A History of Matrimonial Institutions, Vol. 1 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 1 of 3
Howard, George Elliott
Families; Marriage -- History
[770] According to ALABASTER, _op. cit._, 190, "it would
seem that the husband can claim no marital rights, if he has been
for five years in exile, without writing to his family, and his
wife has in the meantime married again, although the law is not
clear."
[771] KOHLER, _loc. cit._, 375, 376. The woman has also
the right of divorce when the husband is a leper or becomes
such after marriage; when he is impotent; and either party may
claim the right when deceived by a false allegation in the
marriage contract: MÖLLENDORFF, _op. cit._, 32, 33;
ALABASTER, _op. cit._, 182.
See further on Chinese divorce and marriage, LEGGE,
_Life and Teachings of Confucius_, 106, _passim_; HUC,
_Chinese Empire_, II, 218-20, 262, 263; WAKE, _Marriage
and Kinship_, 229-35.
In modern Japan divorce is regulated according to the principles
of western law; but formerly the husband's power was governed, as
in China, by the rules of Confucius.[772] Furthermore, in spirit
the Aztec law of divorce bears a striking resemblance to that of
China. Only in special cases, not now understood, had the woman a
right of separation; and the husband could put away his wife only
for definite reasons, such as sterility and certain defects of
character, as when she proved herself careless, impatient, lazy,
or quarrelsome. Divorce, however, was discouraged; and even when
a legal reason was alleged, it could not be effected without a
judicial decree. The decree did not declare the separation; it
merely allowed the plaintiff in the matter "to do what he should
find good." Thus permission was given for divorce; but the judge
avoided pronouncing the separation in direct words.[773]
[772] KOHLER, "Studien aus dem japanischen Recht,"
_ZVR._, X, 449. _Cf._ WAKE, _op. cit._, 233, note;
WESTERMARCK, _op. cit._, 525; HELLWALD, _Die
mensch. Familie_, 383-86; GROSSE, _Die Formen der
Familie_, 228-31.
[773] KOHLER, "Das Recht der Azteken," _ZVR._, XI, 60;
KLEMM, _Kulturgeschichte_, V, 35. Among the Aztec Otomis
the parties could separate after the first night; but, possibly,
this is a case of proof-marriage; and in Michoacan the same rule
prevailed, if they swore that they had not "seen one another":
KOHLER, _loc. cit._, 61. The divorce laws of the Chins
or Khyengs, in farther India, are particularly interesting; and
in some respects they are similar in principle to those of the
Chinese and Aztecs: KOHLER, "Das Recht der Chins,"
_ZVR._, VI, 186 ff., 191 ff.
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