The French Law Of Marriage And Divorce

: Japanese Fairy Tales

MARRIAGE.--A man cannot contract a marriage before he has completed his

eighteenth year and a woman until she has completed her fifteenth year.

However, the President of the Republic may grant a dispensation as to age

upon good cause appearing.



A son who has not reached the age of twenty-five, or a daughter who has

not reached the age of twenty-one, cannot marry without the consent of

their parents; but i the parents disagree between themselves the consent

of the father is sufficient.



If both the father and the mother are dead or unable to give consent the

grandparents take their place.



Sons or daughters less than twenty-one years of age, who have no parents

or grandparents, or only such as are in a condition which renders them

incapable of giving consent, cannot marry without the consent of a family

council.



IMPEDIMENTS.--Marriage is prohibited between all legitimate ascendants and

descendants in the direct line and between persons who are connected by

marriage and related in the same degree. Marriage is also prohibited

between uncle and niece and aunt and nephew. The President of the Republic

may, nevertheless, on good cause being shown, dispense with the

prohibitions contained in the Civil Code forbidding the marriage of a

brother-in-law with a sister-in-law, and the marriage between uncle and

niece, and aunt and nephew.



FORMALITIES.--A marriage must be celebrated publicly before the civil

status officer of the civil domicile of one of the parties. The officer

of the civil status before celebrating a marriage must publish the banns

twice before the door of the Maison Commune, at an interval of eight days.

The President of the Republic, and also the official whom he entrusts with

this power, may dispense, for good cause, with the second publication of

the banns.



FOREIGN MARRIAGES.--A marriage celebrated in a foreign country between

French citizens or between a French citizen and a foreigner is valid if it

is performed according to the forms customary in such country, provided

always that the marriage has been preceded by the publications of the

banns pursuant to the code.



The record of a marriage contracted in a foreign country must be

transcribed within three months of the return of the French citizen to the

territory of the Republic in the public marriage registers of his civil

domicile.



VOIDABLE MARRIAGES.--The validity of a marriage which has been contracted

without the free consent of both parties, or without the free consent of

one of them, can only be impugned by the parties themselves or by the

party whose consent was not freely given.



When there has been an honest mistake as to the personality of one of the

parties the validity of the marriage can only be impugned by the person

who was misled.



Such mistakes as to personality include mistakes as to quality as well as

to identity. For example, the Court of Cassation held in 1861 that where a

woman had been misled into marrying an ex-convict by ignorance of the

fact, the marriage was annulable.



An action for a declaration of nullity of marriage for any cause cannot be

maintained by parties to the marriage, or by the relations whose consent

was necessary, when such marriage has been ratified or confirmed knowingly

by those whose consent was necessary, or after a year has passed since

they acquired knowledge of the cause for an action without any application

to the courts for relief.



Every marriage which has not been contracted publicly, and has not been

celebrated before a competent public official, can be impugned by the

parties themselves, by their fathers and mothers, by the ascendants, and

by all who have an existing vested interest, as well as by the Public

Prosecutor.



No one can legally claim the status of husband or wife, or the effects and

privileges resulting by law from marriage, without the production of a

certificate of the marriage celebration, except in the cases provided for

by Article 46 of the code, namely, when no records have ever existed, or

the same have been lost or destroyed. In such cases the marriage may be

established by oral evidence.



The fact that by common repute the parties are married does not dispense

with the necessity of producing the record of the celebration.



However, if there are children born of two persons who have lived openly

as husband ind wife, and who are both dead, the legitimacy of their

children cannot be assailed on the sole ground that a record of their

parents' marriage is not produced.



A marriage which has been declared a nullity has, if contracted in good

faith, the civil effects of a marriage so far as the parties themselves

and their children are concerned. If only one of the parties has acted in

good faith the legal consequences of marriage only exist in favour of the

innocent party and of the children of the marriage.



The last two paragraphs, which are virtually a translation of Articles

201 and 202 of the Civil Code, are very important to foreigners who marry

French citizens.



Until a court has pronounced the marriage a nullity the marriage between a

French citizen and a foreigner celebrated abroad is binding upon the

parties, even though the exacting forms required by the French law have

not been complied with.



If an Englishwoman in good faith marries a Frenchman in London she is

entitled by French law to the civil rights of a wife, and her children the

issue of the marriage would be considered legitimate, although the

marriage had not been celebrated after the publication of banns in the

manner prescribed by the code; or the record of such celebration

transcribed within three months of the return of the French husband to

France. The foreign wife would have the same rights even if she married a

Frenchman under twenty-five years of age without the previous consent of

his parents.



Of course, such a marriage could be declared null, leaving both parties

free to marry again.



It must be always carried in mind that to constitute a valid marriage

under French law which cannot be impugned by anyone all the statutory

conditions imposed by the Civil Code must be complied with.



