Marriage treaty

“ Introduction.—The law of England regards marriage as a contract, a status and an institution. As a contract it is in its essence an expressed consent on the part of a man and woman, competent to make the contract, to cohabit with each other as husband and wife, and with each other only. ”

“ We comforted ourselves with the belief that respect for the sanctity of marriage stood high in this country until the Divorce Court was established. We cannot speak quite as complacently now; but marriage is still held among us to be honourable. How is it that marriage in some other countries is less respected? Do we not know that the facilities for divorce in some of those countries depreciate the estimation in which the marriage vow is held? ”

“ In 1792, by a wise and tolerant enactment, civil marriage and civil registration were established; but at the same time the revolt against the old ecclesiastical régime led to the sanction of free divorce. Absolute dissolution of wedlock was then authorized at the mutual desire of both husband and wife, for incompatibility of temper on the petition of either spouse, and for seven other specified causes. ”

“ Neither in England nor America would a proposal to abolish marriage be tolerated for a moment; and yet nothing is more certain than that in both countries the progressive modification of the marriage contract will be continued until it is no more onerous nor irrevocable than any ordinary commercial deed of partnership. ”

“ The divorce law of 1803 was abrogated in 1816, and only restored in its essential features in 1884; but the liberal policy of France, as expressed in the Code Napoléon, has undoubtedly had a powerful influence in the extension of civil marriage and divorce throughout Europe, where, as in America, the modern statute-maker has recovered and passed beyond the point gained by the Roman imperial constitutions between Augustus and Justinian.
The right of society to deal freely with the whole province of marriage, divorce, and the family may be conceded. ”

“ Until a court has pronounced the marriage a nullity the marriage between a French citizen and a foreigner celebrated abroad is binding upon the parties, even though the exacting forms required by the French law have not been complied with. ”

“ All, so far as Great Britain has settled legal relations with them, are among those in which British subjects live under consular protection and jurisdiction, or (in Egypt) under that of the Mixed Courts. A better instance is afforded by the refusal of courts, normally within the pale of European legal communion, to recognize divorce as dissolving a marriage, notwithstanding that it has been decreed under the personal law. ”

“ Marriage is a contract regulated by law; if anyone marries a foreigner they ought to take legal advice about the necessary steps to legalize their marriage. I do not see who is to protect them except themselves. Our Government cannot ask the French Government to recognize as binding in France all marriages solemnized in England. ”

“ Certainly, it ought not to be possible for men and women to assume the solemn obligation of marriage in one State, under one set of legal conditions, and one or the other party to the contract throw off those obligations in another State, under another set of legal conditions. ”

“ Again, for malicious desertion on the part of the wife, the man may contract a new marriage after five years, if the bishop gives his consent; [117] and a woman whose husband loses his liberty for crime committed has the right to wed another man after a single year, if it be the first marriage which is thus dissolved. [118] Remarriage is allowed either spouse when the other is made captive in war; [119] and in case of conversion each spouse has the right of one-sided divorce, if the other [46] remains in paganism. ”

“ Already in the eleventh century the forms of marriage were entering upon another stage. It is possible, in the historical period, as already seen, that a valid marriage could arise in abduction, through subsequent payment of a fine; and it is not impossible that side by side with wife-purchase the custom of free marriage by simple agreement of the parties may have existed, as we have found it existing among other peoples. ”

“ At the same time, let us not forget, marriage and divorce are a very real concern of the State, and law cannot ignore either. It is the business of the State to see to it that no interests are injured. The contract of marriage and the contract of divorce are private matters, but it is necessary to guard that no injury is thereby done to either of the contracting persons, or to third parties, or to the community as a whole. ”

“ 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. ”

“ If the woman is a British subject, and the man is a subject or citizen of another country, the marriage officer must be satisfied that the intended marriage would be recognized by the laws of the country where the man to be married belongs. ”

“ The present English law.—It is, indeed, wonderful that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition! But even in England, so far as the state is concerned, the dogma that marriage is an indissoluble bond has finally run its course. A partial remedy for the scandals and hardships of the existing system was at last grudgingly provided in the civil divorce law of 1857. ”

“ Another peculiarity in connexion with marriage is that an agreement, to the effect that either husband or wife may divorce the other whenever he or she has become averse to continuing as the other’s partner, is acknowledged as a legitimate condition of a matrimonial contract. ”

“ Of course, such a marriage could be declared null, leaving both parties free to marry again.
It must be always carried in mind that to constitute a valid marriage under French law which cannot be impugned by anyone all the statutory conditions imposed by the Civil Code must be complied with.
Husband and Wife.—Married persons owe each other fidelity, support and assistance. A husband owes protection to his wife. A wife owes obedience to her husband. ”

