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"There is evidence of unusual care and industry in Mr. Temperley's elaborate -wi irk, by far the most comprehensive -which has yet appeared on this lengthy and important consolidating measure." - 1S|P Law Times. ^ ^ ^ *ff* A large stock of Second-hand Law Reports and Text-hooks on Sale. QJornpU Slam ^rljonl Bbtata CRITICISMS. " Mr. Kelly, an American lawyer resident in Paris, has lately published a very valuable wort on the French marriage law, which we heartily recommend to the perusal of any of our fair countrywomen, inclined to bestow themselves and their belongings on citizens of the French Eepublic. Mr. Kelly gives the text of the French law of marriage, to which is attached an excellent translation in English. The writer, also in an able disquisition on the subject, indicates the numerous difficulties attendant on marriages between French citizens and foreigners, and specifies the forms which must be observed in order to make such marriages legal in France. In short, Mr. KeUy's book thoroughly exhausts the subject, and it is moreover written without the unnecessary legal phraseology, which worries and repels the non-legal reader." — American Register, April 11th, 1885. "Students of the science of comparative jurisprudence, and persons about to marry citizens of the French Eepublic, find much useful and interesting information in Mr. Edmond Kelly's book." — Saturday Review, April 11th, 1885. " This book is an expansion of the article which first came out in the American Law Review, and it is well worth perusal by all who are interested in its subject, whether lawyers or laymen. No less than this, indeed, might be expected from Mr. Kelly's special qualifications as a barrister of a State in which the common law obtains, and a French Ucencie ; and his book quite fulfils all reasonable requirements " — The Law Times, April 25th, 1885. " His book is plainly and well written, and is interspersed with inteUigent comments His book is instructive and valuable." — The Law Journal, April 18th, 1885. " An elaborate and able comparison of the conflicting spirit of what we term the Latin and the Anglo-Saxon law of marriage " — The Manchester Guardian, AprU 27th, 1885. " The writer of the volurne before us is an American gentleman, con- nected with the New York bar, but who has evidently followed his profession for a long time in France, and seeing the cruelty resulting from the French law, has devoted a considerable amount of legal acumen, and patient re- search, to finding out what that law reaUy is " — The Liverpool Albion, May 16th, 1885. "Mr. Kelly has placed all students of private international law under a debt of obligation by the publication of this volume," — I'he Liverpool Mercury, May 19th, 1885. CRITICISMS. " Mieux que personne, M. Kelly etait en etat de pouvoir traiter le sujet aveo toute competence, car outre I'experience qu'il a pu puiser dans la pratique, a Paris, des affaires anglaises, americaines et fran9aises qu'il traite chaque jour, il est a la fois avocat amerioain et Hcencie en droit de la Faculte de Paris. " Cette connaissanoe ohez I'auteur de plusieurs legislations lui a permis de faire les rapprooliements les plus interessants entre les lois des differents pays ; les diffloultfes que prgsentent souvent les manages entre personnes de nationaUtSs diffgrentes sent nettement exposges, et les solutions appuyees de references qui leur donnent une incontestable autorite. "Une semblable 6tude devait naturellement oonduire I'auteur a traiter un certain nombre de questions de droit international; il n'a pas faiUi a cette tacbe, et cette partie de son sujet a ete trait^e par lui avec I'autorite d'un juriste distingue et d'un praticien rompu aux affaires. " En resume, le livre de M. Kelly eclaire un des cotes les plus interes- sants et aussi les plus delicats des deux legislations anglaise et fran9ai8e ; a ce titre, U a sa place m.arqu6e dans la bibUotbeque de tout bomme de loi verse dans les affaires intemationales." — Gazette de Palais et du Notariat, June 18tb, 1885. " For several years Mr. Kelly bas been engaged in tbis city in tbe successful practice of bis profession, in wbicb be bas gained a m.ost bonour- able position. Tbis book is a very able and exhaustive examination of tbe law regulating marriage, supplying a great amount of information, and illustrated by tbe opinions and decisions of tbe most eminent jurists." — Galignani's Messenger, Marcb 27tb, 1885. THE FRENCH: Ij^"W OF MARRIAGE, MARRIAGE CONTRACTS AND DIVORCE, AND THE CONFLICT OF LAWS AEISIMG THEREFROM: Bsixa A SECOND EDITION OF ''KELLY'S FEENCH LAW OF MAREIAGE," REVISED AND ENLARGED BY OLIYER E. BODINGTON, b.a. (lo^o, OF THE INNEE' TEMPLE, B AEBISTEE- AT-lAW, MEWREB OF TEE FEDEBATi BAB, T7.S.A. ; LIOENOIE EN DBOIT SE LA FACTJLTE SE PABIS. 3 LONDON: S STEVENS AND SONS, LIMITED, ^ 119 & 120, OHANOEET LANE, 1895 LONDON : PBINTED By 0. F. EOWOETH, GBEAT NEW STEEBT, TETTEE IiANE — B.C. PREFACE TO THE SECOND EDITION. In the present Edition of this Work the chapter on Divorce has been enlarged by a review of the decisions rendered since the promulgation of the Law of 1884, which being almost contemporaneous with the publica- tion of the First Edition, was then too recent to admit of a practical commentary. A chapter has also been written upon the Procedu.re of Divorce, as established by the Law of 1886. The various systems of Marriage Contract have also been classified, and an outline of the distinguishing features of each regime given. The subject of Putative Marriages continues to hold a deservedly prominent place, and has been completed by a review of recent decisions. The text and translation of the new Articles imported into the Code by the Divorce Laws of 1884 and 1886, as well as of those relating to the various systems of Contrat de Manage^ have been added; and the original IV PEEFACE TO THE SECOND EDITION. text has been generally revised and brought into harmony with existing legislation and decisions. It is believed that these additions, without enlarging the Work beyond the convenient limits of a manual, will render it more complete and enhance its value as such. OLIVER E. BODINGTON. 24, BOTJIEVAED DES OAPUCnSTES, PAEIS, August, 1895. PREFACE TO THE FIRST EDITION. An article on the French Law of Marriage, written more than a year ago, and addressed exclusively to the profession in the pages of the "American Laio Review" is found to have an interest for the puhlLo which at the time of writing was not anticipated. I have been induced, therefore, to republish this article in Europe, and have availed of the opportunity to add to it a few chapters on the conflict of laws to which the peculiar provisions of the Civil Code have given rise, in the hope that they may prove useful to students of Private International Law. They embody the result of many years' practice in Paris, and for the first time, to my knowledge, collect and classify the decisions and discussions on this subject scattered thi'ough M. Clunet's admirable " Journal du Droit International Privi," which constitutes the workshop of all those engaged in the study of the conflict of laws in France. Owing to the kindness of M. Vignaud, Secretary to the United States Legation, I have been given access to diplomatic papers which throw considerable light upon one branch of the subject treated, and through the researches of Mr. J. A. Foote, of Lincoln's Inn, London, whose work on Private International Law has been of constant use to me, and the courtesy of M. Gonse, Director of the Civil Department of the Ministry of Justice, I have been kept informed of the negotiations between the English and French Governments as to Consular certiflcates, which are destined to prevent the celebration in England of marriages which, owing to the peculiar provisions of the French Code, are subject to invalida- tion in France. While upon this subject I must particularly call attention to the fact that the evils resulting from this source have been much exaggerated. At a meeting held in Manchester* for the purpose * Manchester Guardian, Feb. 4, 1883. VI PREFACE TO THE FIRST EDITION. of enlisting sympathy in a deserving Englisli charity, and attended by men of the highest standing, statements were made and not contradicted as to the effect of the Marriage Laws of France, which cannot he suhstantiated hy reference to the law itself or decisions interpretative of that law. If one of the parties to a marriage he of French origin, it seems to have become a settled practice to refer all the domestic difficulties which may arise from it to the immoral character of the French law. An effort has been made in the following pages to state the French law as it is, and to trace it in all its worst consequences. Indeed, when the work was begun, I was under a strong prejudice against the law, and profoundly incensed at the hardships which seemed to result from it. Upon a closer study, however, of the decisions which first gave voice to public indignation, these hard- ships in great part disappeared, and I was driven to the conclusion that the griefs which have been so long cherished against France on this score must lose all that gave them poignancy, and be relegated to the familiar difficulties which abound in questions involving Private International Law. The fact, however, that the matters involved belong to the most intimate and sacred relations of life give to them a peculiar interest, and aggravate the hardships that result from conflict of law in regard to them. The steps that have been taken, therefore, to diminish the chances of their recurrence cannot be too warmly approved, nor the method of availing of them too carefully studied. EDMOND KELLY. 13, Etie Atjber, Paris. February, 1885. ( vii ) TABLE OF CONTENTS. PAGE Pbetace to Second Edition - - - - - - iii Pbeface to Fibst Edition - - - . _ . y Table of Cases -- ..-.-xv INTEODUCTION CHAPTER I. Section I. Oe the conditions precedent to the celebration oe marriage - 3 Difference between rules tliat relate to capacity and those that relate to formalities - - - - - - 3 Section n. Capacitt of the parties : Conditions essential to the validity of the marriage - - - - - - 4 Age ...---- -4 Prior Marriage - - - - - - -4 Kinship ------ -4 Connection hy Marriage - - - 4 Want of Consent of the Parties - - - - 5 Want of Consent of Parents or Ascendants - - - 5 Section m. Capacity of the parties : Conditions merely prohibitive -which do not affect the validity of the marriage - - 8 Ades Bespedueux - - - - - - - 8 Opportunities of Postponing Marriage open to Parents - - 9 Penalty inflicted on a Eegistrar in case of failure to require Proof of Service of Ades Bespedueux - - - - - 11 Widows. — Time that must elapse before Ee-marriage - - 11 Adoption. — When a bar to Marriage - - - - - 1 1 Vlll TABLE OF CONTENTS. Section IV. p^qb Oblebeation : Fokmaiities essbntiai to the validity of the marriage . . - - - - 12 Oeremoiiy must be performed by an Officier de VStat Civil. — PubUoity — difierence between Publicity and Publication - - 12 Olandestinity renders a Marriage Voidable - - - 12 Section V. Celebration : Formalities not essential to the validitt op the marriage - - - - - - --13 PubHoations that must Precede Marriage - - - - 13 Oppositions ----- --13 Section YI. Papers that must be handed to the mayor prior to the cele- bration - - - - - 13 Section VII. Place where a marriage may be celebrated - - - - 14 Controversy - - - - - . - -15 Ministerial Circular - - - - - --17 Penalty imposed on Clergymen for celebrating Marriage without prior Civil Marriage - - . - - 18 Section Vin. Oppositions or caveats - - - - - --19 Wbo may make - - - - - - -19 Under what circumstances - - _ - - 20 When may be disregarded - - - - - 2I Section IX. Actions to annul a marriage - - - - --21 Difference between a Marriage that is Void and one that is merely Voidable - - - - - - - -21 Classified according to the class of Persons by whom the Action may be brought, and under what conditions - - - - 26 Section X. Breach of promise of marriage - - - - - 28 TABLE OF CONTENTS. IX CHAPTEE II. VALIDITY OF MAER1A.GES OF FRENCH CITIZENS ABROAD. — PUTATIVE MARRIAGES. Section I. „.„„ Capacity of French citizens determined by law of France - - 30 Capacity, how the question presents itself - - . _ 30 Capacity determined by Zea; PaiWce- - - - - 30 Consent of Parents necessary to Capacity - - 30 Publication may become essential to Validity of Marriage - - 31 Section II. Putative mabeiages - - - - - -.35 In what case the theory of, is applicable - - - 35 Controversy - - -- - - --37 Oases thereon reviewed - - - - - - 41 Section III. Steps taken by the British govebnment to secure the validity op marriages celebrated between erench citizens in ENGLAND - - - - - - -49 Notice to Eegistrars - - - - - --49 Consular Certificates - - - - - - 50 Section IV. Marriages contracted abroad between persons who are both of them citizens oe prance - - - - - 51 Delamarre v. Delamarre - - - - - - 52 Section V. Orvii eefeots oe a putative marriage - - - 53 Section VI. Transcription of foreign record in francb - - - - 54 Effect of omission ----- - 56 CHAPTEE ni. MARRIAGE OF AMERICAN CITIZENS OR ENGLISH SUBJECTS IN PRANCE. Section I. Capacity determined by the Lex Patrice - - - - 57 Capacity determined by Certificate of competent authority legalized by the Ambassador - - - - - --57 Controversy. — Lawrence v. Wheaton criticized - - - 58 Certificata de coutv/me - - - - - --61 X TABLE OP CONTENTS. Section II. paqb Of mabeiages oelebeated in eranoe at the beitish oe ameeioan embassies - - - - - " -64 Is the principle of exterritoriality applicable to the case ? . - 64 Of maeeiases oelebeated at the beitish embassy - - - 65 Especially provided for by Act of Parliameiit - - - - 65 Mixed Marriages ----- - 65 VaUdity of Celebration of Mixed Marriages at Embassy, doubtful cases discussed - - - - " --66 Between English Subjects valid - - - - - 67 Majeieiages oelebeated at the innTED states embassy - - - 68 Letter of Mr. Vignaud to Mr. Whiteing - - - - 68 Diplomatic Correspondence ----- 68 Mr. Moreau's Opinion - - - - - - 69 Point of Constitutional Law involved - - - - - 70 Mr. Eish's Criticism of it unjustified - - - - 71 Consular Marriages - - - - - --71 Dangers attending - - - - - " -71 Validity of Marriages already celebrated before American Ministers and Consuls - - - - - - --72 CHAPTER IV. OF SOME OF THE CONSEQUENCES OF MAKEIAGE UNDEE FEENCH LAW. Section I. Support due by Parents-in-law to their Children-in-law, and vice versa - - - - - - - -73 Eefusal of United States Court to enforce the rule in do Brimont v. Penniman -------74 Section n. Disabilities OEMAEEiED WOMEN UNDEE PEENCH LAW- - - 75 Section in. Disabilities of alien maeeied women in feancb - - - 75 Exception as to Eeal Estate- - - - - 76 Possible Controversy - - - - - --76 Is private International Law a part of Municipal Law ? - 77 Should French Courts apply to Aliens the rule of private Inter- national Law of their country to questions of Capacity, or its own ?- - - - - - - --78 Frederic Harrison's view - - - - - - 77 Edouard Clunet's view - - - - - --79 Forgo case - - - - - - - -79 Bigwood V. Bigwood ----- - 80 TABLE OF CONTENTS. xi OHAPTEE V. PROPERTY AS AFFECTED BY MARRIAGE. PAOE 89 90 Section I. Undek a contkat de maeiage - - - - - -81 Distiiiction between contrat and settlement - - . . 81 General Eules governing aU regimes - - - - 81 I. Eegime de la communaitte - - - - - 82 Assets of - - . . . . -83 Liabilities of - - . - - - 83 Administration of - - . - . - 85 Dissolution of- - - - - -_87 Contractual variations of . - - 88 II. Eegime de non-commttnaitte - - - ni. SEPAEATIOir DE BIENS - - - - - rV". Eegime dotal - - - - _ . 9j Constitution of the Dot - - - - - 92 Eights of Wife - - - - - --93 Eights of Husband - - - - - 94 Inalienability of Dotal Eealty - - - . - 95 Eestitution of Dot - - - _ - - 97 Legal Mortgage - - - - - ..98 Paraphernal Property - - - - - - 98 Notice of Contract to third Parties - - - - _ 99 The Doctrine of Necessaries - - - - 99 Section n. In the absence oe a contbat de mabiage - - - - 100 Presumption of the Code regarding Community - - . 100 Character of the BSgime de la Oommunaute Legale - - - 101 How dissolved ------_ loi Does Presumption apply to Aliens - - - - - loi Conflict between Lex Domicilii and Lex Patrice - - _ 102 Conflict between the Matrimonial Domicile and that of the Husband 102 Three theories - - - - - - __ 102 The one adopted in France ------ 103 Intention of the parties - - - - - --103 How it should be expressed - - - - - -103 Not necessarily in Marriage Contract - - - - - 103 Droits d' Enregistrement -_-.__ 104 How avoided - - - - - - .- 104 Declaration to be made to Eegistrar - - . . io4 Mixed Marriages - - - - - - - 105 Inability of Parent to make a donation of more than a limited part of his estate ------_ 105 Eeduction of Dot which may result in consequence - - - 106 Treacherousness of the Prench Law in this respect - - - 106 XU TABLE OF CONTENTS. CHAPTER VI. PAGE The effect of change of domicile upon propebtt relations - - 107 Italian and English. Systems compared _ . - - 108 Englisli System, criticized - - - - - - 108 French. Code foUows the Italian System - - - - 108 Louisiana decisions discussed - - - - - - 109 New York disposed to follow Italian System . - - 110 Bonati v. Welch - - 110 CHAPTEE VII. Of the effect of mabeiage on nationality - - - - 115 French Nationality lost hy a Frenchwoman on marrying an Alien- 115 French Nationality gained by Alien Woman on marrying a Frenchman - - - - - - -- 115 English Eule - - - - - - - 116 American Eule - - - . . 116 Eecovery of French Nationality on Widowhood - - - 117 Eecovery of English NationaKty on Widowhood - 117 Eecovery of American Nationality on Widowhood - - - 117 How such Eecoyery aflects Eights of Dower and Inheritance - - 118 Possible Conflict of Laws - - - - - 118 How to avoid such Conflict - - - - - 119 CHAPTEE Vm. OF SEPARATION AND DIVORCE. Section I. GbOUNDS of DIVOECE ------- 121 Adultery - - . ... 121 Exces, sevicea, injures - - - - - -122 Verbal or written Injuries - - - - - - 123 Material Injuries - - - ... ^23 Section II. PEOCEDTmE - ..... 124 Petition .... j^24 Provisional measures - - . . . _ 125 1. Separate Residence - . . . . ^25 2. Alimony ^enc?enie lite - . . 126 3. Delivery of Personal Effects . . . 126 4. Custody of Children - - - - . 126 Evidence .....___ -1^27 ■Appeal - - 128 Transcription of Decree -----. 128 TABLE OF CONTENTS. XIU Section ni. ^^^^ Effects of DrvoscE - - - - - --129 Ee-mairiage _._.___ 129 Name ----..... 130 Property - - - - - - - -130 Permanent Oustody of Oliildren - - - - - 131 Section IV. Sepaeation - ... --132 Section V. DrVOECE OF AlilENS - - - .... I34 French Courts iave generally no jurisdiction over - - 134 But th.ey have as to Provisional Measures - - - - 135 CHAPTEE IX. Oeiticai oompabison of feenoh law of maebiaqe with oub own - 137 French Law founded on the Fatria potestas of the Eoman Law- - 137 Ethical Differences - - - - - - - 138 Practical Differences - - - - - --139 Law based on Artificial as distinguished from Law based upon Natural Domestic Eelations - - - - 141 Codification 142 EXTEACTS OF FEENCH CIVIL CODE BEAKING ON MAEBIAGE, MAEEIAGB CONTBACTS AND DirOBOE, WITH TEANSLATION - .... 143 — 245 Appendix A .... ... 247 Appendix B-------- 255 Appendix C _..-..-- 259 INDEX - - 269 ( ^y ) TABLE OF CASES CITED. Abazaet?. Lb^e v. Dimsday LhSrie Aubert v. Gambarutti Bachili v. Eooher de Barante v. Grott . de Barbe Marbois Beck V. MoGriUis . Bigwood V. Bigwood . Bonati v. "Welob . de Biimont v. Feimiman Castel V. Baiakat . Cbabannes v. Colombet CbenkoriE . Couturier v. Baniqoaad Crosby v. Berger . Deoonobe v. Savetier . Delamarre v. Delamaire . Delapierre v. Maire de Dampierre Desaye v. Clement . Dessaint v. Belgrave . Deyme v. Deyme . Dreyton v. Dreyton Forgo Ditcbl v. Domaines . Gallois V. Deacon Grleize v. Gleize G-odin V. Godin Gonz V. de Backer . Gouz^ne t>. Gazalas Gtianoiix v. Granoux FAaB . 45 . 12 55 110 68 115 80 110 74 105, 109 . 34 . . 64 . 12 . . 110 110 62 16 34 43 33 173 79 41 66 45 33 34 150 Harteau v. Harteau 112 Lejunie v. Lejunie . Levy V. Levy and Brag 25 6 XVI TABLE OF CASES CITED. Mauchien v. Macdonald and Lesieur Meux V. Erie . Montrouge Marriages Passard. Paumier v. Jonard . Pequiguot v. City of Detroit . Pertreis v. Tondear Peyrousae v. Lanes Pioot V. Pioot Satd V. his creditors Soliielotto V. Sohielotto Shanks v. Dupont Stem V. Stem St. Miguel . 76 109 , , 75 . 44,46 44 34 116 • 64 160 . . 76 . 109 . 164 . 115, 118 • 135 44 THE FRENCH LAW OF MARRIAGE. INTRODUCTION. In no respect does the spirit of French law differ more radically from that of our own than in relation to marriage. So great indeed is the divergence that a widespread knowledge of it is desirable in view of the frequency of intermarriage between citizens of the two countries, and the irremediable evils which a very excusable ignorance on the subject is likely to occasion. The intention of this work is to explain so much of the French Law of Marriage and the property relations resulting therefrom as is necessary in order to bring into relief the points upon which that law differs from our own ,• and although this aim cannot be attained without a more or less systematic exposition of the French law, an exhaustive treatment of the subject in all its details will not be attempted. We shall begin by examining what are the conditions essential to the validity of a marriage; within what limits they are essential to it ; under what conditions they may be invoked in order to invalidate a marriage contracted in disregard of them ; we shall study a few of the more important international questions to which a treatment of the subject naturally gives rise ; and F. a 2 THE FRENCH LAW OP MARKIAGE. particularly how far the French law protects innocent parties who have ignorantly and in good faith failed to comply therewith. The exceptional provision of the Civil Code as regards the obligations which result from marriage and the effect of marriage upon property will then be pointed out; and, in conclusion, the French theory of domestic relations will be compared with our own, and the divergence studied in its ethical and practical effects upon society. CHAPTER I. SECTION I. Op the conditions peecedent to the celebration OF MAEEIAGE. The celebration of marriage is subjected by the Code to two sets of rules : — Those that relate to the capacity of the parties thereto ; Those that relate to the formalities of the ceremony. The latter are the same for all persons ; the former vary with the status of the parties to the marriage. Thus, the manner of celebration, and the person before whom the marriage is to be celebrated, are matters of formality; whereas the age of the party and the consent of parents refer to the capacity of the persons contracting marriage. It is important at the outset to distinguish clearly between these two sets of rules, because those relating to capacity are the same for Frenchmen in whatever country they may be, whereas those relating to formality are only binding within French territory. Each of these categories is again divisible into two classes : those that are and those that are not necessary to the validity of the marriage. For example, a marriage contracted by a Frenchman under eighteen years of age is absolutely void ; it is deemed never to have existed ; whereas a marriage contracted by a Frenchman over twenty-five, without the consent of his parents, is valid ; but the officer celebrating such a marriage is punished by a fine and imprisonment. It b2 CAPACITY OF THE PARTIES. can only be declared void in case it is associated witli defective publicity amounting to clandestinity. We shall study first the rules that relate to the capacity of the parties, and compliance with which is essential to its validity. SECTION n. Capacity op the parties : conditions essential to the VALIDITY OF THE MAREIAGE. 1. Age. — The man must be over eighteen and the woman over fifteen years of age. 2. Prior Marriage. — There must be no prior undissolved marriage. 3. Kinship. — Kinship between the parties is a bar, in direct line, of every degree ; in collateral line, of the third degree, i.e.^ brother and sister, uncle and niece, aunt and nephew. But an illegitimate relationship of uncle and niece, aunt and nephew, does not constitute a bar to marriage, an illegitimate child not being deemed to have any relatives in the ascending line other than his father and mother. 4. Connection ly Marriage in direct line or with deceased wife's sister or deceased husband's brother (legitimate or natural) is also a bar. Dispensations may be given by the government upon the recommendation of the Minister of Justice in cases of aunt and nephew, uncle and niece, deceased wife's sister and deceased husband's brother. But it is the rule of the government to refuse such applications if founded upon the pregnancy of the woman, which, although in itself the strongest reason for such a dispensation, nevertheless displays a disregard CAPACITY OF THE PARTIES. 5 for the sanctity of domestic relations which the practice of granting dispensations would only tend to encourage- 5. Want of Consent of the Parties, i. e., where consent is absent or unconscious or is vitiated by duress or mis- take. The consequences of this want of consent upon the marriage are fully treated below (pp. 21 e# seq.). 6. Want of Consent of Parents or Ascendants. — The ex- ceptional provisions of the Civil Code in this respect require careful attention. Although both sexes attain ordinary majority at twenty-one years of age, a man cannot marry without permission until he is twenty-five years of age ; and even after he has attained that age, so long as a parent or ascendant survives him, he has, in the absence of permission, to perform certain formalities that are more fully set forth below. But after the ages of twenty-five and twenty-one respectively, the absence of consent of parents does not of itself afPect the validity of the marriage. The persons whose permission is necessary under the circumstances above mentioned are, primarily, the parents, if they be alive, the decision of the father pre- vailing in case of dissent between them ; that of the survivor of the parents being sufficient if one be dead. In case both parents are dead, the permission rests with the ascendants. Several cases may present themselves in case the consent rests with the ascendants. In case there subsist only ascendants in one line, that is to say, either on the father's or the mother's side, three cases may arise : — If only one ascendant is alive, his consent is suffi- cient. If two are alive of unequal degree, as for example a grandmother and a great-grandfather, nearness of degree prevails over considerations of sex ; so that, in case of dissent, the opinion of the grandmother would prevail. 6 CAPACITY OF THE PARTIES. If two are alive of equal degree, the opinion of the male sex prevails over that of the female. In case there are ascendants in both lines two cases may arise : — Thej are of equal degree : In such case the opinion of the male prevails over that of the female in each line ; but the consent of either line is sufficient to allow the marriage. So that a grandmother of the maternal line can, by consenting to a marriage, allow its celebration, although both the grandfather and the grandmother of the paternal line oppose it. They are of unequal degree : In such case difference of degree, though still admitted to determine the opinion of one line, is not determinative as between the two lines ; thus, the consent of a great-grandmother of the maternal line is sufficient to enable the marriage, in spite of the opposition of the grandfather of the paternal line. To sum up : In the same line the nearest degree pre- vails over the more remote, irrespective of sex; and where the degrees are equal the male sex prevails over the female. But as between different lines, neither sex nor nearness of degree are considered. The consent Of one line, though represented by a remote female, is suffi- cient to allow the marriage in spite of the opposition of the other line, however numerous and whatever be their degree or sex. A recent instance of the inflexible application of the rules of French Law as to consent of parents — an almost ludicrous one indeed in Anglo-Saxon eyes — is that of Michel Levy v. Veuve Levy Sj- Veuve Brag [a). Michel Ldvy had no parents, but had two grandmothers living, paternal and maternal, the widow L^vy and the widow Brag. He was married in England, his marriage being duly preceded by publications and duly followed by transcription in France. But alas ! he failed to (a) Gazette du Palais, 1894, I., p. 244. CAPACITY OF THE PARTIES. 7 remember that not having then attained his twenty-fifth year the consent of his grandmothers was a necessary precedent condition to the validity of the marriage. Nemesis qtdckly followed in the shape of a petition for nullity of the marriage introduced by the two ladies, who prevailed before the lower court. But before the case came to trial upon appeal the widow Brag relented, . withdrew her petition, and ratified the marriage. The court then applied Article 150 of the Code, which pro- vides that in case of disagreement between the two branches, such disagreement shall be equivalent to consent; and holding that subsequent ratification is equivalent to prior consent within the meaning of that section, reversed the decision of the court below and sustained the marriage. It is indispensable in all cases when the nearer parent is unable, by death or otherwise, to give his consent, to properly establish the fact by a certificate of death or acte de notoriete. (As to the nature of this instrument, see below the note to Article 70 of the Code.) In the absence of parents and ascendants, minors must obtain the consent of the family council. But in such case minority terminates on the completion of the twenty- first year. Natural children who have been recognized by their parents are subject to the above provisions, except as regards grand and great-grand-parents, — a relation which does not exist for natural children ; but if they have lost their parents, or if they have not been recognized, they must, up to the age of twenty-one, obtain the consent of a guardian ad hoc appointed by the council of persons which is provided by law as a substitute for the family council. The above rules, compliance with which is, as al- ready stated, essential to the validity of a marriage, refer exclusively to the capacity of the parties. Before passing to the other class of rules that provide for the 8 CAPACITY OF THE PAKTIESi formalities necessary to constitute a valid marriage, it will be wise to dispose of the other conditions of capacity which, though not essential to validity, are hedged about with penalties that make a disregard of them in France practically unknown, and furnish an additional obstacle to those desiring to marry. SECTION in. Capacity of the paeties : conditions meeely peohibitive, WHICH do not affect THE VALIDITY OF THE MAEEIAGE. Actes Respectueux. — A woman of over twenty-one and under twenty-five and a man of over twenty-five and under thirty must, before marriage, either secure the consent of their parents or ascendants as above de- scribed, or serve upon them by two notaries, or one notary and two witnesses, three actes respectueux, that is to say, petitions couched "in formal and respectful terms," soliciting the consent which they have been otherwise unable to obtain. There must be an interval of one month between each. ' One month after the last of these has been served, the marriage may take place, even in the absence of the consent solicited. Even past the limit of age above mentioned, as long as a parent or ascendant survives, one such petition must still be served, and the marriage cannot be celebrated until a month has expired since the date of service {h). Up to the age, therefore, of twenty-one years for women and twenty-five for men no valid marriage can be celebrated without the parental consent. Between the ages of twenty-one and twenty-five for women, and (6) Arts. 152 and 153. CAPACITY OP THE PAETIES. 9 twenty-five and thirty for men, three actes respectueux must be served with an interval of one month between each service ; and even beyond those ages, so long as a parent or ascendant survives, one acte respectueux must be served, and one month must intervene between the service and the celebration. The period during which a parent may delay the marriage of a son or daughter, whatever be his or her age, must not be understood to be limited to three months in one case and one month in the other. It can be extended to upwards of two years by the following device, practised whenever a stubborn parent is disposed to exhaust his resources in opposing a marriage of which he does not approve : Though the party to the marriage be sixty years of age, if either of his parents is still alive, he must begin by serving upon that parent an acte respectueux as above stated. Upon the last day of the month which has then to expire, before the celebration, the parent may bring an action to have the acte declared void upon an alleged error of form. However unfounded the allegation, it will serve to postpone the marriage until it has been so declared by a competent court. The parent, in order to protract this period of postponement, will fail to appear when the case comes to a hearing ; judgment will be rendered against him by default. Upon service of the judgment he will be entitled to a stay of execution, and to enter an appearance as a matter of right. Upon the second hearing, he will fail to defend, and judgment will be again rendered against him by default, against which he will appeal as of right, the appeal operating as a stay of execution. Upon first hearing on appeal, new default by parent ; new stay of execution and entry of appear- ance by defendant; at last, final judgment by Court of Appeal. All delay resulting from this action being exhausted, the parent will then serve upon the cele- brating officer an opposition to the performance of the ceremony, the which, until declared invalid by a com- 10 CAPACITY OF THE PARTIES, petent court, the celebrating officer is bound to respect. A new procedure will ensue similar to that first men- tioned, including default and appeal. Finally, the parent will begin an action to have a " committee of lunacy " appointed for his son, and will serve a copy of the papers on the celebrating officer, who will not be free to proceed with the marriage until the case has reached a final adjudication. How inconsistent with the real relations of the parties the working of this provision may be will be illustrated by supposing that the late M. Grambetta, who was un- doubtedly at the time of his death the most powerful man intellectually and politically in France, had desired to marry, and that his father who survived had opposed the marriage. The spectacle of a mayor declining to celebrate the marriage because a father in his dotage opposed it ; of a court solemnly entertaining the question whether or not the Premier of the country was so insane as to be unable to select a wife ; of that Minister, although controlling the destinies of the country, never- theless incapacitated by the law of that country from deciding a question so intimate and personal as that of his own marriage, is one which is entirely within the possibilities provided by the French Code. It seems then that a parent may practically postpone a marriage during a period of about two years, although the Code expressly provides for a delay of only three months under the age of thirty, and of only one month after that age. French jurists are wont to admire the prudence of this system, the main intention of which is to produce delay. But it may be well to consider in this connection whether it is reasonable to presume that the folly of youth is likely to outlive thirty years ; whether the tenacity of its purpose is likely to be measured by three months before and by one month after that age ; whether parental control enforced by legislation is a CAPACITY OF THE PARTIES. 11 good thing for a man to that extent matured ; whether, in fine, filial piety does not lose more than it gains Iby a system which, in a purely domestic matter, forcibly interposes between a white-haired father and a gray- haired son, a notary, two witnesses and a challenge couched "in formal and respectful terms," especially in view of the fact that this procedure is but a prelude to an act of flagrant disobedience which the law implicitly approves, and the parent is powerless ultimately to prevent. A mayor who neglects to require proof of the service of these actes respectueux is punished by a fine of 16 francs to 300 francs and by imprisonment of not less than one month. In the face of this penalty the above formality is not likely to be dispensed with in France. Widows. — A widow may not contract a new marriage until ten months after the decease of her former husband; the intention being to avoid all possibility of doubt as to the paternity of her offspring. Adoption. — ^Adoption is a bar to marriage between the party adopting and the party adopted or his issue; between different persons adopted by the same person ; the party adopted and children of the adopting party ; and between the adopted and the wife of the adopter, or between the adopter and the widow of the adopted. Such are the rules that control the capacity of a party to contract marriage. We have next to consider the rules laid down as to the formalities of the ceremony. 12 FORMALITIES OF CELEBEATION. SECTION IV. Celebration : formalities essential to the validity of the marriage. The celebration must be performed by an offieier de Veiat civile tbat is to say, by a mayor or his deputy. The celebration must be public. Publicity consists of a public celebration by the proper officer at the mairie in the presence of four witnesses. Publicity, however, is a question of fact for the deter- mination of the court, and the exact limits of it have given rise to some delicate questions. It has been decided that the marriage need not be celebrated at the mairie^ but that if celebrated at a private house the doors should be thrown open(c). Grenerally, however, the publicity is deemed sufficient, provided it eliminates the possibility of the celebration having been clandestine. The publi- cations provided by Articles 63 and 64 form an essential part of the whole question of publicity, but are treated separately under another heading : because, forming as they do only a part of the question, the mere absence of publication unaccompanied by facts tending to show clandestinity is not sufficient to annul a marriage, whereas absence of publicity is absolutely fatal whether accompanied by such facts or not. As a recent instance of a valid marriage not preceded by publications, see the case of Auhert v. Gambarutti (d). Clandestinity is likewise a question of fact for the court (e). (c) Agen, 28 January, 1857. S. 57, II. 215. (d) Gazette du Palais, 1894, I. Supp. p. 8. (e) Epoux Michel Couturier v. Veuve Michel Barriquaud, Gazette du Palais, 1894, I. 387. FORMALITIES OF CELEBRATION. 13 SECTION V. Celebration: formalities not essential to the VALIDITY OP the MARRIAGE. Publication that must Precede Marriage. — Upon the request of the parties, the mayor should publish upon two successive Sundays prior to the celebration, the Christian and surnames, professions and domiciles of the parties, whether major or minor, and the Christian and surnames, professions and domiciles of their parents. This publication should be recorded, and the record should state the times and places where the publications have been made. The celebration cannot take place before the third day (i.e., the Wednesday) after the second publication. It cannot take place more than a year from that Wednes- day. In case the latter period has expired, new publica- tions must be made. Oppositions. — The celebrating officer having no juris- diction to determine upon the merits of a caveat or opposition to the marriage received by him, must post- pone the celebration until such opposition is vacated ; but if he should celebrate it notwithstanding, the exist- ence of the opposition does not of itself invalidate the marriage. SECTION yi. Papers that must be handed to the mayor prior to the celebration. Certificates of birth of each of the parties, or, in their absence, actes de notoriite. The formalities attending 14 PLACE OF CELEBEATION, the drawing up of an acte de notorUU are fully set forth in Arts. 70, 71, and 72, pp. 148 and 149(/). Notarial declarations of consent, executed by the proper parties. Certificates setting forth the decease of such parties, whose consent is not produced, and whose consent would otherwise have been necessary. Certificates of death of prior husband or wife, in case of second marriage. Certificates of the proper authorities to the effect that the proper publications have been made, that no oppo- sitions have been filed, or, if they have been filed, that they have been withdrawn. A certificate of the notary before whom the marriage contract, if any, has been executed. A certificate to the effect that the man, if under thirty, has satisfied the law as to military service. In the case of British subjects and American citizens, these requirements undergo some modification, particu- larly in respect of the evidence required in the absence of a certificate of birth and as to the consent of parents and publication abroad. These peculiar requirements will be fully dealt with in the chapter relating to the marriage of British subjects and American citizens in France. SECTION VII. Place where a maeeiage may be celebeated. Before leaving that part of the subject which treats of the rules relating to the celebration of marriage. (/) See p. 61. PLACE OF CELEBRATION. 15 we should pause a moment to discuss the somewhat ambiguous terms of Articles 74 and 165 as regards the residence necessary therefor. Article 74 provides that marriage is to be celebrated at the place where one of the parties is domiciled, and adds that this domicile is acquired as regards marriage by six months' residence. Article 165, however, is silent as to the six months' residence, and enacts simply that the mai^riage shall be celebrated at the domicile of one of the parties. The question arises whether or not six months' domicile is obligatory, or whether a person may be married at his legal domicile without six months' actual residence. For example, a bachelor not un- commonly retains a legal domicile at the home of his parents, whereas he actually resides at the place where his occupations call him. Can he be married at his legal domicile though he may not have resided there during the six months immediately preceding his marriage ? The question has given rise to the following four theories : — According to the first, a marriage can only be cele- brated in case there has been a continuous residence of six months immediately preceding celebration. Under this interpretation the Code is supposed to have limited the domicile in case of marriage to that which has been acquired by six months' residence. Under the second theory, the marriage may be cele- brated in any place where a residence of six months has been once estabKshed, whether these six months imme- diately preceded the celebration or not. Under the third, the marriage can be celebrated either at the place where a residence of six months is established or at the original domicile ; but in case the party has abandoned the original domicile, or left nothing in the shape of relations or business connections to associate him with the original domicile, he will be called upon to 16 PLACE OF CELEBRATION. reside six months in order to be able to contract marriage there. Under the fourth opinion, marriage can be celebrated indifPerently at the place where a residence of six months is established or at the legal domicile, nor need the party show that he is still bound thereto by any bonds whether of kinship or profession. Although all of these theories find supporters, the highest authorities appear to unite in approving the last. The last theory has also been adopted by the courts (g). Their argument is chiefly drawn from the fact that any other would render inexplicable that part of Article 167 which provides that, " nevertheless, if the actual domicile is only estabKshed by a residence of six months, notice shall be published besides at the town-hall of the last domicile." The word "nevertheless" indicates an excep- tional case, whereas the first three theories, by deciding that marriage can only be celebrated at the place where a residence of six months has been established, do not admit the possibility of the general rule, an exception to which is especially provided for in Article 167. Moreover they point out that in case two persons have left their original domicile and only resided a week in the new, the first three systems would make it impossible for these persons to be married until they had resided six months in the place to which they had moved. This would necessitate a delay which might produce scandalous and irreparable results. Not only are the highest authorities agreed upon the adoption of the last of the four theories proposed, but it is this last which has been adopted by the registrars; and it may therefore be stated to be the general rule that a person can be married either at his original (ff) Dlle. Delapierre v. Maire de Dampierre, Gazette du Palais, 12-13 Sept. 1890. See also Gazette du Palais, 1884, I. 463, and 1884, II. 163. PLACE OF CELEBEATION. 17 domicile or at any place where he has resided six months prior to the celebration. By this interpretation all possibility of inconvenience is avoided so far as French citizens are concerned ; but when the parties are aliens, the legal domicile of the parties being abroad, the six months' residence becomes indispensable, and is frequently a serious difficulty. If the aliens are of Spanish nationaKty there is absolutely no recourse for them but either to wait six months in France or go to some other place where the laws are less exacting, those of Spain being quite as rigorous as those of France. The provisions of the French Code therefore on this subject cannot be mitigated by reference to the laws of the country to which the parties belong. With respect to American citizens and British subjects the situation is somewhat different ; for in those arron- dissements where mixed marriages frequently take place, the secretaries who have practically the decision of these matters, are occasionally willing to avail themselves of the legislation of the country to which the parties belong in order to avoid the delays which would result from a strict conformity with the provisions of the French Code. A ministerial circular of the 14th March, 1831, con- tributes to render this possible by providing that the alien who is of age, but has not acquired a domicile in France by a residence of more than six months, is bound to have notices of the proposed marriage pub- lished according to law at his last domicile abroad. Where the laws of the State to which the parties belong have failed to provide any system under which such notices can be published, as is almost universally the case where one of the parties is a citizen of the United States, and it is impossible to carry out either the provisions of the Code or the instructions of the minis- terial circular, the parties will find themselves unable to marry in France, unless one of them has acquired there a residence of six months. In those arrondissements, 18 PLACE OF CELteBEATION. in which mixed marriages are frequent, the registrars formerly did not decline tb celebrate marriage between American citizens, even in the absence of a six months' domicile, provided the Americans furnished a certificate from their Minister, certifying that publications are not required or possible under the law of the State to which they belong. This perinission was granted as a courtesy, and not as a right, and it has of recent years become the practice of the registrars to insist on the letter of the Code, and to require evidence of a six months' residence immediately prior to the celebration by one of the parties. This evidence takes the form of a certificate by the landlord of the house, or by the concierge as the land- lord's agent. The legal aspect of this question is more fully treated in Chapter III. In a great many cases Americans have been prevented from celebrating marriages by these obstacles, and some- times under circumstances which rendered such a result greatly to be deplored. Unfortunately willingness to repair the injury which results from seduction is not apt to fight hard against legal obstacles ; and the foreign clergy in Paris will testify to the fact that their inability to celebrate marriage in France without the previous celebration at the mairie and the six months' residence there required {h) has left many a betrayed woman without a husband and her child without a father. (Ji) The Penal Code contains tlie following provisions on this sub- ject :— "Art. 199. Every clergyman who performs a religious marriage ceremony, without having exacted a certificate of prior celebration by a registrar, shall for the first offence be punished by a fine of from sixteen to two hundred francs. " Art. 200. In case of renewed violations of the provisions contained in the preceding section, the clergyman who shall have been guUty thereof shall be punished as follows : — " For a second offence, by imprisonment from two to five days. " For a third offence, by detention." Detention is imprisonment in a fortress for a period of not less than five or more than twenty years, and is attended by civil degradatiai. PLACE OP CELEBRATION. 