Appendix: On Civil Law with Respect to Marriage

Division.

Principles on the manner of acting with respect to civil laws concerning Marriage.

Principal civil laws concerning Marriage in England and the United States of America.

Principal civil laws concerning Marriage in France.

Principal civil laws concerning Marriage in Italy.

Principal civil laws concerning Marriage in Germany.

1104. Principle I: Those about to marry can faithfully observe, and regularly ought to observe, the prescriptions of civil law concerning the celebration of marriage, which are not opposed to divine or ecclesiastical law, especially if upon them depends the value of the marriage in the civil forum.

¹ De Angelis, lib. IV, tit. 1, n. 13-14; Feije, n. 780-785; Haine, q. 173-175; Gasparri, n. 1210-1231; Aertnys, n. 473.

(A) For this is deservedly inferred from the Instruction of the S. Penitentiary concerning civil marriage, January 15, 1866, where it is said²: "Nevertheless, for avoiding vexations and penalties, and on account of the good of offspring, which otherwise would by no means be held as legitimate by the lay power, and also for averting the danger of polygamy, it seems opportune and expedient that the same Faithful, after they have legitimately contracted marriage before the Church, present themselves to perform the act prescribed by law, yet with that intention (as Benedict XIV teaches in the Brief of September 17, 1746, Redditae sunt Nobis), that in presenting themselves to the Government Official they do nothing else than perform the civil ceremony."

² Apud Acta S. Sedis, I, p. 508-512. - This is confirmed from the decree of the Holy Office, January 12, 1881 (Collect. P. F., n. 1550): "Missionaries must take care that those who are going to contract marriage observe even civil prescriptions, which are conducive to conserving the moral order as regards the civil effects of marriage."

(B) For although the State cannot by its own right make laws, for Christian subjects, concerning the matrimonial bond, it can fortify ecclesiastical laws, either all or some, with civil sanction; it can besides, by its own right, establish laws concerning civil effects separable from the bond of marriage. Moreover, if the State has made laws in a matrimonial matter, which require certain solemnities so that marriage may not lack its civil effects, and which otherwise do not stand in the way of divine and ecclesiastical law, certainly spouses may obey these; indeed this seems opportune and expedient, as the S. Penitentiary says: (a) for avoiding vexations and penalties which the State inflicts upon violators of laws; (b) on account of the good of offspring, which otherwise would not be held as legitimate by civil law; (c) for averting the danger of polygamy, since in reality some are deterred from this vice by fear of civil laws.

1105. Corollaries: (a) Where there is had the marriage which they call civil, it is not only licit, but expedient, that the faithful present themselves before the civil magistrate, so that before the law they may be held as true spouses and their children as legitimate; provided, however, that they rightly understand that this is not true marriage, where Tametsi is in force, but a merely civil act, by which they show their submission toward the laws.

When the laws permit this, the faithful must first contract before the Church, and afterward complete the civil act. But if the law prescribes the inverse order, as in France, or grave necessity demands it, the spouses can indeed first present themselves before the civil magistrate; but "then all diligence must be used, so that the marriage be contracted before the Church as soon as possible, and meanwhile the contracting parties remain separated."¹

¹ Instr. S. Penit., l. c., p. 511-512.

In the United States of America, religious marriage is held as valid before civil law; but in most States a license is required from a public official before proceeding licitly to marriage; and besides, the minister before whom the nuptials have been celebrated is bound, within a defined time, in writing, to make known to the official designated by law the marriage entered; which indeed, as consonant with reason, must be carefully observed.

1106. (b) Where there are civil impediments, especially diriment ones, which are not recognized as such by the Church, pastors should not easily admit to contracting marriage those who are held by civil law as incapable: both because these are not considered by the State as legitimate spouses, and because pastors celebrating such unions can be punished by law, not without scandal of the faithful. "In this matter they will have to use much caution and prudence, and to seek the counsel of the Ordinary; and let him not be easy in consenting; but in graver cases let him consult this sacred Tribunal."¹

¹ Instr. S. Penit., l. c., p. 511. - This rule is practical in some of the United States of America, where marriages between whites and blacks or indigenous persons are most strictly prohibited.

1107. Principle II: If the precepts of civil law are intrinsically repugnant to divine or ecclesiastical right, it is not licit actively to execute them. For this follows from what has been said in the Treatise on Laws. Hence spouses who, after obtaining a civil divorce, fly to new nuptials sin gravely, although by civil law they may be able to do this: for a law of this kind is altogether contrary to the divine law of the indissolubility of marriage. But if divorce is sought without the intention of marrying again, the matter is disputed (above n. 751).

But if someone passively cooperates in the execution of an unjust law, e.g., if a civil magistrate assists at a civil marriage by office, when he certainly knows that the contracting parties do not wish to enter marriage before the Church (where Tametsi is in force), or that they are bound by a prior bond, it is disputed whether this manner of acting is gravely illicit, as has already been said, n. 760.

1108. 1° As regards betrothals. (A) In England, these things are to be noted concerning betrothals: "A promise to marry at a future time, which, like other contracts, gives a right of action for damages in case of its violation, is not binding on the defendant unless he or she be of the full age which the law provides for other cases of contract, viz. twenty-one years; and where there are mutual promises to marry made by two persons, one of the age of twenty-one, and the other under that age, the first is bound by the contract so as to be liable to an action if it be broken; but on the part of the minor, it used to be voidable; and it is now void."²

² Stephen's Commentaries, 12th ed. London, 1895, vol. II, p. 252.

1109. (B) In the United States of America: (a) "If an infant below the marriageable age and a competent person agree to intermarry, the contract is void because it is an attempted violation of the law. But after the marriageable age has arrived, a marriage by the infant may sometimes be beneficial to him; therefore, as to him, the agreement to marry with an adult will be, not void, but voidable. And within familiar principles it cannot be enforced against the infant, who may rely on his non-age to avoid it; but the infant's action for its breach by the adult is in no degree impaired by the fact of infancy."¹

¹ Bishop, New Comment. on Marriage, Divorce and Separation, Chicago, 1891, vol. I, § 206.

(b) "Parties in too near consanguinity, being by law incapable of intermarriage, cannot bind themselves by a mutual promise to marry."²

² Bishop, I, § 203.

(c) "When marriageable persons conduct toward each other as engaged parties commonly do, and as those who are not engaged do not, the reasonable and fair inference is that they are in fact what they thus hold themselves out to be, engaged; and in a breach-of-promise suit the jury is justifiable in so finding."³

³ Bishop, § 197.

(d) "When one party has agreed to marry the other under the presumable inducement of a controlling fact supposed to exist while it did not, or when such a fact existed at the time of the promise but was afterward reversed, or when the other's fraudulent representation of something even less important entrapped him into the promise, he may rescind the agreement, first giving an expressed or implied due notice, where the thing was not within the knowledge of the other."⁴ - "Any conduct by one of the parties, amounting to actual fraud, will justify the other, who has been entrapped by it, in withdrawing from the agreement."⁵ - If parties to a marriage promise mutually to relinquish it, the release by each is a consideration for that by the other, and neither can afterward maintain a breach-of-promise suit.⁶ - "And after the bargain is entered into, ill conduct in one of them, of a nature and to a degree not quite definable, yet far less than would be required for a divorce after marriage, will justify the other in rescinding it. So likewise may either rescind it for any supervening incapacity in himself or in the other to fulfil the special duties of marriage."⁷

⁴ Bishop, § 216.

⁵ Bishop, § 224.

⁶ Bishop, § 225.

⁷ Bishop, § 235.