“ A marriage contract was necessary to make a marriage legal. In some cases peculiar conditions were made, such as the bride’s being required to wait upon the mother-in-law, or even upon another wife. If it was stipulated that the man should not take a second wife, the woman could secure a divorce in case her husband broke the agreement. ”

“ Now the existing law of marriage alienates one of the partners in favor of the other; the wife belongs to the husband; she is in his power. What is such a contract, if not the violation of the principle which affirms that no covenant can be made involving persons? can it be more lawful to alienate one's person by a contract of slavery? ”

“ 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. ”

“ The worthy lawmaker starts out valiantly. The act of 1802, giving the superior court primary and the legislature final jurisdiction in petitions for total divorce, as required by the constitution, is justified in language which seems grotesque in the light of later experience. Such a measure is needful, we are assured, not only because there are doubts as to the powers of the judges in divorce causes without a statute, but because "marriage being among the most solemn and important contracts in society, has been regulated in all civilized nations by positive systems;" ”

“ Persons of color living together as husband and wife, March 9, 1866, are to sustain that legal relation to each other, unless a man then had two or more reputed wives, or a woman two or more reputed husbands. In such event the man shall immediately select one of his reputed wives, with her consent, or the woman one of her reputed husbands, with his consent; and the ceremony of marriage between these two shall be performed, under severe penalty for refusal. ”

“ As a rule, the woman dowers the husband with her youth, her beauty, her love—with all she has; and from this contract certainly the husband should never be released, unless the wife has broken the conditions of that contract. Divorces should be granted publicly, precisely as the marriage should be solemnized. Every marriage should be known, and there should be witnesses, to the end that the character of the contract entered into should be understood ”

“ If we may terminate it for adultery or cruelty, or any cause whatever, if we may suspend the intimacy of husband and wife by separation orders and the like, if we recognise their separate property and interfere between them and their children to ensure the health and education of the latter, then we open at once the whole question of a terminating agreement. Marriage ceases to be an unlimited union and becomes a definite contract. We raise the whole question of "What are the limits in marriage, and how and when may a marriage terminate?" ”

“ Any marriage to be legally binding had to be accompanied by a duly executed and attested marriage-contract, and without this necessary preliminary a woman was not regarded as a wife in the legal sense. ”

“ The facts are to be tried by a "special or foreign" jury at some circuit court or sittings, to be held by a justice of the supreme court; and the person convicted is prohibited from further marriage only during the lifetime of the other spouse. But the most important innovation made by this act is the provision for partial divorce in favor of the wife. ”

“ 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. ”

“ In its compilation we have been pleased to observe that the evident trend of modern legislation is toward uniformity among the nations of Christendom on the vital subjects of marriage and divorce. In fact, modernity brings uniformity in every department of public and private law—a consummation devoutly to be wished for by those who feel that, no matter how short may be the individual’s life, he is nevertheless a kinsman to all of the race who have gone before or are yet to come. ”

“ Of course, we are sure that women in all countries have in the main submitted gracefully and carried out their part of the marriage contract; but the fact remains that no contract is properly a contract without the freely-given consent of both parties to it. While women have smiled, and even laughed, enjoyed their children and otherwise made the best of their virtual slavery, having as good a time as their spouses permitted, ideal marriage has been more rare than a perfect day in March. ”

“ Whether a state legislature has authority to pass a law declaring a marriage void, or to award a divorce, has, incidentally, been made a question, but has never yet come directly in judgment. Marriage, though it be a civil institution, is understood to constitute a solemn, obligatory contract between the parties. And it has been, arguendo, denied, that a state legislature constitutionally possesses authority to dissolve that contract against the will, and without the default of either party. ”

“ Separation, Divorce and Annulment of Marriage States Parties shall enact appropriate legislation to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of marriage. ”

“ A marriage contracted in a Canton or in a foreign country, conformably to the law which is there in force, shall be recognized as valid throughout the Confederation. By marriage the wife acquires the citizenship of her husband. Children born before the marriage are made legitimate by the subsequent marriage of their parents. ”

“ There should be some uniformity of law, as to marriage contract and its dissolution by divorce, in the different States. Another practical consideration is this: women must be prepared to assume personal responsibilities as they attain personal rights. No State Legislature has said "Go to, let us make the married woman the legal equal of her husband," but legislation has pointed in that direction more and more during these last years, so pregnant of changes in her position. ”

“ Several States still retain upon their statute-books the common-law prohibition of marriage between persons related by consanguinity, or affinity, nearer than the third degree; while other States have progressed to that degree of liberality on the road to individual freedom and universal happiness which permits a person to marry, if not his grandmother, at least the daughter of his wife by a former husband. ”

“ As under the Mosaic law, these causes were invented only for the advantage of the husband. A wife had no right even to desire a divorce from her husband.
An examination of the seven causes shows that a woman could be divorced practically at her husband’s pleasure. The New Civil Code has changed all this. A wife has equal rights with her husband to the benefits of the divorce law. ”