19 In case the fact of a six months' residence cannot be proved in any one arrondissement, in consequence of the party having changed his residence from one arrondisse- ment to another, the registrar, who is called upon to celebrate the marriage, causes notices to be published, not only in his arrondissement, but in that from which the party has moved ; the different arrondissements of Paris being deemed part of the same commune, and residence in one being deemed constructively residence in all. The question of domicile is important, also, as deter- mining the various places where publication must be made. The law has exacted that the publication be made in every place where the marriage could have taken place, and at the domicile of each person whose consent is necessary to the marriage. Eight publications may thus become necessary on the theory that marriage may be celebrated at the legal domicile irrespective of six months' residence, for the parents may each have a separate domicile, and each one of the parties may have a legal domicile and one acquired by six months' residence. SECTION VIII. " Oppositions " or caveats. The celebration of a marriage may be arrested by the service on the celebrating officer of a caveat called in French law opposition — already referred to. The publications prior to marriage are for the express purpose of giving an opportunity of opposing the same to those who possess the right to do so. This right belongs to : — A party to an existing marriage with one of the parties ; c2 20 OPPOSITIONS. The parents, grand and great-grand parents ; Brothers, sisters, uncles, aunts, and cousins ; The guardian or curator. The right of the first two classes is absolute ; a party to an existing marriage has but to present himself and prove the existing marriage in order to render a second one impossible. The right of the second class is equally- absolute. Parents are not even bound to allege any- particular reason ; they have practically but to say : Sit pro ratione voluntas ; and although their mere will cannot prevent the marriage, if the parties have attained mar- riage majority, it will retard it, for the existence of an opposition duly filed makes it impossible for the mayor to proceed with its celebration until it has been with- drawn, and an obstinate parent can, by thus compelling an appeal to the courts, occasion the delay that has been already referred to (^'). The right of the third and fourth classes is limited to two cases, i.e., when the consent of the family council has not been obtained, and when one of the parties is alleged to be insane ; in the latter case the opposition must be accompanied by an action for interdiction (k), upon the result of which the celebration must wait. The right of the guardian or curator to oppose the marriage is further limited by the necessity of obtaining the consent of the family council. Oppositions filed by any other parties may be dis- regarded unless they state facts which clearly make the marriage impossible. In such case the mayor would be liable to punishment for knowingly celebrating a marriage forbidden by law. But it is only when the irregular (i) See p. 161, footnote to Art. 173 of the Code. (Ji) An action for interdiction is practically analogous to an applica- tion for tlie appointment of a committee in lunacy under our law, its main effect being to obtain a judicial decision on the subject of the insanity of the person in question and the appointment of a curator. ACTIONS TO ANNUL. 21 opposition is of a nature to lay him open to such a charge as this that it need be regarded. All legal oppositions provided for by the Code must be respected by the mayor until withdrawn ; he is liable in damages for disregarding them; and in case he know- ingly celebrates a bigamous marriage he is punishable by imprisonment with hard labour {l). SECTION IX. Actions to annul a marriage. When the Conseil d^Etat was discussing the chapter of the proposed Code which treated of actions to annul marriage, the Premier Consul remarked that it was nowhere distinctly stated in what cases a marriaoje was void ah initio. Tronchet answered that a marriage could in no case be void ab initio ; there must always be a semblance of a marriage, and the real question before them was in what cases an alleged marriage could be annulled and upon whose application (m). Demolombe very justly criticizes this answer (n). Tronchet is assuredly wrong in saying that a marriage can never be void ah initio. Assume for a moment that upon a marriage record it appears that John Doe did on a certain day marry Julia Eoe, and that as a matter of fact, John Doe had never in his life seen or heard of Julia Roe, and could never therefore have conceived the idea of marrying her. Is it possible to pretend that the fraud or practical joke of a registrar could for an instant unite in marriage these two unwilling and unconscious {I) Code Penal, Art. 340. (m) Locre, Discussion, etc., I., p. 272. (w) Demolombe, Oours du Code Napoleon, III., p. 361. 03 ACTIONS TO ANNUL. parties ? It is clear that the total absence of consent on the part of the alleged husband and wife renders the theory, that a marriage could for a moment exist between them absolutely untenable. But if absence of consent is sufficient to render an alleged marriage ceremony void ab initio, it is clear that when the absence of consent is the result of insanity, the same rule should apply. And if this be so, why should not the same argument hold in the case of drunkenness; and if in the case of drunkenness, why not in that of duress, mistake, or fraud ? It will be observed that, although it is difficult if not impossible to say at what point in the above range of cases the absence of consent ceases to be sufficiently absolute to render a marriage void ah initio, it seems nevertheless proper, that a different measure of remedy should be given to a case at one extremity of the line to that allowed in one at the opposite end thereof. But an attempt to make a remedy exactly repair a wrong is beyond the powers of a legislator ; and when- ever the facts of a case are capable of such impercep- tible shades of difference as in that of more or less defective consent to marriage, the legislator has no course but to draw an arbitrary line, and at a small sacrifice of logic determine that a less sweeping remedy shall apply to one set of cases than to the other. The discussion of the abstract question as to the dif- ferences between a marriage which is void ab initio and one which is merely voidable, is not of real importance to the legislator beyond the point necessary to deter- mine where his arbitrary line can best be drawn. That line has been drawn in Articles 146 and 180, and may be generally stated as dividing off the cases where the consent does not exist at all, from those where there is a consent, but it is of a defective character. Commentators are agreed to put in the first class cases where .consent is impossible on account of the absence, ACTIONS TO ANNUL. 23 insanity or drunkenness of one of the parties, and to the other those where a consent is given, but where it is vitiated by duress, fraud, or mistake. The former are said to be void ah initio; the latter voidable. Demolombe claims that there are four conditions ab- solutely essential to a marriage, the absence of any one of which will render the marriage void ah initio : 1. Difference of sex; 2. Civil life; that is to say, neither of the parties must be civilly dead (o) ; 3. Consent of the parties, that is to say, conscious consent; consent vitiated by fraud, duress or mistake rendering the marriage not void, but voidable ; 4. Solemn manifestation of that consent before the proper officer, and the declaration by him that the parties are united by marriage. This would render a marriage before a clergyman, not only voidable, but void. So much confusion exists on the subject of the diffe- rence between a marriage which is void, and one which is merely voidable, not only in French, but in our own laws, that it has been deemed advisable to present the matter more diffusely than the general proportions of this sketch would warrant. The subject, however, has special interest, not only in the important matter of putative marriage discussed below, but also because it is as little settled in our own jurisprudence as in that of France. For after having clearly seen the difference which is set down as existing between a marriage which is void and one which is voidable, we have to study the practical differences between the two, and examine whether those differences have been correctly stated. Demolombe (jo) claims that the practical differences are twofold : — 1. The marriage being void ah initio, it has never (o) See note to p. 176. {p) Demolombe, Oours du Code Napoleon, III. p. 364, 24 ACTIONS TO AKNUL. existed, and there is no occasion to have it annulled by the court. "What," asks he, "can you ask a court to annul, since there is nothing to annul ? " 2. The legislator not being able to frame an action to annul such a marriage, it has been impossible to lay down any rules as to the persons who could avail them- selves of its nullity, or the time within which such nullity could be pleaded in bar. It seems therefore that, according to him, while no action need nor can be brought to nullify a void mar- riage, the nullity can nevertheless be pleaded as a defence by all persons and at all times, and the marriage can never be validated by prescription or ratification. Demo- lombe adds that, " doubtless the courts may be called upon to decide this question between conflicting parties ; but this is only an application of the general rule which forbids the individual deciding the law for himself. The court, however, will have to confine itself to declaring that the marriage has never existed." There can be no doubt as to the position that Demo- lombe takes. If the marriage does not exist, there is nothing upon which a court can pass; there is nothing upon which the legislator can frame an action : Ex nihilo This is an excellent illustration of the kind of argu- ment which, worked out in the closet, wins the approval of professors and academies ; but it is like the scepticism of Hume, of which he said that, although impregnable in his study, he could not carry it abroad with him. To say of a void marriage that it has never existed, and there is nothing therefore to discuss, is to close our eyes to facts of the most striking evidence and undoubted importance. A man and woman have been married by a clergyman with all the solemnity which a religious ritual can imagine ; they have cohabited ; issue have been born to them ; a family has come into existence ; and we are told that, because the person who celebrated the mar- ACTIONS TO ANNUL. 26 riage was not girt with a tricolor scarf, there is nothing to discuss ; the husband can abandon the wife ; reduce her to the level of a concubine, and bastardize her issue ! — that this state of things is not one upon which the legislator can find enough to formulate an action, not one of sufficient body to be defined in space or time ! The argumentation of Demolombe has little practical importance save in the conclusions he draws from it in treating of putative marriages. The fact is that these questions come before the court, as Demolombe himself in the quoted passage admits, in practically the same manner as any other ; and in the only case he correctly cites [q), the court held that the validity of such a marriage could not be disputed by those who had im- plicitly ratified it. Putting on one side the somewhat metaphysical dis- cussion as to the differences between a void and voidable marriage, we shall now proceed to discuss the actions to annul marriage which are provided in Chapter IV. of this title. Although Tronchet seems to have been wrong in saying that a marriage could not be void ah initio, he was undoubtedly right in maintaining that the matters with which the practical legislator had to deal were the circumstances under which, the time within which, and the parties by whom an action to annul a marriage could be brought. And in considering these questions we shall find that the circumstances which are of a character to invalidate a marriage may for the purpose of this study be divided into two great classes : — Those which gave rise to an action by all interested {q) Cass. 27 Dec, 1831, Lejunie v. Lejunie, Sirey, 1832, I., p. 617. See also Art. 191, infra, p. 167, which expressly provides the condi- tions under which a marriage may he attacked in case it has not been celebrated before the competent officer. 26 ACTIONS TO ANNUL. parties and by the ministere public ( r) or public prosecu- tor; and Those that give rise to an action by only certain persons and only under certain conditions. To the first class, that is to say, to those which give rise to an action by all interested parties and by the public prosecutor, belong marriages where there is no consent of the parties ; where the marriage was cele- brated without the intervention of the proper officer; where there is a prior subsisting marriage ; where there is kinship within the prohibited degrees ; where there was defect of proper publicity, and where one of the parties has not reached the age of puberty. Those which belong to the second class, that is to say, those which give rise to an action by only certain persons and only under certain conditions, are marriages where the consent of the parties is defective, as for example, where it is obtained by force, fraud, or mistake, and where the consent of the parents, ascendants, or family council has not been obtained. In the Notes to the Code, infra, page 163, the con- ditions under which a marriage may be annulled on {r) It is difficult to render in Englisli the full collective force of this expression. The department is that of the public attorney or proctor. It consists in the courts of first resort of a procureur de la Repuhlique or state proctor, assisted by a number of suhstituts or deputies, and before the Courts of Appeal of a procureur-giniral, assisted by avocats- genSraux. Their functions are partly administratiTe and partly judicial. In the latter capacity they sit in the courts at a desk separate from the bench, and are known as the magistrature debout, or standing magis- trates, in contradistinction to the magistrature assise or bench. They deliver their argument or conclusions after the advocates of the parties have been heard, And in particular all causes interesting the State, married women, or minors must be communicated to them. The chief administrative function of the procureur de la Ripuhlique of interest in connection with the present work is that of settling doubtful questions in relation to marriages in his capacity of immediate official superior of the maire. ACTIONS TO ANNUL. 27 the ground of duress, fraud, or mistake are explained. Reference, however, may be made here to this subject in order to quote the admirable words of the Premier Consults) when the Conseil d^Etat was discussing whether an action could be brought to annul a marriage on the ground that one of the parties had been deceived as to the fortune or status of the other. " There is some- thing more real," said he, " in such moral qualities as honor, gentleness, and love of work than in name and rank. Where these exist shall a man be allowed to say that he has been deceived upon matters which are merely accessory?" It is difficult to take this passage out of its context and give to it the signification it had therein ; but the idea of the speaker clearly was that if mistake on these most vital qualities will not annul a marriage, mistake on mere accessories should do so still less. The opposition of the Consul prevented the adop- tion of the system proposed by Tronchet, under which a latitude would have been given to an action for nullity on the ground of mistake that would have greatly endangered the sanctity of the marriage tie. The main object of this sketch being to indicate such points as are of peculiar interest to the English-speaking reader, this branch of the subject will not be further developed except in so far as the absence of consent of parents, ascendants, or family council may be invoked to annul a marriage. As has been already pointed out, absence of this consent does not give rise to an action by every interested person or by the attorney-general. The only persons who may bring an action on this ground are: the party to the marriage whose capacity was imperfect by reason of the absence of such consent, and the party whose consent was required (^). But if a year has expired from the day upon which the marriage-minor has attained marriage majority, he can no longer bring («) Locre, Discussion, etc., I., p. 264. It) Art. 182. 28 BREACH OP PROMISE. the action ; and if the party whose consent is required has expressly or by implication ratified the marriage, he is also barred from bringing an action to annul it. In- action during one year from the date upon which he was informed of the marriage is an absolute presumption of ratification («). It may seem inequitable to allow a youth of twenty- four years of age to haye a marriage declared void because he had contracted it without his parents' consent. But if a youth of that age is to be protected at all, this seems the only efficacious way of doing it ; and the fact that he can thus plead his own wrong is a necessary element of every legislative disposition that aims at protecting a party under a disability from the con- sequences of such acts as it is the express intention of the law to prevent. If the marriage be voidable on account of the husband not having been eighteen, or the wife fifteen years of age at the date of celebration, it cannot be attacked in case either six months have elapsed since the party reached the competent age, or the wife who had been under age, has conceived before the expiration of such six months. For further particulars on this question the reader is referred to the provisions of the Code itself, Book I., Chapter IV., Articles 180 to 202. SECTION X. Breach of promise of marruge. A promise of marriage is generally void in French law as trenching on the absolute freedom of choice (m) Alt. 183. BREACH OF PROMISE. 29 wliich should prevail until the actual ceremony. There- fore such promise is not in itself legally enforceable, and its breach cannot, as in England, give rise to an action for sentimental damages. Nevertheless, if the rupture is groundless or untimely, it may give rise to an action in damages for any material prejudice incurred by the injured party. The most recently reported cases (v) are in significant contrast to English cases of the kind. In both cases the plaintiff was the intending husband. In one case he recovered the price of a considerable amount of jewellery, including the wedding ring, as well as that of numerous presents of bouquets and sweetmeats. In the other things had gone further, and besides getting back his presents he recovered the amount of the notary's bill for drawing the marriage contract. («) Gazette du Palais, 1894, II., pp. 325, 326. 30 CHAPTER II. VALIDITY OF MAEEIAGES OE PEENCH CITIZENS AEEOAD,— PUTATIVE MAEEIAGES. SECTION I. Capacity of feench citizens determined by the laws of france. Article 3 of the Civil Code provides as follows : — " All Frenchmen, even though they reside in a foreign country, are subject to the laws of France as regards their status and capacity." This provision coincides with the admitted rules of private international law concerning personal status, the effect of which upon French marriages abroad is to render void all such as have been contracted by parties who, under French law, have not acquired the age necessary to constitute majority for the purpose of marriage, and have not taken the necessary steps to supplement this defect of capacity by obtaining the parental consent. For example : It has been already shown that the consent of parents and a certain publicity are essential factors of a valid marriage in France. The consent of parents may be assimilated to the auctoritas of the Roman law ; it supplements defect of capacity, and being an element of capacity, the law relating to it must be complied with by Frenchmen in every country of the world. Although publicity, at first sight, does not appear to come within the rules relating to capacity, it will be seen to be an essential part of them, for the pub- MARRIAGE OP FRENCHMEN ABROAD. 31 lications and publicity provided for by tbe French Code, are particularly intended to secure a proper notification to all interested parties, in order to enable such inte- rested parties to enter a caveat against the marriage. This question of publication has a peculiar importance in cases where the marriage is celebrated abroad. There is but little danger of a marriage being contracted in France without parental consent, even in the absence of all publication, because the officers whose function it is to celebrate the marriage are prohibited under heavy penalties from doing so without the written consent of those whose consent is necessary. But in foreign countries, where the celebrating officer cannot be deemed to know the law governing the alien party to a marriage, the absence of the proper publications provided for by the French Code will, as a matter of fact, tend to enable the celebration of a marriage without the knowledge of those parties whose consent is necessary thereto. It is clear, therefore, that all marriages contracted by French persons abroad, either without the consent of the parent, where such consent is necessary, or without such publi- cation as is provided by the French law for the purpose of permitting interested parties to prevent the same, are voidable, and must be so declared by French courts. Indeed, Art. 170, in providing that marriages contracted by French citizens in foreign countries are valid, if celebrated according to the forms habitual in those countries, contains the important reservation, "Provided they be preceded by the publications required by Art. 63, and that the French party thereto have not violated the provisions contained in the preceding chapter." The provisions referred to are those regarding age, prior marriage, kinship, parental consent, and consent of the parties. ^ It- is extremely important, however,, to. distinguish between the conditions regarding age and parental consent, compliance with which is deemed essential to 32 ACTES RESPECTUEUX. the validity of the marriage, and those a failure to comply with which subjects the offending parties to a fine, but does not render the marriage voidable, espe- cially as the general rules already laid down (a) have been slightly modified by the decision of the courts when the marriage in question was celebrated abroad. It has been already shown that the consent of parents is essential to the validity of the marriage in case the man has not completed his twenty -fifth or the woman her twenty-second year. But that beyond those limits of age the parties could contract a valid marriage with- out complying with the formalities regarding the service of actes respeetueuz, provided they could find a registrar who was willing to incur the penalty of fine and im- prisonment (J) imposed for celebrating a marriage under these circumstances. In other words, consent of parents is essential to the validity of the marriage prior to this age ; but subsequently thereto the absence of consent and failure to serve actes respectueux merely expose the celebrating registrar to fine and imprisonment. Of course an English registrar not being bound by foreign laws is entirely free to celebrate marriage even between French citizens, irrespective of the provisions above cited. Nay, more, an English registrar cannot refuse to celebrate it if the parties show that they are of age under the English law, and have resided the requisite time within the parish. In the case, therefore, of marriages celebrated abroad, the provisions of the French Code as to the service of actes respectueux are entirely without sanction, and frequent efforts have been made in France upon this ground to have marriages celebrated abroad without service of these papers declared void. But the French courts have decided con- tinuously and without exception that absence of consent (a) Pages 3 et seq. (J) Art. 157. ACTES EESPECTUEUX. 33 of parents and failure to serve actes respectueux upon them did not invalidate a marriage celebrated abroad in case the French parties had reached the ages of twenty-five for the man and twenty-one for the woman, unless — and here we find the modification made of the general rule in this class of cases — the failure to publish notices of the marriage in France according to the provisions of the Code taken in connection with the other circum- stances of the case clearly showed that the parties had acted with a deliberate intention to escape the obligations imposed upon them by the law to which they were subject. This fraud upon the law is considered a sufficient ground for annulling the marriage ; but a constant and unbroken series of decisions has settled the principle that if bad faith is not proved, marriages celebrated abroad without the service of actes respectueux^ in cases where such ser- vice is provided for under French law, are valid unless attended by circumstances showing bad faith. To sum up : Frenchmen under twenty-five and French- women under twenty-one are as much bound to obtain the consent of their parents when married abroad as when married in France, and a failure to obtain such consent renders the marriage voidable. But after the ages of twenty-five for men and twenty-one for women, absence of consent of parents and failure to serve actes respectueux are not sufficient grounds to have a marriage annulled, unless the circumstances of the case clearly show that the parties married abroad for the express purpose of escaping the provisions of the French law. This conclusion is supported by the decisions rendered in the following cases: A marriage celebrated abroad without the consent of parents and without the service of actes respectueux was declared valid, even though the notices required by the Code had not been published in France, in Deyme v. Deyme (c), Goux v. de Backer {d), and (c) Trib. Civ. Seine, 22nd Feb. 1883. (rf) Trib. Civ. Seine, 25th June, 1880; confirmed on appeal, 25tli July, 1881. F. ° 34 MARRIAGE OF FRENCHMEN ABROAD. Gousme V. Gasalas (e). In the latter case the man, though under, was set down on the record as over, twenty-five years of age. No action having been brought to annul the marriage by the parents or parties within the pre- scribed time, but, on the contrary, the marriage having been implicitly ratified by them, the court declared it valid (/). These by no means complete the list that could be given. In the absence, however, of conflicting decisions, they will doubtless be considered sufficient. They may all be found in Clunet's collection, which, unlike most French works, has an admirable index. Where both parties to the marriage are French citizens they may be married at their option either before the local authority or before the diplomatic agent or consul of France "in conformity with French law"(^). In the latter case, the diplomatic agent undertakes the same responsibility as a registrar in France, and will see to it that the requirements of French law in regard to capa- city are fulfilled. Where one only of the parties is French, the marriage can only be celebrated before the local authority. Articles 47 and 48 of the Code have been completed by a law of the 8th of June, 1893, which prescribes that a duplicate of the registers of births, deaths, and mar- riages of French citizens abroad, kept by the diplomatic agents of France, shall at the end of each year be for- warded to the Minister of Foreign Affairs at Paris, who shall have the custody, and is authorized to give extracts thereof. A similar provision in the case of births, deaths, and (e) Trib. Civ. Lyons, Ist June, 1881 ; confirmed on appeal, 29th Dec. 1881. (/) See also Chahannes v. Colombet, Avignon, 14th. Dec. 1880: Desaye t. CUment, ViUefranche, 4th July, 1879; confirmed on appeal, Lyons, 28th Peb. 1880 : Paumier v. Jonard, Seine, 14th March, 1879. ig) Code Civil, Arts. 47 and 48. PUTATIVE MARRIAGES. 35 marriages registered in the local form would, of course, have been useless, the French law having no authority- over foreign officials. The law of 1893 provides, how- ever, that in case any certificates thereof shall have been voluntarily transmitted to the Ministry of Foreign Affairs, they shall remain of record there, and copies may be delivered thereof. It will be found convenient to interrupt here the ex- amination of the question of the validity of marriage between French citizens abroad, in order to study the remedy which the Code has provided in mitigation of the injustice which its provisions may cause to innocent parties, in order that the reader may the better grasp the extent of the evil, and the better understand the steps which the British Grovernment have taken to avoid it in future. SECTION II. Putative marriages. Having shown that the consent of parents, ascendants, or family council is essential to the validity of a marriage contracted by a woman under twenty-one, and a man under twenty-five years of age, even in a foreign country, and that when this consent has not been obtained, an action may be brought to invalidate the marriage, not only by the persons whose consent was necessary, but even by the party to the marriage who had failed to obtain this consent, we are now in a position to study the system of putative marriages before referred to, — a system which will be found, if properly enforced by the courts, to mitigate the many possibilities of injustice to which a rigorous interpretation of the provisions already set forth tends to give rise. The system of putative marriages is set forth in d2 36 PUTATIVE MARRIAGES. Articles 201 and 202, which read as follows : Article 201, '' If a marriage has been declared void, not only the parties thereto but the issue of the marriage shall never- theless enjoy all civil rights resulting therefrom, if the marriage was contracted in good faith." Article 202, " If only one party was in good faith, only the party in good faith and the issue of the marriage shall be entitled to the civil rights resulting therefrom." Nothing indeed can better protect the rights of innocent parties to a marriage with a French citizen than these two articles. They were passed by the Conseil d^Etat with- out discussion, so entirely did they meet with the unani- mous approval of that body ; and M. Portalis in bringing this section before the Corps Legislatif, expressed himself in language which leaves no doubt as to the universal application of these sections to all cases where there was good faith on the part of one or both of the parties to the marriage (A). Moreover the system of putative marriages was not an innovation of the Code, but only an expression of the old canonical law on this subject. Perhaps one of the greatest evils attending codification is to be found in the innumerable commentaries to which it gives rise. Every article is studied with a view, not only to discover its real intention, but also to exhibit the ingenuity of the commentator in attributing to a straight- forward statement a thousand possible significations. In many cases there is a distinct conflict between the courts and the schools, that is to say, between the decisions and the text-books, on the interpretation of the Code, and in some, there is as much inconsistency in the one as in the other. The theory of putative marriages is so important a one in connection with this subject, especially in its international aspect, that it may be worth while to study with careful attention the different theories propounded as to the conditions under (h) Locr6, 16 Ventose An. xi. (Marcli 10, 1803). PUTATIVE MARRIAGES. 37 which Articles 201 and 202 are to be applied. Without entering into all the discussions to which these articles have given rise, we shall confine ourselves to the one which has most direct interest for us, viz. : the application of these articles to the case where a marriage has been performed between a Frenchman and an alien without complying with those requirements of the French law which are deemed essential to its validity, and the failure to comply with which renders the marriage void ah initio, as in the case of a marriage celebrated between French and American citizens before a clergyman or any person other than the celebrating officer appointed by the Code. No less an authority than Demolombe (2), has pro- pounded the theory that a putative marriage can have no application to a case where the celebration was ren- dered imperfect by the absence of the celebrating officer required by the Civil Code. He draws this argument from the use of the words, " if the marriage was con- tracted in good faith." No marriage is contracted, he thinks, unless the proper celebrating officer is present. No marriage having been contracted there is no mar- riage to annul. The entire system of putative marriages, therefore, is inapplicable unless a marriage has been contracted. Zacharise, sustained by Aubry et Rau [k), argues that to a marriage that is void, even though contracted in good faith, the system of putative marriage is inappli- cable ; for, says he, " nothing can come out of nothing ;" if there has been no marriage, Articles 201 and 202 cannot apply, seeing that they assume the existence of a marriage which has been declared void, but which has been contracted in good faith. If the marriage was («■) Tome I., No. 354. \]c) Tome v., sect. 1,460, note 1. 38 PUTATIVE MAERIAGES. void ah initio no marriage was contracted, and there exists no marriage to be cancelled. It is difficult to conceive how Articles 201 and 202 could have been drawn so as to escape such captious criticism as this. It is clear that if a marriage was not void no court should declare it so, and if it was void it was never validly contracted, so that whether the mar- riage be void or not. Articles 201 and 202 cannot under this theory find any application whatever. Since the Code expressly provides that defect of age, prior mar- riage, kinship within prohibited degree, defect of consent of parties, absence of parental consent and the proper publicity — of which publications form a part — and lastly, the absence of a celebrating officer, are fatal to the validity of a marriage, to what case, if Zacharise's rule is to be adopted, do Articles 201 and 202 apply ? The various supporters of this theory do not agree upon the distinctions which they propose in answer to this question; but it is evident that they are all struggling with an apprehension which though clearly not formu- lated by them, seems not to be altogether unfounded. For, should the benefits of Articles 201 and 202 be applied without distinction, they would end by being invoked to repair the irregularity of every sexual rela- tion, when even one of the parties could make out a case of good faith. The consequences of violations of the law would thus be evaded to an extent which might end by converting that law into a dead letter. Hence, an effort is made to narrow the scope of the provisions of the articles in question. But this effort is a mistake. Dangerous as may be a rule of equity if badly applied, still more dangerous is such a rule if so circumscribed as to inform the unscrupulous within what limits their violations of the law will go unpunished. To say that in one class of cases good faith shall, and that in another class it shall not, avail, is simply to furnish the guilty party with certain means for effecting his fraud without PUTATIVE MAEKIAGES. 39 suffering therefrom. Broad distinctions may undoubtedly be laid down, but the subtler ones must be left to the conscience of the court whenever, as in the question at issue, the ultimate decision is to depend upon the equities of the case before it. It is a relief to pass from the inequitable technicali- ties of these authors above cited to the broad view expressed by Mourlon, the Blackstone of French law, on this subject (^). "One condition only is sufficient to constitute a putative marriage, — the good faith of the parties or of one of them. It matters little whether the union, which it has been the intention of the parties to form, be celebrated by a proper officer or not ; it matters little whether it be voidable or radically void, the moment that good faith exists, it is sufficient. Their contract, be it never so formless, is thereupon transformed by the omnipotence of the law into a marriage which, so long as it is not annulled, produces all the effects of a valid marriage. The theory of putative marriage is one of pure equity. Now equity, by its very nature, does not and can not admit more than a single distinction, — was there, or was there not, good faith ? Therein is every- thing. A minor betrayed by a villain has imagined that she could legally be married before a notary, an accomplice of her seducer ; a stranger deceived by skilful machinations has believed that a union celebrated only before a priest was legally valid : shall such unions as these be deprived of the protection of the law? Shall these women be victims of the fraud which has been practised upon them ? What ! Shall the law which treats as a legitimate wife a woman who, by error of law, has believed herself justified in marrying her brother, see only a concubine in this minor so entrapped and this stranger so shockingly deceived ? Can equity reconcile itself to such distinctions ? " (1) Vol. I., sect. 704. 40 PUTATIVE MARRIAGES, Moreover it has been already remarked that Articles 201 and 202 are taken from the canonical law which preceded the Code. On the application of the system under the old law, we read in Pothier (m), that putative marriages are applicable to all cases where there are shown to have been empechements dirimants, that is to say, obstacles of a character to render a marriage cele- brated in spite of them void. There can be no doubt that the old law and the framers of the Code never contemplated the interpretation which has been put upon these articles by Demolombe and Zacharise. Nevertheless the courts in passing upon this question have been not only technical but inconstant. A court of Colmar {n) decided that these two articles cannot be applied when the error was one of law and not one of fact. A difEerent opinion was expressed in numerous other decisions (o), and now prevails, as will be seen from the decisions noticed below. A decision of Poitiers [p) held the dispositions of Articles 201 and 202 inapplicable to the case of a Frenchwoman who married a Swiss legally divorced under the Swiss law, the original marriage having been celebrated in France, where at the time the decision was rendered divorce was not allowed. So also of a marriage contracted only before a priest (§-). The few times that the Cour de Cassation has had to pass upon this point it has shown a disposition to take the equitable view thereof ; for example, it decided on January 15, 1816, and January 16, 1829, that the system of putative marriages can be applied to a marriage contracted in good faith with a (m) Part V., Art. 4. In) Sirey, 38, II. 345. (o) Paris S. 38, II. 113 ; Metz S. 54, II. 659; Aix S. 59, U. 17; Paris S. 60, II. 65. (p) S. 45, II. 215. Ig) Brussels, 23rd April, 1812; Bourges, I7tli March, 1830. Contra, Paris S. 38,11. 113. PUTATIVE MAKEIAGES. 41 person civilly dead so as to give it its full legal effect. This decision is a far reaching one, because it is difficult to conceive a case of marriage more void ah initio than that contracted with a person civilly dead, and therefore no more existing in the eye of the law than if the man were already in his grave. Indeed Demolombe himself includes the case of the civil death of one of the parties as one of the four which render a marriage void ah initio, so this case must be taken as a diametrical contradiction to his theory. On May 21, 1810, the Cour de Cassation also took a broad view of this question ; though the case at court was not one the decision of which could of itself be conclusive either one way or the other. It may therefore be fairly stated that in spite of the decisions of certain inferior courts and the conclusions of commentators of such high standing as Demolombe, Zacharise and Aubry et Rau, the law of France as pro- perly understood applies the benefit of Articles 201 and 202 to all marriages that have been contracted in good faith, however informally; and that in all cases where persons have been clearly in good faith, the highest court is likely to do them justice. The theory of putative marriage is also extremely important in its application to cases where a marriage has been celebrated abroad between parties, one of whom was a French citizen, without complying with the pro- visions of the French law as to consent of parents, publication, &c. The case of Gallois v. Deacon gave rise to so much discussion in the public press that particular pains have been taken to get at the real facts of the case with a view to determining whether the decision of the French court was as inequitable as popularly supposed. The case is not reported in either Sirey or Dalloz. A short extract is given of it in Edouard Clunet's valuable collec- tion (r) with a reference to the legal daUy Droit of the (»■) Journal du Droit International Privi, 1879, p. 488. 42 PUTATIVE MARRIAGES. 21st May, 1879, where the decision is to be found in extenso. It appears that Gallois, a Frenchman under twenty-one years of age, and therefore an infant under the English as well as the French law, married in England a Miss Deacon without obtaining his parents' consent. Grallois at the time of the marriage inhabited Putney, and there also resided at Putney a family of the name of Birkard, which was on intimate terms, and in continual corre- spondence with, his parents in France. For the express purpose of preventing his parents from knowing of the marriage, it was celebrated at Bayswater instead of Putney, and all knowledge of it was studiously kept from the Birkards. Moreover, in order to facilitate the celebration, Grallois was set down upon the record as being twenty-one years of age, although he had only just completed his nineteenth year. It was shown upon the trial that Miss Deacon was a party to the conceal- ment of the celebration from the Birkards, and the court, adopting the principle falsus in uno, falsus in omnibus, extended her complicity to the false statement as to age and to the supposititious domicile at Bayswater. In view of the alleged bad faith, the court refused to apply to Miss Deacon the advantages of a putative marriage, on the ground that she was a party to the fraud which rendered the celebration of it possible. That the marriage was void under French law there can be no doubt ; the only point upon which the equity of the judgment can be questioned is as to that of good faith. It is going far to presume that because Miss Deacon was willing to help her fiance in avoiding the necessity of inviting a particular family to her wedding that she was therefore a party to the false statements made by him as to age. It does not appear to have been proved that she knew what object GraUois had in keeping the marriage a secret from the Birkards. On the other hand, it seems indelicate, if not absolutely PUTATIVE MARRIAGES. 43 irregular, for a woman to marry a youth whose parents were entirely unknown to her; and after reading the facts of the case one is left with a general impression that either Mr. G-allois was unusually persuasive for his age, or Miss Deacon very complaisant as to the manner in which her husband' was secured. On the whole, the case does not seem to deserve all the sympathy it received, and the probabilities are that, although the punishment inflicted was disproportionate to the gravity of the offence, the family of young Gallois had reason for legitimate complaint. The case of Dessaint v. Belgrave (s) is one of a similar character to that just discussed. A French boy of seventeen years of age ran away from home for no better reason than because he found his studies irksome. With no better introduction than an advertisement, he made the acquaintance in London of Miss Belgrave and her mother, who kept a boarding-house in London. An arrangement was made whereby he was to receive his board and lodging in compensation for two hours a day that he was to devote to the education of the young lady. Within a year a marriage was celebrated between the two. Her age was twenty-five, though it was recorded as being twenty. His age was eighteen, though recorded as twenty-two. No communication took place with the boy's family ; no banns published in France. It was only when money was needed that correspondence was renewed between the prodigal and his father. The latter immediately came to the succor of his son, but declined to recognise the alleged daughter-in-law; brought an action to have the marriage annulled, and prevailed without difficulty. In view of the complicity of the wife the court refused to allow her the benefit of a putative marriage, and under the circumstances it would be diffi- cult for it to have decided otherwise. («) See Gazette des Tribunaux, July 29t]i, 1880, and 5tli Aug. 1880. 44 PUTATIVE MARRIAGES. In a case heard by the Court of Appeals of Lyons oh February 24th, 1881 {i), the parties, being both French, were married, by the Abb^ of St. Maurice, Canton Valais, Switzerland, this form of celebration being valid accord- ing to the local law, but without the consent of their parents and without publications. The action of nullity on the first ground was barred by the fact that one year had expired since the parents had had knowledge of the marriage. Bona fides on the part of the wife. The marriage was annulled, but the wife and surviving child obtained putative rights, although the mistake was one of law, and of French law, with which the wife, as a Frenchwoman, might be presumed to have been acquainted. Thomas St. Miguel, a Spaniard, being the husband of Cecilia Ortez, married Charlotte Perlot, a Frenchwoman, by means of forged documents of identity and false repre- sentations as to his status. He was sentenced by the Assize Court of the Department of lUe et Vilaine to twenty years' penal servitude for forgery and bigamy. The Civil Court annulled the marriage on the ground of mistake as to the person (m), but granted to the plaintifp Perlot the rights of a putative wife (v). A certain Passard married his deceased brother's widow without the dispensation prescribed by Art. 164 of the Code. Petition by the minisUre puhlic to annul the marriage and decree accordingly ; but the court re- fused to grant putative rights, on the theory that the parties could not claim these rights incidentally in an action brought by the ministere puhlic, but must bring a separate action therefor. The contrary decision of the Tribunal of the Seine in the Montrouge Marriages case, hereafter noted, now pre- vails. {t) Eep. in Sirey, 1883, II. 18. (m) Art. 180 of the Civil Code. {v) Gazette du Palais, 1881—1882, Vol. II. 196, Tribunal of Eennes. PUTATIVE MARRIAGES. 45 In the case of Veuve Godiny. Hiritiers Godin{x), Charles Dominique Godin had married Dolorfes Luna in Mexico in 1861. The ceremony was a purely religious one, but was celebrated just after a Mexican decree secularizing marriage had been promulgated, and was therefore in- valid in form. The action was one between the widow and next of kin of the husband, who contested the validity of the marriage. The lower court (Tribunal of Bordeaux) annulled the marriage, but refused putative rights to the widow on the ground that the mistake was one of law only. The Court of Appeal, however, while maintaining the annulment of the marriage, reversed the decision in regard to putative rights on the ground that the sole condition of a putative marriage is the proof of bona fides, and the Code had made no distinction in this respect as to whether the mistake was one of law or of fact. This decision may be taken as indicating that the courts have now virtually adopted the theory of Mourlon, viz. : that proof of lona fides is alone sufficient to entitle the parties to putative rights. In Madame Abasaer Lherie v. Madame Dunsday Lh4rie(j/), Paul Ldvy, a singer known as Lhdrie, married in Paris Mile. Abazaer, from whom he was later on judicially separated. He subsequently migrated to Transylvania, became a burgess of Kotoz-Svar, obtained a divorce from the Court of Matrimonial Causes of the Reformed Church, and married before a minister of the Reformed Church a Miss Dunsday, of New York. The first wife brought an action before the Paris Court to annul the second marriage, on the ground that the first marriage was not dissolved by the Transylvanian divorce, which, together with the denization in Kotoz-Svar, constituted a fraud upon the French law, and also that it had not been pre- (jc) Court of Appeal of Bordeaux, 5 Feb. 1883; Sirey, 1883, II. 137. \y) Gazette du Palais, 1889, I. 540. 