Hyacinthe Ringrose

“ It is the doctrine of English courts that an honest adherence to the principle that domicile alone gives jurisdiction in a divorce action will preclude the scandal which arises when a man and woman are held to be husband and wife in one country and strangers in another. ”

“ All the legislation of the past century bearing on the subject of marriage has elevated men by giving more justice to women.
When the next Matrimonial Causes Act predicated upon the labours of the present Royal Commission on Marriage and Divorce is passed by the British Parliament, women will be given equal rights with men in our courts of law. The jurisprudence of England was not built for a day, and we are a people singularly bound by precedent, but when John Bull moves it is always in a straight line, and he never turns back. ”

“ A study of the marriage laws of the world has also brought the happy conviction that the wholesome view of marriage as the union of one man and one woman for life, to the exclusion of all others, is the one triumphant fact of human history which can never lose its prestige. ”

“ The purpose of this volume is to furnish to the lawyer, legislator, sociologist and student a working summary of the marriage and divorce laws of the principal countries of the world.
There are no geographical boundaries to virtue, wisdom and justice, and no country has as yet monopolized all that is best in creation. The mightiest of the nations lacks something which is possessed by the weakest; and there is no branch of comparative jurisprudence of more general consequence than that treating of marriage, which is the keystone of civilization. ”

“ The Hindus have for centuries been governed by their own laws, which they regard not as the edicts of a political sovereign, nor as the enactments of a human legislature, but as the immutable commands of the Supreme Being of the universe. With such reverence have these laws been regarded that no Hindu king of whom we have any historical record ever dared to repeal, alter or modify one of them. ”

“ Effects of Divorce.—The judgment of divorce completely sets aside the marriage, and both parties are free to marry again. On divorce the innocent party also comes into the immediate enjoyment of all the rights in the estate of the guilty spouse, or the funds settled by the marriage contract, as if the offending party had died at the date of the decree. ”

“ Connivance in adultery as a bar to divorce is founded on the doctrine volenti non fit injuria, the consent consisting in acquiescence, active or passive, in the adulterous intercourse. Passive acquiescence is a sufficient bar, provided it was carried out with the intention that the husband or wife would be guilty; but it must be something more than mere inattention, indifference or dulness of apprehension. The presumption, where the facts are equivocal, is in favour of absence of intention.
One spouse must not invite the other to commit adultery ”

“ Divorce.—As an institution divorce is almost as ancient in China as marriage. Marriage is not considered as in any respect a religious contract, but as a status created principally for the comfort of man and the continuance of the race. As woman is considered an inferior creature to man she has not the same rights in or out of a court of law. ”

“ Obligations of Marriage.—The parties to a marriage are bound to mutual fidelity, protection and assistance.
The husband owes protection to his wife and a wife obedience to her husband.
A wife is obliged to live with her husband at whatever residence he may judge to be proper. The husband is obliged to receive his wife and to furnish her with the necessaries of life, according to his ability and social condition.
A husband and wife contract together by the fact of marriage itself to nourish, educate and properly care for their children. ”

“ A husband cannot compel his wife to live with him by force, and if he seizes and retains possession of her, she or her relatives can obtain a habeas corpus to compel him to release her, but persons who wrongfully induce a wife to leave her husband, or who detain her from his society by improper means, are liable to an action for damages by him. If a husband [Pg 30] declines to live with his wife because he discovers that she has been unchaste before marriage she cannot obtain a decree for restitution of conjugal rights unless he knew of the fact before the marriage took place. ”

“ Impotency. If her husband is unable to perform the sexual act a wife can compel him to grant her a deed of divorcement.
2. If a man sells his wife to another the woman is ipso facto divorced from both men.
3. If a man induces his wife to become a prostitute, or accepts her earnings as such, the wife is entitled to a decree of absolute divorce.
We can find no other causes which entitle a woman to a divorce from her husband. His adultery, cruelty, abandonment, neglect or drunkenness furnishes no ground for a dissolution of the marriage.
For a husband divorce is very easy. ”

“ Lex Loci Contractus.—It is a well-established rule that the law of the place where the contract of marriage was concluded, that is, the lex loci contractus, or, as it is sometimes termed, the lex loci celebrationis (law of the place of celebration) , alone governs the court in ascertaining whether or not the marriage is regular. All the formal preliminaries, such as publication of banns, or license, and consent of the parties entitled to give or withhold consent according to the lex loci contractus, must be complied with. ”

“ However, if there are children born of two persons who have lived openly as husband ind wife, and who are both dead, the legitimacy of their children cannot be assailed on the sole ground that a record of their parents’ marriage is not produced.
A marriage which has been declared a nullity has, if contracted in good faith, the civil effects of a marriage so far as the parties themselves and their children are concerned. If only one of the parties has acted in good faith the legal consequences of marriage only exist in favour of the innocent party and of the children of the marriage. ”

“ A woman with a husband living is absolutely disqualified from contracting a new marriage.
Idiots and lunatics are disqualified for civil purposes only, although the Hindu law permits a wife to desert or disobey an insane husband.
Deaf and dumb persons, or those afflicted with incurable or loathsome diseases, are competent to marry, but cannot insist upon conjugal rights. Among the three highest castes (the twice-born) impotency is not an impediment to marriage, but for those of the lowest caste (Sudras) it is a disqualification. ”

“ There are three principal forms of marriage, namely, monogamy, polygamy and polyandry. Monogamy, or the condition of one man being married to but one woman at a time, appears to be not only the best but the most ancient and universal type. It was, according to the Bible, good enough for the first husband, Adam, for his only wife was Eve. ”