(e) "Damages for the breach are not restricted to such as can be measured by the rule of dollars and cents, but, beyond this, the jury may give what seems reasonable in compensation for wounded feelings, for disgrace and shame, for loss of position in society and other like evils coming as natural and probable consequences of the breach, or of the special circumstances in which the breach was committed."¹

¹ Bishop, l. c.

1110. 2° On the celebration of marriage. (A) In England many conditions are required for the celebration of marriage, especially as regards Catholics, who do not wish to marry in Anglican churches². (a) "Persons desiring to be married in a Catholic church must obtain the Registrar's certificate; they may also obtain from him a licence permitting the marriage to be solemnized with less delay, for a fee of thirty shillings and ten shillings stamp duty."

² We take these rules from the work: A Manual of the Law specially affecting Catholics, by W. S. Lilly and J. E. P. Wallis, London, 1893, p. 54-57. Since it is difficult for the poor to follow all these prescriptions, not a few live in concubinage: hence the Catholic Bishops of England earnestly requested that certain of them be abolished or changed, ibid., p. 191-195. - Cf. Stephen, II, p. 252-265.

"In the first place, notice must be given in the form prescribed in the Act by one of the parties to the Superintendent Registrar of the District where they shall have dwelt for the preceding seven days, fifteen days if the marriage is to be by licence; or, if they dwell in different districts, then the Registrar of each District, unless the marriage is to be by licence, when notice to one Superintendent Registrar is sufficient. A copy of the notice is entered by the Registrar in the Marriage Notice Book, which is open, at all reasonable times, without fee to all persons desirous of inspecting it. Either the original notice, or a copy thereof, under the hand of the Superintendent Registrar, must be affixed in a conspicuous place in his office. And for every such notice he is entitled to a fee of one shilling (6 & 7 Will. 4, c. 85, SS. 4, 5; and 19 & 20 Vict. c. 119 S. 3)."

(b) "One whole day after the entry of this notice, if the marriage is to be solemnized by licence, or twenty-one days after, if it is to be solemnized without licence, the Superintendant Registrar, upon the demand of the party by whom notice was given, issues a certificate in the form provided by the Act, showing that the requisite notice has been given, and that the issue of the certificate has not been forbidden by any authorised person, and for this certificate a fee of one shilling is payable (6 & 7 Will. 4, c. 85, S. 7, and 19 & 20 Vict. c. 119, S. 4)."

(c) "The marriage may then be celebrated in the Catholic church duly registered for the solemnization of marriages, which is specified in the notice and which must, as a rule, be in the district of the residence of one of the parties. But it must be celebrated in the presence of a Registrar of the district in which the church is situated, and of two or more credible witnesses, and a fee of five shillings - ten if the marriage is by licence - is payable to the Registrar for his attendance (6 & 7 Will. 4, c. 85, SS. 18, 20, 22.) The Act further provides that in some part of the ceremony, and in the presence of the Registrar, each of the parties shall declare: "I do solemnly declare that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to C. D.," and that each of the parties shall say to the other: "I call upon these persons, here present, to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife (or husband)."

(d) "The celebration of the marriage must take place within three calendar months next after the day of the entry of the notice. Should a certificate of marriage ("The Marriage Lines") be desired, it may be procured from the Registrar-General, or Superintendent Registrar, upon payment of a fee of two shillings and sixpence (6 & 7 Will. 4, c. 85. SS. 35, 36)."

(e) "The clergy should take note that by S. 39 a priest would be guilty of felony if he knowingly solemnized a marriage in England in any other place than the registered building specified in the notice and certificate, or in a registered building in the absence of a Registrar of the district."

(f) It is provided by 19 & 20 Vict. c. 119, S. 12, that "if the parties to any marriage contracted at the registry office of any district shall desire to add the religious ceremony ordained or used by the church or persuasion of which such parties shall be members to the marriage so contracted, it shall be competent for them to present themselves for that purpose to a clergyman or minister of the church or persuasion of which such parties shall be members, having given notice to such clergyman or minister of their intention to do so; and such clergyman or minister, upon the production of their certificate of marriage before the Superintendent Registrar, and upon the payment of the customary fees (if any), may, if he shall see fit, in the church or chapel whereof he is the regular minister, by himself, or by some minister nominated by him, read or celebrate the marriage service of the persuasion to which such minister shall belong."

1111. (B) In the United States of America, by common law no solemnity is required for the validity of matrimonial consent; but by particular law in most States, for liceity, under various penalties, certain conditions are prescribed¹:

¹ We borrow the summary of American law from Browne, Elements of the Law of Domestic Relations, Boston, 1890, p. 9-12. - Cf. Bishop, § 293-449.

(a) "At common law marriage is a civil contract, to which consent alone is essential. It requires no legal forms nor religious solemnities, nor special mode of proof. The common rule is, that in the absence of statutory regulation, consent per verba de praesenti with or without consummation, or per verba de futuro with consummation, constitutes a valid marriage... In New York, Illinois, and Rhode Island, it is now held that mere verba de futuro, although followed by consummation, do not constitute a valid marriage."

(b) "Although in most if not all of the United States there are statutes regulating the celebration of marriage, and inflicting penalties on all who disobey the regulations, yet it is generally considered that in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be absolutely void, or that none but certain magistrates or ministers shall celebrate a marriage, any marriage regularly made according to the common law, without observing the statutory regulations would be still a valid marriage."

(c) "An assent to a ceremony understood on both sides to be given in jest, even if the clergyman is in earnest, will not constitute a valid marriage; but otherwise, if one of the parties is in earnest; and where one party procures a mock ceremony to be performed by one falsely personating a clergyman, it will bind both if the other assents in good faith."

(d) "Intercourse illicit in its commencement will be presumed always so to continue, and no marriage can be presumed from it. Without express proof of words of consent a valid marriage may be predicated of cohabitation, acknowledgment of a marriage by the parties, receptions of them by relatives and friends and in society as husband and wife. Even though it may invalidate a subsequent marriage. But not as against a prior ceremonial marriage."

(C) When nuptials are celebrated in a foreign region by English or Americans, they are valid, provided that the rite customarily employed in that region has been observed, and otherwise they are truly capable of contracting, according to English or American laws¹.

¹ Browne, p. 12; Stephen, p. 264-265.

1112. 3° On the mutual rights and offices of husband and wife. These are substantially the same in England as in America². (a) Rights of the husband: "The rights of a husband, in and over his wife, are two: obedience and service. The husband has the legal control of the person of his wife, and may put moderate restraints upon her liberty, if her conduct be such as to require it. If he changes his domicile, it is her duty to follow him. If she elopes and abandons him without cause, he may compel her to return. But he has no right to chastise her or to use physical violence toward her, except so far as is necessary to prevent her from doing violence to himself or others. The services of the wife, and the result thereof, also belong to the husband, at common law; though in some States, by Statute, he is entitled to the result of her service only as a trustee, and holds them for her use."

² W. C. Robinson, Elementary Law, Boston, 1882, p. 112-113, gives a summary of these.

(b) Rights of the wife: "The rights of the wife, in and from the husband, are also two: protection and support. Whatever he may lawfully do in his own defence he may do, and is naturally obliged to do, in defence of her. It is his duty to provide her with necessaries according to her station in life, and, if he refuses to do so, she may contract for them in his name, and she may still contract debts for her necessaries in his name. This right will be forfeited by the wife if she elopes with an adulterer, or if she abandons her husband without cause and does not repent and offer to return to him. But the husband is not bound to support the wife out of his family, if he provides for her and treats her properly there; and, in all cases, persons supplying a wife with necessaries, without the consent of the husband, are bound to make inquiries, and, even after such inquiries, if they supply her, they do it at their peril."