46 PUTATIVE MARRIAGES. ceded by the necessary publications in France. She prevailed, but the court granted the second wife the benefit of Art. 202, and the decision was upheld on appeal. In a collateral action arising out of the above, the Court of Appeal of Paris held that the rights of the putative wife to alimony are identical with those arising out of a valid marriage, and that, therefore, the putative wife is entitled to enforce her claim for alimony, not only against the husband, but against his mother {s). In a still more recent case of a marriage celebrated in England between a Frenchman and a Dutch girl, who had gone there for forty-eight hours only, the Tribunal of Orleans held that the evidence of clandestine intention was so strong on both sides that they withheld the benefit of the rule {a). The Court of Appeal of Orleans, while upholding the decision of the court below on the nullity of the marriage, took a different view of the plaintiff's claims for putative rights, granting her the benefit of Art. 202, on the ground that no knowledge of the defective formalities could be proved against her, that being Dutch she could not be expected to be acquainted with the requirements of French law, and that there was nothing in the celebration before the registrar at Dover to lead her to regard it as otherwise than regular {b). The Montrouge Marriages Case. — The Maire of Mont- rouge had delegated his functions as registrar to one of his municipal councillors. The municipal law of May 5th, 1885, provides that the Maire shall only delegate his functions to a municipal councillor in case all his deputies, ("adjoints") are absent or otherwise prevented from acting, which was not the case in the present instance. (z) Gatette du Palais, 1895, I. 205. {a) Gazette du Palais, 1893, II. 363. (5) Gasiette du Palais, 1894, I. 310. THE MONTEOUGE MAEEIAGES. 47 Acting under this delegation, the councillor in question celebrated three marriages. In an action by the Public Attorney to have the marriages declared void, the Tri- bunal of the Seine held that the delegation being contrary to law, the councillor had no more power to celebrate marriage than would have had an ordinary citizen, and that therefore the marriages in question were ab initio void and non-existent; that the present case must be distinguished from the prior decisions holding that a marriage is not necessarily void merely because it is celebrated before an incompetent officer, and in the absence of fraud (c); inasmuch as here was a total absence of authority and not a mere lack of jurisdiction. The parties were granted the benefit of Article 201. The public agitation aroused by this decision may be readily imagined when it is explained that marriages had been very frequently performed in other communes throughout France under exactly similar circumstances. Procureur-G^ndral Barbier, in his argument before the Court of Cassation, truly described the sentiment of the country in the following words : " We have fulfilled all the conditions which the law imposed. We have given all desired publicity to our matrimonial projects. Sur- rounded by our families, by our witnesses, by our friends, accompanied by our parents who consented to the mar- riage, we presented ourselves publicly in the Town Hall. There we found a public officer known to us as a member of the municipal body and as celebrating marriages. He was clothed with the insignia of office, and stated that he acted under a delegation from the Mayor. He read us the law; he heard our mutual declaration that we took each other for husband and wife ; he declared us in the name of the law united in marriage ; and the deed of celebration was transcribed on the registers and (c) See Court of Appeal of Paris, 5 Jan. 1852, Sirey, 1852, II. 14; Court of Appeal of Colmar, 27 Feb. 1862, Sirey, 1852, II. 488. 48 THE MONTEOUGE MAEEIAGES. signed by us. Since then we have lived as husband and wife. And are we not married ? What, then, means all this legal apparatus ? Can it be a mere comedy ? " The parties to one marriage entered an appeal before the Court of Appeal of Paris. The parties to the other marriages allowed the period for appeal to expire ; but the Minister of Justice considered the matter one of such importance, that, by his command, a case was stated as to these two latter marriages for the Court of Cassation. Both the Court of Appeal and the Court of Cassation were almost bound to find some method of reversing the judgment of the court below, but they did so on a some- what technical ground. Rejecting the ground submitted them by the Procureur-G^n^ral, based on the maxim, communis error facit jus, and supported by an illustration drawn from the Digest of the Roman slave who acci- dentally became praetor, and whose acts as such were held valid, the judges of the Supreme Court took the ground that the delegation of authority was invalid, but that no sanction of nulHty was anywhere to be found prescribed for the case of such an irregular delegation : that such a nullity could not be deduced in the absence of a formal text, and that therefore the councillor was competent to act as registrar [d). The Court of Appeal followed suit a fortnight later (e). However narrow may appear the groundwork of these decisions, they accom- plished their primary object, which was the restoration of public confidence. It seems, however, that it is not in the cases that have been decided by the courts that the greatest injustice is committed, but rather in the thousand and one instances where marriages are celebrated abroad between persons belonging to the middle classes, that never come before the courts at all. French mechanics and skilled workmen {d) 7 Aug. 1883, Sirey, 1884, 1. 5. (e) 20 Aug. 1883, Sirey, 1884, II. 20. MAEEIAGE OF FEENCHMEN IN ENGLAND. 49 continually marry English shop girls in England, bring them over to France, get tired of them, and leave them to shift for themselves as best they may, replying to their entreaties for maintenance by a heartless reference to the French Code. It is a pity that such cases, if indeed they are as frequent as alleged, are not brought before the courts, for as has been already shown, if good faith can be proved the injured parties are practically certain to receive satisfaction upon appeal if not on first resort. We frequently observe statements in the English newspapers and in treatises by persons imperfectly acquainted with the subject, to the effect that French law affords no protection against such treatment. It is with the object of counteracting this false impression that the subject of putative marriage has been thus fully treated. SECTION ni. Steps taken by the British government to secure the validity of marriages celebrated between french citizens in england. It is to this class of cases that the attention of the British Government has lately been called, and not. without result, for that Government has taken two steps to prevent the recurrence of the evil. In the first place, the Registrar-General has issued a notice to all registration officers setting forth the pro- visions of the French law on this subject, and warning them not to celebrate marriages to which French citizens are a party without proof that the French law has been complied with. The Eegistrar-General's regulations require that when a notice of marriage between a British subject and a foreigner is proposed to be given, the 50 MAEEIAGE OP FRENCHMEN IN ENGLAND/ Superintendent-Registrar shall inform the parties 'that a marriage between such persons celebrated in England according to English law is not necessarily valid out of Her Majesty's dominions. He is to inform every English subject, and also the parents or other relatives of every English woman who may contemplate marrying a foreigner, that in order to secure the recognition of such a marriage in the country of such foreigner, a com- pliance with the requirements of the law of the foreign country is or may be necessary. It seems doubtful, however, whether in practice these regulations are very strictly observed, as the registrars do not appear to take much trouble to enquire whether either of the parties is a foreigner or no. In the second place the British Government in 1884 came to an understanding with the French Government as to a form of certificate ' to be signed by the French consuls setting forth that the particular Frenchman who desires to marry is fully capacitated to contract marriage by the laws of his country, and has fully complied with the formalities of that law. This certificate is drawn up after the model of that already issued by French consuls in Switzerland on the same subject ; but, at the request of the British Government, it has been rendered much more explicit. It is published in extenso in the Appen- dix (/). (/) See Appendix B, p. 255. MARRIAGE OF FRENCHMEN ABROAD. 51 SECTION IV. Marriages contracted abroad between persons who ARE both of them CITIZENS OF FRANCE. Where both parties are citizens of France, the good faith of neither is likely to be surprised, both of them being probably aware of the dispositions of the French Code on the subject. It does occur, however, sometimes that when the parties have left France early in life, and have been residents in the foreign country, they lose sight of these provisions and marry without fulfilling the requirements thereof. In such cases the court looks mainly to the good faith of the parties. It cannot, of course, refuse to annul a marriage celebrated under twenty-five in case of the man and under twenty-one in case of the woman if the parents have not given their consent to it ; but when the violation of the law is of a less vital character, as, for example, a failure to serve actes respectueux after the ages above mentioned, or a failure to make the required publications in France, the court looks solely to the question of good faith ; and if there is no reason to believe that the parties failed to serve the actes respectueux or make the publications for the express purpose of escaping the opposition of parents, — if on the contrary it appears that the failure was the result of mere ignorance or forgetfulness, — the court never fails to sustain the validity of the marriage. In cases, however, where both parties are citizens of France, it is rare that a marriage is celebrated abroad without publications in France, except for the express purpose of avoiding the restrictions of the French law. The cases bearing on this point have already been cited above, page 33. Ever since public opinion became alive to the possi- bility of marriages celebrated in England or America, b2 52 MAEKIAGE OF FRENCHMEN ABROAD .' according to the laws of those countries, being subse- quently invalidated in France, no such marriage is annulled without eliciting the lamentations of the English press. And yet in most instances the decisions attacked in no way affect Americans or English, and so far from being open to criticism turn out upon examina- tion to be altogether consistent with equity and common sense. The case of Delamarre v. Delamarre[g) called public attention to this subject, although it really had no connection with the supposed wrongs of our citizens. Young Delamarre not being able to obtain the consent of his mother to a marriage with a certain Mile. Speliers, and not being able therefore to have such a marriage celebrated in France, went to England with this young lady, and had the ceremony performed in London. They omitted all publication in France, and so contrived as to keep the celebration secret from the bridegroom's mother. The parties had clearly gone to London for the express purpose of evading the provisions of the French law. It would be entirely inconsistent with the dignity of French courts to tolerate such a pro- ceeding, and in annulling this marriage they did no more than our own courts would do under similar cir- cumstances. Anglo-Saxons may be inclined to differ with those who sustain the wisdom of the French law, but they will not go so far as to criticize the conduct of the courts in seeing that the law of the land be respected. Dura lex sed lex. Before leaving the discussion of this subject it may be well, in conclusion, to point out that in spite of the precautions that have been taken in view of the exces- sively unsatisfactory character of the law as interpreted by certain courts and commentators to-day, and the {g) Trib. Civ. de la Seine, 14 Jan. 1885 ; Gazette du Palais, 1-2 Fev. 1885, EFFECTS OF PUTATIVE MARRIAGE. 53 notorious inconsistency of even the Cour de Cassation on all questions upon which the slightest doubt can exist, this whole matter is one to which sufficient pub- licity cannot be given; the evil to which a mistake thereupon can give rise being not only grave but irremediable. In cases, therefore, where marriage is celebrated in England between parties, one of whom is a French citizen, special attention must be paid to see that the provisions of the French law as to age, consent of parents and publications in France are complied with. SECTION V. Civil effects of a putative marriage. In studying what are the civil effects of a putative marriage, the question naturally arises as to what meaning the codifiers attached to the words Civil Rights. Do they include the legitimacy of the children ? the right of the woman to bear the name of her husband ? Do they afPect property only or status also ? Commentators agree that the effect of a putative marriage is to give the wife the status of a legally married woman, although all obligation resulting from the marriage ceases from the day that the marriage was declared void. Children are entitled to bear their father's name and to use his armorial bearings; they have a vested right in their parents' estate upon the same footing as legitimate children of a valid marriage. The courts have even gone further and agreed that a putative marriage should have all the effects of a valid marriage in legitimizing illegitimate offspring born prior to its defective celebration. But this does not cover 64 TRANSCRIPTION OF FOREIGN RECORD. the case wliere the illegitimate children were incestuous or adulterine. If both parties prove good faith, both have a right to succeed to their children, and both enjoy parental authority, or puissance paternelle. Laurent is of opinion even that the parties have a right of succession to each other, but this is doubtful (h). If only one party proves good faith, such party only has a right to all the advantages reserved to him or her by the marriage contract, and in the absence of marriage contract (or semble, even under a marriage contract, upon election (i)), has a right to all the advantages conferred upon him or her by the regime legal de la com- munaute, or statutory community of goods. Such party' alone enjoys parental authority and its various attributes over the persons and property of the children, and alone has a right of succession to them. The children, on the contrary, have a right of succession to both parents, although good faith existed only on the part of one of them. As towards third parties, the wife in good faith may obtain rescission of all contracts made by her without the authority of her husband. She also enjoys the legal mortgage on the property of her husband under Art. 2121 of the Code. SECTION VI. Transcription of foreign record in france. Article 171 provides that within three months after the return of the French party into the territory of the (A) See Baudry Lacantinerie, Vol. I. § 552 bis. («■) Baudry Lacantinerie, § 554 bis. TEANSCEIPTION OF FOREIGN RECORD. 55 republic, the record of the celebration of the marriage contracted abroad shall be filed upon the public register of marriages in the place of his domicile. The question arises, What will be the effect of a failure to comply •with the provisions contained in this article ? Would it amount to the annulling of the marriage ? This- article has given rise to much discussion in view of the fact that the law is silent on this subject. The failure to give a sanction to this provision is due to a misleading state- ment made by M. Rdal, one of the fi-amers of the Code, when the draft of the article was discussed before the Conseil dPEtat. In answer to Counsellor Defermont, who asked why the execution of this article was not secured by the infliction of a penalty, M. R^al replied that penal dispositions did not properly belong to the Civil Code, and that the natural place for such a disposition would be in the law of registration, where it had already been inserted. M. Real's mistake on this point, for no penalty is to be found for violation of this provision, misled the Conseil d^Mat. It is clear, however, that the only penalty in the minds of the framers of the Code was a pecuniary one, and to this solution both the courts and schools agree. In the absence of any penalty it is probable that the system proposed by Mourlon in an article published in the Revue des Droits Frangais et Mrangers (Jc) is the best solution. Mourlon falls back upon the common law for an answer to the question proposed, and invoking Article 1382, which provides that '' every act of one man which causes damage to another obliges the party at fault to make proper reparation," concludes that any party who has suffered damage owing to a failure to register the marriage, has an action against the party whose duty it was to register it. This is the view of Court of Cassation, which, in the case of BachiliY. Eocher{l\ held that lack of transcript (k) 1884, p. 885. {l) Sirey, 1875, 1. 347. 56 TKANSCEIPTION OF FOREIGN KECOKD. tion on the registers of marriage, witMn three months, of a marriage celebrated abroad does not render the mar- riage null in France ; lack of transcription can only give rise to an action for damages by third parties who claim to have been prejudiced by the omission of such for- mality. Lack of transcription may, however, be taken into consideration, in conjunction with other facts, for the purpose of determining whether the marriage was clandestine. Held further that transcription can be made after the lapse of three months, and even after the death of the husband (m). In cases of mixed marriage, if the husband be French this formality must be complied with ; if the wife be French the probabilities are that no transcription upon the French record is necessary, inasmuch as the wife has, by virtue of the marriage, lost her French nationality. This point is, however, far from certain. The wife may have an interest in having the marriage transcribed in France, in view of the fact that she may, on widowhood, recover her French nationality. As has been stated above (p. 34), marriages concern- ing French citizens celebrated abroad before diplomatic officers must be recorded at the Ministry of Foreign Affairs in Paris, under the provisions of the law of June 8th, 1893. This law does not, however, repeal Article 171, which must therefore still be complied with, its object being to bring the marriage into general notice at the domicile of the parties. The requirement of the law of 1893 (which, moreover, extends to births and deaths likewise) is apparently one merely of adminis- trative convenience with the view of centralizing the records. {m) Veuve Gleize v. Hiritiers Gleize, Coui d'Appel de Nlmes, Sirey, 1858, II. 385. 57 CHAPTER III. MAEEIAGE OF AMERICAN CITIZENS OE BEITISH SUBJECTS IN FEANCE. SECTION I. Capacity of alien determined in peance by the law of his nationality. Article 3, above quoted, although it provides only for the application of French law to the capacity of French persons wherever they may be, has been very properly interpreted by a constant series of decisions to be equally applicable to the capacity of aliens contracting marriage in France; that is to say, the application of the personal statute to French persons has been ex- tended by interpretation to aliens. The capacity, therefore, of an alien to contract marriage in France is to be determined by the law of his nationality, and in cases where Americans contract marriage in France it has become the settled practice to substitute for the consent of the parents an opinion by a competent American authority, in all cases that allow of it, to the effect that by the law of the State to which the party belongs the consent of parents is not required for persons above the age of the party in question, and that publications are not required or even possible in such State in view of a marriage to be celebrated in France. ■ In conformity with this same principle French courts do not hesitate to recognize the validity of marriages i58 MAEEIAGE OF ALIENS IN FRANCE. celebrated between aliens in their own country, however different and informal the manner of celebration. They have gone even further and recognized the validity of marriage contracted without any celebration whatever. In 1856 the Imperial Court of Paris was called upon to pass on the legitimacy of the Marquise de Barb^ Marbois nee Moore. No evidence of any celebration could be produced, but evidence was put in to prove that under the laws of Pennsylvania, of which State the parents were citizens, no formalities were necessary to constitute a valid marriage ; and in the absence of all records of births, deaths, and marriages, the entry of the birth of the Marquise in a family Bible was in connection with general reputation {possession d^etat) accepted as sufiS- cient proof of legitimacy {a). The fact that the opinion expressed above, to the effect that aliens are not subject in France to all the requirements of the French Code, is diametrically opposed, to that of Lawrence and Wheaton (b), makes it advisable to explain more explicitly than would be other- wise necessary the state of the law upon this question, the authority of Lawrence and Wheaton being too high to be lightly set aside. The Premier Consul, Napoleon Bonaparte, did un- doubtedly, as stated by Lawrence and Wheaton, when presiding over the debates on the proposed Code at the Conseil d^Etat, ask why it contained no provision as to the conditions under which marriage between aliens was to be celebrated in France ; and M. R^al, whose special function seems to have been to mislead the body of which he formed part, did answer that an article already adopted had provided that foreigners residing in France were subject to French laws(c); but M. R^al forgot that (a) Arret du 12 Janvier, 1856. Gazette des Tribunaux, 26 feTrier, 1856. (i) Commentaire sur les Elements du Droit International, 111. pp. 345 and 346. (c) Locr6, Discussion du Projet du Code Civil, I. p. 268. MARRIAGE OF ALIENS IN FRANCE. 59 Article 3, to whicli he referred, alluded only to regula- tions of police and public safety, and that the same article adopted inferentially the generally admitted rule of private international law, that the capacity of an individual must be determined by the law of his nation- ality. Lawrence and Wheaton have clearly allowed them- selves to be misled by M. Rdal, as did the Premier Consul^ and it may be said as their excuse that in their mistake they find themselves in good company. More- over, they seem to be confirmed in their opinion by a ministerial decision of the 31st March, 1812, which held that the acte de notoriete produced by a foreigner in lieu of a certificate of birth must, in conformity with Article 72, be approved by the court. So also does it appear to be confirmed by the ministerial circular of the 14th March, 1831, which provides that foreigners who have not resided in France six months shall be bound to pubKsh their intended marriage at their last domicile prior to the celebration thereof. It has not occurred, however, to these eminent authors to consider what course is to be adopted where, as in most of the United States, no publication is possible through the absence of the administrative machinery for making it ; or how in New York could be carried out the fantastical proceeding of serving upon a parent, by a notary and two witnesses, an "instrument couched in respectful and formal terms." M. Rdal and ministerial circulars notwithstanding, it became the established practice until a few years ago to replace all these f ormaKties by a certificate of law known in France as a certificat de coutume signed by the United States Minister, covering the particular facts of every particular case, and this practice was undoubtedly con- sistent with the intent and even the text of the French Code The main facts as to which the French municipal 60 MAERIAGES AT AMEEICAN LEGATION. authorities require to be satisfied before marrying an alien are : 1. That he has the requisite age. 2. That the consent of his parents is not required by the law of his domicile. 3. That publications need not (or cannot) be made at his foreign domicile in view of his marriage in France. A certificate embodying these facts was not of course always easy to obtain. In the case of citizens of the United States, the laws of the State to which the party belonged had to be examined and the special features of the case covered. It was sometimes difficult to find evidence of a character to satisfy the Minister as to the exact date of birth ; but in most cases the requirements of the embassy or legation were easy to comply with, and the cordial relations which the Ministers of the United States usually succeeded in establishing with the Government to which they were accredited have greatly tended to diminish difficulties which at one time were a cause of vexation and delay. In the year 1887, however, Mr. Bayard, being then Secretary of State, forbade the United States Minister to give such certificates for the future, substantially on the grounds upon which the permission to celebrate marriages at the legation was withdrawn (d), viz. : that the United States Minister, being a Federal representative, has no authority in regard to the celebration of- marriage, which, not being among the powers set forth in the Federal Constitution, must be deemed to be reserved to the re- spective State Legislatures. Still less, therefore, has he the right to deliver certificates which in their nature are affidavits or declarations of the laws of the various States of which the Minister has no official cognizance. This decision, while unquestionably sound, was a very {d) See infra, Appendix A, p. 251. CEETIFICATS DE COUTUME. 61 embarrassing one for Americans desiring to marry in France, inasmuch as it apparently deprived them of the means of satisfying the French authorities as to the provisions of the foreign law, in default of which their marriage could not take place. There was little or no difficulty relating to the ques- tion of publication abroad and consent of parents, for usage had already sanctioned their proof by means of certificats de coutume, or affidavits of law, given by com- petent counsel whose qualifications and competency were attested at the legation ; but proof of the birth was a different matter, the registration of births, deaths, and marriages being so inadequate in America that hardly any Americans wanting to marry in France could pro- duce a certificate of birth. Now a certificate of birth is in French law a sacramental form of proof, the absence of which can only be supplied as the result of a lengthy and expensive lawsuit known as an action en rectification cfetat civil, or petition for rectification of the register. No other form of secondary evidence of the birth is ad- missible, as in England and America, save only in cas^e of a certificate of birth needed in view of a marriage, Arts. 71 and 72 exceptionally providing that in such case it may be replaced by an acte de notoriete, or solemn declara- tion by seven witnesses, which must be ratified by the court on the recommendation of the procureur de la Repuhlique. In default of a certificate of birth and upon the suppres- sion of the United States Minister's certificates, the registrars endeavoured to exact from foreigners a strict compliance with these articles of the Code. The im- possibility of an American, most often residing only temporarily in France, finding seven bond fide witnesses able and willing to testify to all the circumstances of his birth and parentage is sufficiently manifest. Equally so ' is the hardship of subjecting him to the delays — fre- quently of months — necessary for obtaining the ratifi-' cation of, the court. Still more unreasonable -to the i 62 CERTIFICATS DE COUTUME. mind of an international lawyer is the requirement ■which would subject the proof of matters relating to his personal status and capacity to the. procrustean require- ments of a law other than that of his domicile. The procureur de la RSpublique, acting with that in- variable courtesy to which foreign counsel practising in France are ever glad to testify, was not slow to perceive the unreasonableness of this attitude of the registrars, and upon representations made to him by the author of this work, under the authority of the United States Legation, of which he was then the counsel, authorized the acceptance by the registrars, in place of the certifi- cate of birth, of a certificate delivered by American counsel setting forth the circumstances of the birth, and authenticated at the legation in the manner provided for the certificate relating to publications and consent of parents. It was understood that counsel, before deliver- ing such certificates, should satisfy themselves of the facts of the birth by affidavits or other prima facie evi- dence sufficient to satisfy an American court, which evidence they were to retain for their own justification. This system worked smoothly until 1891, when one of the Paris registrars, more ingenious than his confreres, in the case of a certificate given to a British subject born in a remote British colony, where registration did not exist, raised the objection that counsel were only competent to certify as to questions of law, and were therefore incom- petent to deliver these certificates, which related to ques- tions of fact. A reference to the procureur de la Republique elicited an opinion that the registrar's objection was well taken, as it undoubtedly was, and a decision that, pend- ing further instructions from his hierarchical chief, the Minister of Justice, he must require an acte de notorieU in default of a certificate of birth. A ease was at once stated for the Minister of Justice, in which it was submitted that as the facts to be proved related to the individual's personal status, proo£ thereof CERTIFICATS DE COUTUME. 63 in the form recognized by the law of his domicile (when certificates of birth did not exist) should be accepted as sufficient. It was proposed that the affidavits, instead of remaining with counsel, should be drawn in French and filed at the mairie with a certificat de coutume, dealing with the question of law only, and stating that, according to the law of the particular State or country where the individual was born, at the time of his birth, registration of births did not exist or was not compulsory ; and that in default thereof such affidavits (or other prima facie evidence, such as certificates of baptism or midwives' certificates, &c.) were sufficient proof of the birth, and were equivalent to an acte de notorieU in French law. The Minister of Justice readily recognized the justice of this request, and sanctioned the proposed system, which has since worked satisfactorily not only in Paris, but in the provinces. On a few occasions such certifi- cates have even been accepted in Italy upon proof of the French precedent (e). The settled practice of celebrating marriages between British subjects at the British Embassy renders diplo- matic certificates only necessary when the British subject is marrying a citizen in France, and consequently the marriage has to be celebrated before the mayor. This subject naturally leads to a study of the circum- stances under which marriages may be celebrated between aliens at their embassy or legation, and particularly why marriages between British subjects at the British Embassy are permitted, without prior celebration at the mairie, whereas no marriage is allowed to be celebrated at the United States Embassy unless already celebrated before a competent French official. (e) Tte correspondence relating thereto will be found translated in Appendix 0, p. 259. 64 MARRIAGES AT BRITISH EMBASSY. SECTION n. Op MARRIAGES CELEBRATED IN FRANCE AT THE BRITISH OR AMERICAN EMBASSIES (/), Upon the theory of exterritoriality, the hotel occupied by a foreign embassy is deemed to constitute a part of the territory of the country which the embassy repre- sents, and so far as the person of the ambassador and his family, secretaries, and domestics are concerned, this presumption is absolute. Any attempt, however, to make this principle cover persons other than those just specified has been looked upon with jealousy by the courts of the country within which such embassy is situated, for the excellent reason that an embassy could by the extension of this principle be converted into an asylum in which foreigners might escape from the appli- cation of penal and police regulations (y). Moreover, the immunity given to the ambassador as to legal prosecution being considerable, it is extremely important for it to be confined to the fewest possible persons. Whether the principle of exterritoriality extends to marriage so as to enable citizens of a foreign country to contract a valid marriage in France by the performance of a religious ceremony at their embassy for the purpose of avoiding the necessity of compliance with the French law of marriage is by no means certain. That the principle of exterritoriality of an ambassador's chapel cannot be extended to persons who are not citizens of the country represented by the ambassador has been expressly decided(A). As to marriages celebrated between (/) I"or simplicity, I have througliout this section generally spoken of the American Embassy, although no marriages have taken plaqe there since it was raised from the rank of a Legation. (ff) Case of Michel Chenhorff, Calvo, Droit International (4th ed.)^ Vol. III. sect. 1505, p. 308. (A) Haggard's Consistory Eeports, Vol. I. p. 136. Pertreis v. Tondear, MABEIAGES AT BRITISH EMBASSY. 65 citizens of the country which the embassy represents, it will be convenient to treat the question of marriages celebrated at the British Embassy separately from that of those celebrated at the American Embassy. Of Marriages celebrated at the British Embassy. — There is no doubt that a marriage between British subjects at the British Embassy is perfectly valid according to English law, for the statute 4 Geo. IV. c. 91, 1823, was passed particularly to validate such marriages, and that of 12 & 13 Vict. 1849, to extend the provision of the Act of George IV. to marriages celebrated before consuls on board men of war, and a few other cases. The above Acts have now been repealed by the Foreign Marriage Act (55 & 56 Vict. 1892, c. 23), which con- solidates the enactments relating to marriages of British subjects out of the United Kingdom. This Act also repealed the Marriage Act, 1890, and the Foreign Mar- riage Act, 1891, two tentative and imperfect Acts pur- porting to deal with the same subject. It has been supplemented by an Order in Council of the 28th October, 1892. The Act requires that at least one of the parties should be a British subject. If the party, not being a British subject, is a subject or citizen of the country where the marriage is about to take place, the Order in Council requires that the marriage officer should, before proceed- ing to the celebration, satisfy himself that sufficient facilities do not exist for the solemnization of the mar- riage in the foreign country according to the law of that government. In case of his refusal to celebrate the marriage, the person aggrieved has a right to appeal to the Secretary of State. In case of any marriage under the Act, if it appears to the marriage officer that the woman about to be married is a British subject, and that the man is an alien, he must be satisfied that the marriage will be 66 FOREIGN MAEEIA6E ACT. recognized by the law of the foreign country to which the alien belongs. The consular instructions require that in every case of a marriage being solemnized before a consular officer, he must inform the parties that it is not necessarily valid out of her Majesty's dominions ; and in case of a mixed marriage (neither of the parties being a citizen of the country where the marriage takes place), he should point out to the parties the expediency of their marriage taking place according to the kz loci, so as to avoid the possible risk of the marriage being held invalid in a country or countries where it would be of importance to them that it should be deemed valid. Section 19 of the Act also gives a general discretion to the marriage officer to refuse to solemnize a marriage or allow a marriage to be solemnized in his presence if in his opinion the solemnization thereof would be incon- sistent with international law or the comity of nations. His refusal to do so is subject to appeal to the Secretary of State. Section 18 of the Act contains further provisions for the registration of lex loci marriages. A lex loci mar- riage which is lawful according to the law of the country in which it is performed, may be registered under section 18 of the Act, notwithstanding the existence of an impediment preventing its validity under the law of England. The provisions of the Order in Council were dictated by the fact that the courts of the country in which such marriages were celebrated refused to admit their validity when one of the parties to the marriage was a subject or citizen of the country where the marriage was celebrated. In the report of the Royal Commission, Mr. Hammond testifies to the case of a Spanish woman who was arrested for having dared to marry an Englishman before the British Consul at Barcelona ; cases are numerous where the French authorities have declined to recognize the MARRIAGES AT BRITISH EMBASSY. 67 validity of a marriage between an Englishman and a Frenchwoman at the British Embassy (e). It will be observed that in France such marriages cannot now be celebrated under the Act, as sufficient facilities obviously exist for their celebration according to the local law. The Consul may still celebrate a mixed marriage between a British subject and a subject or citizen of a State other than the one where the marriage is cele- brated, but he must previously warn the parties that the validity of the marriage in countries other than England is not guaranteed. The rule that the capacity of the party is to be determined by the law of his nationality, is one of universal acceptance on the continent, and there is no reason either in law or in precedent to fear that the French courts will ever venture to pass upon the validity of a marriage celebrated between British subjects at the British Embassy or between American citizens at the American Embassy, provided such marriage is valid according to the laws of the country to which the parties belong. The caution therefore exhibited at the British Embassy in the certificates it delivers, though wise, if one of the parties be not a British subject, seems altogether unnecessary where neither of the parties is a foreigner. The same rule that the capacity of a person is to be determined by the law of the country to which he belongs, which makes a marriage between British subjects before a British ambassador valid, would con- stitute the marriage between a British subject and an American citizen valid, whenever the American citizen belonged to a State where the rules as to celebration of (i) See on this point the cases cited by Wheaton and Lawrence. Commentaire sur les Elements du Droit International, pp. 372 to 376, and particularly those taken from Le Nord, 20 Jan. 1865, and La Gazette des Tribunaux, 7 April, 1869; also reported S. 70, II. 178. See aIio"ardeciMo'n of the Tribunal de la Seine, 2 July, 1872. S. 72, II. 248. f2 68 MARRIAGES AT UNITED STATES EMBASSY. marriage are as lax as they are in the State of New York. Indeed, with hardly an exception, the formalities required for the validity of a marriage in the United States are so slight, that it may generally be stated that any American can validly marry a British subject at the British Embassy. The continual amendment of the laws of the various States, however, makes it unsafe to depend upon so general a statement, without examining anew the statutes of the particular State to which the American in any particular case may belong. Marriages celebrated at the United States Embassy. — In a letter written to Mr. R. Whiteing by Mr. Henry Vignaud, whose intimate knowledge of international and diplomatic relations has rendered him no less valuable to the American colony in Paris than to the Embassy of which he is secretary, afterwards published in the New York World of which Mr. Whiteing was at the time the able correspondent, he disabuses the public of the wide- spread error that " thousands of Americans married at their legations may find that they have not been married at all." Through the kindness of Mr. Vignaud, access has been allowed me to the correspondence upon this subject which passed between the American Legation and the Secretary of State during the administration of Mr. Hamilton Fish. In view of the importance which this subject has for Americans residing in Paris, this correspondence is published in full in the Appendix (Jc). Before discussing the correspondence itself, it will be advisable to state briefly the condition in which the question presented itself at the time the correspondence was written. It was the custom prior to 1860, for Americans who desired to be married in France to escape the formalities required by French law, by having the marriage cele- (h) Appendix A, p. 247. MARRIAGES AT UKITED STATES EMBASSY. 69' brated before a clergyman in the presence of the American Minister. The marriage was not celebrated, as popularly- supposed, by the American Minister, but merely in his presence ; the intention being to give to the ecclesiastic ceremony the exterritoriality which is claimed for diplomatic residences. The record of the marriage was in all cases kept by the clergyman who celebrated it. As to the validity of marriages celebrated between American citizens at the American Legation according to the laws of France, there can be very little doubt, provided they be celebrated in conformity with the laws of the United States; and Mr. Moreau, the eminent counsel of the United States in the Armand suits, gave his opinion categorically to that effect. Mr. Hammond, it is true, states that the French courts have declared invalid marriages celebrated between Frenchwomen and American men at the American Legation ; but this in no way affects the question upon which Mr. Moreau was called upon to give his decision, which was couched in the following terms : — " The undersigned counsellor-at-law at the Imperial Court at Paris, having been consulted as to the validity of a marriage contracted ' between Americans ' before the Minister of the United States, and at the hotel of the legation, is of opinion that such marriage is valid in the eyes of the French law." It is surprising that so eminent a jurist as Mr. Hamil- ton Fish should, in referring to cases where the French courts have invalidated a marriage celebrated between American and French citizens, criticize the opinion of Mr. Moreau, which in no way referred to such cases. So far as the French law is concerned, then, it can be considered certain in conformity with the opinion rendered by Mr. Moreau, that no French court would venture to discuss the validity of a marriage celebrated at the United States Legation between American 70 MAKEIAaES AT UNITED STATES EMBASSY. citizens conformably to the laws of the States to which they respectively belong, Mr. Wickham Hoffman, however, raised a point of constitutional law in the letter which forms part of the diplomatic correspondence published in the Appendix to which no satisfactory answer has ever been given. This point may be developed as follows : — The Federal Government has no right to make laws on any subject except those set forth in the constitution within the powers enumerated therein. Marriage not being included in the enumerated powers must be deemed reserved to the legislatures of the respective States. The United States Minister being exclusively the representative of the Federal Grovemment, the question arises whether he, as such, has any authority by his presence to introduce an element of validity into the question of marriage. As Mr. Vignaud very justly observes in his letter to Mr. Whiteing, it is impossible for the United States Minister to be familiar with the ever-changing laws of the (now) forty-four States and four Territories which make up the Union. How is it pos- sible, therefore, for the Minister to be sure that he is not by his presence assisting at an invalid ceremony, in view of the fact that he has, and can have, no official information as to the modification of the laws of the respective States to which the parties may belong. The same argument may be applied to test the con- stitutionality of Section 31 of the Act of 22nd June, 1860, which provides a general and uniform rule for the celebration of marriage between American citizens in foreign countries by the consular officers of the United States. This provision, still to be found in Section 4082 of the Revised Statutes of the United States, is liable to give rise to the celebration of many invalid marriages ; for although Mr. Hamilton Fish expresses an opinion in favour of the constitutionality of this provision, the MAREIAGKS AT UNITED STATES EMBASSY. 71 grave considerations above set forth seem sufficient to make this point an exceedingly doubtful one. It is true that Mr. Cass pointed out the danger attending such celebrations in a letter addressed by him when Secretary of State to the United States Minister at Rome, 12th November, 1860; it is also true that the United States consular regulations of 1870 particularly warn consuls that this section is applicable only in exceptional cases ; but in the index to the United States Revised Statutes, under the heading "Consuls," may still be found the words "marriages in presence of, in foreign countries; validity ; duties of ; " and on turning to Section 4083, to which reference is made, there is very little, if anything, in the section to warn consuls of the restrictions to which their powers on this subject are confined. Con- suls are seldom capacitated by previous training to decide questions of this kind ; and they do, undoubtedly, in compliance with the text of the United States Statutes, allow marriages between American citizens to be cele- brated before them under circumstances which render them of doubtful validity. In conclusion, although no fears need be felt as to the French courts declaring such a marriage invalid, pro- vided it be valid under the American law, there does seem some reasonable ground for supposing that the validity of such marriages might give rise to conflict between the Federal and State law on this subject, and the instructions given by the State Department to con- sular and diplomatic agents abroad, instructing them not to solemnize marriages save where the parties have com- plied with all the requirements of the French law, cannot be too strongly commended ; for not only is such a marriage liable to give rise to the discussion of a con- stitutional point of law so important that it could hardly fail to go up to the United States Supreme Court, but if its validity were tested in France and American counsel were to assume the responsibility of setting forth in a 72 MARRIAGES AT UNITED STATES EMBASSY. certificat de coutume, his conviction that such a marriage was invalid in consequence of the unconstitutionality of the provision which authorized it, the French court would be much perplexed as to the solution of the question, and would be as likely to adopt such counsel's view as that of a less categorical and perhaps more scrupulous adver- sary. As to marriages that have already been celebrated between American men and French women at the lega^ tion, though the French courts are likely to declare them invalid in case they have not been preceded by a civil marriage, they come clearly within Articles 201 and 202, which would give to them all the civil efEects of a valid marriage (^). The question which the court would be called upon to decide would be whether the marriage was celebrated in good faith by the party who was interested in sustaining its validity. {I) See pp. 35 et seq., on Putative Marriages. 