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 DIVORCE LAW REFORM.
N the June number of the Nineteenth Century and After
there appeared an article by Sir F. A. Bosanquet, K.C.,
entitled 'The Laws of Marriage and Divorce.' In this article the
author maintained that the recent enormous increase in divorces,
in this country, was, in large part, due to certain defects and
omissions in the law of England, concerning marriage and
divorce, from which Continental legislations-and notably the
French-were free.
In particular, he laid stress on two principles which he advised
us to borrow from the French law. In the first place, marriage
should be surrounded by greater safeguards and more formalities,
rendering it less easy for young people to conclude hasty and ill-
considered unions, without the consent of their parents. 'By
the Code Civil,' he said 'a son under the age of twenty-five, or a
daughter under the age of twenty-one, cannot marry without the
consent of their parents, or at least of the father, if alive,' and
the necessity for such an authorization, up to the age of twenty-
five, for men, was, he contended, a great protection against
matrimonial imprudence. In the second place, 'in all the
countries of Europe in which a divorce a vinculo matrimonice
[.sic] exists, on the ground of adultery alone, or on the ground of
adultery, on the part of the husband, coupled with circumstances
of aggravation-at least in France, Germany, Belgium, the
Netherlands, and Portugal-it is expressly provided by the same
law which allows divorce that where, by the decree of a court
dissolving a marriage, one party is found guilty of adultery,
the spouse found guilty cannot intermarry with his or her
paramour.' This, the author of the article maintained, con-
stituted a considerable safeguard against immorality. 'In how
many cases,' he writes, 'would men and women, especially
women, he deterred from surrendering their affections to others
than their own consorts, if they knew that a dangerous
familiarity could never end in marriage. . . So long as our law
puts no check upon the marriage of adulterous paramours, so
long will ill-considered and clandestine and illegal marriages
abound.' Why, he asks, was not this excellent provision con-
484 The Law Quarterly Review. [No. CXLVII.

tained in one or other of the Divorce Bills now pending in the

House of Lords? And he concludes with the complaint that
' surely, from such great lawyers and men of so wide a knowledge
of life as the Lord Chancellor and Lord Buckmaster, something
better, in the reform of our marriage laws, might have been
expected.'
Well, perhaps the failure of the 'great lawyers' in question
thus to profit by the wisdom of the French legislator-and of
the other Continental legislators who have merely copied the
Napoleonic code-is due to the fact that those eminent jurists are
aware of a circumstance which has apparently escaped the notice
of the author of the Nineteenth Century article himself, viz. that
the principles to which he refers with such approval have long
since ceased to form part of tjhe law of France. It is, indeed, some-
times amusing to observe the extent to which legal and political
institutions resemble individuals in meeting with scant apprecia-
tion in the country of their origin, while attracting an inordinate
degree of admiration abroad.' No man-including legislators-
is a prophet in his own country. Thus, in the present instance,
both the principles which we are invited by Sir F. A. Bosanquet
to incorporate in the English law of marriage and divorce have,
for many years past, been discarded in France, having altogether
failed to achieve their purpose of preventing ill-considered
unions, or of deterring married persons from sexual immorality.
The object of this paper, however, is not merely to correct an
error of fact as to the French law. Such a correction would, in
itself, be neither conclusive nor worth while. It would not be
conclusive, because the author of the article above referred to
might retort that, though the provisions in question have been
repealed in France, they still subsist elsewhere, in legislations
modelled on the French code, 2 and being excellent, as he main-
tains, should be adopted here. It would not be worth while,
because such rectifications are of no interest to the public, unless
they throw light on the subject under discussion, and thus con-
tain a lesson. Such, however, it is submitted, is the case in the
present instance. For if it be found that the principles in
question-more especially the prohibition of the marriage of the
guilty party with his or her paramour-which are held up to our

Sainte Beuve, for instance, in one of his 'Causeries,' complains that

Montesquieu was largely responsible for the French Revolution. By the exag-
gerated picture he drew of the excellence of English institutions, the defects of
which, he says, were well known in England, he stimulated, in the French masses,
undue dissatisfaction with indigenous conditions.
' I do not profess to have investigated this point, which is not material to my
argument.
Oct., 1921) Divorce Law Reform. 485