1113. 4° On semi-full divorce, or separation from bed and board. (A) In England: "A judicial separation (in lieu of the divorce a mensa et toro) may now be decreed, on the petition of either husband or wife; and this decree has all the effect that belonged to the old divorce a mensa et toro; and judicial separation may be decreed on the ground of adultery, or cruelty; or on the ground of desertion without cause for two years and upwards; and during the continuance of the decree, the wife acquires, as to property and for many other purposes, the condition of a feme sole¹."

¹ Stephen, II, p. 285-286.

1114. (B) In the United States of America, divorce from bed and board is not recognized by common law, but by the Statutes of many States². The causes on account of which it is granted are diverse according to the diverse States³. The following are recognized in almost all⁴:

² "Limited divorce exists in the following states: Alabama, Arkansas, Delaware, District of Columbia, Georgia, Kentucky, Louisiana, Maryland, Michigan, Minnesota (in favor of wife only), Nebraska, New Jersey, New York, North Carolina, Pennsylvania (in favor of wife only), Rhode Island, Tennessee (in favor of wife only), Virginia, West Virginia, Wisconsin." (A report on Marriage and Divorce, by Carroll D. Wright, Washington, 1891, p. 115.)

³ C. D. Wright enumerates these, op. cit., p. 89-112.

⁴ Browne, p. 64-66.

(a) "Cruel and inhuman treatment. This must be such as renders the life or health of the plaintiff unsafe. Words of menace creating a reasonable apprehension of bodily violence will suffice. It need not be personal; unmercifully whipping her child in the wife's presence and in spite of her entreaties will suffice. But mere bad temper, or conduct producing annoyance, discontent, and disgust, is not enough. Nor does mere intoxication, occasional or frequent, constitute cruel or inhuman treatment. Nor an angry expulsion of the wife under suspicion of infidelity. Nor refusal to permit her to attend her own church. A single cruel act does not constitute cruelty of treatment. But when accompanied by circumstances indicative of a probability of repetition, it may warrant a divorce."

(b) "Such conduct as renders it unsafe and improper to cohabit. "Unsafe" means a reasonable apprehension of bodily injury. As subjecting the wife to excessive sexual intercourse."

(c) "Abandonment and refusal or neglect to provide. These must concur. The neglect must be wilful. Denial of sexual intercourse is not utter desertion; nor desertion, nor cruelty. On a suit by a husband for separation for abandonment, the wife may be awarded a separation for cruelty."

(d) As regards the alimony of the wife, these things also are to be noted: "Pending the suit the court may grant the wife a pecuniary provision from the husband to enable her to live separately from him, which is called alimony; and also compel him to pay her counsel fees to enable her to wage or defend the suit. On granting her a divorce the court may also impose alimony, and order the husband to make provision for supporting the children."

1115. 5° On full divorce. (A) In England: (a) "A divorce or dissolution of the marriage... may also now be obtained on the petition of either husband or wife; and where he is the petitioner, it may be on the ground that since the marriage she has been guilty of adultery; but where she is the petitioner, it may only be on the ground that he has since the marriage been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of unnatural crime, or of adultery coupled with such cruelty as would, without adultery, have formerly entitled her to a divorce a mensa et toro; or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. But no divorce can be decreed, if the petitioner (whether husband or wife) has been accessory to, or connived at, or has condoned the adultery; or if the petition is presented or prosecuted by collusion; and the court is not bound to decree the divorce, if the petitioner has been guilty of adultery during the marriage; or of cruelty; or of desertion or wilful separation; or of such wilful neglect or misconduct as has conduced to the adultery; or if there has been undue delay (remaining unexplained) in presenting the petition."¹

¹ Stephen, p. 286.

(b) "A decree of nullity of marriage may also be obtained on any ground which would formerly have justified a divorce a vinculo,"² viz. disability; lack of legal age, of mental capacity, etc.

² Stephen, p. 288.

1116. (B) In the United States of America, the laws are altogether diverse according to the diverse States; therefore we can hand down only those things which are more common. (a) "Nullity of contract... For this divorce there are generally five causes: lack of legal age, former marriage, lack of mental capacity, force or fraud, and impotence... It may now be said generally, that marriages coming within these prohibitions are usually valid until pronounced void, and the children are legitimate. It has been held, however, that a judgment annulling a marriage contracted by an insane party is unnecessary. The lack of mental capacity and the impotence, to justify a divorce, must have existed at the time of the marriage."¹

¹ Browne, p. 62-63.

(b) Among the principal causes which in various States suffice for divorce properly so called, the following are enumerated²: adultery, a cause in all the states and territories; pregnancy of wife at time of marriage, unknown to husband; abandonment, desertion, wilful absence; disappearance, absence without being heard from; cruelty, actual violence or apprehension thereof, inhuman treatment³; failure or neglect of husband to provide for wife; drunkenness (habitual), conviction of felony or infamous crime, sentence to imprisonment.

² Cf. C. D. Wright, op. cit., p. 89-115.

³ How broadly this cause of divorce extends can be understood from the various examples which C. D. Wright reports, p. 172-178: "Defendant does not wash himself, thereby inflicting on plaintiff great mental anguish... Defendant has accused plaintiff's sister of stealing, thereby sorely wounding plaintiff's feelings... Defendant violently upbraided plaintiff and said to him: You are no man at all; thus causing him mental suffering and anguish... Defendant pulled plaintiff out of bed by his whiskers, etc. etc."

(c) In relation to adultery, these things are worthy of note: "But a divorce for this cause will never be granted where the offence was committed by the procurement or connivance of the complainant; or has been forgiven and the parties have voluntarily cohabited with knowledge of its commission, which is called condonation; or the complainant has also been guilty of the like offence, so that the defendant, if innocent, might have a divorce therefor, which is called recrimination."⁴

⁴ Browne, p. 63.

(d) "Generally the defendant, on judgment passing against him, is prohibited from remarrying during the plaintiff's life. But this provision has no extra-territorial effect. It is held that a marriage within this State in violation of this injunction subjects the prohibited party to the penalties of bigamy."⁵

⁵ Browne, p. 64.

1117. On matrimonial impediments. (A) In England they are reduced to four⁶:

⁶ Ap. Stephen, p. 248-252.

(a) "The first of them, namely, a prior marriage still subsisting, wants no particular observation, excepting this, that the second marriage is to all intents and purposes void."

(b) "Insanity, or want of reason, is the second civil disability... and accordingly, by our law, it is established that a marriage contracted under circumstances of duress overpowering the will is void; also, that the marriage of a lunatic, not being in a lucid interval, is absolutely void."

(c) "The third civil incapacity is that in respect of proximity of relationship, - whether of consanguinity or of affinity... The only marriages which are now illegal in respect of proximity of degree (as being either contrary to God's law or within the Levitical degrees), are the following, viz. - those between persons in the ascending and descending line in infinitum, - and those between collaterals to the third degree inclusive, according to the mode of computation in the civil law; which reckons the sum of the degrees from, (but exclusively of), one of the persons related, up to the common stock and so down to the other person. Moreover, the prohibitions in the case of collaterals extend not only to consanguinei, or those related by blood, but to affines, or those related by marriage; e.g. a man can marry neither his sister, nor his deceased wife's sister, for both are related to him in the second degree; nor his sister's daughter, nor his deceased wife's sister's daughter, for both are in the third degree; but he may marry his first cousin, for she is in the fourth degree."