73 CHAPTER IV. OF SOME OP THE CONSEQUENCES OP MAEEIAGE UNDEE PEENCH LAW. SECTION I. Support of parents-in-law by children-in-law, and that of children-in-law by parents-in-law. In accordance with tlie general principle adopted in this work, no reference will be made to that part of the French law on this subject which practically coincides with our own, and with what may be termed natural law on this subject. There is an article, however, in the chapter of the Code which deals with this matter so remarkable in itself and so interesting in view of the important decision that has been rendered by an American court thereupon that it is worthy of special attention. The articles referred to are numbered 206 and 207, and read as follows : — " Sons-in-law and daughters-in-law shall contribute the necessaries of life to their parents-in-law." Article 207, " The obligations resulting from the above provisions are reciprocal." In order to appreciate how entirely repugnant to Anglo- Saxon institutions these articles are, we only have to suppose a case where a wealthy English-speaking father has married his daughter to a Frenchman, and given her a large dot which has been speedily squandered by her husband. We may suppose that in consequence of the dissipation and ill-treatment of the latter the wife 74 consequences: maintenance. dies, and that within a week after the burial of his wife the husband institutes an action for support against his father-in-law, the amount of which, according to Article 208, should be measured by the fortune of him who is bound to contribute to it. The case above cited is entirely a fictitious one so far as the aggravating circumstances are concerned, but the charging facts are hot unlike those of the case of De Brimont v. Penniman. In this case the son-in-law obtained judgment against an American father-in-law for maintenance in France and asked the Circuit Court of the United States to execute the same. The court held that the provision of French law under which the judgment in France had been obtained was so repugnant to the institutions of our country that it refused to enforce the judgment. Anglo-Saxon parents, however, must not argue that they are safe from the effects of Articles 206 and 207, in consequence of the decision of the Circuit Court. Fortunately for the defendant in the above action, his property was in America ; but if, as is frequently the case, there is property in France, the French courts will undoubtedly execute their judgment thereupon. Before leaving this point it may be well to observe that this provision, inconsistent as it may be with the habits and customs of our own country, forms part of a general system of family relations which will be found to explain in great part many if not all the dispositions of the French law, that to English readers may appear to be a matter of surprise. A fuller development of this thought will better be postponed to the closing chapter. CONSEQUEKCliS : DISABILITIES OP WIFE. 75 SECTION II. Disabilities op married women under french law. This subject should not be closed without reference to the quasi coverture of the wife under Articles 215 and 217 of the Code Civil and Article 4 of the Code de Commerce. The latter provides that a wife cannot do business without her husband's consent ; the former that she cannot bring suit, give, grant, mortgage, or purchase without either the husband's consent in writing, or his joining in the instrument she executes. Prior to the Code, the wife's disability was absolute, and any act of hers other than one of mere administration was void ab initio, and could not be rendered valid by subsequent ratification. This is, however, no longer the case. The sole act of a married woman can be validated by a consent given subsequently thereto ; the consent of the husband need not be express ; it may be implied ; it may even be tacit, for Art. 1304 provides that the husband may not attack the validity thereof after ten years have elapsed from his knowledge thereof, or the woman after ten years from the dissolution of the marriage. SECTION in. Disabilities of alien married women in prance. The consent of the husband may be dispensed with in case the husband is foreign and the laws of the country to which he belongs do not exact it(«). This is par- ticularly the case in all the American States except Louisiana. It is also the case in England since the passage of the recent Married Women's Property Acts. (o) See Meux v. Eric, Trib. Seine, 6 Aug. 1878 ; Clunet's Journal du Droit International Privi, 1879, p. 62. 76 CONSEQUENCES : DISABILITIES OP ALIEN WIFE. It is usual in such, cases to provide the French party to the contract with a certificat de coutume, drawn up by a competent person, certifying to the foreign law on the subject. It is, however, often much simpler in practice for the husband to join in the contract. An exception must be reserved when real estate is involved. Article 3 of the Code Civil provides expressly that " Real estate, even though it be owned by foreigners, shall be governed by the law of France." In all transfers or contracts, therefore, involving real estate, a married woman will have to produce her husband's consent in order to make a valid instrument. Upon the same principle she will have no right of dower in her husband's real estate situated in France ; and if her husband bequeaths to her, whether by way of dower or otherwise, a larger share of such real estate than he is free to dispose of under the provisions of the French Code, such bequest will be reduced within the limits prescribed therein {b). Although courts and commentators agree as to the application of the national law to foreigners resident in France where real estate is not engaged, an interesting point has been raised by M. Clunet in his Journal du Droit International Prive, 1880, p. 186, which may one day reverse this practice. Though France, Italy, and Belgium agree that capacity is to be determined by the law of nationality, a very different rule prevails in England, America, and Prussia, according to whose jurisprudence capacity is determined by the law of domicile. Under English and American law, therefore, an English or American woman's capacity to contract must, if she be domiciled in France, be governed by the law of her domicile, and not by that of her nationality. When, therefore, a French court proceeds to determine what is the capacity of an English- (J) MauchienY. Macdonald et Lesieur, Cass. 4th. April, 1881 ; Journal du Droit International Privi, 1881, p. 426; Picot y. Picot, Gazette du Palais, 1890, II. 541. DISABILITIES OF ALIEN WIFE. 77 woman to contract in France, it first decides that she may do so under the Married Women's Property Act of 1882, without the authorization of her husband, and if the court be willing to apply the French rule of inter- national law to the solution of the question, it will end by applying the provisions of this Act to the case suh judice. But if it be informed that a different rule of international law prevails in England, and that under that rule a woman's capacity to contract is to be deter- mined by the lex domicilii and not by the lex patrice, the court will have to decide an altogether new question — namely, whether the rule of international law which prevails in England is so far a part of the municipal law of England as to be applicable to determine the capacity of the woman in question ; or whether the rule of inter- national law, being in conflict with that of France, the French rule is to be applied ; so that, although by the English rule the capacity of an Englishwoman domiciled in France is to be determined by French law, the French rule that it is to be determined by the law of England is to be preferred. The able articles of Frederic Harrison in the Fort- nightly Review of 1879, reproduced in the Journal du Droit International Prive of 1880, dealt with the question whether or not private international law was part of municipal law, and if he proved his conclusion to the effect that it is, and French courts can be brought to believe that he has, they will certainly have to reverse their decision so far as subjects of England and Prussia and citizens of the United States are concerned. For if private international law be part of municipal law, and the French rule be that the capacity of an alien is to be determined by applying to him the municipal law of the country to which he belongs, it is clear that the whole of that law must be applied, and not a part of it only. Now, an application to an Englishwoman domiciled in France of English municipal law under Frederic Harrison's defi- 78 DISABILITIES OP ALIEN WIFE. nition of it, will begin by giving her a capacity which a Frenchwoman would not have, but end by taking it away from her, for the reason that, as her capacity is to be determined under the English rule by the law of her domicile, and not by the law of her nationality, it is the French Code that must be applied to her, and not the more liberal provisions of her own laws. This already intricate question will, however, be still more complicated by that of domicile, which under French law differs materially from that under English and American law. For, whereas under our system an alien can acquire a domicile in our countries by mere establishment provided he have lost the animus revertendi, a somewhat strict but universally approved interpretation of Article 13 of the Civil Code has decided that aliens cannot acquire a legal domicile in France unless they obtain the authorization of the French Government. Hence arises a distinction between a legal domicile and a domicile of fact which gives rise to endless complica- tions. For example, in this case an Englishwoman who owns a house in Paris, resides there, and has lost all intention of returning to England, though undoubtedly domiciled in France under English law is not so domi- ciled according to that of France. She is admitted to have a domicile of fact, but the prevailing opinion is that a domicile of fact has no legal effect except, perhaps, to determine the intention of a party — as, for example, in case of marriage in France without marriage con- tract (c). If, however, the French courts are prepared to adopt Mr. Harrison's conclusions, and apply to the question of the capacity. of the Englishwoman the rules of English private international as well as those of English munici- pal law, they ought, if consistent, to apply to her the (c) See pp. 100 et sej. THE FORGO CASE. 79 English rules as to domicile, since those rules are a part of the question of her capacity. M. Clunet in raising the point above discussed does not conclude in favor of an application to the English- woman of the English rules of private international law, for here says he, "there is not only a conflict of laws but a conflict as to the system which should be adopted to settle the conflict — a state of things which must inevi- tably continue to exist until the day we hope and work for, when the nations will agree upon the adoption not necessarily of an international code, but at least of such leading principles as will enable us to settle the differ- ences of legislation which at present exist." Undoubtedly M. Clunet is right in saying that no solution is possible until the principles that are to deter- mine that solution have been laid down by international agreement. But in a recent case the French court decided that the international rule prevailing in the country of the alien in question was to be applied, and under altogether analogous circumstances applied to him the French law in opposition to the French rule, because, according to the law of the alien's country, the French law and not his own was applicable to his case (d). As this decision has been rendered since M. Clunet expressed his opinion, it is possible that his views may be modified thereby. As the aim of this work is to set forth the French law as it is and not as it ought to be, no attempt will be made to decide between the two systems before us ; we shall accordingly content ourselves with summing up the situ- ation briefly as follows: — Existing decisions and existing text writers in France agree that the capacity of an alien woman is to be determined by the law of her nationality. It is the settled practice to produce that law in court by (d) Heritiers Forgo Ditchl v. Administration des Domaines, Cass. 22 Feb. 1882 ; Journal du Droit International Privi, 1883, p. 64. 80 CONSEQUENCES : DISABILITIES OF WIFE. means of certificats de coutume, and the law so produced has been so far universally followed. But a powerful argument can be made against the application of the foreign law to citizens of countries such as England, America, and Prussia, where the rule prevails that the law of the domicile and not that of nationality should be applied. This argument has never, as far as we know, yet been made in the case of married women in France. It has, however, in Belgium, in the case of Bigwood V. Bigwood, decided by the Belgian Court of Cassa- tion (e). The court upheld a decree of divorce between British subjects domiciled in Belgium upon a ground valid in Belgian but invalid in English law for the reason that the English law, the national law of the parties, would refer to Belgian law the law of the domi- cile of the parties at the time of the introduction of the petition, to determine the question as to what were valid grounds for a divorce. In France, meanwhile, it may be stated without hesitation that, for the practical pur- poses of business, the courts will undoubtedly continue to apply the American and English laws as regards capacity to American citizens and British subjects wherever that capacity does not come into conflict with the provision of the French Code regarding real estate. (e) Eeported in Sirey, 1881, IV. p. 41 ; and 1882, IV. p. 17. 81 CHAPTEE V. PEOPERTY AS APPECTED BY MAEEIAGE. SECTION I. Under a " contrat de mariage." It is well to preface this chapter by distinguishing the French contrat de mariage from the Anglo-Saxon marriage settlement. They are often considered as identical, but are very different in their extent and operation. A French contrat de mariage or ante-nuptial contract modifies the capacity of the parties not merely as to determinate property described therein, but also as to various classes of property not specifically designated, either possessed at the time of the marriage or after- acquired. In other words, the parties place themselves under one of a series of regimes, systems, or bodies of rules which governs all their property relations in general. A marriage settlement, on the contrary, deals with specifically designated property, and in. no way purports to restrict or extend the capacities of the parties derived from common law or statute, except in so far as it may do so in respect of the specific property which forms the object of the settlement. General rules governing all the different regimes. The parties enjoy entire freedom of contract provided their covenants are not contra honos mores, and under the following further restrictions : — They may not covenant to abridge the rights of the 82 THE DIFFERENT REGIMES. husband over the person of the wife and children, nor those of the survivor of the spouses in case of death of one of them ; nor may they make any stipulation or surrender having for its object to change the legal order of succession either as between themselves and their children, or as between their children amongst them- selves. In default of an ante-nuptial contract, the communauU legale, or community by operation of law prevails. (This will be dealt with in the second section of this chapter.) All marriage contracts are absolutely void unless executed before the marriage, by a notarial deed. No alteration can be made in them after the celebration of the marriage. The maxim halilis ad nuptias habilis ad pacta nuptialia prevails in French law. The infant capable of contract- ing marriage is capable of executing a valid contract of marriage, provided it be with the concurrence in the contract of the persons whose consent is required for the validity of the celebration. The different systems or regimes known to French law are the following : — 1. The regime de la communauU, or community system. 2. The regime de non-communauU, or system of non- community. 3. The regime de siparation de Mens, or system of separation of goods. 4. The regime dotal, or dotal system. All these systems are susceptible of certain variations and combinations. I. — REGIME DE LA CGMMUNAUTt. The essence of this system is a communauti or common fund constituting a distinct patrimony from that of either of the spouses, having distinct assets and liabilities, and administered according to prescribed rules. REGIME DE LA COMMUNAUTfi. 83 The assets of the community consist of : — (a) All the personal property possessed by the spouses at the time of celebration of the marriage, or which has been acquired by them during the marriage by way of succession or even gift, unless the donor has expressed a contrary intention. (b) The income accrued during the marriage from separate property of the spouses belonging to them at the time of the marriage, nr acquired by them from whatsoever source during the marriage. The community in other words possesses a life estate in the separate property of the spouses. (c) All realty purchased during the. marriage. All realty is presumed to belong to the com- munity, unless it is proved that one of the parties had the ownership or legal possession thereof prior to the marriage, or has acquired it thereafter by way of succession or gift. Realty which the spouses possessed at the time of the marriage or which they acquired during the marriage by way of succession or gift remains their separate property, and does not belong to the community. The liabilities of the community consist of : — (a) The debts of personalty, defies mohilieres [a), of the spouses at the time of the marriage, or those charged upon estates inherited by them during the marriage. (b) The debts both in interest and principal contracted (a) Debts in French law are mohilieres or immobiliires, accord- ing as the thing due is personalty or realty. Since the Code, which has classified bonds and shares as moveables, and has introduced con- Teyanee by consent of the parties without delivery, "immoveable debts" have become a mere abstraction. g2 84 r:£gime de la communaute. by the husband during the community, or by the wife with the consent of the husband. (c) The interest of the separate debts of the two spouses. (d) Life tenant's repairs to separate realty. These last two provisions are corollaries of the provision making the community life owner of the separate property. (e) Living expenses of husband and wife, and expenses of maintenance and education of the children, and any other charges of the marriage. Ante-nuptial debts of the wife are only chargeable to the community in case they are evidenced by a public deed [acfe authentique), i.e., a judgment or notarial deed pre- vious to the marriage, or have acquired a fixed date prior to the marriage by record (^enregistrement), or by the death of one or more of the subscribing parties [b). The general rules governing the liabilities of the com- munity are three : — Firstly. — The party in respect of whom a debt has become chargeable to the community, is always person- ally liable for the whole of the debt, on the ground that a creditor may be placed in a better position by having an additional debtor (the community), but cannot be forced to accept a substitution of creditors to his possible detriment. Secondly. — Every debt of the community is a debt of the husband's, and reciprocally. This is the price paid by the husband for the privilege of administering the community. Thirdly. — As a general rule the community is ulti- mately chargeable with its own liabilities sans recompense, or without recourse ; but certain liabilities are only chargeable to it sauf rScompense, or under reserve of recourse against the party in respect of whom the debt has arisen. (5) See note, p. 96. ADMINISTRATION OF COMMUNAUTfi. 85 Administration of the Community. The husband alone administers the property belonging to the community. He may sell, alienate, or mortgage it without the concurrence of the wife. He may even dispose of specific personalty by way of gift, but he may not dispose by way of gift of the realty, or of the entire personalty, or an aliquot part thereof, except for the establishment of the children of the marriage. The powers of the husband over the community are thus almost those of an absolute owner. He may ruin the common property without being obliged to render any account. The wife's contract entered into without the consent of the husband, even with the authority of the court, does not bind the community, unless the wife has con- tracted as a public trader {marchande puhlique), for the purposes of her trade. The husband has furthermore the administration of all the personal property of his wife, but he cannot alienate her realty without her consent, although he may grant leases thereof. He is responsible for the depreciation of her property caused by his omission to adopt measures suitable for its conservation. The powers of the husband over the community being thus extensive, it is natural to inquire what security is afforded to the wife against the possible squandering of the community property by the husband. She possesses the four following remedies : — A. Separation of goods. In case her dower is in peril, or the disorganiza- tion of her husband's affairs gives cause for believing that his separate property will not suffice to make good her dower and community claims, she may petition the court to decree a separation of property between her and her husband. No voluntary post-nuptial separation 86 REGIME DE LA COMMUNAUT^. of goods is valid. The judgment ordering the separation is advertised in order to give to third parties notice of the enlarged capacity of the wife. The effect of such decree, which relates . back to the date of the petition, is to give her the free management and control of her pro- perty, and rights of disposition and alienation of her personalty ; she may not, however, alienate her realty without the authority of her husband, or, in case of his refusal, that of the court. Separation of goods does not relieve the wife from the obKgation of contributing in propor- tion to her means and those of her husband to the expenses of the household and the education of the children. B. Legal mortgage. She possesses what is known as an hypotheque legale, or mortgage, existing by operation of law and independently of record upon all the realty of her husband, which ranks as from the date of the marriage as security for her husband's administration of the community and for all claims of whatsoever nature she may have against him (c). C. Renunciation of the community. Upon the dissolution of the community she may accept or renounce the same, the latter course freeing her from all liability for the community debts. D. Benefit of inventory. She may accept the community with benefit of inventory, which renders her liable for the community debts only to the extent of the assets forming her share. It will be seen that the first of these guarantees is the (c) C. C. Art. 2121. k£gime de la COMMUNAUTE. 87 only really efficacious one. The others are merely collateral and have no preventive character. A married woman may waive her legal mortgage under certain conditions, but it is not competent to her to waive any of the other guarantees above mentioned. Dissolution of the Community, The community is dissolved : — 1. By death. 2. By divorce. 3. By judicial separation (of persons). 4. By judicial separation of goods. The dissolution of the community by divorce and judicial separation (of persons) will be dealt with under the heading of divorce. Judicial separation of goods has already been briefly alluded to. In case of dissolution of the community the amount of the property is ascertained by a notarial inventory drawn up by the surviving party in the most usual case of dis- solution by death. A detailed description of the elaborate provisions of the Code for settlement of the community accounts, is beyond the scope of this work. Suffice it here to say, that unless the ante-nuptial contract provides otherwise the community property is divided in equal shares between the survivor and the representatives of the deceased. The liabilities are also divided equally, subject to the right of renunciation, or of acceptance under benefit of inventory above mentioned, which may be exercised by the wife or her representatives. The acceptance of the wife need not necessarily be express. It may be implied from her own acts. And in case she intermeddles with the community property, she forfeits her privilege of renunciation. Acts of admi- nistration and conservation do not, however, involve intermeddling. 88 VARIATIONS OF C0MMUNAUT£, Renunciation, on the contrary, is an act in solemn form which can only be made expressly by a declaration in the registry of the court of first instance of the district where the husband was domiciled. An exception to this rule is in the case of a woman divorced or judi- cially separated, who is presumed to have renounced her community rights if she has not accepted the same within the period of three months and forty days from the final decree. Creditors of the wife may move to set aside a renun- ciation made by the wife in fraud of their rights. Contractual Variations of the Community. The foregoing is an outline of the rules governing the community whether existing by operation of law in default of an ante-nuptial contract, or in so far as not varied by an ante-nuptial agreement. The principal variations are the following : — Communaute rSduite aux acquets. The parties in the contract exclude their present and future debts and their personalty from the community, which thus becomes a community of rents, income, and profits, and of the fruits of the industry of each of the parties. It should be borne in mind that this system does not give the wife the administration and control of goods which are not acquets. This still remains with the husband. Realisation du mohilier. This is a stipulation involving a kind of equitable conversion by contract of the personalty, presently owned or after-acquired, which being excluded from the community becomes assimilated to realty. Ameullissement. This is the converse of the above. The parties agree to throw into community all or part of their realty, which thus becomes assimilated to personalty. VARIATIONS OF COMMUNAUTJe. 89 Separation of debts. A stipulation whereby antecedent debts are excluded from the community, so that if they are subsequently paid by the community the community is entitled to recourse {recompense or indemnite) against the parties to whom they belong. Reprise d^ apport franc et quitte. A stipulation exceptionally favorable to the wife, inasmuch as it permits her, notwithstanding her renun- ciation of the community, to withdraw her share free from all community debts. Preciput. A clause whereby the survivor is authorized to take out of the community before partition, a certain sum of money or a certain amount of personalty. The wife only enjoys such privilege in case she accepts the community, unless otherwise provided by the contract. Unequal shares. The parties may stipulate that the community shall be divided in unequal shares, or that one of the parties shall take a lump sum in satisfaction of his or her share. Universal community. Under this stipulation all the property of the parties, real and personal, actual and after-acquired, falls into the community ; or it may be limited to all actual pro- perty or all after-acquired property. This catalogue of variations is not limitative. The parties may adopt any other they choose, provided they do not infringe the general provisions of Arts. 1388, 1389, and 1390 {i.e., the provisions of law relating to the legal order of successions, power of husband over children, &c.). II. 'RtaiMJi DE NON-COMMUNAUTJE. Under this system there is no community, and each of the parties retains his or her own property as separate 90 SEPAEATION OF GOODS. property. The wife has, however, no right of admini- stration of her separate property. The husband ad- ministers the same subject to his liability to account therefor upon dissolution of the marriage. The inalienability of the wife's realty which exists under the dotal regime does not here apply. Both her realty and personalty are alienable. The husband, however, cannot alienate her property, real or personal, without her consent. His powers, although very exten- sive, are powers of administration over the income only {d). III. — Sepakation de biens. This is the system most conformable to Anglo-Saxon views. It is the only system which gives the wife the control of her separate property, and more nearly than any other, places her in the same independent position enjoyed by an English wife under the Married Women's Property Acts, and by an American wife in those States where the doctrine of separate , property prevails, i.e., to-day practically throughout the Union. The wife has complete management of her property, real and personal, and the free enjoyment of her income. Each of the parties contributes to the liabilities of the household in the proportion stipulated in the contract, and if the contract is silent thereon, the wife contributes a sum equal to one-third of her income. Such is the contractual separation of goods. The importance of its adoption in the case of American and English ladies marrying Frenchmen cannot be over- estimated, if it is desired, as it usually is, that they should enjoy the same measure of protection for their property as they would under American or English law. With the exception that they are unable to alienate their realty without the permission of their husband or {d) Aulbry & Eau, Tome V. p. 514. REGIME DOTAL. 91 the court, they do practically enjoy such protection under this regime. They do not enjoy it under any other regime. The absence of any contract subjects them to the regime of the legal community, under which, as has been seen, the husband has the enjoyment and control of their pro- perty. Marriage without an ante-nuptial contract has therefore such widely different consequences in Anglo- Saxon and French law that English or American parents about to marry their daughters under circumstances which may submit them to a French regime cannot be too strongly urged to acquaint themselves beforehand with the French law on the subject ; for after the mar- riage the regime, once adopted, tacitly or expressly, is irrevocably binding upon the parties while the marriage lasts. IV. EfiGIME DOTAL. The dot is defined by the Code as property which the wife brings to the husband to defray the charges of the household. All property which the wife brings or which is given to her in her marriage contract is dotal in default of a contrary stipulation. There are two essen- tials to the existence of this regime — ^firstly, an express declaration in the contract that the parties adopt this regime, although no technical words are necessary to be employed; secondly, a constitution, i.e., a grant or agree- ment to convey the dot ; and the contract must further determine what property is to compose the dot. It is possible that certain determinate property may be dotal, and governed by the rules appertaining to this system, and the remaining property of the wife may be subject to another system; this combination is of fre- quent occurrence. The essential characteristics of this regime consist in the inalienability of the dotal realty and the peculiar 92 EfiGIME DOTAL. powers given to the husband. It arises only by express contract, inasmuch as it is a derogation from the com- munity existing in default of contract, and also because an express stipulation is required to strip the wife of such an important attribute of ownership as the power of alienation. Such property of the wife as is not dotal is known as her paraphernal property. She is owner under this regime^ therefore, of two classes of property — liens dotaux and Mens paraphernaux. Constitution {or grant) of the dot. The dot may comprise all the property of the wife, present and future, or all her present property only, or a portion of her property present and future, or an indi- vidual piece of property. The grant in general terms of " all her property" will not include her future property, on the ground that the dot existing only by express stipu- lation, the terms of a constitution de dot are to be inter- preted restrictively. In other words, " paraphernality" is the rule, " dotality" the exception. The dot is most frequently granted by the father and mother of the wife, and if they are both expressed as granting the dot, the grant is presumed to be made by them in equal shares. But if the father only is expressed as grantor, the mere fact that the mother is a party to the contract does not alone render her liable for any portion of the dot. It may happen that the parents have the legal enjoy- ment of property belonging to their children, besides property of their own. In such case the dot is made good in the first instance from their own property, and only in case of insufficiency from the property of the children, unless the contrary is expressly provided in the contract. The Code provides that the grantors of a dot are bound to give a garantie or warranty of the property REGIME DOTAL. 93 comprised in the dot. There being, however, no special provision as to what covenants are comprised in this warranty, the covenants of an ordinary vendor are to be implied, viz., a covenant for quiet enjoyment and a covenant of assurance against latent defects. By way of exception to the general rule that interest on a debt begins to run only from the date of the writ in an action for recovery thereof, interest on the dot begins to run as from the date of the marriage ipso facto, and without demand. Rights of the parties over the dotal property. 1. Rights of the wife. — As a general rule, the wife remains owner of the dotal property. The exceptions to this rule are three in number. The husband becomes owner (a) of property which is consumed by use, such as cash and merchandize, subject to his liability to restore an equivalent amount upon dissolution of the marriage ; (b) of personalty appraised in the contract, unless it be expressly stipulated that such appraisal is not equivalent to sale ; (c) of realty appraised in the contract in case it is therein provided that such appraisal is equivalent to sale. Thus, a sale is presumed in the case of appraisal of personalty, but not in the case of appraisal of realty. The usual explanation of this is that the wife has an interest in handing over her personalty to her husband, and, on the contrary, an interest in preserving her realty, which may be expected to increase in value, or for which she may have a sentimental affection. The real explanation may with more likelihood be an historical one, these provisions dating back to a period when realty was in general much more valuable than personalty, and the wife ran little risk in handing over her personalty to her husband. In the cases where appraisal is held to be equivalent 94 REGIME DOTAL. to sale, the husband is considered to have purchased the property at the appraised value, but he pays this value only upon the dissolution of the marriage, when he has to account for the whole of the doi. Administration. 2. Rights of the husband. — The husband has the sole administration of the dotal property during the marriage, and the sole right of action against holders or debtors of any portion thereof. Whereas, therefore, under the community system the husband alone can maintain actions in regard to the wife's personalty only, under the dotal regime he can maintain all actions of the wife in relation to all her dotal property, real and personal. He has a sole right of action in respect thereto, i. e., it is not necessary to join the wife as plaintiff. He is not bound to make a remploi of (i. e., to reinvest) the property received by him unless the contract so provides, and although the dotal realty is inalienable, the courts have uniformly held that the husband may alienate the dotal per- sonalty. He has usually, therefore, wide opportunities of squandering the dotal property, the only check upon which is the wife's right to petition the court for a separation of goods (e) upon showing that her dowry is in peril. Thereupon she recovers the administration and enjoyment of her dotal property, and the right to maintain dotal actions. Enjoyment. — In addition to the right of administration the husband has the right to collect and enjoy the rents, profits, interest, and income of the dotal property as long as the regime continues. In other words, he is usufructuary or life-tenant of the dotal property, and (c) Sect. 1443. KJ6GIME DOTAL. 95 subject to the ordinary obligations of a usufructuaiy, with the exception that he is under no obligation to give security for his enjoyment unless so expressly provided by the contract ; and his rights of enjoyment are inalienable, being a personal attribute of marital authority. Inalienability of the dotal realty. The real property comprised in the dot cannot be sold or mortgaged during the marriage either by the husband or by the wife, or by both jointly, except in the following cases : — 1. Where alienation is expressly permitted by the contract. Such a clause coupled with a clause de remploi, or reinvestment clause directing reinvestment of the proceeds in realty, is not infrequent. In such case the purchaser is responsible for seeing to the reinvestment of the proceeds. 2. For the establishment of the children of the marriage, or of the wife's children by a former husband. In the former case the consent of the husband is essential. In the latter case, if the husband refuses his consent the wife may go to the court ; this recourse being devised to shelter her against possible jealousy on the part of her husband of children not his own. 3. To release the husband or the wife from prison, i. e., in case of imprisonment for debt. This case cannot now arise, imprisonment for debt having been abolished by the law of 22nd July, 1867. 4. To provide alimony in the cases mentioned in Arts. 203, 205 and 206 of the Code, i. e., for the children, fathers and mothers, fathers- and 96 EJ6GIME DOTAIi. mothers-in-law, sons- and daughters-in-law of the husband or wife. 5. To pay the debts of the wife, or of the grantors of the dot, the date of which has been definitely determined (/) previous to the marriage contract. 6. For the purpose of making grosses reparations, i. e., heavy or landlord's repairs upon the dotal realty : that is, to sell one estate for the purpose of putting another in repair, or to sell part of one to put the remainder in repair. 7. When the wife is undivided owner with third parties and the property cannot be partitioned in kind. The dotal realty is furthermore not susceptible of prescription or limitation, i. e., the rights of the wife cannot be diminished or destroyed by adverse possession during any period of time however long nor by mere lapse of time itself. This privilege ceases upon a sepa- ration of goods being pronounced, as the wife then recovers the administration of the property, and can by her own acts validly interrupt adverse possession or perform such acts as are necessary to take the property out of the operation of the statute. Real estate purchased out of moneys belonging to the dot is not dotal unless the contract provides that dotal moneys shall be invested in such purchase. This is the clause de remploi or reinvestment clause. The penalty in case of alienation of the dotal realty, is that the wife or her heirs after dissolution of the marriage can apply to have such alienation set aside ; so also can the wife herself after a judicial separation of goods. The wife cannot make such an application during the marriage, as she cannot maintain a dotal action. The husband can do so subject to his liability (y) Usually by enregistrement or recording of the instrument creat- ing the debt, a formality wliicli places its date beyond dispute. See also p. 84. e£;gime dotal. 97 in damages to the purchaser in case he has failed to declare in the contract that the property sold is dotal. Restitution of the dot. The events which give rise to restitution of the dot are — 1. Death of husband or wife. 2. Divorce, separation from bed and board, or separa- tion of goods. 3. A judicial declaration of the disappearance (" absence") of husband or wife. The general rule is that dotal property is at " owner's risk," i.e., the property of which the husband has become owner and of which he is bound to return only the equivalent value is at his own risk. On the other hand, in case property which has remained the wife's has depreciated in value through causes other than the negligence of the husband, the latter cannot be called upon to make good the depreciation, but is validly discharged upon redelivery of the property in its depreciated condition. So also he is not responsible for ordinary wear and tear. In an action for the recovery of the dot, the wife or her heirs must prove that the husband has received the same. This burden of proof will, however, if the dot was granted by a third party, be shifted upon the hus- band in case ten years have elapsed since the term fixed for payment of the dot, unless the husband can prove that he has used due diligence to get it in, and failed therein. In case the dot is granted by the wife herself, the burden of proof rests always upon her. The husband is obliged to return the property received by him in kind {i.e., that of which the ownership remains in the wife) immediately upon dissolution of the regime ; that which he has received in cash (i.e., of which the ownership passes to him) only at the expiration of one year thereafter. He is allowed credit for the cost of H 98 KtaiME DOTAL. improvements made by him upon the property. The rents, profits, and income are considered to accrue day by day, and the husband's enjoyment thereof ceases only on the date of dissolution of the regime. Up to that date he is therefore entitled to a due apportionment thereof. This marks a distinction between this regime and the community regime, under which the husband has the enjoyment only of such income as he has got in before the dissolution. If the marriage is dissolved by the death of the wife, the interest and income of the dot accrue by mere operation of law for the benefit of her next-of-kin as from the date of dissolution ; if the dissolution occurs by the death of the husband, the wife has the option of either receiving the income of the dot for one year from the decease, or of claiming alimony during the same period at the expense of her husband's estate. In either case her residence during that period, and her mourning apparel, are furnished her at the expense of the estate, and cannot be charged against the income of her dot. Legal Mortgage. The wife, married under the dotal system, like the wife under the community system, is legal mortgagee of all her husband's real estate by operation of law. This mortgage ranks as from the marriage, exists indepen- dently of record, and is designed to afPord a guarantee to the wife for the restitution of her dot, as well as for any other claims she may have against her husband or his estate. Paraphernal Property. All property of the wife which has not been expressly rendered dotal is paraphernal. Her rights over her para- phernal property are those of a wife under the system of, separation of goods. She has the administration and/ NECESSAEIES. 99 enjoyment thereof ; but she can only alienate it or sue in respect thereof by the authority of her husband. It may happen that the dotal regime has been adopted, but no dot has been granted. In such case the wife is exactly on the footing of a wife married under the regime of separation of goods. Notice of Contract to Third Parties. It will naturally be asked how third parties dealing with a wife married under one of these different regimes, and whose property rights may differ very widely according to the regime adopted, can make themselves acquainted with the rights of a married woman with whom they have dealings. The. answer is that contracts of marriage are, as has been seen, drawn up by a notary who is not merely a conveyancer, but a custodian of deeds. He is forbidden to part with the original documents drawn up by him, which are filed amongst his records or minutes, as they are called ; but he may deliver as many certified copies thereof or extracts therefrom as may be desired. In all important transactions, third parties dealing with a wife invariably call for a certified copy of her contract of marriage, which enables them to judge of the extent of her property rights and capacity in respect thereof. The Doctrine of Necessaries. In the ordinary transactions of daily life the produc;- tion of the contract is not necessary, as the doctrine of necessaries prevails in French as in English law; and the wife has an implied authority to pledge the husband's credit for necessaries — that is, for goods supplied for her maintenance and that of her children and the upkeep of the household ; and regard will be had, in determining what are necessaries, to the fortune and social position of the parties. h2 100 ABSENCE OP CONTENT. The price of such necessaries will only come out of the husband's pocket in case the parties have chosen the regime of separation, as under the community or the dotal system he is authorized to apply the income of the community or the dot respectively to the defrayal of household charges. The meaning of the doctrine under these two systems is therefore, merely that tradesmen have a direct action against the husband for necessaries supplied to the wife. So also do they under the system of separation, subject to the recourse of the husband against the wife for the recovery of her proportionate contribution as stipulated by the contract, or in default thereof, as determined by law, i.e., one-third of her income. SECTION II. In the absence of a " conteat de maeiage." Article 1393 provides that " in the absence of special stipulations which derogate from or modify the regime de la communaute, property relations are to be regulated by the first part of Chapter 2, which constitutes the common law of France." The first part of Chapter 2 contains the rules relating to community of goods. It may there- fore be stated in general terms, that where there is no special contract executed before marriage the parties to a marriage celebrated in France are deemed married under the system of community of goods. The essential features of this system have already been explained. However admirable this system may be for the lower and middle classes, it is evident that it is by no means suited to secure the property of a wife from the specula- tions or extravagance of her husband, and as a matter of fact the system of community is little employed by any ABSENCE OF CONTRAT : ALIENS. 