6. Incurable insanity or mental disease of three years' existence.

7. In the absence of the causes above set forth the courts have still power to grant either an absolute divorce or a judicial separation for not more than two years if it appears that the parties are grossly antagonistic to each other. If, upon pet.i.tion, a judicial separation is granted and at its stated expiration no reconciliation has taken place, the court will entertain an application for an absolute divorce.

EFFECTS OF DIVORCE.--The questions of property, alimony, custody of children and change of name are determined according to the laws of the individual cantons. Generally the guilty party must pay damages to the innocent spouse, either in one payment or by instalments, the amount depending upon the means of the parties and the nature and degree of the offence for which the divorce was granted.

CHAPTER IX.

GERMAN LAW.

The German Empire consists of twenty-six political States. These include four kingdoms, six grandduchies, five duchies, seven princ.i.p.alities, three free towns, and Alsace-Lorraine. With the exception of Alsace-Lorraine, whose affairs are administered by the central imperial government, all are sovereign States.

This individual sovereignty of a German State is somewhat a.n.a.logous to that of a State in the American Union. However, we must for the purposes of this chapter notice one important difference.

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

The Const.i.tution of the Empire (April 16, 1871) enumerates in detail the powers, limitations and relations of the different organs of government.

From the _Germania_ of Tacitus and other authorities we learn that among the early Germans marriage was largely a matter of bargain and sale. In the presence of certain relatives or friends the father or guardian of a female delivered her to the bridegroom on receipt of the purchase price.

Marriage by abduction was also recognized, but the abducter was obliged to make compensation to the abducted female's father or guardian, which compensation amounted in effect to an agreed purchase price.

Although the consent of the female was never asked or considered on the question of marriage, we are told by Tacitus that German wives were remarkable for their fidelity and affection and were treated as friends by their husbands, who had a high respect for their judgment in all concerns of life.

From the mediaeval times Christianity has exercised a strong and correcting influence on the relation of marriage in Germany. At first the Christian Church recognized the informally declared agreement to marry on the part of the man and woman, which is called nowadays a betrothal, as all that was necessary to make them husband and wife. If the agreement referred to some future time, however, they were not considered as actually married until cohabitation had taken place. By the decrees of the Council of Trent, ratified in 1564, the Roman Catholic Church made it a requirement for the first time that in order to const.i.tute a valid marriage the declarations of the couple must be made before a priest and witnesses.

It was not until the eighteenth century that the Protestant Church in Germany adopted the rule that a marriage is not concluded simply by betrothal or mutual agreement, but requires a formal religious celebration.

The _Personenstandsgesetz_, which became law on January 1, 1876, provided for the first time governmental regulation of marriage on a non-sectarian basis for the German Empire.

It was not, however, until the enactment of the Civil Code that a clear and methodical statement of the law of marriage and divorce was given to the German people.

The German Civil Code (_Burgerliches Gesetzbuch fur das Deutsche Reich_), which became law on January 1, 1900, has been described by Professor Maitland as "the most carefully considered statement of a nation's law that the world has ever seen." It is in the Fourth Book of this scientific codification, under the general t.i.tle of Family Law, that we find the German statutes of to-day on marriage and divorce. A summary of these statutes follows:

MARRIAGE.--Religious definitions, dogmas and obligations respecting marriage are not affected or considered by the German Code. Marriage is treated as a civil contract to which the State is always an added party.

A legitimate child requires, before the completion of his twenty-first year, the approval of his father for concluding a marriage; an illegitimate child requires, before reaching maturity, the approval of the mother. A male reaches his majority at twenty-one years of age and a female at the completion of her sixteenth year, for the purpose of marriage.

IMPEDIMENTS TO MARRIAGE.--A marriage cannot be concluded between relatives by blood in the direct line nor between brothers and sisters of full blood or half blood, nor between persons one of whom has had s.e.xual intercourse with the parents, grandparents or descendants of the other.

Persons in the military service, aliens and officials who by the law require special permission to become married cannot conclude a marriage without permission.

FORM OF MARRIAGE.--A marriage is concluded by the parties appearing together and declaring before a registrar, in the presence of two witnesses, their intention to become husband and wife.