(d) "The want of age... It is not necessary to the contract of marriage that the parties should have attained their full age of twenty-one; for a male person is enabled by law to consent to matrimony at the age of fourteen, and a female at the age of twelve, subject (where subject) to the consent of their parents or guardians; and, indeed, even though the male be under fourteen, or the girl under twelve, the marriage is not absolutely void, but is inchoate only and imperfect; and either of the parties, upon coming to the proper age for his or her consent, may in such latter case disagree to (and so avoid) the marriage; but a marriage between people, either of whom is under the age of seven years, is absolutely void."

1118. (B) In the United States of America, the impediments are various according to the various States; those which are common to almost all are referred to seven heads:

(a) "Law forbids the marriage of near relations. The degrees of consanguinity called the prohibited degrees are defined by the laws of the different States. In Maryland, for instance, a man shall not marry his grandmother, grandfather's wife, wife's grandmother, father's sister, mother's sister, mother, stepmother, wife's mother, daughter, wife's daughter, son's wife, sister, son's daughter, daughter's daughter, son's son's wife, daughter's daughter, or sister's daughter. A woman shall not marry her corresponding relatives."¹

¹ Cf. C. D. Wright, p. 31-35, where the laws of various States are enumerated.

(b) "Social condition. At common law, and in England, race color, and social rank constitute no impediment to marriage. In this country United States, in many States marriage is by statute forbidden between whites and negroes or Indians."¹

¹ Browne, p. 3.

(c) "Mental capacity. An intelligent consent is essential to a valid marriage. Hence an idiot or lunatic cannot contract marriage. So of other persons who have not the capacity to understand the duties and obligations of the relation. The test usually applied in the courts is that of fitness for the general transactions of life... Marriage contracted during temporary insanity is void; but marriage contracted during a lucid interval is valid; except when provided, as in England and in some of our States, by statute, that it is void during an unrevoked commission of lunacy. Drunkenness does not incapacitate, unless so great that the party does not know what he is about. Deaf and dumb persons, formerly classed as idiots, may now, it is held, contract a valid marriage."²

² Browne, p. 3-4.

(d) "Physical capacity. Where impotence exists there can be no valid marriage. But impotence means physical incapacity; not mere coldness, reluctance or unwillingness, or even absolute refusal to consent to sexual connection. Barrenness constitutes no incapacity, nor does any malformation not preventing copulation, nor any curable disability. The impotency must have existed at the time of the marriage."³

³ Browne, p. 5.

(e) "Age. The common law fixes an age of consent for a valid marriage at 14 in males and 12 in females... A marriage, either party to which was under the age of consent, may be ratified, on arriving at that age, by consent implied from continued intercourse or slight circumstances. Consent of parents is not necessary to the marriage of minors. In some States such marriages are forbidden without being declared void, and penalties are denounced for celebrating or contracting them."⁴

⁴ Browne, p. 5-6.

(f) "Prior marriage. Polygamy or bigamy is denounced as a crime by all christian communities... At common law the subsequent marriage is void ab initio, but statutes have relaxed this rule by declaring that such marriages shall be void only from the time when so pronounced by the decree of a competent court."⁵

⁵ Browne, p. 6.

(g) "Force or Fraud. Kent says "a marriage procured by force or fraud is void ab initio, and may be treated as void by every court in which its validity may be incidentally drawn in question." So says Schouler. But this has recently been denied, and it has been held that such a marriage can only be avoided by the person defrauded, in his lifetime. Statutes have changed the rule in some States, and attached the invalidity of the time of a decree of nullity.

"Force implies physical restraint; fraud implies deception. The general rule is that the force must be such as would naturally serve to overcome the will. The question of the amount of force depends upon circumstances... A marriage procured by illegal arrest may be avoided, and so where the arrest was legal but malicious. But when a man under legal arrest for seduction reluctantly marries the woman the marriage will not be set aside.

"The fraud which will avoid a marriage must go to the essence of the contract... So fraudulent representations by one party as to birth, age, social position, fortune, health, manners, or character will not suffice... A false personation would undoubtedly avoid the marriage."¹

¹ Browne, p. 7-8.

1119. 1° On betrothals. The civil Code is silent concerning betrothals, and jurists hold that promises of future marriage do not have obligatory force. "Nevertheless, the tribunals every day condemn to damages and interest that one of the betrothed who fails in his promise without legitimate reasons: the judge sovereignly assesses the legitimacy of the reason. Damages and interest are allotted by application of art. 1392. The promise of marriage is without doubt null. But that one of the betrothed who, after having made such a promise, withdraws capriciously, makes himself guilty of a civil delict or of a quasi-delict: of a civil delict, if there is fraud on his part, of a quasi-delict, if there is only heedlessness; he must be condemned to repair the material or even moral prejudice of which he is the author. The material prejudice will consist in the expenses made by the abandoned betrothed with a view to the conclusion of the marriage; the moral prejudice, in the injury brought to his reputation."³

² Carriere, II, n. 936-1026; Theol. Claromont., n. 325-335; Gasparri, n. 1211-1220; Allegre, Code civil commente, 6th ed., Paris, 1897, I, p. 74-82; Baudry-Lacantinerie, Precis de Droit Civil, 7th ed., Paris, 1899, t. I, n. 483-936.

³ Baud. Lac. n. 484.

1120. 2° On the celebration of marriage. (A) Before the marriage, banns must be promulgated: (a) "Before the celebration of marriage, the officer of the civil state shall make a publication by means of a notice posted at the door of the common house. This publication shall state the given names, names, professions, domiciles, and residence of the future spouses, their quality of being majors or minors, and the given names, names, professions, and domiciles of their fathers and mothers. It shall state, besides, the days, places, and hours when it was made: It shall be inscribed upon a single register, numbered and initialed as is said in article 41, and deposited at the end of each year at the registry of the tribunal of the arrondissement."¹

¹ Code civil, art. 63. We give here the corrections made by the law of June 21, 1907.

(b) "The notice foreseen in the preceding article shall remain posted at the door of the common house for ten days, which must comprise two Sundays. The marriage cannot be celebrated before the tenth day from and not including that of the publication."²

² Art. 165.

(c) "If the marriage has not been celebrated within the year, counting from the expiration of the time-limit of the publication, it can no longer be celebrated except after a new publication made in the form above."³

³ Art. 64.

1121. (B) As regards the celebration itself of marriage: (a) "Marriage shall be celebrated publicly before the officer of the civil state of the commune where one of the spouses shall have his domicile or his residence on the date of the publication foreseen by art. 63, and, in case of dispensation from publication, on the date of the dispensation foreseen in art. 169 below."⁴

⁴ Art. 65.

(b) "Marriage shall be celebrated in the commune where one of the two spouses shall have his domicile, or his residence established by at least one month of continuous habitation on the date of the publication foreseen by the law."⁵

⁵ Art. 74.

(c) "On the day designated by the parties after the time-limits of the publications, the officer of the civil state, in the common house, in the presence of four witnesses, relatives or non-relatives, shall read to the parties the above-mentioned documents, relating to their state and to the formalities of marriage, and ch. VI of the title on Marriage concerning the respective rights and duties of the spouses. He shall receive from each party, one after the other, the declaration that they wish to take each other for husband and wife; he shall pronounce, in the name of the law, that they are united by marriage, and he shall draw up an act of it on the spot."⁶

⁶ Art. 76.