101 save the lower classes. It frequently happens, however, that foreigners who intermarry with French citizens in France are ignorant of this rule, and only become aware of it after the situation has become irreparable ; for by Article 1319, no post-nuptial contract or agreement can affect the regime under which the marriage was cele- brated. Too much attention cannot therefore be given to this point, which has earned amongst international jurists the name of the famosissima qucestio, so hotly contested in the seventeenth century between d'Argentr^ and Dumoulin. The problem may be stated as follows : If aliens marry in France without having made a marriage contract, do they fall within the presumption of Article 1393 ; that is to say, are they to be deemed to be married under the regime de la communautS, or is the law of their nation- ality to be applied? The reason why this question seemed insoluble to the jurists of the seventeenth cen- tury, and why it is one upon which they still disagree, is obvious. It is incapable of categorical solution ; the cases present circumstances too different to enable them all to be solved by the application of the same rule. A few examples will not only illustrate this point, but help us to arrive at a proper understanding of the subject. If we suppose the foreigners to be both American, neither of whom have any home in France, it is clear that they cannot be presumed to have an intimate know- ledge of its laws and customs. It would be grossly unreasonable to suppose that they intended to adopt a system of community the very existence of which they ignored, and the nature of which is repugnant to the laws of their own country, simply because in con- formity with the forms of celebration of that country, they married without having previously signed a marriage contract. If on the other hand we suppose the foreigners to have 102 ABSENCE OF CONTEAT : ALIENS. lived all their lives in France, to be more familiar with the laws of France than with those of the country to which they legally belong, to be perfectly aware there- fore that by marrying without a contract they are adopt- ing a system under which a community of goods will exist between them, it is not reasonable to pervert their intentions by applying to them the arbitrary rule that the marriage relation is to be controlled by the laws of the country of which the parties are citizens, and thus deprive a wife of her half in a fortune which her labor and economy may have largely contributed to accu- mulate. It appears therefore that, in the first case, the rule that the law of the country where the marriage is celebrated should be applied is inapplicable ; and in the second, that any other rule would be unjust ; that the rule that the law of the nationality should be applied would in the first case be the only reasonable one, whereas in the second it would be altogether unfair. And yet the only dif- ference between the two cases consists in the duration of the respective residences in France. There is no hard and fast line to separate the residence which shall, from the residence which shall not, create a presumption that the parties intended to be married according to the rules of the country where the marriage was celebrated. Until such a line is fixed by international agreement the deci- sion of the question will have to be left to the discretion of the court, and every case will have to be decided upon its own merits. This state of things however is extremely unfortunate, for it is impossible to say beforehand which of three distinct and opposite theories the court will adopt in its decision. These three theories are as fol- lows: — ■ 1, The law of the nationality must in all cases be applied. 2. The law of the place of marriage must in all cases be applied. ABSENCE OF CONTEAT : ALIENS. 103 3. The intention of the parties must be sought, and that intention carried out. After having shown the injustice which may be caused by an indiscriminate application of the first two of these three systems, it is hardly necessary to state that the third seems to be the one most calculated to command approval ; and it may be added that, the third solution is the one which is now generally adopted by the courts. The practical result of the above considerations may be summed up therefore as follows : When persons con- tract marriage in France without signing a marriage contract, they are presumed to have intended to adopt the system of community of goods. The fact that the parties to the marriage are of foreign nationality is not sufficient in itself to rebut this presumption. But courts differ as to the rule which is to be applied in order to determine the veritable intention of the parties. As, however, it is this intention which it is the duty of the court to render effectual, and the courts differ, not as to the question whether the intention of the parties is to be carried out, but how it is to be determined, the parties have only clearly to express their intention in order to obviate all discussion. It is advisable, therefore, for foreigners in every case to put their intention clearly down in writing before the celebration of the marriage, not only for the purpose of putting an end to all doubt as between themselves, but also in order to prevent un- certainty as to the distribution of their estate after their death. For it should not be forgotten that uncertainty of this kind occasions delay and expense, even though the parties in interest are agreed, and ask nothing but to know how under the law the estate is to be divided. The next question that naturally suggests itself is how the intention of the parties should be expressed. The ordinary method for doing this is by marriage contract ; but a marriage contract is a matter of considerable expense in France, for it has not only to be executed before a 104 ABSENCE OF CONTEAT : ALIENS. notary whose fee is by common custom proportioned to the wealth of the parties, but it is exposed to the pay- ment of extremely heavy taxes (^droits cP enregisiremenf) which ought not under the circumstances to be incurred. Without entering into the extremely complicated sub- ject of droits d'' enregistrement, it may be broadly stated that no such tax is incurred unless the parties are bound by the contract in a certain sum of money. This need not be the case if the declaration is made in its simplest terms, for all that the foreigner has to provide for is that a certain presumption of law shall not apply to him. He is not in any way bound to adopt any of the various regimes of the French law, as is often erroneously sup- posed to be the case. The most economical as well as efficacious manner of carrying out this plan is to sign a statement before the proper diplomatic or consular officer to the effect that, though marrying in France, the parties repudiate the presumption which, under French law, might apply to them in the absence of a marriage con- tract, and, on the contrary, intend to retain the property relations established by the laws of the country to which they belong. One last word of caution should here be added. In Article 75 it is provided that the celebrating officer shall ask the parties if a marriage contract has been made, and in case it has, the date and the name and residence of the notary before whom it has been signed. It is quite possible that the parties may consider that the declara- tion before the diplomatic officer is not equivalent to a contract before a notary, and may answer, without in- tention to mislead, that no notarial contract has been made. Such an answer would in great part nullify the effects of their declaration, for the marriage record would then set forth that no contract • had been made, and as no trace of the declaration would appear upon the record, future heirs might have no knowledge of it, and the famo- sissima qucestio would still remain unsettled. The proper LEGAL COMMUNITY. 105 course, therefore, is to inform the marriage clerk at the mairie that a marriage contract has been executed before the diplomatic oiBcer, and obtain, if required by the clerk, a certificate from the officer to that effect. The only case that has been considered is the one in which both parties belong to the same nationality. When one of the parties is French the situation is very much changed, for the law of the nation to which the man belongs is, by a generally admitted rule, decided to prevail. This rule, however, is not so far-reaching as not to leave room for many questions of an extremely complicated character (y), and the parties to such a mar- riage cannot be too careful in settling their property relations by contract or declaration prior to the celebra- tion thereof. It not unfrequently happens that Anglo-Saxon parents, being advised of the presumption of French law that persons marrying in France are deemed to have adopted the system of community, unless they shall have ex- pressly adopted some other system or have made a notarial contract, select the latter course as a way out of their difficulty, and in so selecting find themselves ex- posed to new traps in consequence of provisions of the Code on the subject of donations with which they are not likely to be familiar. Although it is generally known that under French law children have vested rights in the estates of their parents, the necessary consequence of this provision does not seem to have been as widely understood. It is clear that if the vested right of the child upon the parents' estate is to be protected, some limit must be put upon the right of a parent to give away his property during his life ; therefore the same limits are imposed upon the parent's right to dispose of his property by gift as to (g) Castelv. Barakat, Journal du Droit International Privi, 1883, p. 170. 106 DISPOSABLE PORTION. dispose of it by testament. As a marriage contract is essentially a donation, the right of a French parent to dispose of his property by marriage contract is, for our purpose, as restricted as by ordinary deed of gift. By Article 913, children have a vested right in the estate of their parents in the following proportions : If there be only one child, to one-half ; if there be two children, to two-thirds; if there be three or more, to three-fourths. In the first case the parent can only dispose of one-haE ; in the second case, of one-third ; and in the third case, of one-fourth of his estate. This provision does not prevent a parent from making a valid donation, marriage contract, or will, which dis- poses of more than the disposable part of his estate, for the obvious reason that there is nothing to indicate at the time the instrument is executed what the disposable part of the estate will be when the vested rights of the heirs are determined by the death of the parent. There is nothing, therefore, in law which prevents the father of a dozen children from giving by a contract of marriage his entire estate to one of them. The act itself is not an illegal one, for there is no reason for supposing that the eleven other children may not die before the parent, in which case the contract will receive its full execution. It is clear that an American parent, who is not alive to the provisions of the law in this respect, is open to serious misapprehension as to the effect of marriage contracts which he may sign ; still more so the English parent, who is accustomed to see the entire real property go to the eldest son. In estimating, therefore, the value of a French settlement, it is important to bear in mind the possibility of its being reduced upon a final distribu- tion of the estate. This possibility is measured by the number of children actually living, and the likelihood of the birth of new issue thereafter. 107 CHAPTER VI. THE EFFECT OF CHANGE OF DOMICILE UPON PEOPEETY EELATIONS. As has been previously observed, there are two abso- lutely opposite theories as to what law should govern the property relations of persons not marrying in their own country : one — which we may call the Italian system, having found its most vigorous and able defen- der in the eminent Italian jurist, Fiore(a), and being expressed perhaps in more explicit terms in the Italian Code (5) than elsewhere — determines the character of these relations by applying thereto the laws of the nation to which the parties belong ; the other, which may be termed the English system, determines these questions by applying thereto the law of domicile. It is not proposed here to go into all the complications which result from an examination of the English system. It would be impossible to have found an element more shifting, more theoretical, more difficult to determine, and more incapable of proof, than that of domicile, which English writers and courts have adopted as a test for deciding the most complicated international questions that arise. To say that the property relations are to be determined by the law of domicile is only to lay the basis for inextricable confusion ; for domicile may mean either the domicile of the husband or it may mean the matrimonial domicile, in case these two do not agree. {a) Fiore, " Droit International Prive." (5) Italian Civil Code, Axt. 6. 108 EFFECT OF CHANGE OF DOMICILE. Whether we take one or the other, both are equally diffi- cult to establish, for they depend for their determination upon the intentions of the party. In the absence of the party it is practically impossible to determine what his intention was, and in the majority of cases the party himself is unable to make a distinct and certain statement as to his own intention at any given time. Not only is domicile by its very nature one of the most difficult facts to prove, but it is liable to constant change ; and after having been cast adrift by the uncer- tainty as to what the domicile was at the time the marriage was contracted, we are thrown still further from our reckoning by the changes of domicile which are almost certain to occur in cases that give rise to this character of question ; for it nearly always happens that when a marriage is celebrated in one country between citizens of another, these citizens change their domicile before they die. It may be stated generally that the French follow the Italian system, in adopting the theory that aliens who marry in France are not deemed subject to French law as to their property relations, unless evidence of so per- manent a matrimonial domicile is proved as to leave no doubt that the parties did not intend to be married under any other law than that of the place of celebration. Starting with this premiss the domicile of the husband becomes a purely subsidiary matter in the determination of the problems which this order of question may suggest. Savigny very ably discusses it, and concludes that the husband cannot by changing his domicile change the property relations that exist between himself and his wife (c). The French school seek to carry out the intention of the parties, and surely in matters of contract this ought to be the paramount consideration. They do not hesitate (c) Savigny, " Traite du Droit Eomain," Tome YIII. pp. 329—330. EFFECT OF CHANGE OF DOMICILE. 109 to apply the lex loci when it was clearly the intention of the parties to adopt the local regime (d). Indeed, in the case of Castel v. Barakat, they applied the local regime, even to a French citizen, where it was probable that he had intended to adopt it. Taking the intention of the parties at the time of celebration as the determining element, and in connection therewith Article 1393 of the Civil Code, which provides that no post-nuptial agreement can afEect the regime under which the marriage was celebrated, it is clear that French courts can never allow change of domicile to in any way modify the property relations of married persons. One rule only is sufficiently paramount to affect this question. This rule is the one set forth in Article 3 of the Civil Code already referred to which provides that real estate, even though owned by aliens, shall be subject to the law of France (e). The question does not appear to be settled in the United States. In Louisiana the English theory has been adopted ; but on studying the case (/) in which the matter received the most careful attention, we find an element involved which is of itself sufficient to determine the mind of the court. For there were here arrayed against one another not two sets of heirs between whom the equities were equally divided, but the heirs on one side and the creditors on the other. The marriage had been celebrated in Virginia, where community does not exist, and the parties had moved to Louisiana, where it does exist (as to acquets or gains), and the court held that the law of Louisiana was to apply to all property acquired since domicile was acquired therein (y). As this view was the one which defeated the heirs as (d) Castel v. Barakat, Journal du Droit International Privi, 1883, p. 170. (e) See Mauchien v. Macdonald and Lesieur, Cass. 4 April, 1881 ; Journal du Droit International PrivS, 1881, p. 426. (/) SaulY. His Creditors, 17 Martin, E. 573. (y) Civil Code of Louisiana, sect. 2401. 110 BONATI V. WELCH. against the creditors, the overwhelming balance of equity in favor of it must be recognized as having greatly acted in its favor. A different conclusion was reached by the New York Court of Appeals in the case of Bonati v. Welch (h). The matter is so well presented by Judge Davies that the following extract will form the best conclusion to this chapter. After having explained the nature of the regime de la communauU in France, the learned judge proceeds as follows : — '' Such would have been the rights of the parties, if both had continued to reside in France. "Are these rights changed by the circumstance of the husband coming to this country and dying here ? " That the price of the wife's immovables thus sold and realized by the husband constituted a valid debt against him by the laws of France, where this marriage took place, admits of no doubt. Is the debt discharged by the husband's coming to this country ? "The rule laid down by Parsons on Contracts («') would seem to answer this suggestion. He says : ' It is the general rule, both in England and in this country, that the incidents of marriage and contracts in relation to marriage, as settlement of property and the like, are to be construed by the law of the place where these were made ; for any different construction cannot be supposed to carry into effect the intentions and agreements of the parties, or to deal with them justly.' " Many cases are cited to sustain the text, and among others, those in our own State of Decouche v. Savetier (/) ; Crosby Y. Berger{k); and Z>e Barante v. Gott(l). These cases hold that where there is an express contract (A) 'New York Eeports, vol. 24, p. 157. (i) 2 Pars. 7tli ed. p. 729. Ij) 3 Johns. Ch. 190. Ik) 3 Edw. Oh. 538. ll) 6 Barb. 492. BONATI V. WELCH. Ill between the parties, that contract will be enforced, and the rights acquired under it maintained and upheld, though there be a change of domicile. Rights de- pendent on the nuptial contract are governed by the lex loci contractus. There would be no diflficulty in this case, therefore, of sustaining the rights and claims of the plaintiff, if the provisions of the Code Napoleon had been embraced by an express contract. Some foreign jurists hold that the law of matrimonial domicile attaches all the rights and incidents of marriage to it proprio vigors, and independent of any supposed consent of the parties {in). " Others hold that in such cases there is an implied consent of the parties to adopt the law of matrimonial domicile by way of tacit contract, and then the same rule applies as in cases of express nuptial contracts. Dumoulin was the author, or at least the most distin- guished advocate of this doctrine {n). This rule has also been adopted by Bouhier, Hertius, Pothier, Merlin, and other distinguished jurists (o). '' Story, after reviewing the opinions of jurists and the decisions having a bearing upon the question, sums up the whole by saying, in section 159, that perhaps the most simple and satisfactory exposition of the subject, or at least that which best harmonizes with the analogies of the common law is, that in the case of a marriage where there is no special nuptial contract, and there has been no change of domicile, the law of the place of celebration of the marriage ought to govern the rights of the parties in respect to all personal or movable property, whenever acquired or wherever situate ; but that real or immovable property ought to be left to be {m) 1 BouUenois, Obser. 29, pp. 741, 750, 757, 758 ; Huberus, Lib. 1, tit. 3 ; De Confl. Leg. § 9. («) Story on Conflict of Laws, § 147. (o) Id. § 148. 112 BONATI V. WELCH^ judged by the lex rei sitce, as not within the reach of any extra-territorial law. When there is any special nuptial contract between the parties, that will furnish a rule for the case, and, as a matter of contract, ought to be carried into effect everywhere, under the general limita- tions belonging to all classes of contracts. '' In this case a new element is introduced by the removal of the husband from France, and consequently a change of his domicile. "In sect. 161 Story quotes from Bouhier, who lays down the rule in general terms that, in relation to the beneficial and pecuniary rights (les droits utiles et pecuniaires) of the wife which result from the matri- monial contract, either express or tacit, the husband has no power by a change of domicile to alter or change them, according to the rule nemo potest mutare consilium suum in alterius injuriam, and he insists that this is the opinion of jurists generally. To the same effect, that the change of domicile by the husband shall not deprive the wife of any separate interests or rights she may have, is the case of Harteau v. Harteau (p). " And this rule is a reasonable and proper one. As a general rule the domicile of the wife follows that of the husband, and there is much force in the argument that, in the absence of an express agreement defining the matrimonial rights, the law of the contemplated or any future domicile should govern. But in the case now under consideration the domicile of the wife has not been changed, and the rights she acquired by the tacit contract made in the matrimonial domicile are not, we think, lost or impaired by the change of the domicile of the husband. Those rights do not mature until the death of the husband. They were postponed till the happening of this event; and then, by the law of the matrimonial domicile, the right of the wife to a return {p) 14 Pick. 181. COKFLICT BETWEEN COMMUNITY AND TRUST. 113 of all her individual property received by the husband revives and can be enforced, "We see no reasons of public policy why rights thus secured should not be recognized or enforced equally as those arising from an express contract. " The judgment must be affirmed with costs." It is to be hoped that the unimpeachable logic of this decision will be adopted universally by our courts, and that the lex domicilii, with its uncertainty and liability to change, will more and more give way before the law of nationality. This question has a practical interest in the case of an English or American wife married to a Frenchman under the community regime, where, by deed or will, property has been settled on the wife, in England or America, in trust for her sole and separate use free from the control of her husband. In such case, is the inten- tion of the settlor or the law of the matrimonial contract to prevail ? In other words, can the husband claim this property or the income thereof from the trustees, by virtue of his position as head of the community, and as being accountable for the administration thereof. Several instances of this conflict have occurred within the writer's experience, but in no instance has it been, as far as he knows, brought to a definite issue before the courts. The English courts will hold that the foreign law must give way before an English settlement, made in contemplation of the marriage, and to which the husband and wife were parties (§'). Inasmuch as this opinion is based on the application of the lex loci actus, doubtless their decision would not be otherwise, even in the case of a settlement made for the wife's sole benefit subsequent to the marriage, and to which neither husband nor wife was a party, although (y) Foote, 2nd ed. p. 318 ; Westlake, pp. 70 et seq. r. 1 114 CONFLICT BETWEEN COMMUNITY AND TRUST. no cases directly in point ai-e to be found. This lack of decisions is doubtless explained on tbe one hand by the fact that the settled property is outside the jurisdiction of the French courts, and on the other by the frequent provision in French marriage contracts exempting the husband from accountability for moneys receipted for by the wife without his joining in the receipt, which would be the case under such settlements as are contemplated. 115 CHAPTER VII. OF TKB EFFECT OF MAEEIAGE ON NATIONALITY. The French Code is extremely clear upon this point. Article 19 provides that a Frenchwoman, upon marrying a foreigner, loses her French nationality and acquires his. The converse is also true. This provision is con- formable to the now universally admitted rule of inter- national law, but it should be observed that before the passage of the Naturalization Act (33 & 34 Vict. c. 14), the English rule upon this subject, based upon the maxim nemo potest exuere patriam, did not admit that an Englishwoman could by marriage lose her English nationality. This rule was also the one adopted in the United States with the general adoption of the English common law (a). The effect of this English rule was to produce a perpetual conflict of law ; for English and American women upon marrying Frenchmen acquired a French nationality under French law, without losing their English and American nationality under their own law. The extreme inconvenience of this system, and particu- larly the liberality brought into English jurisprudence by the gradual development of the rules of international law, led to an abandonment of the principle nemo potest exuere patriam, the history of which begins with the protocol signed by the United States Minister, Johnson, and Lord Stanley in October, 1868, and ends in England {a) Beck v. McGilUs, 9 Barber, 35 ; Shanks v. Dupont, 3 Pet. 243. i2 116 EFFECT OP MAERIAGE ON NATIONALITY. with the passing of 33 & 34 Vict. c. 14. This Act par- ticularly provides that a married woman shall be deemed to be a subject of the State of which her husband is for the time being a subject. Conflict, therefore, between France and England upon this part of the question is now impossible. The situation in America, however, is not quite the same. The statute of 1870 passed for the purpose of carrying out the agreement between England and the United States as to the abandonment of the maxim nemo potest exuere patriam dealt only with the part of the question which had most political importance for the United States at the time, namely, the right of English subjects to denationalize themselves by becoming Ameri- can citizens, and the right of American citizens to denationalize themselves by becoming British subjects. The question of the status of married women marrying foreigners was not treated; and there is no explicit provision in the United States laws on the subject. As, however, the American theory that a woman did not lose her American nationality by marrying a foreigner depended on the maxim nemo potest exuere patriam, and that maxim was repudiated by the American Naturaliza- tion Act of 1870, it seems reasonable to conclude that there is no longer any reason for supposing that America is the only civilized country to hold out against the rule universally adopted by other countries, that a woman upon marrying a foreigner acquires his and loses her own nationality. Moreover, this view is adopted in the recent decision of Pequignot v. City of Detroit in the eastern district of Michigan (5). It is probable, there- fore, that no more conflict will arise between the American and French law on the subject than between French and English (e). (5) 16 Federal Eeporter, 212. (c) This question has been more elaborately discussed by the author EFFECT OF MARKIAGE ON NATIONALITY. 117 A Frenchwoman, however, does not lose her right to French nationality for all time by marriage with an alien; for Article 19 provides, that if she become a widow she shall recover her French nationality, pro- vided she be a resident in France, or return to France with the authorization of the Executive, after having declared her intention of permanently residing there. A similar provision is to be found in 33 & 34 Vict. c. 14. No special provision having been made in the United States for the status of married women, this question remains unsettled. The absence of a provision on the subject in the United States, is liable to give rise to a conflict of law; for a Frenchwoman on marrying an American citizen becomes an American both under French law and that of the United States. If, however, she become a widow while residing in France, by a presumption of the French law she will be deemed to recover her original nationality. The question arises whether the American courts would admit this presump- tion of the French law, and recognize that a woman can lose her American nationality by the mere fact of residing in France at the time of the death of her husband. The complicated questions which would arise on settling the estate of the deceased husband are num- berless. It is singular that there appear to have been no decisions on the subject. There is less likelihood of conflict on this subject in case the woman in question be a subject of Grreat Britain, for the fact that the English Naturalization Act contains a provision practically equivalent to that of Article 19 of the Code Civil on this point clearly creates reciprocity between the two legislations, under in an article entitled "Des Effets du Mariage sur la nationalite dans les Etats-Unis d'Am6rique," in Clunet's Journal du Droit Inter- national Privi, 1884, p. 162. 118 EITBCT OF MAEEIAGE ON NATIONALITY. the influence of which. English courts -would doubtless not contest the recovery by the widow of French nationality upon the death of the English husband. But even in this case it is doubtful what view the courts would take in England as well as in America as to the right of such a widow to dower in the lands of her husband situated in England or the United States. Under the old common law an alien woman by marry- ing a British subject owed allegiance to Grreat Britain, without being entitled to dower((^), and this was declared to be the law in the United States in the case of Shanks V. Dupont(e). Although the Naturalization Acts passed in both countries have tended to mitigate the illiberality of the old common law on this point, it is by no means certain that a widow who had ceased to be an English subject by a presumption of French law would be entitled to dower in her husband's land. The extreme difficulty of the question would consist in deciding under what law her interest in her husband's estate was to be determined, for if she were married in England without a marriage contract, and it were decided that, on account of her revived alienage she was not entitled to dower, she would not under the French law in force prior to the law of March 9th, 1891, have been entitled to any part of the estate whatever, as a wife did not formerly inherit from her husband in France ; but had she been married in France to a Frenchman without a contract she would have been entitled to one half the estate under the regime de la communauU which is pre- sumed to exist in the absence of contract. Now, how- ever, she would benefit by the law of March 9th, 1891, {d) Co. Litt. 31 b, Com. Dig. Alien, 0. 1, Dover, A. 2; Bacon's Abridg. AKen, Dower, A. (e) 3 Pet. p. 246. wife's rights in husband's estate. 119 wMcli modifies Articles 767 and 205 of the Civil Code, and places the surviving wife in a slightly more favor- able position in the order of succession. In case the deceased husband has left no relatives within the succes- sional degrees, nor natural children, the surviving wife, not divorced or judicially separated, takes the whole of the estate in fee simple. In case she is in competition vrith other heirs, she has only a life estate, which is of one quarter of the estate if there are one or more children of the marriage ; of the equivalent of the share of a legitimate child whose portion is the least, in case there are children of a prior marriage ; and of one half in all other cases, whatever the number and rank of the heirs. The surviving wife can only enforce her right upon the property which her predeceased husband has not disposed of by deed inter vivos, or by will ; she cannot enforce it on the reserve, i.e., that portion of the estate to which certain classes of heirs (in the direct line descending or ascending) have a vested right. If, there- fore, the testator have exhausted the disposable portion {i. e., the whole of the estate less the reserve), the wife is excluded from his estate altogether. Even then she is not now quite destitute, for Art. 2 of the law modifying Art. 205 of the Civil Code entitles her to claim alimony from the estate of her deceased husband. The provisions of this law are reciprocal, and grant the same rights to the STirviving husband upon the estate of the wife. The protection which this law affords to the wife is nevertheless so comparatively slight as to make it ad- visable to carefully define her rights in case of dissolu- tion of the marriage by death, by means of a marriage contract, or by testamentary disposition. Indeed, the moral to be derived from a study of all these questions is that it is extremely imprudent to allow matters of status or property to be determined by presumptions or 120 LAW OF MAECH 9TH, 189!. dispositions of law. "When there is a marriage to be celebrated in which an international element, whether of person or of place, is involved, let the intentions of the parties be clearly expressed. When there is an estate to be settled, let the conditions of that settlement be set down in a will carefully drawn in view of all the inter- national questions to which it may give rise. 121 CHAPTER VIII. ON SEPAEATION AND DIVOECE. A TREATISE on the French Law of Marriage would not be complete without some reference to the conditions imder which a marriage can be dissolved or the effects of it modified. Divorce in France, enacted bj the Code Napoleon in 1804, was repealed in 1816, and re-enacted by a law of July 27th, 1884, completed and simplified by a law of April 20th, 1886. SECTION I. GrROUNDS OP DIVORCE. These Divorce Laws differ in two important points from the law as it originally sj;ood in the Civil Code. Under the original law, divorce could be obtained upon the mere consent of the parties, but it could not be ob- tained against the will of the husband on the ground of adultery on his part unless he had introduced the concu- bine into his home. It is not necessary to pass judgment upon these provisions of the old law, for they have dis- appeared in the new. The adultery of the man is deemed a sufficient reason for divorce without the aggravating condition imposed by the original law. Singularly enough, however, this anomaly, which has now dis- appeared from the civil law, still continues in the 122 GROUNDS OF DIVORCE. criminal law. The adultery of the wife is punishable upon the information of the husband by three months' to two years' imprisonment ; that of the husband only by a fine of from one hundred to three thousand francs, and then only in case he has harbored his concubine under the conjugal' roof. Further, the murder of a wife and her paramour taken m flagrante delicto by the husband is excusable ; not so the murder of the husband or his concubine by the wife under similar circumstances. Divorce by consent, which aimed a blow at the very foundation of the institution of marriage, is no longer permitted under the new law. In addition to adultery, the new law allows divorce on the ground of violence (exces), cruelty (sevices), and injures graves. Exces is the word substituted in the final drafting of the Code of 1804 for the word attentat adopted in the draft submitted by the Tribunat. ^^ Exces, ^^ says Locrd, " are a generic expression comprising all acts tending to compromise the safety of the person, without distinction as to their object or motive, premeditation as well as furious anger, attempts upon life as well as simple woundings." Exces, generally speaking, therefore, are acts which endanger life. Quaere whether abuse of marital rights constitutes an exces ? Probably not unless aggravated, e.g., by attempted acts against nature or during pi'egnancy. Sevices are acts of ill-treatment, less grave in character, which, while not endangering life, render existence in common intolerable. Injures graves, lastly, are acts, writings, or words which reflect upon the honour or the reputation of the party against whom they are directed. This is an elastic defi- nition and the courts have interpreted it very broadly. It is impossible to give an exhaustive definition of injures graves. The most that can be done is to give the prin- cipal instances upon which the courts have passed. GEOUNDS OF DIVORCE. 123 Verbal or Written Injuries. — An imputation of adultery- is an injury of this class unless it be a necessary feature in judicial pleadings; so also is the entertaining by a wife of calumnious imputations upon her husband as that he had a mistress with whom he continued relations during the honeymoon (a), and retractation upon trial does not remove the ground. Publicity is not a suffi- cient (5) nor a necessary, but may be an aggravating element (c). The inj'we may be contained in a letter written by husband to wife or vice versa, or by either to a third person ; and it is even within the discretion of the court to admit injures contained in letters written after the divorce proceedings have been begun. Material Injuries. — The chief are, refusal to accomplish the conjugal act if habitual and with intent to offend ; desertion of the conjugal roof ; refusal by husband to receive wife under conjugal roof ; communication of venereal disease; refusal to consent to religious cere- mony of marriage. The court has wide discretionary powers as to the admission or rejection of these forms of injures graves. Thus relinquishment of the matrimonial domicile by a husband with the view of making a fortune in a far-off country was not a sufficient ground to base a decree upon injures graves (^d). There must be deliberate and injurious intent such as is inexcusable by any material or moral compulsion. Habitual drunkenness has been held to be an injure grave (e), but not isolated acts of inebriety in private (/), (a) Gazette du Palais, 1886, I. 611. (5) DaUoz, 57, 2. 133. (c) Oass. 9 Not. 1830; Sirey, 1831, I. 165. {d) Trib. Seine, 18 Juillet, 1889. \e) Court of Appeal of Orleans, 18 Dec. 1889. (/) Dijon, 27 July, 1887 ; Gaa. Pal. 1888, I. 25. 124 PEOCEDUEE. Lastly a divorce may be granted by reason of the husband or wife being sentenced to a peine afflictive et infamante, that is to say a punishment involving both corporal confinement and moral degradation, e.g.^ death, penal servitude for life or a term, transportation, solitary imprisonment. This is a peremptory ground and leaves no latitude of appreciation to the court. SECTION II. Peoceduee. The law of April 20th, 1886, did away with the cumbrous special procedure of the Code, which had been re-enacted by the law of 1884, and provides that " the cause shall be investigated and tried in the ordinary form," i.e., according to the ordinary rules of procedure. The action is therefore brought before the court by the ordinary method of an assignation or writ of summons comprising a full statement of claim. Notwithstanding this provision, there are certain necessary preliminaries to the assignation which are peculiar to matrimonial causes. The first step is the presentation of the petition to the president of the court in chambers. The petition must be presented by the petitioner in person, unaccompanied even by his solicitor. The reason of this is the theory that the president's first function is to endeavour to bring about a reconciliation, so that no effort may be spared in the interest of society to prevent the disin- tegration of families, which task the presence of the petitioner alone and unbiassed by the suggestions of his counsel is considered to facilitate. In the large majority of cases matters have at this stage gone so far, that all PROVISIONAL RELIEF. 125 hope of reconciliation is illusory, and the president's r61e of conciliator is purely perfunctory. This occasion is known as the premiere comparution, or first appearance. Assuming that the petitioner " persists " in his request, to use the established phraseology, the president gives him leave to cite his consort to appear before him at a date fixed. This is the seconde comparution. On this second appearance the respondent may appear or make default. In the former case the president hears the personal statements of the parties again unassisted by counsel. These interviews are often of a stormy cha- racter, as may be easily imagined. In case he fails to bring about a reconciliation, he makes an order per- mitting the petitioner to bring action before the court by way of assignation and grants such provisional measures of relief as have been prayed for in the petition, or as seem to him suitable. The chief provisional measures which the president passes upon are the following : 1. Separate residence. 2. PfAimanj pendente lite. 3. Delivery of personal effects. 4. Custody of children. 1 . Separate residence. — The president's order directs that the parties shall live apart, and in the case of the wife, prescribes the place where she is to reside. During the pendency of the action she may not, without the presi- dent's authority, permanently remove therefrom. She must at all times during the action be able to show that she is residing at the place indicated, under penalty of losing her alimony and having the action dismissed if she is petitioner. The husband is under no such restriction. He may reside where he pleases. Either party in case of molestation by the other may call in the aid of the police to expel the party thus disobeying the president's order. 126 PROVISIONAL RELIEF. 2. Alimony pendente lite. — Alimony may be demanded by either husband or wife, not only as preliminary relief, but at any time during the action. It may be refused if the president or the court consider that the petitioner has sufficient means. It is always granted to the wife married under the community system, as imder this system she has no independent income, the husband having the enjoy- ment of the income as well of her separate property as of the community. The amount thereof is entirely in the discretion of the court, and will vary with the needs of the claimant and the means of the other party. The court is at liberty to increase or diminish it, at any time during the pendency of the action, for good cause shown. It is calculated with reference to two elements, 'pension alimentaire, or maintenance, and provision ad litem, or an allowance for costs. 3. Delivery of personal effects. — The corollary of sepa- rate residence. Personal effects' include not only cloth- ing, but articles of personal use, e.g., in the case of the wife — jewellery, toilet articles, &c. Remedies in case of refusal to deliver, are removal of the articles by a huissier (official process-server) or police commissary ; or, if they cannot be found, summary process before the court for permission to attach them. 4. Custody of children. — The Code and the law of 1884 provided that " the interim custody of the children shall be given to the husband unless the court has, on the application of the mother or the ministere public, other- wise ordered, in the better interests of the children." This section was not reproduced in the law of 1886, which left the matter in the discretion of the court. The courts, however, are still inspired by its spirit, considering, in the first place, the best interests of the children, while at the same time giving due weight to the authority of the father, as head of the family. The EVIDENCE. 127 discretion of the court is a wide one. Thus, for example, the custody of the children may be given to a third party, or they may be placed in some educational establish- ment. Applications in regard to the custody of the children are not the monopoly of their parents. They may be made by other relatives, or by the minister e public (ff), and orders as to custody may be varied by the president or the court at any time during the coutse of the action for due cause shown. Evidence. — Without going exhaustively through the theory of evidence in French law, it may be briefly stated that documentary evidence is the best evidence and oral testimony is only secondary evidence. Kdivlterj flagrante delicto, requires no further proof beyond the official certifi- cate of the commissary of police. Letters between hus- band and wife are admissible in evidence. As to letters passing between the parties and third persons opinions are divided. The latest decisions make an invidious dis- tinction between husband and wife, holding that the wife may only produce letters written by third persons to her husband, which have come into her possession accident- ally and without any resort on her part to ruse or arti- fice ; whereas the husband may put in any letters written to or by his wife which have come into his hands by any means not actually criminal (A). In case the documents produced are insufficient to satisfy the court, recourse is had to an enquete or investi- gation by witnesses. A schedule of the allegations to be proved is drawn up, and a judge, known as a, j'uge-commis- saire, specially appointed to conduct the inquiry. This inquiry is now conducted in accordance with the ordinary rules prescribed by the Code of Civil Procedure, except (ff) Art. 240. (A) Orleans, 13 Dee. 1889; Gaz. Pal. 1890, 1. Supp. 21; Oass. 11 June, 1888 ; Gaz. Pal. 1888, II. 199. 128 TRANSCRIPTION OP DECREE. that relatives and servants of the parties who are not competent vpitnesses in ordinary actions are competent to give evidence in divorce cases. This is a reasonable provision, as if the parties were debarred from calling the testimony of the persons immediately surrounding their household, they would, in a number of cases, be unable to make out any proof of their allegations. Cross-petitions may be entered, and a cross-petition if substantiated does not bar the divorce which is frequently granted in favour of and against both parties pour torts r4ciproques, for reciprocal injuries. Methods of attempted reconciliation are not exhausted even when the case comes on for trial, for, by Art. 246 of the Code, the court may (but rarely does) postpone its decree for a period not exceeding six months, in order to give the parties a further opportunity of coming together again. This period is known as the temps d^epreuve. Appeal. — Decrees of divorce are subject to appeal during a period of two months from the date of service thereof. This right of appeal cannot be waived (^') as in ordinary actions. Appeal operates as a stay of execu- tion. The decree rendered upon appeal is also subject to appeal before the Court of Cassation on a point of law within two months from service of the decree. By way of exception to the ordinary rule, the pourvoi, or appeal to the Court of Cassation, also operates as a stay of execution. Transcription of decree. — Under the Code and the law of 1884, the court did not "pronounce" the divorce, it simply " admitted" (^) it. The divorce was "pro- nounced " by the registrar or maire on the application of (j) Art. 249. (h) Notice the phrase " admis en justice" maintained by an over- sight in Arts. 298, 304. TEANSCSKIPTION OF DECEEE. 129 the successful party. This practice — an objectionable feature of which was the simultaneous appearance of the parties before the maire — was abolished by the law of 1886, which now requires merely a transcription of the judgment upon the register of births, deaths and mar- riages. This transcription must be made within two months from the date at which the decree becomes final. In ease the parties have failed to demand this transcrip- tion within the stated period, the decree becomes void and of no effect. The transcription must be made at the place where the marriage was celebrated, or if celebrated abroad at the place where the parties were last domiciled in France. And if the parties after having been married abroad have returned to France, a circular of the procureur de la Republique of July 25th, 1887, provides that the transcription may be made at the place of their actual domicile at the time the action began. It would seem to follow that the same rule would apply to the tran- scription of a decree of divorce obtained by aliens in France (Z), and such is in fact the practice. It has been held that the transcription of the decree is an essential element of the divorce, and that its effect does not relate back to the date of the decree. Thus the wife's disabilities as a married woman continue until the transcription of the decree. SECTION ni. Effects op divorce. Re-marriage. — The principal consequence of a divorce is, of course, the dissolution of the marriage. The (J) Eepertoire Ga%. Pal. "Divorce," par, 356. F. K 130 EFFECTS OF DIVORCE. husband may marry again immediately. The wife,' however, may only re-marry after a period of ten months after the divorce has become final. This is in order to obviate any doubt as to the paternity of children born during this period. Furthermore, the party to the marriage against whom a decree has been obtained oh the ground of adultery may not marry his or her accom- plice. The French word complice is thus translated for want of a better word. The word " co-respondent " is quite inappropriate in French law. The co-respondent is not a party to the action, and he is usually only mentioned by an initial in the documents of procedure. Matrimonial proceedings in France are in fact conducted with a delicacy and secrecy which we could wish to see imitated elsewhere. The publication of divorce trials in the press is an offence punishable by a fine of from 100 to 2,000 francs. A divorced husband may re-marry his divorced wife, but in case he does so, they cannot be again divorced,, except upon the ground of a sentence to a peine afflictive et infamante passed upon one of them since their re- union. (Art. 295.) Name. — Prior to the law of February 6th, 1893, the question whether a divorced wife was entitled to continue to use the name of her husband was controverted. This law, however, sets the question at rest by enacting that the wife shall- resume her maiden name, and may not use the name of her divorced husband. Property. — Divorce effects a dissolution of the. matri- monial regime of property as well as of the marriage itself. The decree appoints a notary who is charged with the settlement of the pecuniary interests of the parties. By a stereotyped form of procedure the appointment is made invariably for the purpose of liquidating la eommunauU ayant existe entre les 4poux, PERMANENT CUSTODY OP CHILDREN. 