Page:EB1911 - Volume 08.djvu/361

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344
[UNITED STATES
DIVORCE


The law in France as to property on a divorce has been accurately stated as follows:—

“Divorce in France effects a dissolution of the matrimonial régime of property as well as of the marriage itself. The decree appoints a notary, who is charged with the settlement of the pecuniary interests of the parties. By a stereotyped form of procedure the appointment is made invariably for the purpose of liquidating la communauté ayant existé entre les époux, irrespective of whether the régime really was that of community or another. In the case of aliens, therefore, married under the rule of separate property, it is necessary carefully to set this out in the notarial deed of liquidation, in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pronounced loses the benefit of all settlements made upon him or her by the other party, either by the marriage contract or since the marriage. On the other hand, the party in whose favour the divorce has been pronounced preserves the benefit of all settlements made in his or her favour by the unsuccessful party. If no such settlements were made, or if those made appear inadequate to ensure the subsistence of the successful party, the court may grant him or her permanent alimony out of the property of the other party, not to exceed one-third of the income, and revocable in case it ceases to be necessary” (Kelly, p. 130).

On a divorce both parties are at liberty to remarry. The husband could remarry at once; but the wife (art. 296 of the Code) was only allowed to remarry after an interval of ten months. By the act of 1907, this article was abolished, and the wife allowed to remarry as soon as the judgment or decree granting the divorce has been entered, providing 300 days have elapsed since the first judgment was pronounced. A divorced husband may remarry his divorced wife, but if he does so, he cannot be again divorced, except on the ground of a sentence to a peine afflictive et infamante passed on one of them since their remarriage. There is, however, this limitation on the power of remarriage of divorced persons, that the party to the marriage against whom the decree has been pronounced is not allowed to marry the person with whom his or her guilt has been established. Such person, however, has no such rights as are recognized in him or her according to English law, and cannot take any part in the proceedings. But his or her name is referred to in the proceedings only by an initial; and French law goes even further in the avoidance of publicity, inasmuch as the publication of divorce proceedings in the press is forbidden, under heavy penalties.

By a law of the 6th of February 1893 French jurisprudence, more complete at least, and perhaps wiser, than English, dealt with a matter previously in controversy, and decided that after a divorce the wife shall resume her maiden name, and may not continue to use the name of her divorced husband; nor may the husband, for business or other purposes, continue to use the name of his wife.

By the law of 1886 the special procedure in divorce previously in force under the Code and under the law of 1884 was abolished, and it was provided that matrimonial causes should be tried according to the ordinary rules of procedure. The action therefore, when brought, follows the methods of procedure common to other civil proceedings. But there still remain certain necessary preliminaries to an action of divorce. A petition must be presented by a petitioner in person to the president of the court sitting in chambers, with the object of a reconciliation being effected. This is known as the première comparation. If the petitioner still determines to proceed, there follows the seconde comparation, on which occasion both parties appear before the president. If the president fails to effect a reconciliation, he makes an order permitting the petitioner to proceed, and deals with the matters necessary to be dealt with pendente lite, such matters being (1) separate residence, (2) alimony, (3) possession of personal effects, (4) custody of children. As regards residence, the wife is compelled to adhere during the proceedings to the residence assigned to her, but no similar restriction is placed on the husband. Alimony pendente lite is in the discretion of the court, having regard to the means of the parties, and includes a proper provision for costs. As regards the custody of children, the Code and the law of 1884 gave it to the husband, unless the court otherwise orders, but the law of 1886 leaves the matter wholly in the discretion of the court.

There are certain technical rules of evidence on the trial of a divorce action. It is a general principle of the French law of evidence that documentary evidence is the best evidence, and oral testimony only secondary. In divorce cases adultery flagrante delicto can be proved by the official certificate of the commissary of police. Letters between the husband and wife are admissible in evidence. As to letters between the parties and third persons, the law, which has been doubtful, now appears to be that the wife may produce only such letters from third parties to her husband as have come into her possession accidentally, and without any ruse or artifice on her part; but the husband may put in evidence any letters written to or by his wife which he has obtained by any, short of criminal, means. If the documents put in evidence are not sufficient to satisfy the court, there follows an investigation by means of witnesses, termed an enquête. A schedule of allegations is drawn up, and a judge, termed a juge-commissaire, is specially appointed to conduct the inquiry. Relatives and servants, though not competent witnesses in ordinary civil actions, are so in divorce proceedings. Cross petitions may be entered; the substantiation of a cross petition, however, does not have the effect, in some cases given to it by English law, of barring a divorce, but a divorce may be, and often is, granted in favour of and against both parties pour torts réciproques. When a case comes on for trial, it is in the power of the court to order an adjournment for a period not exceeding six months, which is termed a temps d’épreuve, in order to afford an opportunity for reconciliation. It is said, however, that this power is seldom exercised. An appeal may be brought against a decree of divorce within two months; and a decree made on appeal is subject to revision by the court of cassation within two months. Both references to the court of appeal and the court of cassation operate as a stay of execution. A decree must, by the law of 1886, be transcribed on the register of marriages within two months from its date, and failing this transcription, the decree is void. The transcription must be made at the place of celebration of the marriage, or, if the parties are married abroad, at the place where the parties were last domiciled in France. If the parties, after having married abroad, return to France, it has been provided, by a circular of the Procureur de la République in 1887, that the transcription may be made at the place of their actual domicile at the time of action brought, a rule which has been held to apply to the divorce of aliens in France. The effect of transcription does not relate back to the date of the decree.

Opinions may differ as to the relative merits of the English and French law relating to divorce. But it cannot be denied that the French law presents a singularly complete and well-considered system, and one which, obviously with the English system in view, has endeavoured to graft on it provisions supplementing its omissions, and modifying certain of its terms in accordance with the light afforded by experience and the changed feelings of the modern world. The effect of the laws of 1884 and 1886 in France has been great. The act of 1907 dealing with divorce, coupled with that of the 21st of July of the same year dealing with marriage, may also be said to mark an epoch in the laws relating to women. During the five years from 1884 to 1888 the courts granted divorces in 21,064 cases, rejecting applications for divorce in 1524. In addition, there were 12,242 applications for judicial separation, of which 10,739 were granted. A distinguished French writer, the author of a work of singular completeness and accuracy on the judicial system of Great Britain has compared these figures with the corresponding result of the English act of 1857. His conclusion is expressed in these words: “On voit qu’en cinq années nos tribunaux out prononcé trois fois plus de divorces que la haute cour d’Angleterre n’en a prononcé en trente ans. Je n’insiste pas sur les conclusions morales à tirer de ce rapprochement” (Comte de Franqueville, Le Système judiciaire de la Grande-Bretagne, ii. p. 171). It is, however, practically impossible to compare the number of divorces in France and in England with exact justice, because, as will have been seen above, the causes of divorce in France materially exceed those recognized by English law; and the absence in France of any official performing the functions assigned to the king’s proctor in England cannot but have great influence on the number of applications for divorce, as well as on their results.  (St H.) 

United States

According to American practice, divorce is the termination by proper legal authority, sometimes legislatively but usually judicially, of a marriage which up to the time of the decree was legal and binding. It is to be distinguished from a decree of