(d) "There shall be stated, in the act of marriage: 1° the given names, names, professions, age, places of birth and domicile of the spouses; - 2° whether they are majors or minors; - 3° the given names, names, professions, and domiciles of the fathers and mothers; - 4° the consent of the fathers and mothers, grandfathers and grandmothers, and that of the Family Council, in the cases in which they are required; - 5° the notification prescribed by article 151, if it has been made; - 6° the oppositions, if there have been any; their removal, or the mention that there has been no opposition; - 7° the declaration of the contracting parties to take each other for spouses, and the pronouncement of their union by the public officer; - 8° the given names, names, age, professions, and domiciles of the witnesses, and their declaration, if they are relatives or affines of the parties, on which side and in what degree; - 9° the declaration made upon the interpellation prescribed by the preceding article that a marriage contract has or has not been made, and, insofar as possible, the date of the contract, if it exists, as well as the names and place of residence of the notary who received it; all under penalty against the officer of the fine fixed by art. 50. - Mention shall be made of the celebration of the marriage in the margin of the birth act of the spouses."¹

¹ Art. 76.

(e) "A marriage contracted in a foreign country between French persons, and between French persons and foreigners, shall be valid, if it has been celebrated in the forms used in the country, provided that it has been preceded by the publication prescribed by article 63, under the title of Acts of the civil state, and that the French person has not contravened the dispositions contained in the preceding chapter. - The same shall hold for a marriage contracted in a foreign country between a French man and a foreign woman, if it has been celebrated by the diplomatic agents or by the consuls of France, conformably to French laws. - Within three months after the return of the French person to the territory of the Republic, the act of celebration of the marriage contracted in a foreign country shall be transcribed upon the public register of marriages of the place of his domicile."²

² Art. 170-171. - It is disputed among jurists whether a marriage entered without conditions of this kind is valid or not; cf. Baud. Lac. n. 555-557.

(f) These things also are to be noted by priests: "Every minister of a cult who shall proceed to the religious ceremonies of a marriage without its having been justified to him by an act of marriage previously received by the officers of the civil state shall be punished, for the first time, by a fine of 16 francs to 100 francs. - In case of new contraventions of the kind expressed in the preceding article, the minister of the cult who has committed them shall be punished, namely: for the first relapse, by imprisonment from two to five years; and for the second, by detention."³

³ Code penal, art. 199-200.

1122. 3° On the mutual rights and offices of spouses. (a) "The spouses owe each other mutually fidelity, aid, assistance. - The husband owes protection to the woman; the woman, obedience to her husband. - The woman is obliged to dwell with the husband, and to follow him wherever he judges it suitable to reside: the husband is obliged to receive her, and to furnish her everything that is necessary for the needs of life, according to his resources and his state."⁴

⁴ Code civil, art. 212-214. - The aid in question consists in the furnishing, in kind or in money, of things necessary for life. The obligation of paying alimentary support is imposed, at the cessation of common life, when one of the two spouses is without resources, - when the husband refuses to receive his wife at the conjugal domicile, - when the husband forces his wife to leave the conjugal domicile by the bad treatment which he makes her undergo. Cf. Baud. Lac. n. 715-716.

1123. 4° On matrimonial impediments. (A) Age: "A man before eighteen completed years, a woman before fifteen completed years, cannot contract marriage. - Nevertheless it is permitted to the President of the Republic to grant dispensations from age for grave reasons."¹ - The cause most frequently invoked is the pregnancy of the woman: malice has supplied age.

¹ Code civil, art. 144-145.

(B) Defect of consent. (a) "There is no marriage when there is no consent."²

² Art. 146.

(b) Now error concerning the person invalidates consent: "When there has been error in the person, the marriage can be attacked only by that one of the two spouses who was induced into error. - In the case of the preceding article, the petition for nullity is no longer receivable whenever there has been continued cohabitation for six months after the spouse acquired his full liberty, or after the error was recognized by him."³

³ Code civil, art. 180-181.

(c) Likewise perpetual insanity, by force of art. 489: "The major who is in an habitual state of imbecility, dementia, or fury must be interdicted, even when this state presents lucid intervals."

(d) And also force and fear: "Thus a young man surprised in flagrant delict with a young girl promises to marry her, and in fact marries her, under the influence of a threat of death which is made to him by the father of the young girl. The spouse subjected to violence can demand the nullity of the marriage." - "Abduction is no longer today, as formerly, a diriment impediment of marriage. Only the abducted person can cause the nullity of the marriage which she had contracted with her abductor to be pronounced, if she succeeds in demonstrating that her consent was not free."⁴

⁴ Baudry-Lac. nn. 588, 590.

(e) Bond: "One cannot contract a second marriage before the dissolution of the first." - "Marriage is dissolved: 1° by the death of one of the two spouses; 2° by divorce legally pronounced." - "A woman cannot contract a new marriage except after 300 completed days from the dissolution of the preceding marriage." - "A divorced woman can remarry immediately after the transcription of the judgment or decree which pronounced the divorce, if nevertheless 300 days have already elapsed since there intervened, in the instance which led to the divorce, the ordinance which authorized the petitioner spouse to have a separate residence." (Law of August 9, 1919.)

⁵ Code civil, art. 147, 227, 228, 296. - Bond is indeed a diriment impediment, but the prohibition of marrying before ten months from the dissolution of the prior marriage is only impedient. - Besides, bigamy is punished by grave penalties. (Code penal, art. 340.)

1124. (C) Defect of the consent of parents: (a) "The son and the daughter who have not attained the age of twenty-one completed years cannot contract marriage without the consent of their father and mother. In case of dissent, the consent of the father suffices. - If one of the two is dead, or if he is in the impossibility of manifesting his will, the consent of the other suffices. - If the father and the mother are dead, or if they are in the impossibility of manifesting their will, the grandfathers and grandmothers replace them. If there is dissent between the two lines, this division shall carry consent."¹

¹ Code civil, art. 148-150.

(b) "Children who have attained the age of twenty-one completed years and up to the age of thirty completed years are bound to justify the consent of their father and mother. In default of this consent, the interested party shall have notified, in the forms foreseen in article 154, the projected union to his father and mother or to that one of the two whose consent has not been obtained. Thirty clear days after justification of this notification, one shall proceed to the celebration of the marriage."²

² Art. 151.

(c) "If there is dissent between parents divorced or separated from bed and board, the consent of that one of the two spouses in whose favor the divorce or separation shall have been pronounced and who shall have obtained the custody of the child shall suffice. For lack of uniting these two conditions, that one of the father and mother who shall consent to the marriage can cite the other before the Tribunal of first instance sitting in the Chamber of Council; the competent Tribunal shall be that of the person who has the custody of the child; it shall decide in public audience and in last resort."³

³ Art. 152.

(d) "The notification prescribed by article 151 shall be made at the request of the interested party by a notary acting without the concurrence of a second notary or of witnesses. This act, visaed for stamp and registered gratis, shall state the given names, names, professions, domiciles, and residences of the future spouses, of their fathers and mothers, as well as the place where the marriage shall be celebrated. It shall also contain a declaration that this notification is made to them in view of obtaining their consent and that, in default of it, one shall proceed to the celebration of the marriage at the expiration of the period of thirty clear days."⁴

⁴ Art. 154.

(e) "The natural child legally recognized who has not attained the age of 21 completed years cannot contract marriage without having the consent of that one of his father and mother who recognized him or of the one and the other if he was recognized by both. - In case of dissent, the consent of the parent who shall exercise paternal power suffices. If one of the two is dead or if he is in the impossibility of manifesting his will, the consent of the other suffices.⁵ The dispositions contained in articles 151, 153, 154, and 155 are applicable to the natural child after the age of 21 completed years. - The natural child who has not been recognized, and that one who, after having been recognized, has lost his father and mother, or whose father and mother cannot manifest their will, cannot, before the age of twenty-one completed years, marry except after having obtained the consent of the Family Council."¹

⁵ Art. 158, modified by the law of March 10, 1913.