131 irrespective of whether the rigime really was the com- munity or another. In the case of aliens, therefore, married under the rule of separate property, it is neces- sary to carefully set out this rule in the notarial deed of liquidation in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pro- nounced loses the benefit of all settlements made upon him or her by the other party either by the marriage contract or since the marriage. On the other hand, the party in whose favour the divorce has been pronounced preserves the benefit of all settlements made in his or her favour by the unsuccessful party. If no such settlements were made, or if those made appear inadequate to insure the subsistence of the suc- cessful party, the court may grant him or her permanent alimony out of the property of the other party, not to exceed one-third of the income, and revocable in case it ceases to be necessary. Permanent custody of the children. — The children are given to the party who has obtained the divorce, unless the court on the application of the family or the minis tere public consider it for the greater benefit of the children that all or certain of them be given to the other party or to a third person. In every case both the father and mother retain the right of supervising the maintenance and education of the children, and are bound to con- tribute thereto according to their means. Here, again, the best interests of the children are the predominant consideration with the court, which takes into account the sex, age, and health of the children, as well as the necessities of their education. k2 132 ■ SEPARATION. SECTION IV. Separation. Separation is of two kinds — siparation de corps, which is a divorce a mensd et thoro, or limited divorce, not dis- solving the marriage ; and separation de Mens, which merely puts an end to the community of goods between the parties. The nature and effect of separation de liens have already been explained {m). Separation de Mens is a necessary accompaniment of separation de corps. But separation de Mens may be decreed independently of separation de corps. The grounds for separation de corps are the same as those for divorce. A judicial separation de corps which has lasted three years or more may be converted into a divorce upon the application of either party to the court. An important and much-needed innovation has recently been made in respect of the civil capacity of a wife siparee de corps. Formerly she enjoyed merely the capacity attaching to the concomitant separation de Mens, i. e., she recovered the enjoyment and management of her separate personalty, but she could not deal with her realty nor take judicial proceedings (ra) without the authority of her husband, or, in case he refused it, that of the court. The scandalous exactions to which wives in this position were obliged to submit at the hands of unscrupulous husbands, who put a price upon their consent, roused the legislature to remove this anomaly. Indeed, the disadvantage of frequently bringing into contact persons between whom all sympathy had ceased to exist, and thus tending to accentuate their antagonism, was of itself a sufficient incentive to legislative action. (m) Supra, p. 90. (w) Art. 215. SEPAEATION. 133 Hence the law of February 6th, 1893, whose main provision was to restore to the wife separee de corps " the full exercise of her civil capacity, so that she shall not need to resort to the authority of her husband or of the court "(o). In case of reconciliation she is again reduced to the Kmited capacity of a wife separee de liens; but this modification in her status cannot be raised against third parties unless the resumption of cohabitation has been set forth in a notarial deed, and duly advertised accord- ing to law. Another article of this law, modifying Article 299 of the Code, settled a much-vexed question, viz. : whether the wife was still entitled after divorce or separation to continue to use her husband's name. ♦ This article now provides that as a consequence of a divorce each of the parties resumes the use of his or her own name. The reason for this reciprocal provision lies in the fact that it is customary for a husband and wife in certain parts of the country, and especially when engaged in trade, to join their names together. This clause no longer permits a divorced husband thus to use his wife's name. A rational distinction is drawn in this respect between divorce, which dissolves the marriage, and separation, which does not. In the former case the parties ipso facto resume their own names. In the latter case they preserve their married names unless it has been other- wise provided by the decree or a subsequent order of the court. This law also provides that the wife separee de corps ceases to have the same legal domicile as her husband. Nevertheless all legal process relating to matters of status served upon her must be served on the husband also, or is otherwise void. (o) Art. 311 of the Code, as modified. 134 DIVORCE OF ALIENS. SECTION V. Divorce of axiIens. The decisions of the French, courts on the question of their jurisdiction to divorce aliens have of late years gained in uniformity and precision. As a general rule the French courts are incompetent to entertain actions between aliens, particularly in matters relating to status and personal capacity. And in an action for divorce between aliens it was formerly suffi- cient for the defendant to decline the jurisdiction on the ground of his alienage to compel the French court to dismiss the petition. It has recently been perceived, however, that this position may frequently entail a com- plete denial of justice in cases where the parties have lost jurisdiction for purposes of divorce before the courts of their own country, and have not acquired jurisdic- tional status in France. Consequently recent decisions have established the rule that it will not suffice for the alien respondent to set up his alienage ; he must show, in addition, that there is no foreign court having juris- diction over him ; if he cannot do so, the French court will assume jurisdiction (jo). This rule has effected a large extension of jurisdiction over aliens in matrimonial causes, and particularly over Americans, who, by long residence in France, or for other reasons, have lost the jurisdiction of the courts of the State where to all other intents they are still domiciled. It was formerly held that the French courts could only grant divorce between aliens upon grounds sufficient according to the law of their domicile. This rule has, however, been relaxed, and in two recent instances, in {p) Oour d'Appel de Paris, 9 Aout, 1890 ; Gaz. Pal. 1890, II. 273; 4 Nov. 1890 ; Oaz. Pal. 1890, II. 500. DIVORCE OF ALIENS : JURISDICTION. 135 one of wliicli the domicile was Massachusetts and the other New Jersey, the French court granted divorces for injures graves, which are not, as such, sufficient grounds under the laws of these States, and without requiring any evidence as to the laws of these States. There is one case where the jurisdiction of the French court over aliens is undoubted. Article 13 provides that an alien may, by obtaining the authorization of the French Government, acquire a legal domicile in France, and this legal domicile confers upon the alien so acquiring it all civil rights, including the right of applying to the court for a divorce absolute or limited {q). Whatever be the jurisdiction of the court upon the merits, it always has jurisdiction in regard to provi- sional measures as between aliens, such as separate residence, alimony, and custody of children. All of these, however, are passed upon only for a limited period, and until the aggrieved party can bring an action before the court of the country to which he belongs. The time during which the relief would be given by the French court depends a good deal upon the facts of the case. In that of Btern v. Stern (r) the court took the view that the wife, who was the plaintiff, had reason for complaint against her husband ; and in view of that fact, and also of the illness of her two young children, the court allowed her the sum of 6,000 fr. for legal expenses, and 4,000 fr. a month during eighteen months, within which time she was expected to bring action in the State to which she belonged. The custody of the children was also given to her during that period. This is the most liberal provision, both in the amount involved and the time during which it was granted, that is to be found among the reported decisions. In another case the court (s) held that, inasmuch as the (y) Gaz, Pal. 1888, I. 47, 541 ; 1889, I. 777. (r) Journal du Droit International Privi, 1881, p. 526. (s) Id. 1883, p. 292. 136 DIVORCE OF ALIENS. husband had already offered to pay the expenses of his wife to New York, and sufficient funds to reach there and enable her to bring her case before the competent court, she was not entitled to more than 1,000 fr. a month during two months, and the expenses of her journey. The judgment, therefore, did not give her more than had been already offered to her by her hus- band. As to the custody of the children, it is a matter for regret that the decisions are not always marked by that careful regard for their best interests on the part of the judge which so vital a question deserves and which the theory of the law prescribes. As has been stated, the matter is not decided in open court, but by the judge sitting in private with no one before him but the parties. No evidence is produced, oral or written. Outside of the judge's room stand and sit a crowd of persons waiting for their turn; and under this pressure the judge will often dispatch between fifty and a hundred cases in an afternoon. The grievous injustice which this system is likely to occasion is one which cannot be too much insisted upon. The whole procedure in this connection is in striking contrast to the public argument and weighty consideration to which such cases are submitted under habeas corpus proceedings in our courts. 137 CHAPTER IX. Critical comparison of the French law with our own. The general effect of the study of the French marriage law upon the English-speaking reader, and especially of those points where it most differs from our own law, will generally be one of surprise, not unmingled with dis- approval. Nevertheless, after a careful study of the entire system as a whole, although it may not altogether commend itself to one of our race, the disposition to dis- approve will tend to disappear before a sentiment of satisfaction at the harmony of all its parts, and of interest in the new theory of family relations which it presents. Not that the relation itself is a new one, but that its sur- vival in this generation will be new to many readers. If the Roman theory of patria potestas, tempered by modern civilization, is to be admitted in our age, and if the con- servation of the family as the basis of social stability be deemed of primary importance, — ^if , indeed, that import- ance be considered so great as to overshadow the benefits to be derived from the early development of a sentiment of individual responsibility which appears above all precious to the Anglo-Saxon, then the provisions of the French law above criticized will not only cease to be obnoxious, but even appear a necessary part of a wise dispensation. The fundamental differences between our law of mar- riage and that of France are of a twofold character — those that are ethical and those that are practical. 138 CEITICAL COMPARISON. From the ethical point of view, our legislation, -wHcli is essentially a moral one, frowns upon all irregular sexual relations; does all that is possible to prevent them, and punishes them in their results with an implacability that almost amounts to injustice. It is this spirit which makes marriage easy without making it indissoluble, and while giving to the seducer a locus poenitentice by allowing him to legitimize his offspring by marriage after con- ception, punishes the innocent offspring born prior to .marriage by inflicting upon it the irreparable stain of bastardy. Cruel as may be the effect of this provision upon children born prior to marriage, it cannot be said that we can at this stage of our civilization dispense with it, in view of the fact that in Scotland, where legitima- tion after marriage is allowed, the proportion of illegiti- mate children exceeds that on the other side of the border ; and in France, where a similar law prevails, the number of illegitimate children, to judge from the state- ment of Emile de Girardin, himself a bastard, amounts to one-fifth of the entire population. The presence of so large a number of bastards does not in any way seem to disturb the moral equanimity of France. To the French law-maker porro unum necessa- rium — la conservation de la famille. That the sanctity of the family tie is preserved at the expense of one-fifth of its population, and that society is necessarily disorganized by the birth of that fifth, seems to have no weight vrith him. A father who has sown his wild oats and left the reaping of them to others, occupying a patriarchal posi- tion in a family in which no disproportion of dots is to be found ; in which every son, after having gone through his period of immorality, brings a suitable fortune to the untried affections of the woman who has been selected for him ; in which every daughter is a willing party to the delivery of her person to such son of a similar parent as brings a similar fortune under similar circum- stances; a family, generation after generation, inhabit- CRITICAI. COMPARISON. 139 ing the same place, worsliipping the same traditions, and clinging together with a clannishness which results from perfect satisfaction with the faultlessly balanced alliances that gave rise to it — this is the result at which the French system apparently aims, and to which it undoubtedly tends. It is not fair, however, to the system set forth in the French Code, inspired as it was by the genius of the First Napoleon, to assume that this tendency of French society is a necessary consequence of the provisions of the law ; on the contrary, it appears more probable that these evils, if they exist, result more from the manners and morals of the people than from the provisions of the law itself. The practical differences between our legislation and that of France result from the general disposition of the Anglo-Saxon to make his way in the world in whatever line his individual characteristics push him, as contrasted with that of the Frenchman to remain in the groove that his ancestors have marked out for him. In the one case the line tends to be one of progress, beginning often without any parental assistance whatever, and ending generally in prosperity ; in the other case it resembles more nearly a circle, starting in life under conditions of practically assured success, beginning at the same point where the father began, and ending at the same point where the father ended. The enterprise which makes of the Anglo-Saxon the colonist of the world is the necessary result of the one ; the stay-at-home spirit of the French- man is no less necessarily the consequence of the other. With these two fundamental differences, ethical and practical, in the mind, it is easy to understand the reasons why the two systems of legislation on marriage differ : on the one hand we see the father endowed with a patria potestas derived from that of the Roman law, which gives him the right to appeal to the police when- ever his authority does not meet with the obedience of 140 CRITICAL COMPARISON. his children, and to have them imprisoned, for a period of one month up to the age of sixteen and of six months tip to the age of twenty-one years (a). As an offset against this potestas, the child is given a vested right in the estate of his parent, as already shown ; and the parent, not having the free disposition of his property, and being bound to support the issue of his children, is conceded the right, which under the circumstances undoubtedly belongs to him, of controlling the conduct of his children with regard to marriage, so as to prevent his being himself dragged down to poverty by alliances that are likely to prove more fruitful in issue than in the means of support. On the other hand, we see in Anglo- Saxon countries the parent invested with only such power as he can by his own personality enforce ; not being possessed of arbitrary power, he is left the abso- lute disposition of his property ; nor does the obligation to support his issue go further than public policy de- mands in obliging him to prevent their being a burden on the parish. It seems to result from the above com- parison that the fundamental question at issue between the two systems is whether or not the patria potestas should be protected by legal enactment irrespective of the consequences to which this legal enactment must give rise. If the French system is an evil one, the patria potestas is the root of that evil ; if it is a good one, all its benefits result from that very source. What the verdict will be, as between the two sys- tems, must depend in great part upon education — in great part upon race. Whatever it be, one point of interest, surpassing all the others, suggests itself from a study of the two systems, and this is, that a comparison of them affords an admirable opportunity of deciding between the results of a system of legislation which is founded upon natural law and the results of a system (o) Arts. 376, 377, Code Civil. CEITICAL COMPARISON. 141 ■which is founded upon artificial law. Freedom is the genius of the one ; subjection the blot on the other ; in the one case the individual is master of his own fortunes, in the- other they are disposed of for him by an arbitrary rule. In the one, the father is allowed in his family only the authority he can command ; that authority is subventioned by his absolute right to dispose of his property away from his children, but is left unpropped by fear of the police or danger of prison : in the other, the father's authority is enforced by all the -power of law; if unable to control his children, a parent may invite the courts to invade his own hearth, and may confide to them the correction by personal confinement of which he is himself incapable. But as a balance to this unnatural power the child is given a vested right in his father's estate, which is at once a weapon given to disobedience and a temptation offered to fraud ; for it is a delusion to suppose that a parent cannot find the means of despoiling a child whose ingratitude has broken the natural bonds that should unite them ; in spite of the complicated provisions of the Code on the limits within which a parent may dispose of his property by will or donation — provisions that constitute the most intricate and difficult part of an otherwise simple system of laws — the parent has only to convert his fortune into money or securities payable to bearer, and hand it in this shape to whomsoever he will, in order to nullify all the results to attain which the codifiers have sacrificed the simplicity of their Code, and leave no trace whereby the disinherited child can recover that which the law willed that he should have. In the one case, then. Nature is allowed to work out her own results in compliance with her own laws ; in the other. Law, at a great sacrifice of simplicity, has endeavoured to substitute for the natural an artificial rule, and with all its system of checks and counter- checks has left the relations of parent and child more complicated, but no less unsolved. From this point ofJ 142 CODIFICATION. view, this subject is, perhaps, worthy of a more detailed study than can be attempted in so unpretentious a sketch as this. And yet if no conclusion has been absolutely arrived at from the reading of the preceding pages, they have been written in the hope that they suggest a result, though possibly do not achieve one. The above short study of the French Code cannot be brought to an end without an observation on the subject of codification generally, which it suggests. The theory upon which the French marriage law is based may not be in harmony with the Anglo-Saxon character ; it may even be decided to be fundamentally a bad one ; but the very fact of codification has made of it a harmonious whole, which, as a mere piece of compilation, is almost perfect. The evils of the system must not be made part of the question of codification. If the advantages of the French Code were in question the sections that relate to marriage and donations are the last which should be cited ; for here, contrary to its general plan, the Code has complicated a question which is in itself a simple one. The true test of the French Code is to be found in the manner in which it handles a subject that is essen- tially and necessarily complicated. Let a conveyancer turn from his life-study of our system of mortgages to Articles 2114 to 2195, all of them short — seldom ex-- ceeding a few lines each — if he wants to know with what magic complications disappear before an able codifier. But the work must be done well. The evils that have resulted from the hasty adoption of a bad Code of Procedure in New York are a disgrace to our legislature and not a reason against codification. So long as the French Civil Code exists, all arguments against codifica- tion will be answered ; how small are the chances of its ceasing to exist may be measured by the fact that it is slowly being adopted by every Latin country in the world. This is no reason why it should be adopted by us. On the contrary, it is probably in its present form CODIFICATION. 143 entirely unsuited to us. But to say that codification is peculiar to the genius of the Latin race and inconsistent with that of the Anglo-Saxon, is to cast a slur upon our powers of language against which every Anglo-Saxon "should protest; for, after all, codification is nothing more, and should be nothing less, than the best possible expression of our laws. ( 145 ) FRENCH CIVIL CODE. LIVRB I. TITEE n. Des actes de l'etat oiyil. CHAPITEE in. Des aotes de mariages. Art. 63. Avant la celebration du mariage, I'officier de l'etat civil fera deux publications, d buit jours d'intervalle, un jour de dimancbe, devant la porte de la maison commune. Ces pubHca- BOOK I. TITLE II. Oe kecoeds oe bieths, deaths, and marriages. CHAPTER III. Oe records OE MARRIAGES. Art. 63. Before the celebration of a marriage, tbe registrar shall make two publications, witb an interval of eight days between them, on a Sunday, before the door of the town-hall. These AaT. 63. — The expression officier de l'etat eivil has been uniformly translated " Registrar," in order to avoid the vmoouth effect of a literal rendering of the French ■words into English. The offioxer de Vetat civil corresponds exactly to Recorder of Births, Deaths, and Marriages, but the fact that the duty of keeping these records devolves upon the Mayor sometimes gives to the expression Registrar a too unimportant appearance, especially to an American ear, which is not accustomed to associate the office of Registrar with the celebration of marriages. Hence the importance of understanding the exact significance of the French expression and that of the English equivalent which has been selected for it. A Mayor has not only the political and administrative duties generally associated with that office. He is also the Registrar of Births, Deaths, and Marriages, and to ViiTTi belongs the solemn duty of celebrating the latter ; as such he is deemed to form part of what is termed the police Judiciaire, and he is subject to the surveillance of the procureur de la Republique. It is important to keep this in view, for in all cases where a Mayor throws difficulties in the way of celebrating a marriage, iihe procureur is the proper person to apply to in order to overrule him. He may be replaced by the adjoint, or Deputy Mayor. The Mayor and his Deputy are the only persons who can celebrate a valid marriage. The presence of one of them is absolutely essential, and no ceremony, ecclesiastical or other, can replace the words pronounced by him "in the name of the Law," as provided by Article 75. The Code, however, never uses the word Maire in connection with his duties as Registrar. In this capacity he is always spoken of as officier de l'etat civil or officier public. The word Registrar must therefore be understood to mean a Mayor or adjoint acting in the capacity of Registrar, whether merely to record births, deaths, and marriages, or to celebrate the latter. F. L 146 FRENCH CiyiL'CODE, tions, et I'acte qui en sera dresse, enonceront lea prenoms, noms, professions et domiciles des futurs 6poux, leur quality de majeurs ou de mineurs, et les preapins,-noms, professions et domiciles de leurs p^res et m.eres. Get acte enoncera, en outre, les jours, lieux et heures ou les publications auront ete faites : il sera inscrit Bur un seul registre, qui sera cote et paraplie com me il est dit en article 41, fit depose, ^ la fin de chaque annee, au greffe du tribunal de I'arron- dissement. Art. 64. Un extrait de I'acte de publication sera et restera afficlie k la porte de la maison commune, pendant les huit Jpurs d'intervaUe de I'une el. 1' autre publication. Le mariage ne pourra ^tre celebre avant le troisi^me jour, depuis et non compris celui de la seconde publication. publications, and the notice wMcli shall be drawn up of them, shall set forth the Christian names, surnames, professions, and domi- , -cUes of -the- parties about to be iharried, whether they are major or minor, and the Christian names, surnames,- prof essions, and domi- ciles of their fathers and mothers. This reco:(;d shall set forth, more- over, the days, places and hours at which the ' publications shall hare been made; it shall be in- scribed on one single register, which shall be paged and initialed as directed in Article 41,' and de- posited at the end of every year at the office of the clerk of the court of the arrondissement. Art. 64. A copy of the notice of publication shall be posted on. the door of the town-hall, and remain _there.. during Jhg jnterval of eight days between the two publications. The marriage phaU not be cele- brated until the third day after and exclusive of that of the second publication. Aet. 64. — Special attention should be directed to the word extrait, wliich is almost universally translated "extract." The word may mean extract, but in con- nection with legal and notarial instruments it nearly always means " copy." The terms of Article 64 seem to imply that the publication of the marriage was intended to be something different from the notice of publication, and undoubtedly it was the intention of the codifiers to maintain the prevailing system of publishing the proposed marriage by the voice of a herald or crier. The formality of crying, however, became so unnecessary in view of the greater efiBcacy of the posted noticej that it has been dropped, and to-day the posted notice is the only publication which the proposed marriage receives. Moreover, it is not, as a matter of fact, renewed, as this article would seem to demand. Custom has rendered sufficient the mere posting during the period fixed by this article. This period is practically eleven days from and including the first Sunday of publication. Thus, if during any day of a week a party proceeds to apply for publication, even though he be provided with all the necessary papers, which is not likely to be the case, the marriage cannot be celebrated until the Wednesday aften two Sundays have elapsed from the day of his application. FRENCH CIVIL CODE. 147 Aet. 65. Si le mariage n'a pas ete celebrS dans I'annee, k compter de rexpiration du delai des publi- cations, il ne pourra plus etre celebre qu'apres que de nouvelles publications auront ete faites dans la forme ci-dessus prescrite. Aet. 66. Les actes d' opposi- tions au mariage seront signes sur I'original et sur la copie, par les opposants ou par leurs fondes de procuration speciale et authen- tique ; ils seront signifies, avec la copie de la procuration, d la per- sonne ou au domicile des parties, et i I'officier de I'etat civil, qui mettra son visa sur I'original. Art. 67. L'offlcier de I'etat civil f era, sans d61ai, une mention sommaire des oppositions sur le registre des publications; il fera aussi mention, en marge de I'in- scription des dites oppositions, des jugements ou des actes de main- levee dont expedition lui aura 6te remise. Ast. 68. En cas d'opposition, " i'officier de l'6tat civil ne pourra celebrer le mariage avant qu'on lui en ait remis la mainlevee, sous peiue de trois cents francs d'amende, et de tous dommages- interets. Art. 69. S'il n'y a point d'op- position, il en sera fait mention Art. 65. Where a marriage has not been celebrated within a year from the last publication, it shall not be celebrated untU new publications have been made ac- cording to the formalities herein- before prescribed. Aet. 66. Caveats to a marriage shall be signed, both original and copy, by the caveators, or by their attorneys in fact specially ap? pointed therefor by a power exe- cuted before a notary; the caveats shall be served, with a copy of the power, upon the parties, in person or at their domicile, and upon the Eegistrar, who shall put his visa upon the original. Aet. 67. The Eegistrar shall vrithout delay make brief mention of the caveats on the register of publications ; he shall likewise make mention, on the margin of the copy of the said caveats, of the judgments and withdrawals which shall have been served on him. Aet. 68. Where a caveat has been entered, the Eegistrar shall not be at liberty to celebrate a marriage, untU he shall have had a withdrawal served upon him, under penalty of a fine of 300 francs in addition to damages. Aet. 69. If there has been no caveat, a memorandum thereof Aet. 67 .^ Actes de mainlevee, liteisJly 'msixxuuents of ■wittdrawal of tlie hand; the expression is used in all procedure to vacate an attachment or ■withdraw a caveat, and constitutes the instrument vacating the attachment or withdrawing the caveat whether l)y order of the court or by consent of the parties. l2 148 FRENCH CIVIL CODE, dans I'acte de manage; et si les publications ont ete faites dans plusieurs communes, les parties remettront un certificat delivre par 1'oflB.cier de l'6tat civil de ctaque commune, constatant q[u'il n'existe point d' opposition. Aet. 70. L'ojBacier de I'etat civD. se fera remettre I'acte de naissance de chacun des futurs epoux. Celui des epoux qui serait dans I'impossibilite de se le pro- curer, pourra le suppleer, en rap- portant un acte de notori6te delivre par le juge de paix du lieu de sa naissance, ou par celui de son domicile. Art. 71. L'acte de notoriete contiendra la declaration faite par sept temoins, de I'un ou de 1' autre sexe, parents ou non parents, des prenoms, nom, profession et domi- ciles du futur epoux, et de ceux de ses pere et m^re, s'Us sont connus ; le lieu, et, autant que possible, I'epoque de sa naissance, et les causes qui empechent d'en rapporter I'acte. Les temoins signeront I'acte de notoriete avec sbaU be made in tlie record of marriage, and wliere publications have been made in several com- munes, the parties shall produce a certificate from the Registrar of each of the communes, certifying that there is no caveat. Art. 70. The Registrar shall require the certificate of birth of each party about to be married. If either party be unable to pro- duce it to him, it may be replaced by a solemn declaration {acte de notorUti) drawn up by the magis- trate at the party's place of birth, or at that of his domicile. Art. 71. The acte de notoriUi shall contain the declaration of seven witnesses of either sex, re- lations or otherwise, the Christian names, surname, profession and domicile of the future husband or wife, and those of the father and mother if they are known ; the place, and, as nearly as pos- sible, the date of birth, and the reasons why the certificate of birth cannot be produced. The Aet. 70. — The words acte de notoriete may be translated literally " Instrument of notoriety." This expression is so meaningless to an English ear that it has been thought preferable to retain the French expression. The exact character of this instrument is fully set forth in Art. 71 ; but the conditions that it should be signed before a magistrate by seven witnesses, and that it should be submitted to the approval of the court, are only binding in case the acte is required to replace a certificate of birth. Actes de notoriete are frequently resorted to for the purpose of proving other matters of pubKc notoriety, as, for example, that a particular person is the nearest and only heir at law of a deceased person. And in such oases, the declaration of two -witnesses signed before a notary is sufficient. Such instruments are not signed under oath, a notary not having the right to administer oaths. Abi. 71. — Frocureur de la Bepublique. This French expression is retained because no exact English equivalent can be found for the functions he performs. The prooureur de la JRepullique is a Deputy Attorney-General attached to every court of first resort. See also p. 26, n. FRENCH CIVIL CODE. 149 le juge de paix ; et s'il en est qui ne puissent ou ne saclient signer, il en sera fait mention. Art. 72. L'acte de notoriete sera presents au tribunal de pre- miere instance du lieu ou doit se celebrer le mariage. Le tribunal, apres avoir entendu le prooureur de la Eepublique, donnera ou refasera son homologation, selon qu'il trouvera sufiGLsantes ou in- Buffisantes les declarations des temoins, et les causes qui em- pechent de rapporter l'acte de naissance. Art. 73. L'acte authentique du consentement des pere et mere ou ai'eids et aieules, ou, k leur def aut, celui de la famille, contiendra les prenoms, noms, professions et domicile du futur epoux, et de tons ceux qui auxont concouru k l'acte, ainsi que leur degre de parente. Aet. 74. Le mariage sera cele- bre dans la commune ou I'un des witnesses shall sign the acte de notorUU with the magistrate; and if there are any witnesses who are unable or too ignorant to sign their names, mention shall be made of the fact. Art. 7S. The acte de notoriete shall be presented to the court of first resort in the place where the marriage is to be celebrated. The court, after having heard the prooureur de la Ripuhlique, shall give or refuse its approval, accord- ing as it shall find the declarations of the witnesses, and the reasons which prevent the production of the certificate of birth, sufficient or insufficient. Art. 73. The notarial instru- ment setting forth the consent of fathers and mothers, or of grand- fathers and grandmothers, or, in default of these, that of the family, must contain the Christian names, surnames, professions, and domi- ciles of the future husband or wife, and of all those who have joined in the instrument, together with their degree of relationship. Art. 74. The marriage shall be celebrated in the commune in Aet. 72.— In the case of foreigners, the extreme difficulty of carrying out the provisions of Articles 71 and 72 has led to the adoption of a different and more convenient system, i.e., the, system of affidavits and certificats de coutume described on pp. 61 et seq. of this work. Aet. 74. — The words " shall be established," do not exactly convey the !Frenoh s'etablira. The reflexive form and future tense modify the mandatory character of the provision. It would have been translated "may be established," were it not that such a rendering would have decided a question which is still in dispute and to which reference is made in the text, p. 15. 150 FRENCH CIVIL CODE. deux epoux aura son domicile. Ce domicile, quant au mariage, s'etabUra par six mois d'hatitation continue dans la meme commune. Abt. 75. Le jour design^ par les parties apres les delais de publications, I'officier de I'etat civil, dans la maison commune, en presence de quatre temoins, parents ou non parents, lera lecture aux parties, des pieces ci-dessu8 mentionnees, relatives k leur etat et aux formalites du mariage, et du chapitre YI du titre du Mariage, sui les droits et les devoirs respectifs des epoux. II interpellera les futurs epoux, ainsi que les personnes qui auto- risent le mariage, si elles sont presentes, d' avoir £i declarer s'il a 6t6 fait un contrat de mariage, et, dans le cas de I'afiirmative, la date de ce contrat, ainsi que les noms et Ueu de residence du notaire qui I'aura regu. II recevra de chaque partie, I'une apres I'autre, la declaration qu'eUes veulent se prendre pour mari et femme ; U prononcera, au nom de la loi, qu'eUes sont unies par le mariage, et U. en dressera acte sur le champ. whicli one or the other of the parties has a domicile . This domi- cile, as regards marriage, ehall ha established by six months' con- tinued habitation within the same commune. Abt. 75. On the day appointed by the parties after the last pubU- cation, the Eegistrar shall in the town-hall, in the presence of four witnesses, whether relations or not, read to the parties the before- mentioned papers, relating to their status and to the formalities of marriage, and from chapter TI. of the title of Marriage as to The Respective Rights and Duties of Married Persons. He shaU. ask the parties, as weU as those who have consented to the marriage, if present, whether a marriage contract has been exe- cuted ; and in case it has, the date of the contract as well as the names and place of residence of the notary before whom it was drawn. He shall obtain from each party, in succession, a declaration that they are wiUing to take one another for husband and wife; he shall pronounce in the name of the law that they are united in marriage, and he shall forthwith draw up a record thereof. Abt. 75.— The absence of a town-hall or the sickness of one of the parties justifies the celebration of a marriage in a private house. But in such case, a circular of the Minister of Justice, of the 15th October, 1862, and 3rd July, 1811, provides that the doors of the private house be open to the pubUo, and that the record set forth that they were so open. See also Peyromse v. Lanes, Sirey, 1857, II. 215 ; Granoux v. Granoux, Sirey, 1872, II. 69. FRENCH CIVIL CODE. 151 Aet. 76. On enoneera, Pacte de mariage : ■ 1° Les prenoms, noms, profes- sions, ages, lienxdenaissance et domiciles des 6poir£ ; 2° S'ils sont majenrs ou mi- nevirs ; 3° Les prenoms, noms, profes- sions et domiciles des p^res et meres ; - 4° Le consentement des p^res et m^res, aieuls et aiewles^ et celni de la famine, dans les cas ou ils sont requis'; 5° Les actes respeotuenx, s'U en a ete fait ; 6° Les publications dans les divers domiciles ; 7° Les oppositions, s'U. y en a en ; leur mainlev6e, ou la mention qu'il n'y a point eu d' opposition ; 8° La declaration des contract- ants de se prendre pour epoux, et le prononce de leur union par I'officier public ; 9° Les prenoms, noms, ages, professions et domiciles des temoins, et leur declaration s'Us sont parents ou aUies des parties, de quel cote et k quel degre ; 10° La declaration faite sur I'in- terpellation prescrite par I'article precedent, qu'il a ete ou qu'il n'a pas ete fait de contrat de mariage, et, autant que possible, de la date du contrat, s'U existe, ainsi que les nom et lieu de residence du notaire qui I'aura reqn. ; le tout 3, peine, centre I'officier de l'6tat civU., de 1' amende fixee par I'article 50. Dans le cas oii a declaration AuT. 76. The record of mar- riage shall set forth : — 1. The Christian names, sur- names, professions, ages, places of birth, and domi- cUes of the married persons. 2. Whether they are of full age, or infants ; 3. The Christian names, sur- names, professions and domicUes of the fathers and mothers ; 4. The consent of the fathers and mothers, the grandfathers and grandmothers, and that of the family in cases in which they are requisite ; 5. The actes respectueux, if any ; 6. The pubHoations at the dif- ferent places of domicile ; 7. The caveats, if any have been made ; the -withdrawal ^ of them, or a memorandimi that no caveat has been made ; 8. The consent of the contract- ing parties to take one another as husband and wife, and the declaration of their union by the Registrar ; 9. The Christian names, sur- names, ages, professions, and domicUes of the wit- nesses, and their declaration whether they are related or connected to the parties, on which side and in what degree ; 10. The declaration made in answer to the question as provided in the preceding article, whether a marriage contract has been executed or not, and as nearly as possible the date of the con- tract, the names and place 152 FRENCH CIVIL CODE. aiu'ait ete omise ou serait erronee, la rectification de I'aote, en ce qui touche 1' omission ou I'erreur, pourra etre demandee par le pro- cureur de la BepubUcLue, sans prejudice du droit des parties in- ter essees, conformement k 1' article 99. of residence of tlie notary before wliom it was exe- cuted. Any onuBsion is punishable in tbe penalty set forth in Article 50, In case the declaration is omitted or erroneous, an application to amend it may be made by the procureur de la Ripublique, ■with- out prejudice to the rights of ia- terested parties as proTided in Art. 99. FRENCH CIVIL CODE. 153 TITEE V. Du Mabiage. CHAPITRE I. Des qualites et conditions eeqtjises poue poitvoir contbactee MAEIAGE. Art. 144, L'lioinme avant dix- liuit ans reyolus, la femme avant quinze ans revolus, ne peuvent .contracter manage. Aet. 145. Neanmoins il est loisiMe au President de la Eepub- Hque d'aecorder des dispenses d'age pour des motifs graves. TITLE V. Of Maeeiage. CHAPTEE I. Of the capacity oe the paeties AND of the conditions NECES- SARY TO A VALID MAEEIAGE. Aet. 144. A man cannot marry until he lias completed his eight- eenth year, and a woman trntil she has completed her fifteenth year. Aet. 145. The President of the Eepuhlic may, however, grant dis- pensations of age upon weighty considerations. Aet. 144. — The ■word revolus in this and the following articles is liable to give rise to confusion, especially in view of Motirlon's commentary thereon. The fact thatMourlon's work is the student's manual of the Code makes it advisable to direct attention to the doubt which may arise upon reading it in connection with this article. Art. 144, translated literally, reads as follows : — " Man before eighteen (years) completed, and woman before fifteen years completed, cannot contract marriage." Mourlon, on commenting on the word revolus, says : — : " Eevolus . . . c'est-£i-dire accompUs. Ainsi, le mariage ne peut etre celebre qu'autant que le premier jour de la dix-neuvi^me annee pour le futur et de la seizieme annee pour la future, est oommencee." This passage may be translated as follows : — "Bevoltis, that is to say completed. Thus a marriage cannot be celebrated until the first day of the nineteenth year has been commenced in the case of the man and the first day of the sixteenth year has been commenced in the case of the woman." Were one confined to the Code and Mourlon's commentary of it in order to determine the exact age at which marriage is permitted, it would not be easy to decide whether it was eighteen for the man and fifteen for the woman, or nineteen for the man and sixteen for the woman. The expression, however, used by Mourlon, " first day of the nineteenth year," is misleading, for the first day of the nineteenth year is the eighteenth birthday ; and the settled practice is, in conformity with the text of the Code, to allow the celebration of marriage on the eighteenth birthday of the man and the fifteenth birthday of the woman. 154 FRENCH CIVIL CODE. Aet. 146. H n'y a pas de mariage lorscLu'il n'y a point de consentement. Aet. 147. On ne peut contrac- ter un second mariage avant la dissolution du premier. Aet. 148. Le fils qui n'a pas atteint I'age de vingt-cinq ans aecomplis, la fille qui n^a pas atteint I'age de vingt et un ans accompUs, ne peuvent contracter mariage sans le consentement de Iguts p^re et mere; en cas de dissentiment, le consentement du p^re suffit. Aet. 149. Si I'un des deux est mort, ou s'U est dails I'impossi- bilite de manifester sa volonte, le consentement de I'autre sufB.t. Aet. 150. Sile p^re et la m^re sont morts, ou s'ils sont dans I'impossibilite de manifester leur volonte, les aieuls et ai'eules les remplacent : s'il y a dissentiment entre I'aieid et I'aieule de la meme ligne, il suffit du consente- ment de I'aieul. S'il y a dissen- timent entre les deux lignes, ee partage emportera consentement. Aet. 146. There is no marriage wten tliere is no consent. Aet. 147., a second marriage cannot be contracted previous to tbe dissolution of the first. Aet. 148. The son whp has not completed' his tweiity-fifth year, the daughter who has not com- pleted her twenty-first year, can-, not contract marriage without the consent of their father and mother. In case of disagreement, the con- sent of the father is sufficient. Art. 149. If one of the two.be dead, or incapable of manifesting his or her will, the consent of the other is sufficient. Aet: 150. If^ the father "^and mother are dead, or if they are incapable of manifesting their will, the grandfathers and grand- ^ mothers shall supply their place. If there be a disagreement between the grandfather and grandmother of the same line, the consent of. the grandfather shall suffice. If there be disagreement between- the two -lines, this disagreement shall be equivalent to consent. Aet. 146. — This article refers to the oonsent-of the patties and not to the consent of the parents. A distinction must be made between marriages that are void ai initio through absence of consent and those that are voidable through defect of consent. Drunkenness or insanity of a character to make it materially impossible for one of the parties to perform an act of will renders the marriage void ai initio. Force or fraud make a marriage voidable, not void. The latter cases are treated in Article 180. Abt. 148. — The word aecomplis has the same effect in this article as the word: revolus in Art. 144. The age up to which the consent of parents is essential to the; validity of marriage, is twenty-five for men and twenty-one for women. FRENCH CIVIL CODE. 155 Art. 151. Les enfants de famille ayant atteint la majorite fixee par I'article 148, sont tenus, avant de contracter mariage, de demander, par un acte respectueux et f ormel, le conseil de leiir p^re et de leur mere, ou celui de leurs aieuls et aieules, lorsque leur pere et leur mere sont decides, ou dans I'im- possibilite volonte. de manifester leur Art. 153. Depuis la majorite fixee par I'article 148, jusqu'tl I'age de trente ans accomplis pour les fils, et jusq[u'd I'age de vingt-cinq ans accomplis pour les fiUes, I'acte respectueujx prescrit par I'article precedent, et sur lequel il n'y aurait pas de consentement au mariage, sera renouvele deux autres fois, de mois en mois; et un mois apres le troisieme acte, il poujra etre passe outre d la cele- bration du mariage. Art. 153. Apres I'age de trente ans, il pourra etre, i defaut de consentement sur un acte respec- tueux, passer outre, un mois apres, k la celebration du mariage. Aet. 154. L'acte respectueux sera notifie k celui ou ceux des ascendants designes en I'article 151, par deux notaires, ou par Abt. 151. Where the children of a family have attained the majority fixed by Article 148, they must, previously to contract- ing marriage, demand, in an instrument in solemn form of law {acte respectueux), the advice' of their father and mother, or that of their grandfathers and grand- mothers, when their father and mother are dead or incapable of manifesting their will. Aet. 153. From the age set forth in Article 148 to the com- pletion of thirty years for sons, and untn the completion of twenty- five years for daughters, the acte respectueux required by the pre- ceding article shall, in case consent to the marriage shall not have been given, be served a second and a third time from month to month ; and one month after the service of the third it shall be lawful to proceed to the celebra- tion of the marriage. Aet. 153. After the completion of thirty years, it shall be lawful, in default of consent, after the expiration of a month from the service of an acte respectueux, to proceed to the celebration of the marriage. Art. 154. The acte respectueux shall be served upon such person or persons of the ascending Une as are set forth in Article 161, by Aet. 151. — The words acte respectueux et f ormel have teen translated here "instrument in solemn form of law," but as the English equivalent is somewhat cumbrous, and the French expression refers to au instrument essentially oharacteristio and peculiar, it has been thought advisable to retain the French words in future reference thereto. 