HUSBAND AND WIFE.--Married persons owe each other fidelity, support and

assistance. A husband owes protection to his wife. A wife owes obedience

to her husband.



A wife is obliged to live with her husband and to follow him wherever he

determines it proper to reside. A husband is obliged to receive his wife

and to provide her with all that is necessary for the requirements of

life, according to his means and condition.



A wife cannot bring a civil action without the consent of her husband,

even if she is a public trader and is not married under the system of a

community of goods and has separate property.



A wife cannot give away, convey, mortgage or acquire property, with or

without a consideration, without her husband concurring in the document by

which such transfer is made, or giving his written consent.



A woman cannot become a public trader without her husband's consent. It is

not necessary for a wife to have her husband's consent to make a will.



MARRIAGE DUTIES.--The husband and wife are mutually bound to feed, support

and educate their children.



Children are bound to support their parents and other ascendants who are

in want.



DISSOLUTION OF MARRIAGE.--A marriage is dissolved:



a. By the death of one of the parties;



b. By a divorce pronounced according to law.



SECOND MARRIAGES.--A woman cannot legally marry again until ten months

have elapsed since the dissolution of her previous marriage.





DIVORCE



CAUSES FOR DIVORCE.--



1. Either party to the marriage is entitled to a divorce on the ground of

the adultery of the other.



2. Either party is entitled to a divorce because of the cruelty or serious

insults of the one toward the other. This includes not only such violent

cruelty as endangers life, but all sorts of less serious assaults. Any

acts, words or writings by which one of the parties reflects on the honour

and good name of the other furnish cause for a divorce.



3. The fact that one of the parties has been sentenced to death,

imprisonment, penal servitude, transportation, banishment or loss of civil

rights, and is branded with infamy, entitles the other party to a divorce.



That article of the Civil Code which provided for divorce by mutual

consent, owing to incompatibility of temper, has been repealed.



DIVORCE PROCEDURE.--A party who wishes to institute a proceeding for

divorce must present the petition personally to the President of the Court

or to the judge who is acting in that capacity. If it appears that the

petitioner is unable to attend in person the President of the Court or the

judge acting as such is required to go, accompanied by his registrar, to

the residence of the petitioner.



The judge, upon seeing and hearing the petitioner and after having made

such comment as he may deem proper, will affix his order to the end of the

petition, directing the parties to appear before him on a day and at the

hour then fixed, and will direct an officer to serve the citation upon the

defendant.



It is within the judge's discretion to grant leave in the same order to

the petitioner to reside separate during the pendency of the action from

the defendant. If the petitioner be a wife, the judge may fix the place of

her temporary residence.



The next step is that upon the day appointed in the citation the judge

hears the parties in person. Upon such hearing it is the duty of the judge

to do his best to conciliate the parties. In case the parties refuse to be

conciliated, or the defendant defaults in appearance, the judge then

grants an order certifying to the fact and giving the petitioner leave to

issue a citation requiring the defendant to appear in court.



The judge has authority under the code to make such a provisional order

respecting the payment to a wife of alimony during the action or

concerning the temporary custody of the children as may be necessary and

proper.



The case is prepared, investigated and judged in the ordinary form, the

Ministere Public being heard. The Ministere Public is an official who

performs similar duties to those of a King's Proctor in England.



The petitioner can at any stage of the case change the petition for a

divorce into a petition for a judicial separation.



NEWSPAPER REPORTS.--The public press is forbidden under penalty of a fine

of from 100 to 2,000 francs to publish the evidence in divorce trials.



EFFECTS OF DIVORCE.--Parties who have been divorced cannot become husband

and wife again if either of them, after the divorce, have contracted a new

marriage since the divorce and been divorced a second time.



If parties who have been divorced wish to become husband and wife again a

new marriage is necessary. After such a remarriage no new petition for

divorce can be entertained for any cause, except that one of the parties

since the remarriage has been sentenced to a punishment which involves

corporal detention and is branded with infamy.



A divorced woman cannot remarry until ten months after the divorce has

become absolute.



Where the divorce has been granted on the ground of adultery the guilty

party can never marry the person with whom he or she was found guilty of

the offence.



CUSTODY OF CHILDREN.--The custody of the children belongs to the party in

whose favour the judgment of divorce has been pronounced, unless the court

in the interests of the children, upon the application of the family or

the Ministere Public, directs that they be entrusted to the other party or

to a third person.



Whoever may become entitled to the children's custody, the father and

mother each retain their right to superintend the maintenance and

education of their children and must contribute thereto in proportion to

their means.



JUDICIAL SEPARATION.--The same causes which are sufficient to obtain a

decree of divorce are sufficient to entitle the party to a separation from

bed and board.



When a judicial separation has lasted three years the judgment can be

changed into a decree of divorce upon the application of either party.



A judicial separation carries with it separation of property and restores

to a woman her full civil rights, so that she may buy and sell and

otherwise act as if she were a single woman.