¹ Art. 159.

(f) "If there is neither father nor mother, nor grandfathers nor grandmothers, or if they all find themselves in the impossibility of manifesting their will, sons or daughters minor of twenty-one years cannot contract marriage without the consent of the Family Council." - The minor of 21 years who would be ignorant of the place of the death or of the domicile of those of his ascendants whose consent is required for his marriage shall swear that the place of the death or that of the last domicile of his ascendants is unknown to him.²

² Art. 160, modified by the law of 1913.

1125. (D) Kinship and affinity: (a) "In the direct line, marriage is prohibited between all legitimate or natural ascendants and descendants, and affines in the same line."³

³ Art. 161. - Affinity does not cease by the death of the spouse who produced it.

(b) "In the collateral line, marriage is prohibited between brother and sister, legitimate or natural. It is prohibited between affines in the same degree when the marriage which produced the affinity has been dissolved by divorce (Law of July 1, 1914). - Marriage is also prohibited between uncle and niece, aunt and nephew. - Nevertheless it is permitted to the President of the Republic to lift, for grave causes, the prohibitions carried by article 162 concerning marriages between brothers-in-law and sisters-in-law, and by article 163 concerning marriages between uncle and niece, aunt and nephew."⁴

⁴ Art. 162-164. - Jurisprudence admits more and more that art. 163 also opposes marriage between the great-uncle and the grand-niece, the great-aunt and the grand-nephew. Cf. Baud. Lac. n. 523. But the Court of Cassation judges that marriage is permitted between an uncle and his natural niece, just as between an aunt and her natural nephew.

(c) "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same individual; between the adopted and the children who could come to the adopter later; between the adopted and the spouse of the adopter, and reciprocally between the adopter and the spouse of the adopted."⁵

⁵ Art. 348.

(E) Defect of legal solemnity: (a) "The declaration of the parties which establishes their free and voluntary consent; and that of the officer of the civil state, who pronounces in the name of the law that the conjugal union is formed, are substantial formalities without the fulfillment of which there could not be marriage."⁶

⁶ Court of Cassation, ap. Baud. Lac., n. 582, 3°.

(b) "Every marriage which has not been contracted publicly, and which has not been celebrated before the competent public officer, can be attacked by the spouses themselves, by the father and mother, by the ascendants, and by all those who have a born and actual interest, as well as by the public ministry."¹

¹ Art. 191. - "Every contravention of the rules concerning publicity does not necessarily render the marriage null as clandestine. The judge has here a power of appreciation which does not belong to him for the other causes of nullity." (Baud. Lac., n. 627). - "The incompetence of the officer of the civil state who has celebrated a marriage does not necessarily entail its nullity... The judge is invested with a discretionary power to appreciate the gravity of the violation, whether of the rules of competence or of the rules of publicity." (Baud. Lac., n. 630).

1126. From this it follows that there are some canonical impediments which are not acknowledged by civil law; such are impotence, spiritual kinship, public honesty, disparity of cult, vow, order², crime, abduction, clandestinity. Yet if impotence is such that the sex of the person cannot be determined, the marriage can be declared null. Likewise, if an abducted person can prove that her consent was extorted by force by the abductor, the marriage is invalidated. But other impediments which are admitted are not understood in the same way by civil law and by canon law; besides, there are civil impediments, such as the consent of parents, which the Church does not have as diriment. To this priests must pay attention, lest a marriage be readily contracted valid in the civil forum and invalid in the ecclesiastical forum, or vice versa.

² On February 26, 1878, the Court of Cassation had judged that priesthood is a diriment impediment of marriage; a decree of the same Court, dated January 25, 1888, rendered a contrary decision. Cf. Baud. Lac., n. 529.

1127. 5° On full divorce. (A) The causes of divorce: (a) "The husband can demand divorce on account of adultery of his wife. - The wife can demand divorce on account of adultery of her husband."³

³ Art. 229-230.

(b) "The spouses can reciprocally demand divorce for excesses, acts of cruelty, or grave injuries of one of them toward the other."⁴

⁴ Art. 231. - By exces one must understand attacks brought by one spouse against the life of his consort or acts placing the life of the latter in danger. By grave injuries one understands only those which are the manifest expression of an evil, deliberate, and permanent sentiment.

(c) "The condemnation of one of the spouses to an afflictive and infamous penalty shall be for the other spouse a cause of divorce."⁵

⁵ Art. 232.

(d) "When separation from bed and board shall have lasted three years, the judgment can be converted into a judgment of divorce upon the petition formed by one of the spouses."⁶

⁶ Art. 310. Cf. Baud. Lac., 798-893.

(B) The procedure of divorce is clearly indicated in articles 234-252; the effects in articles 295-304. Article 298 is abrogated, which established a kind of diriment impediment: "In the case of divorce admitted in court on account of adultery, the guilty spouse can never marry his accomplice."

1128. 6° On semi-full divorce. (a) "In the case where there is place for a petition for divorce, it shall be free to the spouses to form a petition for separation from bed and board."¹

¹ Art. 306.

(b) "Separation from bed and board always entails separation of goods. It has besides the effect of restoring to the woman the full exercise of her civil capacity, without her needing to have recourse to the authorization of her husband or of justice."²

² Art. 311. Law of February 6, 1893, completing this article.

IV. Principal Italian Civil Laws concerning Marriage.

1129. 1° On betrothals. (a) "The mutual promise of future marriage produces no legal obligation to contract it, nor to execute what may have been agreed for the case of non-fulfillment of the same. - (b) If the promise was made by public act or by private writing by one who is of age, or by a minor authorized by the persons whose concurrence is necessary for the celebration of marriage, or if it appears from the publications ordered by the officer of the civil state, the promisor who refuses to execute it without just motive is obliged to compensate the other party for the expenses made on account of the promised marriage. The demand, however, is no longer admissible after one year from the day on which the promise ought to have been executed."³

³ Cod. civile, art. 53-54.

1130. 2° On the celebration of marriage. (a) "The celebration of marriage must be preceded by two publications to be made under the care of the officer of the civil state. - The publications must be made in the commune in which each of the spouses has his residence. If the present residence has lasted for less than one year, the publications must also be made in the commune of the preceding residence. The publications are made at the door of the communal house on two successive Sundays. The act shall remain posted in the interval between one publication and the other, and for three following days. - Marriage cannot be celebrated before the fourth day from the last publication. - The publications are considered as not having occurred, if the marriage is not celebrated within the term of the one hundred eighty following days."⁴

⁴ Art. 70-72, 76-77.

(b) "Marriage must be celebrated in the communal house and publicly before the officer of the civil state of the commune where one of the spouses has his domicile or residence. - On the day indicated by the parties, the officer of the civil state, in the presence of two witnesses, even relatives, shall read to the spouses articles 130, 131, and 132 of this title; he shall receive from each of the parties personally, one after the other, the declaration that they wish respectively to take each other as husband and wife, and immediately thereafter he shall pronounce in the name of the law that they are united in marriage. - The declaration of the spouses that they take each other respectively as husband and wife cannot be subjected either to a term or to a condition."¹

¹ Art. 93-95.