156 FRENCH CIVIL CODE. un notaire et deux tSmoins ; et, dans le procSs-verbal qui doit en etre dresse, lL sera fait mention de la reponse. Aet. 155. En cas d'absenee de I'ascendant auquel eut du ^tre fait I'acte respectueux, il sera passe outre d la celebration du mariage, en representant le jugement qui aurait ete rendu pour declarer I'absence, ou, d defaut de ce juge- ment, celui qui aurait ordonne I'enquete, ou, s'il n'y a point encore eu de jugement, un acte de notoriete delivre par le juge de paix du Ueu ou I'ascendant a eu son dernier domicile connu. Cet acte contiendra la declaration de quatre temoins appeles d'olfice par ce juge de paix. Abt. 156. Les officiers de I'etat civil qui auraient precede k la celebration des mariages con- tractes par des fils n'ayant pas atteint I'age de vingt-cinq ans accomplis, ou par des filles n'ayant two notaries, or by one notary and two witnesses ; and in tbe certifi- cate which, shall be drawn up thereof mention shall be made of the answer made thereto. Art. 155, In case of the absence of the ascendant upon whom the instrument ought to have been served, the celebration of the marriage may be proceeded with, upon the production of either a judgment declaring the absence, or of one ordering an inquiry, or of an acte de notoriete delivered by the justice of the peace of the place where the ascendant had his last-known domicile. This certifi- cate shall contain the deposition of four witnesses called by the justice of the peace propria moiu. Aet. 156. Every Registrar who shall have proceeded to the cele- bration of the marriage of a son who has not completed his twenty- fifth year, or of a daughter who has not completed her twenty -first Aet. 155. — TMs article prOTides for the case where one of the asoendanta whose consent is necessary to the validity of the marriage has disappeared. Title IV. of Book I. of the Code Civil provides that, in case of disappearance for a period of at least four years, the court may, upon the application of interested parties, order an inquiry as to the whereabouts of the person stated to have disappeared. If the report of the judge commissioned to make such inquiry is to the effect that the person has in fact disappeared, a judgment is rendered " declaring the absence " of the party. The estate of the absent party is provisionally divided as in case of death, and after the expiration of thirty years from the judgment declaring the absence, or of a hundred years from the birth of the absent party, the division is declared absolute. It is to the judgment ordering the inquiry and to that declaring the absence in the above procedure that Art. 165 refers. The word d' office at the close of this section is difficult to translate. It is generally rendered " of&cially," but this word does not properly convey its meaning. A person is said to do a thing d'office when he does it by virtue of his office and of his own motion. The latter is the dominant idea of the word. In this case, the magistrate is supposed to direct the drawing up of the instrument himself, and not servilely foUow the suggestions of an interested party. FRENCH CIVIL CODE. 157 pas atteint I'age de vingt et un ans accomplis, sans que le consente- ment des peres et meres, celui des aieids et aieules et celui de la famille, dans le cas ou ils sont requis, soient enonces dans I'acte de mariage, seront, fi, la diligence des parties interessees et du pro- cureur de la Eepublique pres le tribunal de premiere instance du lieu ou le mariage aura et6 celebre, condamnes ^ 1' amende portee par 1' article 192, et, en outre, k un emprisonnement dont la dur6e ne pourra etre moindre de six mois. AnT. 157. Lorsqu'il n'y aura pas eu d'actes respeotueux, dans les cas ou ils sont prescrits, I'offi- cier de I'etat civil qui aurait cel6bre le mariage, sera condamne i la meme amende, et k un em- prisonnement qui ne pourra etre moindre d'un mois. Art. 158. Les dispositions con- tenues aux articles 148 et 149, et les dispositions des articles 151, 152, 153, 164 et 155, relatives k I'acte respectueux qui doit etre fait aux p^re et mere dans le cas prevu par ces articles, sont applic- ables aux enfants naturels 16gale- ment reconnus. Aet. 159. L'enfant natural qui n'a point ete reconnu, et celui qui, apres 1' avoir ete, a perdu ses pere et m^re, ou dont les pere et m^re ne peuvent manifester leur volonte, ne pourra, avant I'age de vingt et un ans revolus, se marier qu' apres avoir obtenu le consentement d'un tuteur ad hoc qui lui sera nomme. year, shall — in case the consent of the father and mother, that of the ascendants, and that of the family respectively, be not set forth in the marriage record — upon the prosecution of the parties inter- ested and of the procureur de la Repuhlique attached to the tribunal of first instance of the place where the marriage shall have been cele- brated, incur the penalty of the fine provided in Article 192 and of imprisonment for not less than six months. Art. 157. Where actes respec- tueux shall not have been served in cases in which they are pre- scribed, the Registrar who shall have celebrated the marriage shall incur the same fine and an im- prisonment of not less than one month. AuT. 158. The provisions of Articles 148 and 149 and those of Articles 151, 152, 153, 154, and 155 regarding the acte respectueux required to be served upon the father and mother in the cases contemplated by those articles are applicable to illegitimate children who have been legally acknow- ledged. Ajrt. 159. Illegitimate children who have not been acknowledged, and those who after having been so have lost their father and mother, or whose father and mother are unable to manifest their wiU, shall not be at liberty before the com- pletion of their twenty-first year to marry without the consent of a guardian specially appointed for that purpose. :i58 PEENCH CIVIL CODE. AnT. 160. S'il n'y a ni pSre ni m^re, ni a'ieuls ni aieules, ou s'ils se trouvent tous dans I'impossi- bilite de manilester leur volonte, les fils ou les filles mineurs de Tingt et un ans ne peuvent con- tracter mariage sans le consente- ment du conseil de famille. Art. 161. En ligne direote, le mariage est prolii"b6 entre tous les ascendants et descendants legi- times ou naturels, et les allies dans la meme ligne. AuT. 168. En ligne coUaterale, le mariage est proMbe entre le fr^re et la sceux legitimes ou naturels, et les allies au meme degre. AnT. 163. Le mariage est en- core proHbe entre I'oncle et la niece, la tante et le neveu. Aet. 164. Neanmoins, il est loisible au President de la Eepub- lique de lever, pour des causes graves, les probibitions portees par 1' article 162 aujs mariages entre beaux-JEreres et beUes-soeurs, et par 1' article 163 aux mariages entre I'oncle et la niece, la tante et le neveu. Abt. 160. If tliere be neither father nor mother nor ascendants, or if they be all incapable of manifesting their wUl, male or female children who have not completed their twenty-first year cannot contract marriage without the consent of a family council. Akt. 161. In a direct Hne, mar- riage is prohibited between aU ascendants and descendants, legi- timate or illegitimate, and between all connections by marriage. Aet. 162. In a collateral line, marriage is prohibited between brother and sister, whether legiti- mate or illegitimate, and between connections by marriage of the same degree. Aet. 163. Marriage is also pro- hibited between uncle and niece, aunt and nephew. Aet. 164. It shaU be lawful nevertheless for the President of the Eepublic, on weighty grounds, to grant dispensations permitting marriages between brothers and sisters-in-law, prohibited by Article 1 62, and between uncle and niece, aunt and nephew, prohibited by Article 163. AnT. 160. — A family council is an institution for replacing the parent or ascendant in the case of orphans, and for exercising a general control over the guardian, in case of the death of one of the parents. It is composed of six relations or family friends, whose meetings are presided over by the magistrate {Juffe de paix) of the infant's domicile. Abt. 164. — A circular of the Minister of Justice, of the 10th of May, 1824, provides that foreigners must obtain these dispensations, even though the law of their country do not forbid marriage in such cases. And in case the law of their nationality forbid marriage, in such case, a ministerial decision of the 26th February, 1840, and of the 4th July, 1844, provides that dispensation must be obtained from their own Government, the Erench Govemment'not being Witling to grant them to toy but its own citizens, except in case the law of ihe country to which the aliens belong do not forbid marriage in such cases. FRENCH CIVIL CODE. 159 CHAPITEE II. DeS FOKMAIITES RELATIVES A LA CfiTifiBBATIOM" DU MAEIAGE. Art. 165. Le mariage sera cele- bre publiquement, devant I'officier civil du domicile de I'une des deux parties. Art. 166. Les deux publica- tions ordonnees par I'article 63, •au titre des Actes de Vetat civil, seront faites k la municipalite du lieu ou chacune des parties con- tractantes aura son domicile. Art. 167. Neanmoins, si le domicile actuel n'est etabU que par six mois de residence, les publications seront faites en outre k la municipalite du dernier domi- cile. Art. 168. Si les parties con- traetantes, ou I'une d'elles, sont, relativement au mariage, sous la ipuissance d'autrui, les publications seront encore faites k la mimici- CHAPTEE II. Of the formalities of celebration. ■ Art. 165. The marriage shall be celebrated publicly before the Registrar of the domicile of one of the two parties. Art. 166. The two publications directed by Article 63, under the title "Of the Eecord of Births, Deaths, and Marriages," shall be made at the town-haU of the domicile of each of the contracting parties. Art. 167. Nevertheless, where the actual domicile is only estab- lished by six months' residence, the publication shall be also made at the town-haU of the last domi- cile. Art. 168. If the contracting parties, or one of them, is or are as regards marriage subject to the control of others, the publicatiori shall also be made at the town-haU Aet. 167. — A circular issued by the Minister of Justice, 14th March, 1831, expressly provides that a foreigner, if he has not resided in France more than six months, shall be req^uired to publish his intended marriage in his own country, even though he may have attained majority. If the laws of the country to which he belongs do not require prior pubUoation, as is the case in nearly all the United States, a certificate to that eSeot, issued by the Diplomatic Agent of that country in France, will render such publication unnecessary. See pp. 61 et seq. Aet. 168. — The same circular provides that if any of the parties whose consent is necessary to a marriage reside abroad, publioations will have to be made in accordance with the laws of the country where they reside, and certified to by the local authorities. This provision is impossible of execution iu most of the United States. Upon the production of a certificat de eouivme (eee p. 61), to that effect, the 160 FRENCH CIVIL CODE. palite du domicile de ceux sous la puissance desquels elles se trouvent. Art. 169. H est loisible au President de la E6publique ou aux officiers qu'R preposera ^ cet effet, de dispenser, pour des causes graves, de la seconde publication. Art. 170. Le mariage contracts en pays etranger entre Fran9ais, et entre Fran5ais et Strangers, sera valable, s'il a ete celebr6 dans les formes usitees dans le pays, pourvu qu'iL ait ete prec6d6 des publications prescrites par I'article 63, au titre des Actes de rSiat civil, et que le Frangais n'ait point contrevenu aux dis- positions contenues au cbapitre precedent. Art. 171. Dans les trois mois apr^s le retour du Frangais sur le territoire de la Eepublique, I'acte de celebration du mariage con- tracte en pays etranger sera tran- serit sur le registre public des mariages du lieu de son domicile. of the domicile of those persons to whose control they are subject. Art. 169. The President of the EepubUc, or those to whom he shall delegate the power, shall be at liberty, for weighty reasons, to dispense with the second publica- tion. Aet. 170. A marriage con- tracted in a foreign country be- tween citizens of France, and between a citizen of France and a foreigner, shall be vaHd, if cele- brated according to the forms used in that country, proTided that it has been preceded by the publica- tions prescribed in Article 63, under the title " Of Eecords of Births, Deaths, and Marriages," and that the Frenchman has not infringed the regulations contained in the preceding chapter. Art. 171. "Within three months after the return of a Frenchman to the territory of the EepubHc, the record of the celebration of marriage contracted in a foreign country shall be transcribed in the public register of marriages at the place of his domicile. Registrar will consent to celebrate the marriage without iuaisting on such publica- tion. If he were to insist, the proper course would be to request the procureur de la Eepubliqm to address a letter to the Mayor, authorizing hiin to proceed with the celebration. Aet. 169. — The proper of&oer to apply to for such dispensations is the procureur de la Eepublique. FRENCH CIVIL CODE. 161 CHAPITEE III. DeS oppositions AU IVLiRUGE. Art. 172. Le droit de former opposition k la celebration du ma- nage appartient k la personne engagee par mariage avec I'une des deizx parties contractantes. Aet. 173. Le p^re, et, k defaut du pere, la m^re, et, k defaut de p^re et m^re, les a'ieuls et aietiles, peuvent former opposition au ma- riage de leurs .enfants et descen- dants, encore que ceux-ci aient vingt-cinq ans accomplis. Akt. 174. A defaut d'aucun ascendant, le frere ou la scaur, I'oncle ou la tante, le cousin ou la cousine germains, majeurs, ne CHAPTEE III. Of oateats against maeeiage. Aet. 173. Any person already- married to one of the two con- tracting parties has the right to file a caveat against the celebration thereof. Aet. 173. The father, and in default of the father, the mother, and in default of the father and mother, the ascendants, may file a caveat against the marriage of their children and descendants, even though they have completed their twenty -fifth year. Aet. 174. In default of ascen- dants, the brother or sister, the uncle or aunt and first-cousins, provided they are of age, may iile Aet. 173. — The question whether the court may sustain the caveat of a parent to a marriage for any reason, other than a purely legal one, has never received a decisive solution. The weight of authority appears to be, that although a parent is entitled to secure delay by filing a caveat to the marriage, even though the party to the marriage is over twenty-six years of age, nevertheless, if the party he over that age, the parent must produce a legal obstacle to the marriage, in order to sustain it. The court went so far as to say, that a caveat by a parent to a marriage could not be sustained on the ground of difference of color (Bordeaux, 22nd May, 1806) ; of the improper character of the proposed daughter-in-law (Pau, 18th June, 1867 : S. 68, II. 181) ; or of the prodigality of the proposed son-in-law proved by the fact that he had been placed by the court under the surveiUanoe of a conseil judieiaire (Caen, 20th November, 1837 : S. 39, II. 275). But the court of Bourges sustained the caveat on proof by the parents that the proposed son-in-law had served in the galleys, and had abused of their hospitality by seducing their daughter (Bourges, 30th March, 1813). So also where he had been convicted of indecent assault (Caen, 9th June, 1813). The two latter decisions constitute, how- ever, exceptions to the general rule. Art. 174. — Interdiction is practically equivalent to the appointment of a Com- mittee of Lunacy under our law. F. M 162 FRENCH CIVIL CODE. peuveat former auoune opposition que dans les deux cas suivants : 1° Lorsque le consentement du conseil de famOle, requis par r article 160, n'a pas ete obtenu ; 2° Lorsque 1' opposition est londee sur I'etat de demence du futur epoux: Cette opposition, dont le tribunal pourra prononcer mainlevee pure et simple, ne sera jamais regue qu'd la charge, par I'opposant, de provoquer I'interdiction, et d'y faire statuer dans le delai qui sera fixe par le jugement. Art. 175. Dans les deux cas prevus par le precedent article, le tuteur ou curateur ne pourra, pendant la duree de la tutelle ou curatelle, former opposition qu'autant qu'il y aura ete autorise par un conseil de fanulle, qu'iL pourra convoquer. Art. 176, Tout acte d'opposi- tion enoncera la quaHte qui donne d I'opposant le droit de la former ; il contiendra election de domicile dans le lieu ou le mariage devra a caveat in the two following cases only : — 1st. Where the consent of the family council required by Article 160, has not been obtained. 2nd. Where the caveat is founded on the insanity of the pro- posed party to the marriage : This caveat, which it is in the discretion of the court to vacate, shall not be maintained unless the caveator bring an action for interdiction, and obtain an order therefor, within the iuterval fixed by the order maintaining the caveat. Art. 175. In the two cases contemplated by the preceding article, the guardian or curator shaU not during the continuance of the guardianship or curatorship enter a caveat, except so far as he shall have been authorized by a family council, which he is at liberty to convoke for this pur- pose. Art. 176. Every caveat shall set forth the capacity which gives to the party the right to make it ; it shaU. contain election of domicile in the place where the marriage is Aet. 175. — The guardian referred to in this section, is not the guardian of the caveator, but the guardian of the party to the marriage. The highest authorities agree that a guardian cannot oppose a marriage on behalf of his ward. Aet. 176. — The word interdiction has not here the technical sense in which it is used in Aj?t. 174. An offieier ministeriel is a legal practitioner enjoying a monopoly which he has bought at a high price, and an interdiction which prevents him from practising takes from him not only his income, but the capital it has cost ^™ to acquire the right to practise. It will be observed, therefore, that the penalty is a , very heavy one. As a matter of fact, however, a solicitor is seldom suspended without an opportunity being extended to him of selling his charge, though of course a sale efEeoted under those conditions always involves a considerable sacrifice. FRENCH CIVIL CODE. 163 ^tre celebre; il devi-a egalement, a moins qu'il ne soit fait a la requete d'un ascendant, contenir les motifs de 1' opposition : le tout k peine de nullite, et de I'iater- diction de I'officier ministeriel qui aurait signe I'acte contenant op- position. Aet. 177. Le tribunal de pre- miere iostance prononcera dans les dix jours sur la demande en mainlevee. AuT. 178. S'il y a appel, n y sera statue dans les dix jours de la citation. Akt. 179. Si I'opposition est rejetee, les opposants, autres neanmoins que les ascendants, pourront ^tre condamnes k des dommages-inter^ts. CHAPITEE IV. Des demandes en NULLiTi de MABIAGE. Aet. 180. Le mariage qui a 6te contracte sans le consentem.ent Hbre des deux epoux, on de I'un d'eux, ne pent etre attaque que par les epoux, ou par celui des deux dont le consentement n'a pas to be celebrated; it shall in like manner, unless it be made at the request of an ascendant, contain the motives therefor. The absence of any one of the above reqxiire- ments shall render the caveat null and void, and shall subject the solicitor who may have signed it to suspension. Art. 177. Upon a motion to vacate, the court of first resort shall render a decision within ten days after the hearing. Art. 178. If appeal be entered, a decision shall be rendered within ten days from service of notice of appeal. Aet. 179. If the caveat be set aside, the caveators, with the ex- ception of ascendants, may be ordered to pay damages. CHAPTEE IV. Of actions to annxji maeeiage. Art. 180. An action to annul a marriage contracted without the free consent of the married persons or of one of them, can only be brought by the married person or persons whose consent has not been Abt. 180. — This article must be read in. connection with Article 146 on the subject of Consent. Article 146 provides for the absence of consent, Article 180 for a defective consent. Absence of consent renders the marriage absolutely void, and is confined to the case where one of the parties at the moment of answering the celebrating ofScer is entirely deprived of reason, whether from the effects of insanity m2 164 FRENCH CIVIL CODE. ete libre. Lorsqu'il y a eu erreur dans la personne, le mariage ne peut etre attaque que par oelui des deux epoujs qui a 6te induit en erreur. Aet. 181. Dans le oas de 1' article precedent, la demande en nidlite n'est plus recevable, toutes les fois qu'il y a eu cohabitation con- tinuee pendant six mois depuis que I'epoux a acquis sa pleine Hberte ou que I'erreuj a ete par lui reconnue. Art. 183. Le mariage contracts sans le consentement des p^re et mere, des ascendants, ou du conseU de famine, dans les cas ou ce con- free. Where mistake has occurred in the person, an action to annxd the marriage may only be brought by the party who has been mis- taken. Aet. 181. In the case men- tioned in the preceding article, no action to annul the marriage can be brought if there has been cohabitation continued during six months since the duxess has ceased or the mistake has been discoyered. Aet. 182. No action can be brought to annul a marriage con- tracted without the consent of the father and mother, of the ascen- or drunkenness, and to the case where one of the parties having answered " No," the celebrating officer hj mistake or collusion has put "Yes" upon the record; Absence of consent renders the marriage void ab initio ; defective consent renders it merely voidable. Defective consent covers three principal cases : first, that where violence was used ; second, where there is a mistake ; and third, where there is fraud. Violence. — As in our own law, duress is sufficient to cause a marriage to be annulled ; but the JFrenoh commentators are agreed that the reverential fear that a child has for its parents under which a consent is forced, is not sufficient to render a marriage voidable. Mistake. — The decisions upon the subject of mistake are extremely oonfliotiag : on the one hand it has been frequently held that the error must be as to the identity of the person, and not as to his status ; that is to say, that if a woman marries an individual whom she intended to marry, such marriage cannot be annulled on the ground that that individual was not the person he represented himself to be. Nevertheless a decision of Bourges of the 6th August, 1827, held that a mistake of a woman who married an adventurer under misrepresentations as to his status and fortune should be annulled. The Court of Colmar on the 6th December, 1811, decided that a Catholic woman who, without knowing it, married a man who had once been a monk, could set up such mistake to invalidate the marriage. So also did the Court of Agen hold as to the mistake of a woman who had married a priest (S. 60, 2, 353). Again the Court of Chaumont held that a man could set up the pregnancy of his wife unknown, to him prior to marriage, so as to invalidate the. same (S. 58, 2, 643). The preponderating decisions, however, are rather in the contrary direction. See Schielotto v. Schielotto, Gazette du Palais, 1890, II. sup. p. 10. Fraud. — Fraud is too essential an element of mistake for the two not to be in. most cases associated, and the decisions heretofore cited under mistake, wUl tend to ■> show how far the courts have gone in. annulling a marriage where the consent of one of the parties was obtained by fraud. FEENCH CIVIL CODE. 165 sentement 6tait necessaire, ne peut etre attaque que par"*eux dont le consentement etait requis, ou par celui des deux epoux qui avait besoin de ce consentement. Aet. 183. L'action en nuUite ne peut plus etre intentee ni par les epoux, ni par les parents dont le consentement etait requis, toutes les fois que le manage a ete approuve expressement ou tacite- ment par ceux dont le consente- ment etait necessaire, ou lorsqu'il s'est eeoule une annee sans re- clamation de leur part, depuis qu'Us ont eu connaissance du ma- nage. EUe ne peut etre intentee non plus par I'epoux, lorsqu'il s'est eeoule une annee sans re- clamation de sa part, depuis qu'il a atteint I'age competent pour con- sentir par lui-meme au mariage. Art. 184. Tout mariage con- tracte en contravention aux dispo- sitions contenues aux articles 144, 147, 161, 162 et 163, peut etre attaque soit par les epoux eux- memes, soit par tous ceux qui y ont interet, soit par le ministere public. Abt. 185. Neanmoins le ma- riage contracte par des epoux qui n'avaient pas encore I'age requis, ou dont I'un des deux n'avait point atteint cet age, ne peut plus dants, or of the famUy council, in cases ■where such consent was necessary, except by those whose consent was requisite, or by such of the two married persons as was under disabUity in the absence of that consent. Abt. 183. No action to annul a marriage can be brought either by the married persons, or by the relations whose consent was re- quired, in case the marriage has been approved, either expressly or tacitly by those whose consent was necessary, or in case the action has not been brought within a year from the day they had knowledge of the marriage. No such action can be brought by a party to the marriage if a year has elapsed since he attained the age at which he could marry without the consent of parents. Art. 184. An action may be brought to annul a marriage con- tracted in violation of the pro- visions of Articles 144, 147, 161, 162, and 163, either by the parties themselves, or by any one having an interest therein, or by the ministere public. Art. 185. Nevertheless no action can be brought to annul a marriage contracted by parties who have not yet reached the required age, or of whom one had not attained Abt. 184. — There is no doutt but what creditors are included in the term tons ceux qui y ont inUrH. Creditors may have an interest in annulling a marriage either to hold the wife responsible for engagements made without the consent of her husband, or in order to discharge the husband's real estate from the legal mortgage which a wife enjoys to secure her dot. 166 FEENCH CIVIL CODE. etre attaque : 1° lorsqu'il e'est ecoul6 six mois depuis que cet epoux ou les 6poux out atteint I'age competent ; 2° lorsque la femme, qui n-'avait point cet age, a congu avaut I'eclieaiice de six mois. Aet. 186. Le p^re, la mere, les ascendants et la famille qui ont consenti au maiiage contracte dans le cas de 1' article precedent, ne sent point reoevables d en demander la nidlite. Aet. 187. Dans tous les cas ou, conformement k 1' article 184, Taction en nullite peut etre in- tentee par tous ceux qui j ont un interet, elle ne peut I'etre par les parents collateraux, ou par les enfants nes d'un autre mariage, du vivant des deux epoux, mais seulement lorsqu'ils j ont un in- teret ne et actuel. Aet. 188. L'epouxau prejudice duquel a ete contracte un second mariage, peut en demander la nullite, du vivant m^eme de 1' epoux qui etait engage avec lui. Aet. 189. Si les nouveaux epoux opposent la niallite du pre- mier mariage, la vaHdite ou la nidlite de ce mariage doit etre jugee prealablement. that age : 1st, wliere six months have expired since the married person or persons have attained the competent age ; 2nd, where the woman who had not reached that age has conceived before the expiration of six months. Aet. 186. No action can be brought to annul a marriage con- tracted under the circumstances set forth in the preceding article by the father, the mother, the ascendants, or the family if they have consented thereto. Aet. 187. In all those cases where, conformably to Article 184, an action to annul a marriage may be brought by anyone having an interest therein, such action may not be brought by collateral re- lations, or the children born of another marriage during the Hfe of the two parties, but only when they have an actual and existing interest therein. Aet. 188. A husband or wife, in spite of whose existence a second marriage has been contracted, may bring an action to annul the second marriage, even during the life of the party who has married the bigamist. Aet. 189. If the parties to the second marriage plead the niiUity of the first marriage, the validity or the nullity of such marriage must first be decided. Aet. 187. — In support oi this provision, it is urged that the honor of ooUateral relations is not so deeply affected by a scandalous marriage as that of the parents ; that their interest in the matter is rather of a financial character and does not come into esistenoe until, by the death of their relative, his estate has to be divided; FRENCH CIVIL CODE. 167 Aet. 190. Le procureui- de la Eepublique, dans tous les cas auxquels s'applique I'article 184, et sous les modifications port6es en I'article 185, peut et doit demander la nuUite du mariage, du vivant des deux epoux, et les faire condamner k se separer. Akt. 191. Tout manage qui n'a point ete contracte publiquement, et qui n'a point ete celebre devant I'officier public competent, peut ^tre attaque par les epoux eux- memes, par les p^re et mere, par les ascendants, et par tous ceux qui y ont un interet ne et aotuel, ainsi que par le ministers public. AnT. 193. Si le mariage n'a point ete precede des deiix publi- cations requises, ou s'il n'a pas ete obtenu des dispenses permises par la loi, ou si les intervalles presents dans les publications et celebrations n'ont point ete ob- serves, le procTu-eur de la Eepub- lique fera prononcer centre I'offi- Aet. 190. The procureur de la Ripublique may and sball, in all cases to which Article 184 can be applied, and subject to the modi- fications contained in Article 185, bring an action to annul the mar- riage during the life of the two married persons, and cause them to be sentenced to separate. Aet. 191. An action may be brought to annul every marriage that has not been publicly con- tracted and not celebrated before the competent officer, by the mar- ried parties themselves, by the father and mother, by the ascen- dants, and by all those who have an actual and existing interest therein, as well as by the ministere public. Aet. 19S. If the marriage has not been preceded by the two publications reqiiired by law, or if the dispensations permitted by the law have not been obtained, or if the intervals prescribed be- tween the publications and cele- brations have not been observed, the procureur de la Repuhlique Art. 191. — The ministire puhlie is in this context practically the same person as the procureur de la Mepubliguet The expression is, however, more commonly applied to the representative of the Attorney -Greneral who attends at court in the general interest of society. He is at liberty in all cases to express his opinion and espouse the cause which he considers it most to the interest of society and to the maintenance of the law should prevail. In certaia cases, as for example in matters of divorce and separation, he has to be heard. In most cases the matter is left to his option. Such a system, if weU executed, would undoubtedly be an excellent one ; but the persons who occupy this post are for the most part young men who, whether through inexperience or ambition, often take a violent stand in favor of one of the parties to the great prejudice of the other, irrespective of reason or equity. The appointment of the ministere public is essentially a political one, and the pressure which a juvenile Demosthenes, when backed by political influence, can exert upon a court no longer protected by life tenure from the violence of faction, is a. most unfortunate element, which I have no hesitation in saying the entire IFrenoh bar deplores. See also note, p. 26. 168 FRENCH CIVIL CODE. cier public une amende qui ne pourra exceder trois cents francs ; et contre les parties contractantes, ou ceux sous la puissance desquels .elles ont agi, une amende propor- tionnee & leur fortune. AjaT. 193. Les peinesprononcees par I'article precedent seront en- courues par les personnes qui y sont designees, pour toute con- travention aujK regies presorites par I'article 165, lors meme que ces contraventions ne seraient pas jugees suffisantes pour faire pro- noncer la nullite du mariage. Art. 194. Nul ne pent reclamer le titre d'epoux et les effets civils du mariage, s'il ne represente un acte de celebration inscrit sur le registre de I'etat civil; sauf les cas prevus par I'article 46, au titre des Actes de Vetat civil. Aet. 195. La possession d'etat ne pourra dispenser les pretendus epoux qui I'invoqueront respec- tivement, de representer I'acte de celebration du mariage devant I'officier de I'etat civil. sball cause the Registrar to be fined in a sum which, shall not exceed three hundred francs, and the contracting parties, or those under whose control they have acted, in a sum proportioned to.' their fortune. Art. 193. The fines set forth in the preceding article shall be exacted from the persons desig- nated therein for every breach of the rules prescribed by Article 166, even though such breaches shall not be judged sufficient to annul the marriage. Aet. 194. No person shall be at liberty to claim the title of husband or wife and the civil con- sequences of marriage, unless he can produce a record of the cele- bration thereof inscribed upon the records of Births, Deaths, and Marriages, saving the cases pro- vided for by Article 46, under the title of "Eecords of Births, Deaths, and Marriages." Aet. 195. Possession d'etat shall not dispense those who pretend to have been lawfully married from producing the record of celebration of marriage before the proper officer. Aet. 195 . — Fossession d'etat is an expression for wtiot it is difficult to find an English, equivalent. It constitutes a status by common notoriety irrespective of any record, and describes pretty accurately the status of such American citizens as belong to States where the Records of Births, Deaths and Marriages are imperfectly kept. It sometimes happens that the status which a person enjoys in society, does not agree with that established by the Record. In such case, there is a, conflict between the Record on the one side, and the possession d'etat on the other. In regard to evidence of legitimacy, Ait. 321 defines possession d'etat as a " sufficient assemblage of facts to prove filiation and parentage between the person PKENCH CIVIL CODE. 169 Art. 196. Lorsqu'il y a posses- sion d'etat, et que I'acte de cele- bration du mariage devant I'offlcier de I'etat civU est represente, les epoux sont respectivement non recevables & demander la mJlite de cet acte. Aet. 197. Si neanmoins, dans le cas des articles 194 et 195, U existe des enf ants issus de deux in- dividus qui ont vecu publiquement coTTiTne mari et f emme, et qui soient tous deux decodes, la legitimite des enfants ne peut etre contestee sous le seul pretexte du defaut de representation de I'acte de cele- bration, toutes les fois que cette legitimite est prouvee par une possession d'etat qui n'est point contredite par I'acte de naissance. Art. 198. Lorsque la preuve d'une celebration legale du ma- Abt. 196. Where there is an actual marriage, and the record of celebration of marriage before the proper officer is produced, no action can be brought by the married parties respectively to annul the record. Aet. 197. Where, nevertheless, in the cases set forth in Articles 194 and 195, there is issue of two individuals who have lived publicly together as husband and wife and are both deceased, the legitimacy of such children cannot be con- tested on the single ground that the record of celebration is not produced, whenever such legiti- macy is proved by a possession d'^faf not contradicted by the certificate of birth. Aet. 198. When a criminal procedure results in the proof in question and the family to ■whicli lie claims to belong. The most important of these facts are : That the person in question has always borne the name of his alleged father ; that the father has always . treated him as his child, and has provided ^lixn in that capacity with support and education ; that he has been continuously recognized as such in society ; that he has been continuously recognized as such in the family." From Art. 195 and those that follow, it will be seen that possession d'etat which is all sufficient to prove a marriage in most of the United States, is expressly declared to be valueless as evidence in France. It can only be used as between the parties, in case one of them can produce a record of celebration (Art. 196). Its value is thus reduced to that of a plea in bar, in case the validity of the record of celebration is attacked by one of the parties to the marriage, as for example on the ground that it was not celebrated by the proper ofBcer, and as proof of legitimacy of the issue in case it be not in conflict with the record of their birth. But if the marriage was celebrated in a country where no records are kept, possession d'etat is admissible as proof of marriage. This was so held in case of a marriage celebrated in Egypt, Metz, 2nd June, 1814. Aet. 197. — But a child whose legitimacy is attacked, and who is in enjoyment of possession d'etat is not bound to produce a certificate of birth in order to prove its conformity thereto. (Agen, 18th May, 1842 ; S. 42, II. 541. Toulouse, 4th July, 1843 ; S. 44, II. 398.) Abt. 198. — The judgment referred to in this article, is one rendered upon s, criminal action against a person accused of having falsified the record. 170 FEENCH CIVIL CODE. riage se trouve aequise par le re- sultat d'une procedure crimineUe, I'inscription du jugement sur les registres de I'etat civil assure au mariage, 4 eompter du jour de sa celebration, tous les effets civils, tant d I'egard des epoux qu'd I'egard des enfants issus de ce mariage. Abt. 199. Si les epoux ou I'un d'eux sout decedes sans avoir decouvert la fraude, Taction criminelle peut etre intentee par tous ceux qui ont interet de faire declarer le mariage valable, et par le procureur de la RepubUque. Art. 200, Si I'officier pubUc est decode lors de la decouverte de la fraude, Taction sera dirigee au civil centre ses beritiers, par le procureur de la EepubUque, en presence des parties int^essees, et sur leur denonciation. Art. 201. Le mariage qui a ete declare nul, produit neanmoins les efEets civils, tant k I'egard des epoux qu'^ I'egard des enfants, lorsqu'il a ete contracte de bonne foi. Art. 202. Si la bonne foi n'existe que de la part de I'un des tbat a marriage bas been legally celebrated, the insertion of tbe judgment on the Registers of Births, Deaths, and Marriages confers upon tbe marriage all its civil consequences from the day of its celebration as regards both the married parties and the issue of such marriage. Aet. 199. If one or both of the married parties be dead, without having discovered the fraud, a criminal action may be instituted by all those who have an interest in causing the marriage to be de- clared valid, and by the procureur de la Republique. Aet. 200. If the celebrating officer is dead at the time of the discovery of the fraud, a civil action may be brought against his heirs by the procureur de la Ri- publique, in the presence of the persons interested and at their request. Aet, 201. If a marriage has been declared void, not only the parties to the marriage, but the issue thereof shall, nevertheless, enjoy all civil rights resulting therefrom, if the marriage was contracted in good faith. Aet. 202, If only one party was in good faith, only the party Am. 199. — This article contains a double error. In the first place the use of the word ' ' criminal ' ' is wrong in connection with an action brought by an individual. A criminal proceeding can only be brought by the State. In the second place the wording implies, that no action can be brought by the State during the life of the parties. The real intention of the article is to give to both interested persons and to the State, the right to have a marriage declared valid, even after the death of the parties to the marriage, or of one of them. Abts. 201 & 202.— See pp. 35 et seq. FEENCH CIVIL CODE. 171 deux epoux, le mariage ne produit les effets civils qu'en faveur de cet epoux et des enfants issus du mariage. CHAPITEE V. Des obligations qui naissent du MARIAGE. Aet. 203. Les epoux contrac- tent ensemble, par le fait seul du mariage, 1' obligation de nourrir, entretenir et elever leiirs enfants. Aet. 204. L'enfant n'a pas d'action contre ses pere et mere pour un etabKssement par mariage ou autrement. Aet. 205. {Loi du 9 Mars 1891.) Les enfants doivent des aliments ^ leurs pere et mere ou autres ascendants qui sont dans le besoin. La succession de I'epoux predecede en doit, dans le meme cas, h. I'epoux survivant. Le delai pour les reclamer est d'un an h partir du deces et se prolongs, en cas de partage, jusqu'd son acb^ve- ment. La pension alimentaire est pre- -levee sur I'heredite. EHe est sup- portee par tous les beritiers et, en cas d'insuflB.sance, par tous les in good faitb and tbe issue of the marriage sball be entitled to tbe civil rights resulting therefrom. CHAPTER V. Of the liabilities -which eesult eeom mareiage. Aet. 208. Married persons in- cur by the mere act of marriage the duty to noirrish, support and bring up their children. Aet. 204. A child has no action against his father and mother for a settlement for the purpose of marriage or otherwise. Aet. 205. {Law ofdth March, 1891.) Children owe alimony to their fathers and mothers and other ascendants who are in need. The estate of a deceased husband or wife owes ahmony in like manner to the surviving wife or husband. The period for claim- ing the same is within one year from the death and, in ease of a partition, is prolonged untH com- pletion thereof. Alimony is deducted from the estate. It is borne by aU the heirs and, ia case of insufficiency, by the Aet. 204. — This article was rendered necessary by the fact that in the Bouth of France, where the Eoman law prevailed prior to the adoption of the Code, a daughter could bring an action for a Hot against her father. The oodiflera in adopting the rule ne dote qui ne veut of the common law which prevailed in the north of France felt it necessary to express themselves categorically upon this point. 172 FRENCH CIVIL CODE. legataires particuHers proportion- nellemeiit k leur emolument. Toutefois, si le defunt a expres- sement declare que tel legs sera acquitte de preference aux antres, il sera fait application de I'art. 927 du Code Civil. Aet. 206. Les gendres et beUes-filles doiyent egalement, et dans les memos circonstances, des aliments ^ lenrs beau-p^re et belle-m^re ; mais cette obligation cesse : 1° lorsque la belle-m^re a convole en secondes noces ; 2" lorsque celui des epoux qui produisait I'affinit^, et les enfants issus de son union avec 1' autre epoux, Bont decedes. Abt. 207. Les obligations re- sultant de ces dispositions sont reciproques. Abt. 208. Les aliments ne sont accordes que dans la proportion du besoin de celui qui les reclame, et de la fortune de celui qui les doit. Aet. 809. Lorsque celui qui foumit ou celui qui reQoit des aliments est replac6 dans un etat tel, que I'un ne puisse plus en donner ou que 1' autre n'en ait plus besoin, en tout ou en partie, la decbarge ou reduction peut en etre demandee. Aet. 210. Si la personne qui doit fournir des aliments justifie qu'eUe ne peut payer la pension alimentaire, le tribunal pourra, en connaissance de cause, ordonner qu'eUe recevra dans sa demeure, qu'elle nourrira et entretiendra specific legatees in proportion to the amounts of tbeir legacies. Nevertheless if the deceased has expressly declared that any one legacy shall be paid by priority over the others, application shaU be made of Art. 927 of the Civil Code. Aet. 206. Sons and daughters- in-law equally owe alimony to their fathers and mothers-in-law, but this obligation ceases : 1st, when the mother-in-law has mar- ried again; 2nd, when the hus- band or wife and the children issue of the marriage are dead. Aet. 207. The obligations re- sulting from the above provisions are reciprocal. Aet. 208. Alimony is accorded only in proportion to the needs of the party who claims it, and to the fortune of the party who owes it. Aet. 209. "When he who gives or he who receives alimony is placed in such a situation that the one can no longer give it, or the other has no longer need thereof, in whole or in part, a discharge or a reduction thereof may be ob- tained. Aet. 210. If the person who is bound to supply alimony can show that he is im^able to pay an allow- ance, the court shall, on being made acquainted with the cause, give order that he shall receive into his house and there nourish FRENCH CIVIL CODE. 173 celui auquel elle devra des ali- ments. Akt. 211. Le tribunal pronon- cera egalement si le p^re ou la m^re qui offrira de recevoir, nourrir et entretenir dans sa de- meure, 1' enfant d qui il devra des aliments, devra dans ce cas etre dispense de payer la pension ali- mentaire. CHAPITEE VI. Des dboits et des devoirs BBSPEOTrFS des JEPOUX. Aet. 313. Les epoux se doivent mutuellement fidelite, secours, as- sistance. Aet. 213. Le mari doit pro- tection k sa femme, la femme ob^issance k son mari. Aet. 214. La femme est obligee d'habiter avec le mari, et de le suivre partout ou il juge d propos de resider : le mari est oblige de la recevoir, et de lui fournir tout ce qui est n^cessaire pour les besoins de la vie, selon ses facultes et son etat. and support the party to whom he owes maintenance. Art. 311. It is in the discretion of the court to decide whether a father or mother, who shall offer to receive, nourish and support at home a child to whom they owe alimony, ought to be relieved from paying an allowance. CHAPTEE VI. Of the respective eights and duties op maeried persons. Art. 212. Married persons owe to one another, fidelity, succour, assistance. Art. 213. The husband owes protection to his wife, the wife obedience to her husband. Art. 214. The wife is obKged to live with her husband, and to foUow him to every place where he may judge it proper to reside. The husband is obliged to receive her and to furnish her with every- thing necessary for the wants of life, according to his means and station. Abt. 214. — The question whether a husband can enforce the obedience of his wife manu militari is much contested. The Supreme Court of the State has only once been called upon to decide this question, and then it held that he can. (Cass, 9 Aout 1826.) The decisions of the lower courts are uniform to the same effect. (Nimes, 25 July, 1840 : Sirey, 40, II. 291 ; Paris, 31 Mar. 1855 : Sirey, 55, II. 494; Nimes, 20 Feb. 1862: Sirey, 63, II. 161 ; Breyton v. Dreyton, Gaz. Pal, 1890, II. 358.) 174 FRENCH CIVIL CODE. Art. 215. La femme ne peut ester en iugement sans I'autorisa- tion de son mari, quand meme elle serait marcliande publique, ou non commune, ou s6paree de biens. Akt. 316. L'autorisation du mari n'est pas necessaire lorsque la femme est poursuivie en mati^re criminelle ou de police. Akt. S17. La femme, meme non commune ou separ6e de biens, ne peut donner, alienor, hypothe- quer, acquerir k titre gratuit ou onereux, sans le concours du mari dans I'acte, ou son consentement par ecrit. Aet. S18. Si le mari refuse d'autoriser sa femme k ester en jugement, le juge peut donner l'autorisation. Abt. 219. Si le mari refuse d'autoriser sa femme k passer un acte, la femme peut faire citer son mari directement devant le tribunal de premiere instance de I'arron- dissement du domicUe commun, qui peut donner ou refuser son autorisation, apres que le mari aura ete entendu ou dument appele en la cbambre du conseil. Aet. 220. La femme, si elle est marcLande pubUque, peut. Art. 215. Tbe wife cannot bring an action without tbe au- thority of her husband, even though she be in business, or be under the system of non-com- munity, or be separated as to property. Aut. 216. The authority of the husband is not necessary when the wife is prosecuted for a crime or misdemeanor. Art. 217. A wife, although she have a separate estate, cannot give, sell, mortgage, or acquire for or without consideration, unless her husband join in the instrument or give his consent in writing. Art. 218. If the husband refuse to authorize his wife to appear in an action, the judge may give her authority. Art. 219. If the husband refuse to authorize his wife to sign an in- strument, the wife may cause her husband to be cited directly before the court of first resort of their common domicile, which may give or refuse its authority after the husband shall have been heard, or duly summoned before it at chambers. Art. 220, The wife, if she be in business, may, without the Aet. 215. — A foreign wife need not obtain the consent of her husband to bring suit in France, provided the laws of her oonntiy do not exact it. (Bastia, 16 Feb., 1844 ; S. 44. II. 663.) The codifiers had to insert the words non commune to cover the case of a 'woman who is married under the system of non-communautS. On this and the following sections see pp. 75, 89, 90. FRENCH CIVIL CODE. 175 sans I'autorisation de son mari, s'obliger pour ce qui concerne son negoce; et, audit cas, elle oblige aussi son mari, s'il y a communaute entre eux. Elle n'est pas reputee marchande publique, si elle ne fait que detainer les marcbandises du commerce de son mari, mais seule- ment quaud elle fait un commerce separe. Aet. 221. Lorsque le mari est frappe d'une condanmation em- portant peine afflictive ou infam- ante, encore qu'elle n'ait ete prononcee que par contumace, la femme, m^me majeure, ne pent, pendant la duree de la peine, ester en jugement, ni contraoter, qu'apres s'etre fait autoriser par le juge, qui pent, en ce cas, donner I'autorisation, sans que le mari ait ete entendu ou appele. Abt. 322. Si le mari est in- terdit ou absent, le juge peut, en connaissance de cause, autoriser la femme, soit pour ester en juge- ment, soit pour contracter. Abt. 223. Toute autorisation generale, meme stipidee par con- trat de manage, n'est valable que quant k 1' administration des biens de la femme. Art. 224. Si le mari est mi- neur, I'autorisation du juge est n^cessaire d la femme, soit pour ester en jugement, soit pour con- tractor. authority of her husband, bind herself for that -vrhich concerns her trade; and in the said case she binds her husband also, if there be community of goods be- tween them. She is not deemed to be in business if she merely retails goods in her husband's trade, but only when she carries on a separate business. Art. 221. When the husband is convicted of a felony, even though he be convicted by de- fault, hie wife though of age can- not, as long as her husband is serving his term, appear in an action or execute a contract, until after authority given by the judge, who may in such case give his authority without hearing or sum.