) forgery; (6) violating tombs; (7) stealing from the Church; (8) robbery or assisting or harbouring robbers; (9) cattle stealing; (10) attempting a wife's life; (11) beating or whipping wife; (12) introducing immoral women into the house. The husband could obtain a divorce for any of the above, except, of course, Nos. (11) and (12), and also for additional reasons such as (1) going to dine with men other than her relatives without his knowledge or against his wish; (2) going from home at night against his wish without reasonable cause; (3) frequenting the circus (night clubs), etc., after having been forbidden by him to do so. The importance of this last enactment lies in the fact that it remains at the present day with certain modifications the law of Greece and is accepted by the Greek Church. Justinian under the growing influence of the Church forbade divorce by mutual consent with three exceptions: (1) when the husband was impotent; (2) when either the husband or the wife wished to enter into a monastery; (3) when either was in captivity for a certain length of time. Justin his successor, however, repealed the prohibition of divorce by mutual consent owing to the difficulty of reconciling those who had come to hate each other, and who, if compelled to live together, frequently attempted each other's lives. It is a matter for remark that throughout all this legislation the strict principle of the indissolubility of marriage laid down by the Church was disregarded. The Church, however, was not always consistent in its downright opposition to divorce. The canons of the Patriarch Nicephorus (806-815 A.D.) recognise that divorce by consent is again good before the secular law, and by the time of Basil, the Macedonian (867 A.D.), divorce by consent is clearly recognised as valid. But by 870 A.D there was again a change, and the Epanagoge of the Emperors Basil, Leo, and Alexander (884 A.D.) and the Basilica (905-911) divorce by consent was forbidden. The Roman law of divorce as enunciated from Constantinople most certainly influenced in some measure the law of divorce that became operative in that city after its occupation by the Turks in 1453. Any system of marriage which recognises polygamy must place no difficulties in the way of easy divorce. It is a necessity of Mohamadan law. Mohamad himself had ordained a legal manner of procuring it, but with the efflux of time repudiation had been substituted for the more formal procedure. The method in use is simplicity itself, the mere pronouncement three times of a simple formula indicative of the husband's intention and the woman ceases to be his wife without the intervention of any court of law. The system was naturally much abused, and usually a bond is given to the wife or her father which states that in the event of repudiation a fixed sum shall be paid as liquidated damages. The husband is also compelled to give up all property C t 0 |