(c) "Marriage performed in a foreign country between citizens, or between a citizen and a foreigner, is valid, provided that it is celebrated according to the forms established in that country, and the citizen has not contravened the dispositions contained in the second section of the first chapter of this title. The publications must also be made in the kingdom according to the norm of articles 70 and 71. If the citizen spouse has no residence in the kingdom, the publications shall be made in the commune of the last domicile. - The citizen who has contracted marriage in a foreign country must, within three months from his return into the kingdom, have it inscribed in the registers of the civil state of the commune where he shall have fixed his residence, under penalty of a fine extendable to one hundred lire."²

² Art. 100-101.

1131. 3° On the mutual rights and offices of spouses. "Marriage imposes upon the spouses the reciprocal obligation of cohabitation, fidelity, and assistance. - The husband is head of the family: the wife follows his civil condition, assumes his surname, and is obliged to accompany him wherever he believes it opportune to fix his residence. - The husband has the duty of protecting the wife, of keeping her with himself, and of supplying her all that is necessary for the needs of life in proportion to his substance. The wife must contribute to the maintenance of the husband, if he does not have sufficient means. - The obligation of the husband to supply aliment to the wife ceases when the wife, having withdrawn without just cause from the conjugal domicile, refuses to return there."³

³ Art. 130-133.

1132. 4° On the impediments of marriage. (a) "A man cannot contract marriage before he has completed eighteen years, nor a woman before she has completed fifteen years."⁴

⁴ Art. 55.

(b) "He who is bound by a preceding marriage cannot contract other nuptials."⁵

⁵ Art. 56.

(c) "A woman cannot contract a new marriage except after ten months have elapsed from the dissolution or from the annulment of the preceding marriage, excepting the case expressed in article 107 (impotence). This prohibition ceases from the day on which the woman has given birth."⁶

⁶ Art. 57.

(d) "In the direct line marriage is forbidden between all legitimate or natural ascendants and descendants and the affines of the same line. - In the collateral line marriage is forbidden 1° between sisters and brothers, legitimate or natural, 2° between affines in the same degree, 3° between uncle and niece, aunt and nephew."¹

¹ Art. 58-59.

(e) "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same person; between the adopted and the children born later to the adopter; between the adopted and the spouse of the adopter, and between the adopter and the spouse of the adopted."²

² Art. 60.

(f) "Those interdicted on account of infirmity of mind cannot contract marriage."³

³ Art. 61.

(g) "He who in criminal judgment was convicted as guilty party or accomplice of voluntary homicide committed, failed, or attempted upon the person of one of the spouses cannot be united in marriage with the other spouse."⁴

⁴ Art. 62.

(h) "The son who has not completed twenty-five years, the daughter who has not completed twenty-one years, cannot contract marriage without the consent of the father and mother. If the parents are discordant, the consent of the father is sufficient. If one of the parents is dead or in the impossibility of manifesting his own will, the consent of the other is enough. For the marriage of an adoptive son who has not completed twenty-one years, besides the consent of the parents, the consent of the adopter is necessary. - If the father and the mother should be dead or in the impossibility of manifesting their will, minors of twenty-one years cannot contract marriage without the consent of the grandfathers and grandmothers: if the grandfather and grandmother of the same line are discordant, the consent of the grandfather is enough. Disagreement between the two lines is equivalent to consent. - If there exist no parents, nor adopter, nor grandfathers nor grandmothers, or if none of these is in the possibility of manifesting his own will, minors of twenty-one years cannot contract marriage without the consent of the family council."⁵

⁵ Art. 63-65.

(i) "A marriage contracted in contravention of articles 55, 56, 58, 59, 60, and 62 can be impugned by the spouses, by the nearest ascendants, by the public minister, and by all those who have a legitimate and actual interest in it. By the same persons the marriage celebrated before an incompetent officer of the civil state or without the presence of the required witnesses can be impugned. After one year has elapsed from the celebration of the marriage, the demand of nullity for incompetence of the officer of the civil state is no longer admitted."⁶

⁶ Art. 104.

(j) "Marriage can be impugned by that one of the spouses whose consent was not free. When there was error in the person, the action of nullity can be promoted by that one of the spouses who was induced into error. - The demand of nullity for the causes expressed in the preceding article is no longer admissible if there was continued cohabitation for one month after the spouse recovered his full liberty or knew the error."¹

¹ Art. 105-106.

(k) "Manifest and perpetual impotence, when it is prior to marriage, can be proposed as a cause of nullity by the other spouse."²

² Art. 107.

1133. 5° On separation from bed and board. (a) "Separation can be demanded on account of adultery and voluntary abandonment, and on account of excesses, cruelty, threats, and grave injuries. An action for separation on account of the adultery of the husband is not admitted, except when he keeps a concubine in the house or notoriously in another place, or when circumstances concur such that the fact constitutes a grave injury to the wife. - Separation can also be demanded against the spouse who has been condemned to a criminal penalty, except in the case that the sentence is prior to the marriage and the other spouse was aware of it. - The wife can ask separation when the husband, without any just motive, does not fix a residence, or, having the means, refuses to fix it in a manner suitable to her condition."³

³ Art. 150-152.

(b) "Reconciliation extinguishes the right of asking separation; it also induces the abandonment of the demand which had been proposed."⁴

⁴ Art. 153.

Up to this time no full divorce is permitted.

V. Principal Civil Laws concerning Marriage in Germany.

N.B. "§ 1588. Ecclesiastical obligations in respect to marriage are not touched by the prescriptions of this section."

⁵ A summary of the new civil law concerning matrimonial matters, in force in Germany, is to be read ap. Pelt, Canoniste, XXIII, 1900, p. 321-331.

1134. 1° On betrothals. "§ 1297. From a betrothal one cannot sue for entering into marriage. The promise of a penalty for the case that entry into marriage does not take place is null."

1135. 2° On the impediments of marriage. (A) Diriment impediments. (a) Defect of solemnity: "§ 1324. A marriage is null, if at the celebration of marriage the form prescribed in § 1317 has not been observed. If the marriage has been entered in the marriage register and the spouses, after the celebration of marriage, have lived with each other as spouses for ten years, or, if one of them died before, until his death, yet at least three years, then the marriage is to be regarded as valid from the beginning. This prescription finds no application if, at the expiration of the ten years or at the time of the death of one spouse, the action of nullity has been brought."

(b) Defect of capacity: "§ 1325. A marriage is null if one of the spouses at the time of the celebration of marriage was incapable of transacting business or was in a state of unconsciousness or of a passing disturbance of mental activity. - The marriage is to be regarded as valid from the beginning if the spouse confirms it after the removal of the incapacity of transacting business, the unconsciousness, or the disturbance of mental capacity, before it has been declared null or dissolved. The confirmation does not need the form prescribed for the celebration of marriage."

(c) Bond: "§ 1326. A marriage is null if one of the spouses at the time of the celebration of marriage was living with a third party in a valid marriage."

(d) Consanguinity and affinity: "§ 1327. A marriage is null if it has been contracted between relatives or affines contrary to the prohibition of § 1310, paragraph 1."

(e) Crime: "§ 1328. A marriage is null if it was prohibited because of adultery according to § 1312. If afterward liberation from the prescription of § 1312 is granted, then the marriage is to be regarded as valid from the beginning."

(f) Defect of age: "§ 1331. A marriage can be contested by the spouse who, at the time of the celebration of marriage, or in the case of § 1325 at the time of confirmation, was restricted in capacity for transacting business, if the celebration of marriage or the confirmation occurred without the consent of his legal representative."

