: Japanese Fairy Tales
The German Empire consists of twenty-six political States. These include
four kingdoms, six grandduchies, five duchies, seven principalities, three
free towns, and Alsace-Lorraine. With the exception of Alsace-Lorraine,
whose affairs are administered by the central imperial government, all are
This individual sovereignty of a German State is somewhat analogous to
that of a State in the A
erican 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 Constitution 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
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 constitute 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
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 (Buergerliches Gesetzbuch fuer 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 title of Family Law, that we find the
German statutes of to-day on marriage and divorce. A summary of these
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
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 sexual 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
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 petition for divorce on the
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
petitioner 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.
Petitions for divorce must be filed within six months of the time when the
petitioner acquires knowledge of the facts constituting a sufficient
The petition 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 entitled 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 entitled to it or on the death of the party bound to make such
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
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.
JUDICIAL SEPARATION.--The same causes which are sufficient for a divorce
will entitle the petitioner 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