JUDICIAL SEPARATION.--The same causes which are sufficient for a divorce will ent.i.tle the pet.i.tioner to a judicial separation if that form of relief is preferred. If such a judicial separation has been granted either spouse may apply for a divorce by virtue of the decree for separation, unless the conjugal community has been re-established after the issue of such decree.

CHAPTER X.

AUSTRIA-HUNGARY.

The Austria-Hungary Empire comprises five countries, each bearing the name of kingdom--viz., Hungary, Bohemia, Galicia, Illyria and Dalmatia; one archduchy, Austria; one princ.i.p.ality, Transylvania; one duchy, Styria; one margraviate, Moravia, and one county, Tyrol. In this chapter we shall deal with the marriage and divorce laws of Austria, leaving those of Hungary and Transylvania for the following chapter.

The regulations governing the marriage relation in Austria and the other parts of the Empire represented in the Austrian Reichsrath are in general contained in the Austrian Civil Code, which became law on June 1, 1811, supplemented by later statutes, court decrees and ministerial edicts.

Perhaps the most curious feature of Austrian law is that an absolute divorce can, for certain causes, be granted when both the parties are non-Catholic, but for Roman Catholics the bond of marriage is dissoluble only by the death of one party.

DEFINITION OF MARRIAGE.--The Austrian Code defines marriage as follows: "The foundation of family relations is the marriage contract. In the marriage contract two persons of different s.e.x legally declare their intention to live in inseparable union to beget children and to rear them up and to render each other mutual a.s.sistance."

MARRIAGE QUALIFICATIONS.--1. There must be mental capacity. Insane, demented, imbecile parties or persons deprived of the free use of their minds by intoxication or any other cause cannot contract a binding marriage.

2. Minors must have completed their fourteenth year of age.

3. Minors of legitimate birth under 24 years of age require the consent of their parents or proper guardians. Illegitimate minors under 24 years of age require the consent not only of their legal guardians but also that of the court.

4. There must be free consent of both parties.

5. Physical capacity. Permanent and incurable impotence is an impediment to marriage.

6. Moral impediments. No person who has taken holy orders which involve a solemn vow to celibacy can contract a valid marriage. Marriages between Christians and Jews are forbidden.

CONSANGUINITY AND AFFINITY.--Marriage is forbidden between ascendants and descendants, between full or half brothers and sisters, between first cousins and between uncles and nieces or aunts and nephews. The relationship may arise from legitimate or illegitimate birth.

For Jews, however, the impediment of consanguinity extends no further in the collateral line than to marriage between brother and sister or between a woman and her nephew or grandnephew.

A Roman Catholic is expressly forbidden to marry a divorced party until after the death of the latter's former consort.

PRELIMINARIES.--A valid marriage can take place only after formal publication of the banns and the solemn declaration of consent.

Banns are published by announcing the coming marriage together with the full names of both parties, their birthplace, status and residence, on three consecutive Sundays or holidays. In the case of Jews the banns must be published on three consecutive Sat.u.r.days or feast days.

CELEBRATION.--The solemn declaration of consent must generally be given before the spiritual pastor of one of the parties or before his representative. Two witnesses are necessary.

A civil marriage in which the solemn declaration of consent is given before the chief administrative official of the district, in the presence of two witnesses and a sworn secretary, is obligatory if neither party belongs to a legally recognized religious sect.

FOREIGN MARRIAGES.--The marriage of an Austrian subject in a foreign country is treated as valid in Austria if the marriage was concluded according to the laws of such foreign country, and provided that such marriage was not in contravention of the Austrian law which accepts the Roman Catholic dogma of the indissolubility of marriage except by death of one of the parties.

ILLEGITIMATE CHILDREN.--Such children are fully legitimatized by the subsequent marriage of their parents.

ROMAN CATHOLICS.--As we have noted before between Roman Catholics the bond of marriage cannot be dissolved by divorce. This rule applies even if one of the parties is converted after marriage to a non-Catholic sect.

The Austrian law provides a way by which some Roman Catholic marriages may be provisionally dissolved after what is termed a "legal declaration of death." If eighty years have elapsed since the birth of an absent spouse, and his or her place of residence has been unknown for ten years; if an absent spouse has not been heard from in thirty years; or if a spouse has been missing for three years, and was last heard of under circ.u.mstances leaving little doubt as to his or her death, then an action can be inst.i.tuted to have the absentee legally declared to be dead. Such a declaration of death will legally dissolve the marriage, leaving the spouse of the missing party free to marry again. However, should the absentee spouse ever reappear, the declaration of death and the new marriage lose all legal effect.

DIVORCE.--Non-Catholic Christians may obtain absolute divorce for the following causes:

1. Conviction of adultery, or of a crime the penalty for which could be a prison sentence of five years.

2. Malicious abandonment.

3. Severe cruelty.

4. Conduct endangering the life or health.

5. Invincible aversion on account of which both parties desire a divorce.

This need not be a mutual aversion, but it must be shown to be actual and lasting. For this cause an absolute divorce is granted only after a temporary separation from bed and board has been decreed, and the parties appear to be irreconciliable.

EFFECTS OF DIVORCE.--The woman retains the name of her husband, and both parties may remarry, with the exception that a guilty party may not marry his or her accomplice.

The guilty party loses all rights and privileges in the property of the innocent party.

As to the custody of children the court has authority to make such order as the facts and justice may require.

JEWISH DIVORCES.--Jews in Austria may obtain absolute divorce under special regulations adapted from the Mosaic law and rabbinical jurisprudence.

Marriage may be absolutely dissolved by means of a bill of divorcement given by the man to the woman, with the mutual agreement of both parties.

This cannot take effect at once, but there must be three attempts at reconciliation, either by the rabbi or by the court, or by both.

The Austrian law also permits a divorce among Jews for the proven adultery of the wife, in which case he can give her a bill of divorcement without her consent. A Jewish woman cannot obtain a divorce because of the adultery of her husband.

JUDICIAL SEPARATION.--A judicial separation may be granted for the following causes:

1. By mutual consent.

2. Conviction of either spouse for adultery or a crime.

3. Malicious abandonment.

4. Conduct endangering the life or health of spouse seeking relief.

5. Incurable disease united with danger of contagion.

6. Cruel and abusive treatment.

CHAPTER XI.

HUNGARIAN MARRIAGE AND DIVORCE LAWS.

In Hungary proper and Transylvania, together with Fiume and certain parts of the Military Boundary, the marriage law of 1894, supplemented by the Civil Registration Act of the same year, is in operation for all citizens, without regard to religious sect.