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
"According to the Talmudic Law, the wife is authorized to
demand a divorce if the husband refuses to perform his
conjugal duty, if he continues to lead a disorderly life after
marriage, if he proves impotent during ten years, if he suffers
from an insupportable disease, or if he leaves the country
forever."--WESTERMARCK, 528; GLASSON, _op.
cit._, 149 ff. Consult also AMRAM, _The Jewish Law of
Divorce_, 63-77, who gives an interesting discussion of the
woman's power of divorce; and, besides the causes just named,
mentions also "refusal to support," "apostasy," "wife-beating,"
when the wife is not at fault, and "false charge of ante-nuptial
incontinence." _Cf._ LETOURNEAU, _op. cit._, 303.
II. THE FORM OF DIVORCE
The form of divorce, like the rules relating to the right and
its conditions, varies greatly among the races of mankind. Very
frequently, usually among the lowest peoples, it takes place without
any ceremony.[790] Sometimes, however, the procedure is fixed by
law or custom. A symbolical act is occasionally sufficient, as with
the east African Wazaramo, where the husband by way of divorce
hands the wife a piece of holcus reed, on receiving which she must
at once leave the house or be driven out.[791] The Unyoro husband
observes a similar rite.[792] It is likewise a private transaction
in Morocco, where the man rejects the woman by a bill of divorce.
The same procedure may be employed in China; and a three-fold
proclamation before witnesses is adequate among the Somali.[793]
In Dawan (west Timor) it takes place in a council composed of the
relations of the man and wife, where the cause is weighed and
determined; but in this assembly neither the chiefs nor the eldest
have any voice.[794] Similar councils are common among African
tribes.[795] In many instances, however, exactly the opposite rule
prevails, the decision of the "eldest," the "chiefs," or of some
other magisterial, priestly, or judicial authority being requisite
for a legal separation.[796]
[790] For examples see POST, _Familienrecht_, 258;
_idem_, _Afrikanische Jurisprudenz_, I, 452.
[791] _Ibid._, I, 452.
[792] Here the man divorces his wife by cutting in two a piece of
"Rindenstoff, von dem er eine Hälfte behält und eine Hälfte dem
Vater der Frau zuschickt."--POST, _loc. cit._
[793] MÖLLENDORFF, _Das chin. Familienrecht_, 33;
POST, _op. cit._, I, 452.
[794] POST, _Familienrecht_, 259.
[795] POST, _Afrikanische Jurisprudenz_, I, 453.
[796] In the Indian Archipelago a priest is necessary, for
instance, on the islands of Gorong and Seranglao; among the
Buginese; as also with the Makassars, where he receives 3 gulden
for his trouble: POST, _Familienrecht_, 259, 260.
III. THE LEGAL EFFECTS OF DIVORCE
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