(g) Error and fraud: "§ 1332. A marriage can be contested by the spouse who, at the celebration of marriage, did not know that it was a matter of a celebration of marriage, or who indeed knew this, but did not wish to give a declaration that he wished to enter marriage. - § 1333. A marriage can be contested by the spouse who at the celebration of marriage erred concerning the person of the other spouse or concerning such personal qualities of the other spouse as, with knowledge of the state of the matter and with an intelligent weighing of the essence of marriage, would have kept him from entering marriage. - § 1334. A marriage can be contested by the spouse who was determined to enter marriage by fraudulent deception concerning such circumstances as, with knowledge of the state of the matter and with an intelligent weighing of the essence of marriage, would have kept him from entering marriage. If the deception was not perpetrated by the other spouse, then the marriage is contestable only if this one knew the deception at the celebration of marriage. Contestation does not take place on the ground of a deception concerning property relations."

(h) Fear: "§ 1335. A marriage can be contested by the spouse who was unlawfully determined to enter marriage by threat."

N.B. "§ 1343. If a contestable marriage is contested, it is to be regarded as null from the beginning.

"The nullity of a contestable marriage which has been contested by way of action cannot, so long as the marriage has not been declared null or dissolved, be asserted in any other way."

1136. (B) Impedient impediments. (a) Defect of age: "§ 1303. A man may not enter marriage before the entrance of majority, nor a woman before the completion of the 16th year of life. - Liberation from this prescription can be granted to a woman."

(b) Defect of the consent of parents: "§ 1305. A legitimate child, until the completion of the twenty-first year of life, needs the consent of the father for entering marriage; an illegitimate child, until the same age of life, needs the consent of the mother. The mother takes the place of the father if the father is dead or if the rights arising from paternity according to § 1701 do not belong to him. A child declared legitimate does not need the consent of the mother even if the father is dead. - It is equivalent to the death of the father or of the mother if they are permanently incapable of giving a declaration or if their residence is permanently unknown."

(c) Illicit affinity and consanguinity: "§ 1310, 2°. A marriage may not be contracted between persons of whom one has had sexual intercourse with parents, ancestors, or descendants of the other.

"§ 1310, 3°. Relationship in the sense of these prescriptions exists also between an illegitimate child and his descendants on the one side, and the father and his relatives on the other side."

(d) Legal kinship: "§ 1311. He who has adopted another in the place of a child may not enter marriage with him or his descendants so long as the juridical relation founded by the adoption exists."

(e) Certain special matters concerning widows, minors, soldiers, banns: "§ 1313. A woman may enter a new marriage only ten months after the dissolution or declaration of nullity of her former marriage, unless she has meanwhile given birth. Liberation from this prescription can be granted.

"§ 1314. Whoever has a legitimate child who is a minor or who stands under his guardianship may enter a marriage only after the guardianship court has given him a certificate that he has fulfilled the obligations designated in § 1669 or that they are not incumbent upon him. - If, in the case of continued community of goods, a descendant entitled to a share is a minor or under guardianship, the surviving spouse may enter a marriage only after the guardianship court has given him a certificate that he has fulfilled the obligations designated in § 1493, paragraph 2, or that they are not incumbent upon him.

"§ 1315. Military persons or such state officials for whom, according to the laws of the state, a special permission is required for entering marriage, may not enter marriage without the prescribed permission.

"Foreigners for whom, according to the laws of the state, a permission or certificate is required for entering marriage may not enter marriage without this permission or without this certificate.

"§ 1316. The celebration of marriage ought to be preceded by a bann. The bann loses its force if the marriage is not contracted within six months after the execution of the bann.

"The bann may be omitted if the life-threatening illness of one of the betrothed does not permit delay of the celebration of marriage.

"Liberation from the bann can be granted."

1137. 3° On divorce. (a) Adultery, bigamy, and the sin of impurity against nature are a sufficient cause of divorce, provided nevertheless that the other spouse has not consented to or cooperated in these crimes: "§ 1565. A spouse can sue for divorce if the other spouse makes himself guilty of adultery, or of an act punishable according to §§ 171, 175 of the penal code.

"The right of the spouse to divorce is excluded if he consents to the adultery or to the punishable act, or makes himself guilty of participation."

(b) "§ 1566. A spouse can sue for divorce if the other spouse seeks after his life."

(c) "§ 1567. A spouse can sue for divorce if the other spouse has maliciously deserted him. Malicious desertion is present only: 1° if a spouse, after he has been condemned by final judgment to restore domestic community, for one year has not obeyed the judgment, against the will of the other spouse, with malicious intention; 2° if a spouse, for one year, against the will of the other spouse and with malicious intention, has kept himself away from the domestic community and the prerequisites for public service against him have existed for a period of one year. - Divorce is inadmissible in the case of paragraph 2, n. 2, if the prerequisites for public service no longer exist at the close of the oral hearing on which the judgment is issued."

(d) "§ 1568. A spouse can sue for divorce if the other spouse, by grave violation of the duties founded by marriage, or by dishonorable or immoral behavior, has culpably caused so deep a disturbance of the conjugal relation that the continuation of the marriage cannot be expected of the spouse. Gross ill-treatment also counts as a grave violation of duties."

(e) "§ 1569. A spouse can sue for divorce if the other spouse has fallen into mental illness, the illness has lasted at least three years during the marriage and has reached such a degree that the spiritual community between the spouses has been removed, and every prospect of restoration of this community is also excluded.

N.B. "§ 1570. The right to divorce ceases in the cases of §§ 1565 to 1568 by pardon."

"§ 1571. The action for divorce must be brought, in the cases of §§ 1565 to 1568, within six months from the time at which the spouse obtains knowledge of the ground of divorce. The action is excluded if ten years have elapsed since the occurrence of the ground of divorce. The period does not run so long as the domestic community of the spouses is removed. If the spouse entitled to the action is summoned by the other spouse either to restore the domestic community or to bring the action, then the period runs from the receipt of the summons. The citation to the term of reconciliation is equivalent to bringing the action. The citation loses its effect if the spouse entitled to the action does not appear at the term of reconciliation, or if three months have elapsed after the end of the reconciliation procedure and the action has not previously been brought. To the running of the six-month and the three-month period the prescriptions of §§ 203, 206, applying to prescription, are correspondingly applied."

1138. 4° On separation as to bed and habitation. "§ 1575, 1° The spouse who is entitled to sue for divorce can, instead of divorce, sue for removal of the conjugal community. If the other spouse petitions that the marriage, if the action is founded, be dissolved by divorce, then judgment is to be given for divorce.

"§ 1586. If, according to § 1575, the conjugal community is removed, then the effects connected with divorce enter in, yet the entering of a new marriage is excluded. The prescriptions concerning the nullity and contestability of marriage find application as if the judgment had not been issued.

"§ 1575, 2° For the action for removal of the conjugal community the prescriptions of §§ 1573-1574 hold. - § 1576. If judgment has been given for removal of the conjugal community, then each of the spouses can, on the ground of the judgment, petition for divorce, unless after the issuing of the judgment the conjugal community has been restored. The prescriptions of §§ 1570 to 1574 find no application; if the marriage is dissolved by divorce, then the spouse declared guilty is to be declared guilty also in the judgment of divorce."

1139. We conclude the exposition of civil law and the Treatise on Marriage with these words of Leo XIII¹: "Since these things are so, all governors and administrators of public affairs, if they had wished to follow reason, wisdom, and the very utility of peoples, ought to have preferred that the sacred laws concerning marriage remain untouched, and to have employed the assistance offered by the Church for the protection of morals and the prosperity of families, rather than to call the Church herself into suspicion of enmity, and into a false and unjust accusation of violated civil right."

¹ Encycl. Arcanum.