“ Lineal relatives by affinity cannot intermarry. This applies even after the relationship by affinity has ceased because of marriage or divorce.
An adopted child, his or her husband or wife, his descendants and the husband or wife of one of his descendants on the one hand, and the adopter and his ascendants on the other hand, cannot intermarry, even after the relationship has ceased.
For contracting a marriage a child must have the consent of his parents, being in the same house. This, however, does not apply if the man has completed his thirtieth year or the woman her twenty-fifth year. ”

“ Should a marriage be contracted in a foreign country between a Cuban and a foreign woman, or between a foreigner and a Cuban woman, and the contracting parties do not make special stipulations with regard to their property, it is understood, when the husband is a Cuban, that he marries under the system of the legal conjugal partnership; and when the wife is a Cuban that she marries under the system of laws in force in the husband’s country. ”

“ Legal Opposition.—Legal opposition to the marriage may be made by the parents or, in want of them, by the grandparents of either party, if they are cognizant of the existence of any legal impediment, even if the parties are of age. In default of ascendants, opposition can also be made by a brother, sister, uncle, aunt, or cousin german, as well as by the guardian or curator duly authorized by the family council, on the ground of lack of the required consent or the infirmity of mind of one of the parties to the marriage. ”

“ In one country only the civil marriage is legal and in another only the ecclesiastical alliance is valid; in one country divorce is allowed, and in another it is denied; in one, difference in religion between the parties is an impediment to marriage, and in another it is not; in one the canon law is controlling, and in another the civil law regulates all questions of matrimonial rights. Even in the matter of age and capacity the greatest variableness exists. As, for instance, the minimum age for marriage. In England it is fourteen for males and fifteen for females ”

“ The surest sign of the general betterment of the world’s law is that woman everywhere is more and more being allowed her natural place in the community as man’s equal and associate. That nation is most enlightened which treats its womankind the best. ”

“ If a girl of eight years of age is ceremoniously married to a man and immediately thereafter returns to her father’s home to await the time when she shall be old enough to assume conjugal duties, she is from the moment the ceremony of marriage is completed a married woman, and if her husband dies the next day she is an eight-year-old widow whom no orthodox Hindu will marry. ”

“ The legislative power of the central authority of the German Empire is not only exclusive on certain imperial matters, but its acts take precedence in such domestic concerns as domicile, judicial procedure, marriage and divorce, and the general rights of a German subject. ”

“ In most instances it is necessary to produce clear evidence of a marriage ceremony, but in some exceptional cases a marriage may be proved by long reputation. That is, if two persons live together as husband and wife for many years, and if they have always been regarded as such by their friends and neighbours, the courts will presume a legal marriage unless evidence is produced to prove that the parties were not lawfully married. ”

“ If the domicile of the husband is in England, and either the husband or the wife obtains a decree of divorce in the United States of America or elsewhere, the English courts will treat such a divorce as a nullity. A person’s domicile is his or her permanent home. An Englishman who lives in America for twenty-five years is not domiciled there unless by all the facts his conduct shows that he has abandoned his English domicile. ”

“ CHAPTER V. The French Law of Marriage and Divorce.
Marriage.—A man cannot contract a marriage before he has completed his eighteenth year and a woman until she has completed her fifteenth year. However, the President of the Republic may grant a dispensation as to age upon good cause appearing.
A son who has not reached the age of twenty-five, or a daughter who has not reached the age of twenty-one, cannot marry without the consent of their parents; but if the parents disagree between themselves the consent of the father is sufficient. ”

“ The innocent party can revoke the donations or advantages which he or she may have made or promised to the other by the marriage contract, whether they were to have come into effect during the life of the party or after his or her death.
Children less than five years old remain in the mother’s custody. Those over that age shall be handed over to the party who, in the opinion of the judge, is most fitted to educate and care for them.
The husband who may have given cause for divorce must continue to support the wife if she have not sufficient means of her own. ”

“ Of all the federative dependencies of the British Crown Australia is perhaps the most homogenous in race, religion and traditions, and it will probably be the first to adopt a federal law of marriage and divorce. ”

“ As a matter of religion the people of Argentina may consider marriage as a sacrament or divine ordinance, or not, as it pleases their consciences, but as a matter of law marriage in the Argentine Republic is simply a civil contract.
Essentials of Marriage.—For the validity of marriage there must be the consent of two contracting parties declared before the public official in charge of the civil register. The contract can be declared by proxy, but only with a special authorization from the principal, in which the person with whom the proxy has to conclude the marriage is clearly described. ”

“ In the 24th Chapter of Deuteronomy we read:
“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 give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man’s wife.” This rule was consistent with the patriarchal system of the Jewish commonwealth. The husband as the head of the family could divorce his wife at his pleasure. ”

“ Marriage is considered a civil contract, which may be solemnized before a qualified clergyman of any sect, or a judge, justice of the peace or other magistrate.
A married woman has the same right of buying, selling, owning and controlling any kind of real or personal property as a single woman. She has also the fullest right to make any lawful contract without adding her husband as a party. She may sue and be sued as if she were a single woman or a man. ”

“ If a husband proposes to leave the Republic to live in a foreign land the wife may apply to the courts to be relieved from the usual duty of adopting her husband’s residence.
The husband is the legitimate representative and manager of all of the property of the marriage. He is ordinarily his wife’s representative in legal proceedings. A wife generally cannot appear either personally or by attorney in a suit at law without her husband’s authorization in writing. ”