admiration and so strongly :recommended to us by a dis-

tinguished judge for adoption here have been tried and found
wanting and finally abolished in the country where they
originated (in modern times) and were in force for many years,
the circumstance can scarcely fail to have great weight, and
should, at least, be stated for our consideration. It therefore
becomes material to examine briefly the history of these institu-
tions in modern French law.
The rule that sons under twenty-five years of age could not
contract a valid marriage without the consent of their parents,
and that even above that age such consent must be solicited
with certain prescribed formalities and at certain intervals
was part of the oriiginal Civil Code of 1804. It has, indeed,
throughout the nineteenth century, been the source of the
invalidity of innumerable marriages contracted by French-
men, both at home and abroad, with Englishwomen and other
foreigners, who were seldom aware that a Frenchman did not
attain his majority, so far as marriage was concerned, until he
had reached the age of twenty-five. In 1896, the formalities
above referred to, after the age of twenty-five, were substantially
diminished; but the age of majority remained unaltered. At
length, however, it was found that the excessive requirements of
the French law of marriage were not only frequently productive
of great hardship and injustice to foreign women but were also
prejudicial to national interests, by diminishing the number of
marriages and thus gravely affecting the birth rate-a matter
which had become of vital concern to France. Accordingly, in
1903, a Bill was introduced in the Chamber of Deputies, for the
abolition of this and numerous other provisions of the marriage
law, which were found, in practice, to be proving deterrents to
marriage. ' I1 importe,' declared the preamble of this Bill, ' que
la famille ne soit pas une somptueuse demure d'acc~s difficile,
ouverte seulement Lceux qui ne reculent ni devant les formalit6s,
ni devant les d6penses.' The Bill, therefore, placed both sexes
on a footing of equality, as regards the age of majority for mar-
riage-viz. twenty-one-and greatly simplified the formalities
in other respects, 'afin de rendre les unions lgitimes plus
faciles, moins cofiteuses et par lh m~me, plus frgquentes.' After
long discussions in committees, in the Chamber of Deputies and
in the Senate the Bill became law, four years later, and was
incorporated by the law of Tune 21, 1907, in the Civil Code, as
the existing article 148.
* The repeal of the provision concerning the marriage of
adulterers and their paramours is still older. The provision
 The Law Quarterly Review. [No. CXLVMH.

itself is a very ancient one. It existed from the earliest times

in Greece, whence it passed into the Roman law' and later into
the Canon law.4 It does not appear to have materially affected
conjugal morality throughout the ages. Possibly for this reason
the Church limited its application to re-marriages where the
adultery had been committed under a promise of marriage (on
the death of the existing husband or wife), or where one of the
parties to the existing marriage had attempted the life of the
innocent spouse. The Revolutionary law of 1792 abolished the
principle altogether, but it was restored by the" Civil Code of
1804, without the conditions of the Ecclesiastical law.
Divorce, however, as is well known, was abolished in France on
the Bourbon Restoration, by the law of May 8, 1816, and it was
not re-established till 1884, by the famous 'Loi Naquet.' During
the discussions which preceded the enactment of this latter
statute, the principle in question was vigorously attacked by
various speakers. 'Le divorce provoqug et prononc6 pour cause
d'adult~re,' said one of them, 'c'est la volont6 et le moyen do
faire cesser un 6tat scandaleux. Or, si vous 6dictez, d'une
manihre d'finitive, que celui contre lequel le divorce a 4t6 pro-
nonc6 pour adultbre ne pourra epouser son complice, c'est
comme si vous 6criviez dans la loi que le schndale ne peut
cesser, qu'il doit se perpetuer.' These reasons convinced the
Chamber, which rejected the former principle. The Senate,
however, restored it, and it -was incorporated once more in the
divorce law of July 27, 1884, becoming article 298 of the Civil
Code.
The adversaries of the principle, however, by no means
abandoned the fight, and in the course of the ensuing twenty
years the movement in favour of greater freedom in matrimonial
affairs steadily gained ground. Adultery, it was maintained,
should not constitute a perpetual .and insuperable obstacle to
human attraction and the mutual inclinations of prospective
parents-the latter doubtless being, from the legislator's
point of view, the more powerful motive. The principle of
the stability of marriage was a lesser social interest than
that of the 'inalienability of the human person,' which
should be the paramount consideration. On November 28,
1902, therefore, a measure for the repeal of the obnoxious
article 298 was introduced in the Chamber of Deputies by
Monsieur Louis Barthou, and his measure was backed by two

L. 11 and L. 40, D. 48, 3. Ad Leg. Iul. de adult.

Cap. 3, Decree Greg. 4, 7. De eo qui duxif in matrim.
Oct., 1921) Divorce Law Reform. 487

-very powerful supporters, who have since both attained to the

highest office in the State--Messieurs Poincair6 and Millerand.
They declared that ' Cette prohibition, qui 6tait destin6e bk6viter
que la possibilit6 de lggitimer, un jour ou l'autre, des relations
illicites, favorisgt les scandales et entrainft la d6sunion dans les
m6nages, n'a pas produit les ellets espgris et a prgsentg plus
d'inconvgnients gue d'avantages.' These views were strongly
supported by the Parliamentary Committee to which the Bill
was referred, the chairman of which reported that 'l'article 298
est un reste de l'esprit ancien qui voulait imposer aux coupables
une expiation par la souffrance; il est contraire 4 l'esprit moderne
qui veut laisser aux 6poux malheureux le droit de refaire leur
vie, de r~parer une premire erreur.' Both the Chamber and
the Senate endorsed these views, which resulted in the repeal of
article 298 by the law of Decemnbir 15, 1904. In the final
debate, one speaker went so far as to declare that 'le remariage,
avec son complice, du conjoint divorc6 pour cause d'adultbre
devrait, pour plus d'efficacit6, Utre non seulement permis mais
impose, la perspective d'une r~paration aussi solennelle
r~alisant la meilleure garantie de la puret6 des mceurs.'
It is probable that this somewhat drastic doctrine was enun-
ciated more in jest than in earnest, but with us, at any rate,
public opinion has, in general, endorsed the sentiment itself. So
far from disapproving of such unions and demanding their legal
prohibition, it regards it as a point of honour for the man who
has seduced a woman from the straight path of conjugal fidelity
to offer her marriage, should she desire this reparation.
MALCOLM MCILWRAITH.