VOIDABLE MARRIAGES.--A marriage may be avoided by a spouse who has been induced to enter the marriage status by fraud concerning such facts as would have deterred him or her from concluding the marriage had he or she been acquainted with the actual state of affairs. A marriage cannot be avoided on the ground of fraud or misrepresentation as to the pecuniary means of either party.

HUSBAND AND WIFE.--The parties are mutually bound to live in conjugal community. The right to decide in all matters affecting the common conjugal life belongs to the husband. However, if the decision of the husband on these matters is an abuse and not a reasonable exercise of his right the wife is not bound to accept his decision.

PROPERTY.--A wife has absolute power to deal with her separate property as if she were a single woman. A wife's separate property includes also that which she has acquired by her industry or in the course of a separate business conducted by her. It is presumed in favour of the husband's creditors that all chattels which are in the possession of either husband or wife, or in their joint possession, belong to the husband. In regard to articles intended exclusively for the personal use of the wife, such as clothing, ornaments and working implements, it is presumed that as between the spouses and the creditors of either that the articles are the property of the wife.

MATRIMONIAL CONTRACTS.--Both spouses may regulate their property relation by a contract made before or after the marriage.

DIVORCE.--Grounds or Causes. Either spouse may pet.i.tion for divorce on the following grounds:

A. Adultery of the other spouse;

B. An attempt by one spouse to kill the other;

C. Wilful desertion continued for the period of one year;

D. Offences specified in Sections 171 to 175 inclusive, of the Criminal Code, including bigamy, incest and certain detestable crimes;

E. Such a grave breach of marital duty or such dishonest or immoral conduct which disturbs the conjugal relation to such an extent that the pet.i.tioner cannot reasonably be expected to continue the relation;

F. Insanity of the respondent continued for three years and of such a character that the intellectual community between the parties has ceased and there is no reasonable hope of its renewal.

Pet.i.tions for divorce must be filed within six months of the time when the pet.i.tioner acquires knowledge of the facts const.i.tuting a sufficient ground.

The pet.i.tion cannot be allowed in any case if ten years have elapsed since the happening of the cause for divorce. After divorcement both parties are free to remarry.

If a marriage is dissolved for any cause the decree shall declare the respondent to be the exclusive guilty party.

PUNISHMENT FOR THE GUILTY.--Adultery is punishable by imprisonment with labour for a term not exceeding six months in the case of the guilty married person and the partner in guilt if the marriage is dissolved on the ground of adultery. Prosecution only takes place, however, on proposal--that is, at the instance of the aggrieved spouse.

CONDONATION.--The right to a divorce is lost by condonation of the offence relied upon as a cause. If a marriage is dissolved for any cause the decree shall declare the respondents to be the exclusive guilty party.

EFFECTS OF THE DIVORCE.--A divorced wife retains the surname of her husband unless specifically prohibited until she remarries.

If she is the innocent party she may, upon making a declaration before competent authority, resume her maiden name. If she is the guilty party, her husband, by making a declaration before competent authority, may prohibit her calling herself by his surname. After she has thus lost the surname of her husband she, by operation of law, resumes her maiden name.

MAINTENANCE.--A husband declared by a decree of divorce or judicial separation to be the guilty party shall provide maintenance to his divorced wife suitable to her station in life, in so far as she is unable to obtain such maintenance out of her earnings and income.

A wife declared by decree to be the guilty party shall provide maintenance to her divorced husband suitable to his station in life, in so far as he is not able to so maintain himself.

The maintenance above referred to shall be provided by a money annuity payable quarterly and in advance.

In some cases the person bound to provide such maintenance is required to furnish a bond or security for the performance of the duty.

For sufficient reason the person ent.i.tled to the payment of such a money annuity may demand a complete settlement in a lump sum.

The duty to provide maintenance is extinguished on the remarriage of the party ent.i.tled to it or on the death of the party bound to make such provision.

If a marriage has been dissolved on account of the insanity of one of the parties the same spouse shall provide maintenance to the unfortunate respondent.

If the husband is bound to provide maintenance to a child of the marriage the wife is also bound to reasonably contribute toward such maintenance out of her income or earnings.