- moning the husband. Art. 222. If the husband is interdicted or absent, the judge may, after hearing the facts, au- thorize the wife either to appear in an action or to contract. Art. 223. Eveiy general autho- rity, though stipulated in the con- tract of marriage, is invalid, except as regards the administration by the wife of her property. Art. 224. If the husband be an infant, his wife must obtain the authority of the judge in order either to appear in an action or to contract. Abt. 222. — "Interdicted" — that is to say, under disabiKty of any Mnd, with the exception of infancy, which is specially provided for in Art. 224. Aet. 223. — ^Refers to a power given to the wife by the husband. 176 FEENCH CIVIL CODE. Aet. 225. La nullitS fondee sur le ddfaut d'autorisation ne peut ^tre opposee que par la femme, par le mari, ou par leurs heritiers. Aet. 226. La femme peut tester sans I'autorisation de son mari. CHAPITEE Vn. De la dissolution DU MAMAaE. Aet. 227. Le manage se dis- sout : 1° Par la mort de I'un des epoux; 2° Par le divorce Idgalement prononce ; 3° Par la condamnation, de- venue definitive, de I'un des epoux k une peiae em- portant mort civile. CHAPITEE Till. Des seconds maeiages. Aet. 228. La femme ne peut contracter un nouveau mariage qu'apr^s dix mois revolus depuis la dissolution du mariage prece- dent. Aet. 225. Disability arising out of absence of authority can only be pleaded in bar by the wife, the husband, or their heirs. Art. 226. The wife may make a will without the authority of her husband. CHAPTEE VII. Of the dissolution of maeeiage. Aet. 227. Marriage is dis- solved : 1st. By the death of one of the parties. 2nd. By divorce lawfully pro- nounced. 3rd. By final sentence of civil death passed upon one of the parties. CHAPTEE VIIL Of second maeeiages. Art. 228. A woman cannot contract a new marriage until ten months have elapsed from the dissolution of the preceding mar- riage. Aet. 227. — Civil death was abolished by a law of the 31st May, 1854. FRENCH CIVIL CODE. 177 TITEE VI. Dv DIVORCE. CHAPITEE I. Des causes du divoece. Abt. 239. Le mari pourra de- mander le divorce pour cause d'adultere de sa femme. Art. 230. La femme pourra demander le divorce pour cause d'adultere de son mari. Abt. 231. Les epoux pourront reciproquement demander le di- vorce pour exc^s, sevices ou injures graves, de I'un d'eux envers I'autre. Art. 232. La condamnation de I'un des epoux i, une peine aflElic- tive et infamante sera pour I'autre epoux une cause de divorce. Art. 233. [^Repealed by law of 21th July, 1884.] TITLE VI. Of divorce. OHAPTEE I. Oe grounds for divorce. Art. 229. The husband may- apply for a divorce on the ground of the adultery of his wife. Art. 230. The wife may apply for a divorce on the ground of the adultery of her husband. Art. 231. Husband and -wife may reciprocally apply for a di- vorce for violence, cruelty, or dis- honourable treatment, the one towards the other. Art. 232. A sentence upon one of the parties to an afflictive and degrading punishment shall be a ground of divorce for the other party. Aet. 231. — Injures graves, an expression incapable of exact translation. explanation, p. 122. N 178 FRENCH CIVIL CODE. CHAPITEB II. De la PKOOliDUBE DV DITOROE. SeOTIOH I. — Des rOEMES DU DrvoacE. Aet. 234. L'epoux qui veut former une demande en divorce pr6sente, en personne, sa requete au president du tribunal ou au juge qui en fait fonctions. En cas d'empechement dument constate, lemagistrat se transporte, assiste de son greffier, au domicile de l'epoux demandeur. En cas d'interdiction legale re- sultant d'une condamnation, la requete k fin de divorce ne pent ^tre presentee par le tuteur que sur la requisition ou avec I'autori- sation de I'interdit. Aet. 335. Lejuge, apr^s avoir entendu le demandeur et lui avoir fait les observations qu'U croit convenables, ordonne au bas de la requete que les parties com- paraltront devant lui au jour et d I'heure qu'il indique, et commet un huissier pour notifier la cita- tion. Aet. 236. Le juge peut, par I'ordonnance permettant de citer, autoriser l'epoux demandeur k resider separement en indiquant, OHAPTEE II. Of the peoceduee of divoece. SE0Tio3sr I. — Of the foems of DIVOECE. Aet. 234. The consort who desires to apply for a divorce pre- sents Ms petition in person to tie president of the Court, or to the judge acting as his deputy. In case proper evidence is brought to show that he is pre- vented from so doing, the magis- trate, accompanied by his clerk, attends at the residence of the plaintiff. In case of legal interdiction re- sulting from a judgment, the divorce petition can only be pre- sented by the curator at the re- quest or with the authority of the interdicted person. Aet. 235. The judge, after having heard the petitioner and having made such observations as he thinks proper, makes an order at the foot of the petition directing that the parties shall appear before him on the day and at the hour appointed by him, and appoints an ofiicial process server to serve the citation. Aet. 236. The judge may, in the order permitting to cite, au- thorise the petitioner to reside apart, naming, in case it is the Abt. 234, — Interdiction. Seep. 161. FRENCH CIVIL CODE. 179 b'U s'agit de la femme, le lieu de la residence provisoire. Aet. 237. La requite et I'or- donnance sont signifi^es en tete de la citation donnee d I'epoux defendeur trois jours au moins avant le jour fixe pour la com- parution, outre les delais de dis- tance, le tout k peiae de nullite. Cette citation est deHvree par huissier commis et sous pli ferme. Art. 238. Au jour indique, le juge entend les parties en per- sonne; si I'une d'elles se trouve dans rimpossibilite de se rendre aupres du juge, ce magistrat de- termine le lieu oil sera tentee la conciliation, ou donne commission pour entendre le def endeiu" ; en cas de non-concUiation ou de defaut, il rend une ordonnance qui constate la non- conciliation ou le defaut et autorise le demandeur k assigner derant le tribunal. Le juge statue d nouveau, s'il y a lieu, sxir la residence de I'epoux demandeur, sur la garde provi- soire des enfants, sur la remise des efEets personnels, et U a la faculty de statuer egalement, s'il J a Heu, sur la demande d' aliments. Cette ordonnance est executoire par provision ; eUe est susceptible d'appel dans les d41ais fixes par 1' article 809 du code de procedure. Par le fait de cette ordonnance, la femme est autorisee k faire toutes procedures pour la conser- Tation de ses droits et i ester en ■wife, the place of her temporary- residence. Akt. 237. The petition and the order are sei-ved at the head of the citation issued to the respon- dent three days at least before the day fixed for appearance, iij. addi- tion to the legal period for distance. ^ The omission of any of these for- malities renders the citation void. The citation is delivered under a sealed envelope, by a process server specially appointed for the purpose. Akt. 238. On the day ap- pointed, the judge hears the par- ties in person; if either of them is prevented from attending, the judge fixes the place where the reconciliation shall be attempted, or issues a commission to take the statement of the respondent ; in case no reconciliation is effected, or in case of default, he makes an order mentioning the absence of reconciliation, or the defaidt, and authorising the petitioner to issue process before the court. The judge makes a further rule if needful, in regard to the resi- dence of the petitioner, the provi- sional custody of the children, and delivery of personal effects ; and he may further make a rule in respect to alimony in case of need. There is no stay of execution of this order, it is subject to appeal within the period fixed by Article 809 of the Code of Procedure. As a consequence of this order, the wife is authorised to take aU. proceedings for the safeguard of Aet. 238. — The period fixed for appeal ty Art. 809 of the Code of Procedure is fifteen days. n2 180 FRENCH CIVIL CODE, justice jusqu'^ la fin de I'instance et des operations qui en sont les suites. Lorsque le tribunal est saisi, les mesures provisoires prescrites par le juge peuvent ^tre modifiees ou completees au cours del' instance, par jugement du tribunal, sans prejudice du droit qu'a toujours le juge de statuer, en tout #at de cause, en refere, sur la residence de la femme. Le juge, suivant les circon- stances, avant d'autoriser le de- mandeur a citer, peut ajoumer les parties k undelai qui n'excede pas vingt jours, sauf a ordonner les mesures provisoires necessaires. L'epoux demandeur en divorce devra user de la permission de citer qui lui a ete accordee par I'ordonnance du president, dans un delai de vingt jours ^ partir de cette ordonnance. Faute par I'epoux demandeur d'avoir use de cette permission dans ledit delai, les mesures provisoires ordonnees k son profit cesseront de plein droit. Art. 339. La cause est instruite et jugee dans la forme ordinaire, le ministere public entendu. Le demandeiir peut, en tout etat de cause, transformer sa demande en divorce en demande en separa- tion de corps. Les demandes reconvention- nelles en divorce peuvent etre introduites par un simple aete de conclusions. Les tribunaux peuvent ordonner le huis clos. La reproduction des debats par la voie de la presse, dans les in- her rights, and to sue out all legal process until the end of the action and of the formalities consequent thereon. When the action is before the Court, the provisional measures prescribed by the judge may be modified or completed in the course of the action by order of the Court, ■without prejudice to the right which the judge always has of ruling at any period of the action upon summons in chambers, as to the residence of the wife. The judge may, according to circumstances, before authorizing the plaintiff to cite, adjourn the hearing for a period not to exceed twenty days, and may, notwith- standing, make such immediate order as to provisional measures as may be needful. The petitioner must use the per- mission to cite granted him by the order of the President within twenty days from the date of that order. In case he fails to do so, he loses ipso facto the benefit of the provisional measures ordered in his behalf. Abt. 239. The cause is investi- gated and tried in the ordinary- form, after the ministere public has been heard. The petitionermay, at anyperiod of the action, transform his petition for divorce into a petition for judicial separation. Cross-actions for divorce may be brought by mere filing of pleadings. The Court may order the trial to take place in camera. The reporting of divorce trials in the public press is forbidden FKENCH CIVIL CODE. 181 stances en divorce, est interdite, sous peine de 1' amende de 100 i 2,000 francs, edictee par I'article 39 de la loi du 30 JuiUet 1881. Aet. 240. Le tribunal peut, soit sur la demande de I'une des parties interessees soit sur celle de I'un des membres de la famiUe, soit sur les requisitions du ministere public, soit meme d'ofB.ce, ordonner toutes les mesures pro- vlsoires qui lui paraissent neces- eaires dans I'interet des enfants. II statue aussi sur les demandes relatives aux aliments pour la duree de I'instance, sur les pro- visions et sur toutes les autres mesures urgentes. Art. 341. La femme est tenue de justifier de sa residence dans la maison indiquee, toutes les fois qu'elle en est requise ; k defaut de cette justification, le mari peut refuser la provision alimentaire, et, si la femme est demanderesse en divorce, la faire declarer non recevable d, eontinuer ses pour- suites. Aet. 242. L'un ou I'autre des epoux peut, des la premiere ordonnance et sur I'autorisation du juge, donnee k la charge d'en referer, prendre pour la garantie de ses droits des mesures con- servatoires, notanmnent requ^rir 1' apposition des sceUes sur les biens de la communaute. Le m^me droit appartient k la fenmie m^me non commune, pour la conservation de ceux de ses biens dont le mari a 1' administra- tion ou la jouissance. Les scelles sent leves k la re- under penalty of tbe fine of 100 to 2,000 francs, prescribed by Article 39 of tbe Law of 30th July, 1881. Aet. 240. The Court may, upon the application either of one of the parties, or of a member of the family, or at the request of the ministere public, or even propria motu, order any provisional meas- ures which may seem necessary in the interest of the children. It also passes upon applications for alimony pendente lite, allow- ances for costs, and all other urgent measures. Aet. 241. The wife is bound whenever called upon to prove her residence in the house appointed ; in default of such proof, the hus- band may withhold alimony, and if the wife is petitioner, may have her petition dismissed. Aet. 242. Either of the parties may, upon the first order, and with the authority of the judge subject to a reference in chambers, take aU suitable provisional mea- sures for the safeguard of their rights, and in particular may have seals placed upon the community property. The same right belongs to the wife even though not married under a community for the secu- rity of such of her property as her husband administers or enjoys. The seals are removed on the 182 FRENCH CIVIL CODE. qu^te de la partie la plus dili- gente ; les objets et valeurs sont inventories et prises ; I'epoirx; qui est en possession en est constitue gardien judioiaire, d moins qu'il n'en soit decide autrement. Art. 243. Toute obligation contractee par le mari k la charge de la communaute, toute alienation par lui f aite des immeubles qui en dependent, posterieurement k la date de I'ordonnance dont il est lait mention en 1' article 235 sera declares nulle, s'H est prouve d'ailleurs qu'elle a ete faite ou contractee en fraude des droits de la fenune. Aet. 244. L' action en divorce s'eteint par la reconciliation des epoux survenue, soit depuis les faits allegues dans la demande, soit depuis cette demande. Dans I'un et I'autre cas, le demandeur est declare non recev- able dans son action ; il pent neanmoins en intenter unenouveUe pour cause survenue ou decouverte depuis la reconciliation et se pre- valoir des anciennes causes d I'appui de sa nouveUe demande. L'action en divorce s'eteint egalement par le d^c^s de I'un des epoux survenu avant que le juge- ment soit devenu irrevocable par la transcription sur les registres de I'etat civil. Aet. 245. Lorsqu'il j a lieu ^ enquete, eUe est faite conforme- ment aux dispositions des articles 252 et suivants du code de proce- dure civile. Les parents, k 1' exception des application of the most diligent party. The moveables and secu- rities are inventoried and valued ; the party in possession is appointed judicial custodian thereof unless otherwise ordered. Aet. 243. Every obligation contracted by the husband charge- able upon the community, and every alienation made by him of the real property belonging thereto after the date of the order men- tioned in Article 235 shaE be de- clared void if it is proved to have been made or contracted in fraud of the rights of the wife. Art. 244. An action for divorce is extinguished by the reconcilia- tion of the parties, happening either since the act alleged in the peti- tion or since the presentation of the petition. In both cases the petitioner's claim is dismissed ; he may, never- theless, introduce a new petition on new grounds happening or dis- covered since the reconciliation, and may then rely also on the original grounds to support his new claim. A divorce action is also deter- mined by the death of one of the parties before the decree has be- come final by transcription on the registers of births, deaths, and marriages. Aet. 245. When an inquiry by witnesses becomes necessary, it is conducted according to the pro- visions of Articles 252 et seq. of the Code of Civil Procedure. The relatives of the parties, FRENCH CIVIL CODE, 183 descendants, et les domestiques des epoux peuvent etre entendus eomme temoins. Art. 346. Lorsque la demande en divorce en ete formee pour toute autre cause que celle qui est prevue par I'article 232, le tribunal, encore que cette demande soit bien etabUe, peut ne pas prononcer inunediatement le divorce. Dans ce eas, il maintient ou pre- sent I'habitation separee et les mesures provisoires pendant un delai qui ne peut exceder six mois. Apr^s le delai fixe par le tri- bunal, si les epoux ne se sont pas reconcilies, cbacun d'eux peut faire citer 1' autre k comparaitre devant le tribunal dans le delai de la loi pour entendre prononcer le juge- ment de divorce. Art. 347. Lorsque I'assigna- tion n'a pas ete deHvree i la partie defenderesse en personne et que cette partie fait defaut, le tribunal peut, avant de prononcer le juge- ment sur le fond, ordonner I'inser- tion dans les joumaux d'uu avis destine k faire connaitre k cette partie la demande dont eUe a ete I'objet. Le jugement ou I'arret qui prononce le divorce par defaut est signifie par huissier commis. Si cette signification n'a pas ete faite k personne, le president ordonne sur simple requete la publication du jugement par ex- trait dans les journaux qu'il designe. L'opposition est reeev- able dans le mois de la significa- tion, si elle a ete faite k personne, et, dans le cas contraire, dans les except those in tbe descending Hne, and their servants may be heard as witnesses. Art. 346. When the petition is based on grounds other than that of Ai-ticle 232, the Court, although the petition be well founded, may not immediately decree a divorce. In such case it maintains or prescribes separate residence and provisional rehef for a period which may not exceed six months. After the period fixed by the Court, if the parties are not re- conciled, either of them may cite the other to appear before the Court within the legal period of notice to hear judgment given. Art. 347. When the wi-it has not been delivered to the respon- dent in person, and the respondent fails to appear, the Court may, before pronouncing j udgment upon the merits, order the publication of an advertiseraent in the news- papers destined to bring the pro- ceedings to the knowledge of the person against whom they are directed. The judgment or decree which pronounces judgment by default is served by a process server specially appointed therefor. If personal service thereof has not been effected, the president upon ordinary motion orders the advertisement of an extract of the judgment in such newspapers as he designates. Stay of execution may be entered within a month 184 FRENCH CIVIL CODE, huit mois qui suivront le dernier aoto de publicite. Aet. 248. L'appelest recevalile pour les jugements contradictoires dans les delais fixes par les articles 443 et suivants du code de pro- cedure civile. S'il s'agit d'un jugement par defaut, le delai ne commence d courir qu'4 partir du jour ou I'op- position n'est plus recevable. En cas d'appel, la cause s'instruit k 1' audience ordinaire et comma affaire urgente. Les demandesreconventionnelles peuvent se produire en appel, sans etre considerees comme demandes nouvelles. Le delai pour se pourvoir en cassation court du jour de la sig- nification a partie, pour les arrets contradictoires ; et, pour les arrets par defaut, du jour ou 1' opposition n'est plus recevable. Le poui'voi est suspensii en matiere de divorce et en matiere de separation de corps. Art. 249. Le jugement ou I'arret qui prononce le divorce n'est pas susceptible d'acquiesce- ment. Aet. 250. Extr ait du jugement ou de I'arret qui prononce le divorce est insere aux tableaux exposes tant dans I'auditoire des tribunaux civils et de commerce que dans les cbambres des avoues et des notaires. Pareil extrait est insere dans I'un des journaux qui se publient from service, in case of personal service, and in other cases witliia eight months from the last adver- tisement. Aet. 248. Appeal against judg- ments inter partes may be entered within the periods prescribed by Articles 443 et seq. of the Code of Civil Procedure. In the case of a judgment by default the period only begins to run from the date at which stay of execution is no longer admissible. In case of appeal the cause is tried at an ordinary sitting, and as a summary case. Counter actions may be brought upon appeal without being con- sidered as new actions. The period for appeal to the Court of Cassation runs from the date of service upon the parties, in the case of decrees inter partes; and Ltt case of decrees by default, from the date when a stay of execution is no longer admissible. Appeal to the Court of Cassation acts as a stay of execution in the case of divorce and judicial sepa- ration. Aet. 249. Eight of appeal against a judgment of divorce cannot be waived. Aet. 250. A copy of the judg- ment or decree which pronounces the divorce is posted on the notice- boards exhibited both in the court rooms of the civU and commercial courts, and in the solicitors and notaries' committee rooms. A similar copy is inserted in one of the newspapers which are FRENCH CIVIL CODE, 185 dans le lieu ou siege le tribunal, ou; b'lL n'y en a pas, dans I'un de ceux pubHes dans le departement. Ajbx. 251. Le dispositif du jugement ou de I'arret est tran- scrit sur les registres de I'etat civil du lieu ou le manage a ete celebre. Mention est faite de ce jugement ou arret en marge de Facte de manage, conformement k 1' article 49 du code civil. Si le manage a ete celebre a I'etranger, la tran- scription est faite sur les registres de I'etat civil du lieu ou les epoux avaient leva' dernier domicile, et mention est faite en marge de I'acte de mariage, s'il a ete tran- scrit en France. Aet. 252. La transcription est faite Si la diligence de la partie qui a obtenu le divorce ; k cet effet, la decision est signifiee, dans un delai de deux mois, a partir du jour ou elle est devenue definitive, k 1'ofiB.cier, de I'etat civil competent, pour etre transcrite sur les regis- tres. A cette signification doivent etre joints les certiflcats enonces en I'article 548 du code de pro- cedure civile, et, en outre, s'il y a eu arret, un certificat de non- pourvoi. Cette transcription est faite par les soins de I'officier de I'etat civil, le cinqui^me jour de la requisi- tion, non compris les jours feries, sous les peines edictees par I'article 50 du code civil. A defaut, par la partie qui a published in the place where the Court sits, or, if there are none, in one of those published in the de- partment. Art. 251. The enacting portion of the judgment or decree is tran- scribed upon the registers of births, deaths, and marriages of the place where the marriage was celebrated. A memorandum, of the judg- ment or decree is made in the margin of the entry of the mar- riage according to Article 49 of the Civil Code. If the marriage was celebrated abroad, the transcrip- tion is made on the registers of births, deaths, and marriages at the place where the parties had their last domicile, and a memo- randimi is made in the margin of the entry of marriage i£ it was transcribed in France. Abt. 252. The transcription is made by the party who has ob- tained the divorce ; to this end the decision is notified, within a period of two months from the date on which it became final, to the registrar of the proper district, in order to be transcribed on the registers. This notice must be accompanied by the certificates set out in Article 548 of the Code of Civil Procedure ; and, in addition, if there has been a decree on appeal, by a certificate stating that there has been no appeal to the Court of Cassation. This transcription is made by the Registrar on the fifth day from the notice, exclusive of holidays, under the penalties prescribed by Article 50 of the Civil Code. 186 FRENCH CIVIL CODE. obtenu le divorce, de faire la signification dans le premier mois, 1' autre partie a le droit, concur- remment aveo elle, de faire cette signification dans le mois suivant. A defaut par les parties d'avoir requis la transcription dans le delai de deux mois, le divorce est considere com me nul et non avenu. Le jngement dument transcrit remonte, quant k ses effets entre epoux, au joxir de la demande. Abts. 253 k 394. lEepeahd.'] CHAPITEE in. Des epfets du divorce. Aet. 295. Les epoux divorces ne pourront plus se reunir, si I'un ou I'autre a, posterieurement au divorce, contracte un nouveau mariage suivi d'un second divorce. Au cas de reuxion des epoux, une nouveUe celebration du mariage sera necessaire. Les epoux ne pourront adopter un regime matrimonial autre que celui qui reglait originairement leur union. Apr^s la reunion des epoux, il ne sera re5U de leur part aucune nouvelle demande de divorce, pour quelque cause que ce soit, autre que celle d'une condamnation k une peine afflictive et infamante prononcee contre I'un d'eux de- puis leur reunion. In case tbe party wlio has ob- tained the divorce fails to give sucb. notice during tbe first montb, the other party has a concurrent right of giving such notice in the following m.onth. In case the parties fail to give notice in view of transcription within a period of two months, the divorce is considered void and of no effect. The judgment duly transcribed relates back, as regards its effects between the parties, to the date of the petition. CHAPTEE III. Oe the effects of divoece. Art. 295. Divorced persons cannot re-unite, i£ either of them since the divorce have contracted a new marriage followed by a second divorce. In case of their re-union, a new celebration of marriage is necessary. The parties cannot adopt a matrimonial system of property different from that which origi- nally governed their union. After the re-union of the parties, no new application for a divorce on their part can be entertained upon any ground whatsoever, other than that of an afflictive and degrading sentence passed on one of them since their re-union. Abi. 295. — For explanation of peine afflictive et infammte, see p. 124. FRENCH CIVIL CODE. 187 Aet. 396. La femme dirorcee ne pourra se remarier que dix mois apr^s que le divorce sera devenu definitif . Aet. 297. [Repealed by law 27th July, 1884.] Aet. S98. Dans le cas de divorce admis en justice pour cause d'adultere, I'epoux coupable ne pourra jamais se marier avec son complice. Aet. 399. L'epoux centre lequel le divorce aura ete pro- nonce perdra tous les avantages que 1' autre epoux lui avait faits, soit, par contrat de mariage, soit depuis le mariage. Par I'effet du divorce chaoun des epoux reprend I'usage de son nom. Aet. 300. L'epoux qui aura ottenu le divorce conservera les avantages k lui faits par I'autre epoux, encore qu'Us aient ete stipules reciproques et que la reciprocite n'ait pas lieu. Aet. 301. Si les epoux ne s'etaient fait aucun avantage, ou si ceux stipules ne paraissaient pas suffisants pour assurer la subsistance de I'epoux qui a ob- tenu le divorce, le tribunal pourra lui accorder, sur les biens de I'autre epoux, une pension alimentaire qui ne poujra exceder le tiers des revenus de oet autre epoux. Cette pension sera revocable dans le cas ou elle cesserait d'etre neces- saire. Art. 396. The divorced wife may not remarry for ten months after the divorce has become final. Aet. 398. In case the divorce was decreed by reason of adultery, the party guUty thereof cannot marry his or her accomplice. Aet. 399. The party against whom the divorce has been pro- nounced shall lose the benefit of aU settlements made in his or her favour by the other party, either in the marriage contract or siace the marriage. As a consequence of the divorce both the parties resume the use of their name. Aet. 300. The party in whose favour the divorce has been de- creed keeps the benefit of aU settlements made in his or her favour by the other party, even although they were stipulated as reciprocal, and are not so. Aet. 301. Ji the parties have not made any settlements, or if those stipulated do not appear sufficient to insure the main- tenance of the party in whose favour the divorce has been de- creed, the Court may award him or her alimony out of the property of the other party, not exceeding one-third of the income of the other party. This aliinony shall be revocable in case it ceases to be necessary. 188 FEENCH CIVIL CODE. Art. 302. Les enfants seront confies i I'epoux qui a obtenu le divorce, 4 moins que le tribunal, sur la demande de la f amiUe, ou du minist^re pubUo, n'ordonne, pour le plus grand avantage des enfants, que tous ou quelques-uns d'eux seront confies aux soins soit de I'autre 6poux, soit d'une tierce personne. Aet. 303. Quelle que soit la personne k laquelle les eniants seront confies, les pere et m^re conserveront respectivement le droit de surveiller I'entretien et 1' education de leurs eniants, et seront tenus d'y contribuer k pro- portion de leurs facultes. Abt. 804. La dissolution du mariage par le divorce admis en justice, ne privera les eniants nes de ce mariage d'aucun des avan- tages qui leur etaient assures par les lois, ou par les conventions matrimoniales de leurs pere et mere ; mais il n'y aura d'ouverture aux droits des eniants que de la meme maniere et dans les m^mes circonstances ou Us se seraient Guverts s'U n'y avait pas eu de divorce. Akt. 305. [^Repealed hy law of 21th July, 1884.] CHAPITEE IV. De la sfiPAKATION DE COEPS. Art. 306. Dans le cas oii il y a Ueu k la demande en divorce, il sera libre aux epoux de iormer une demande en separation de corps. Aet. 303. The children are given to the party who has ob- tained the divorce, unless the Court, at the request of the family or of the minisl&re public orders, for the better advantage of the children, that all or some of them be given to the custody either of the other party or of a third person. Aet. 303. Whosoever be the person to whom the children are given, the father and mother re- tain the right of supervising the maintenance and education oi their children, and are obliged to contribute thereto according to their means. Art. 304. Dissolution oi mar- riage by divorce does not deprive the children born oi such marriage of any of the benefits conferred upon them by law, or by the marriage contract of their father and mother; but these rights shall vest in the children only in the same manner and in the same circumstances as they would have done had there been no divorce. CHAPTEE IV. Of JTJDICIAIi SEPAEATION. Aet. 306. In cases where there exist grounds for divorce, the parties are at liberty to apply for a judicial separation. FRENCH CIVIL CODE. 189 Aet. 307. Elle sera intentee, instruite et jugee de la meme maniere que toute autre action civile ; neanmoins les articles 236 k 244 lui seront applicables ; elle ne poujra avoir lieu par le con- sentement mutuel des epous. Le tuteur de la personne judici- airement interdite peut, avec I'autorisation du conseO. de lamille, presenter la requete et suivre I'Lastance & fin de separation. Akts. 308 et 309. [Sepeahd by law of 21th July, 1884.] Abt. 310. Lorsque la separa- tion de corps aura dure trois ans, le jugement pourra etre converti en jugement de divorce sur la demands formee par I'un des epoux. Cette nouvelle demande sera introduite par assignation, h huit jours francs, en vertu d'une ordon- nance rendue par le president. EUe sera debattue en chambre du conseil. L'ordonnance nommeraun juge rapporteur, ordoimera la communi- cation au ministere public et fixera le jour de la companition. Le jugement sera rendu en audience publique. La cause en appel sera debattue et jugee en cbambre du conseil, BUT rapport, le ministere public entendu. L'arret sera rendu en audience publique. Art. 311. Le jugement qui prononce la separation de corps ou im jugement posterieur peut interdire k la femme de porter le Art. 307. The action shall be begun, investigated and tried in the same manner as any other civil action ; nevertheless. Articles 236 to 244 shaU. be applicable to it ; it cannot be brought by mutual consent of the parties. The curator of a person judi- cially interdicted may, with the permission of the family councU, present a petition and prosecute an action for judicial separation. Art. 310. When the judicial separation has lasted for three years, the decree may be con- verted into a decree of divorce on the application of either party. This application shall be made by summons returnable at eight clear days' distance by virtue of an order made by the President. The application shall be heard in the judge's council room. The order shall appoint a judge to report, shall direct communica- tion of the case to tlie ministere public, and shall fix the date of appearance. Judgment shall be rendered in open Court. The cause upon appeal shall be heard and tried in the judge's council room upon the report, and after the ministere public has been heard. The decree shall be ren- dered in open Court. Art. 311. The judgment which pronounces the separation or a subsequent judgment may forbid the wife to bear her husband's 190 FRENCH CIVIL CODE. nom du mari, ou I'autoriser k ne pas le porter. Dans le cas oii le mari aurait joiat k son nom le nom de sa femme celle-ci pourra egalement de- mander qii'il soit interdit au mari de le porter. La separation de corps emporte toujours la separation de biens. Elle a en outre pour effet de rendre i, la femme le plain exercice de sa capacite civile, sans qu'eUe ait besoin de recoiirir k I'autorisa- tion de son mari ou de justice. S'n y a cessation de la separation de corps par la reconciliation des epou^:, la capacite de la femme est modifiee pour I'aTenir et reglee par les dispositions de I'article 1449. ^Cette modification n'est opposable aux tiers que si la reprise de la vie commune a ete constatee par acte passe devant notaire avec minute, dont un extrait devra etre affiche en la forme indiquee par I'article 1445, et de plus par la mention en marge : 1° De I'acte de mariage ; 2" Du jugement ou de 1' arret qui a prononce la sepa- ration, et enfin par la publication en extrait dans I'un des journaux du departement recevant les publi- cations legales. name or authorize her not to bear it. In case the husband has joined the name of his wife to his own, she may also apply to have hiTn restrained from bearing it. Separation of persons involves always separation of goods. It has further for effect to restore to the wife the full exercise of her civil capacity, so that she no longer need resort to the authority of her husband or of the Court. If the separation ceases by reason of the reconciliation of the pai-ties, the capacity of the wife is modi- fied for the future and determined by the provisions of Article 1449. Such modification can only be set up as against third parties in case resumption of cohabitation has been recorded in a notarial minute, a copy of which shall be advertised in themanner appointed by Article 1445, and further by a memorandum in the margin : 1. Of the certificate of marriage; 2. Of the judgment or decree which pronounced the separation, and lastly, by publication in one of the newspapers of the depart- ment appointed to receive legal advertisements. FRENCH CIVIL CODE. 191 LIVRE III. TITEE V. Du CONTEAT BE MABIAGE ET DBS DEOITS EESPEOTIES DBS EPOUX. CHAPITEE I. Dispositions qeneraies. Aet. 1387. La loi ne regit I'association conjugale, quant aux biens, qu'd defaut de conventions speciales, que les epoux peuvent faire conune ils le jugent a propos, pourvu qu'elles ne soient pas con- traires aux bonnes mceurs, et, en outre, sous les modifications qui suirent. Ajit. 1388. Les epoxix ne peu- vent deroger ni aux droits resul- tant de la puissance maritale sur la personne de la femme et des enfants, ou qui appartiennent au mari comme cbef, ni aux droits conferes au survivant des epoux par le titre de la Puissance pater- nelle et par le titre de la Minorite, de la Tutelle et de V Emancipation, ni aux dispositions prohibitives du present Code, Ajit. 1389. Us ne peuvent faire aucune convention ou renonciation dont I'objet serait de changer i'ordre legal des successions, soit par rapport k eux-m^mes dans la succession de leurs enfants ou BOOK III. TITLE V. Of the conteact of maeeiage and the eespbctive eights of httsband and wife. CHAPTEE I. Geneeal peovisions. Aet. 1387. The law regulates the conjugal association in respect of property only in default of ex- press agreement, which the parties may make as they think fit, pro- vided it is not contrary to morality, and subject to the following fur- ther restrictions. Aet. 1388. The parties may not derogate from the rights derived from marital authority over the person of the wife and children, or which belong to the husband as head of the community, nor from the rights conferred upon the sur- viving husband or wife by the title Of Parental Authority, and by the title Of Infancy, Guardian- ship and Emancipation, nor from the prohibitive provisions of this Code. Aet. 1389. They may not make any agreement or surrender, the object of which is to change the legal order of succession, either in respect to themselves in the suc- cession of their children or de- 192 FRENCH CIVIL CODE. descendants, soit par rapport ^ leurs enf ants entre eux ; sans pre- judice des donations entre-vifs ou testamentaires qui pourront avoir lieu selon les formes et dans les cas determines par le present Code. Aet. 1390. Les epous ne peu- vent plus stipuler d'une maniSre generale que leur association sera reglee par I'une des coutumes, lois ou statuts looaux qui regissaient ci-devant les diverses parties du territoire frangais, et qui sont abroges par le present Code. Art. 1391. lis peuvent cepen- dant declarer, d'une maniere gene- rale, qu'ils entendent se marier ou sous le regime de la com- munaute, ou sous le regime dotal. Au premier cas, et sous le re- gime de la communaute, les droits des epoux et de leurs teritiers seront regies par les dispositions du chapitre II du present titre. Au deuxieme cas, et sous le regime dotal, leurs droits seront regies par les dispositions de chapitre III. Toutefois, si I'acte de celebration du mariage porte que les epoux se sont maries sans coutrat, la femme sera reputee, it, I'egard des tiers, capable de contractor dans les termes du droit commun, d moins que, dans I'acte qui contiendra son engagement, elle n'ait declare avoir fait un contrat de mariage. . Abt. 1392. La simple stipula- tion que la femme se constitue ou qij'il lui est constitue des biens en dot, ne suffit pas pour soumettre scendants, or in respect of their children amongst themselves; save and except gifts inter vivos and testamentary which may be made according to the forms and in the cases determined by this Code. Art. 1390. The parties may not stipulate in a general way that their union shall be governed by any of the local customs, laws or statutes which formerly prevailed over various parts of the territory of France, and which have been repealed by this Code. Art, 1391. They may, however, declare in a general way that they intend to be married under the community system or under the dotal system. In the first case, and under the system of community, the rights of the parties and their heirs are regulated by the provisions of Chapter II. of this Title. In the second case, and under the dotal system their rights are regulated by the provisions of Chapter III. Nevertheless, if the certificate of celebration of the marriage states that the parties were married with- out contract, the wife shall, as re- gards third parties, be deemed capable of contracting within the measiu'e determined by the com- mon law, unless in. the instrument by which she binds herself, she declares that she has made a marriage contract. Art. 139S. The mere stipula- tion that the wife brings in pro- perty or that property is granted her by way of doi or dowry, FRENCH CIVIL CODE. 193 ces biens au regime dotal, s'il n'y a dans le contrat de mariage une declaration expresse k cet egard La soumission au regime dotal ne resulte pas non plus de la simple declaration faite par les epoux, qu'ils se marient sans com- munaute, ou qu'ils seront separes de biens. Art. 1393. A defaut de stipu- lations speciales qui derogent au regime de la communaute ou le modifient, les regies etablies dans la premiere partie du cbapitre II formeront le droit commun de la France. Aet. 1394. Toutes conventions matrimoniales seront redigees, avant le mariage, par acte devant notaire. Le notaire donnera lecture aux parties du dernier alinea de r article 1391, ainsi que du der- nier alinea du present article. Mention de cette lecture sera faite dans le contrat, i peine de dix francs d' amende contre le notaire contrevenant. Le notaire delivrera aux parties, au moment de la signature du contrat, un certificat sur papier Ubre et sans frais, enoncant ses nom et lieu de residence, les noms, prenoms, qualites et demeures des futuxs 6poux, ainsi que la date du contrat. Ce certificat indiquera qu'il doit etre remis k I'offlcier de I'etat civil avant la celebration du mariage. F. does not suffice to bring such, pro- perty within the scope of the dotal system unless the contract of mar- riage contains an express declara- tion to that effect. Nor can the application of the dotal system be inferred from a mere declaration made by the parties to the effect that they are married without community, or that they adopt the rule of separate property. Art. 1393. In the absence of express agreement setting aside or modifying the community, the rules laid down in the first part of Chapter II. shall form the common law of France. Art. 1394. All matrimonial agreements shall be drawn up before the marriage takes place in the form of a notarial instrument. The notary shall read to the parties the last paragraph of Art. 1391 as well as the last paragraph of this article. It shall be stated in the contract that they were so read, under penalty of a fine of ten francs imposed on the notary who neglects so to state. The notary at the time of signa- ture of the contract shall deliver to the parties a certificate on un- stamped paper and without charge, containing his name and place of residence, the names. Christian names, occupations and residences of the future husband and wife and the date of the contract. This certificate shall also direct that it must be delivered to the Eegistrar before the celebration of the mar- riage. o 194 FRENCH CIVIL CODE. Art. 1395. Elles ne peuvent recevoir aucun changement apr^s la celebration du mariage. Art. 1396. Les diangements qui y seraient faits avant cette celebration, doivent etre constates par aote passe dans la meme forme que le contrat de mariage. Nul changement ou contre- lettre n'est, au surplus, valable sans la presence et le consente- ment simultane de toutes les per- sonnes qui ont ete parties dans le contrat de mariage. Art. 1397. Tons changements et contre-lettres, m^me revetus des formes prescrites par 1' article pre- cedent, seront sans efiet k I'egard des tiers, s'ils n'ont ete rediges ^ la suite de la minute du contrat de mariage ; et le notaire ne pourra, i peine des dom Triages et interets des parties, et sous plus grande peine s'U j a Hen, deUvrer ni grosses ni expeditions du con- trat de mariage sans transcrire ^ la suite le changement ou la contre-lettre. Art. 1398. Le mineur habile S. contraoter mariage est habile k consentir toutes les conventions dont ce contrat est susceptible ; et les conventions et donations qu'il y a faites, sont valables, pourvu qu'il ait ete assiste, dans le contrat, des personnes dont le consentement est necessaire pour la validite du mariage. Art. 1395. Matrimonial agree- ments may not be altered after the celebration of the marriage. Art. 1396. Alterations made therein before the celebration must be set out in an instrument exe- cuted in the same form as the marriage contract. No alteration or defeasance is, moreover, valid, except it be made in the presence and with the simultaneous consent of all the original parties to the contract. Art. 1397. AU alterations and defeasances, although they f ulfil the requirements of the last section, are of no effect as towards third parties, unless they are written at the end of the minute of the original contract ; and the notary shall not, under penalty of damages towards the parties and under fur- ther penalties if the case arises, deliver executory copies, or certi- fied copies of the marriage con- tract without copying at the end thereof the alteration or defeasance. Art. 1398. The infant capable of contracting marriage is capable of entering into all agreements incidental thereto ; and the agree- ments enteredinto and gifts therein made by him, are valid, provided that the persons whose consent is necessary for the validity of the marriage, were parties thereto. Aet. 1397. — " Orosse," a copy of » notarial act or judgment comprising the formule exemtoire, or executory formula, i.e., a direction issued in the name of the President of the Republic to all public officers to give their aid to execute the deed. Without this formula a j udgment cannot be put in execution. With it a notarial instrument has the force of a judgment. FRENCH CIVIL CODE. 195 CHAPITEE n. Drr eI;gime en communaute. Abt. 1399. La communaute, Boit legale, soit conventionnelle, commence du jour du mariage contracts devant I'offieier de I'etat civil : on ne pent stipuler qu'elle commencera k une autre epoque. lere PAETIB.— i)^ £A COMMUNATITJE LEGALE. Abt. 1400. La communaute qui s'etablit par la simple declara- tion qu'on se marie sous le regime de la communaute, ou k d6faut de contrat, est soumise aux regies expliquees dans les six sections qui suivent. Section I. — De oe qui compose la COMMTJNAUTE ACTIYBMBNT ET PASSrVEMENT. I. — De I'actif de la communauU. Aet. 1401. La communaute se compose activement, P De tout le mobilier que les 4poux possedaient au jour de la celebration du mariage, ensemble de tout le mobilier qui leur echoit pendant le mariage d titre de succession ou memo de donation^ si le CHAPTEE n. Oe the commxtnitt system. Art. 1399. The community, wbether by operation of law or by contract commences as from tlie date of celebration of the mar- riage before the Registrar ; all agreements purporting to fix its commencement at any other time are void. Past l.—OF TEE LEGAL COM- MUNITY [COMMUNITY BY OPERATION OF LAW). Art. 1400. The commimity which arises from a mere declara- tion that the marriage is made sub- ject to the community system, or without any contract is governed by the rules set out in the six sections which follow. Section I. — Of the composition of THE community AS TO ASSETS AND LIABILITIES. I. — Of the assets of the community. Art. 1401. The assets of the community consist — ■ 1. Of all the personalty pos- sessed by the consorts on the date of the celebration of the marriage, together with all the personalty which they ac- quire during the marriage by title- of succession or gift, o2 196 FRENCH CIVIL CODE.- donateur n'a exprim6 le con- traire ; 2° De tous les fruits, revenus, interets et arrerages, de quelque nature qu'ils soient, eclius ou perQus pendant le mariage, et provenant des Mens qui appartenaient aux epoux lors de sa celebration, ou de ceux qui leur sent 6clius pendant le mariage, ^ quelque titre que ce soit ; 3° De tous les immeubles qui sent acquis pendant le ma- nage. Abt. 1402. Tout immeuble est repute acquit de communaut6, s'U n'est prouve que I'un des epoux en avait la propriete ou possession legale anterieurement au mariage, ou qu'n lui est eohu depuis ^ titre de succession ou donation. Art. 1403. Les coupes de bois et les produits des carrieres et mines tombent dans la commu- naute pour tout ce qui en est considere comme usufruit, d'apr^s les regies expliqiiees au titre de V Usufruit, de I' Usage et de V Habi- tation. Si les coupes de bois qui, en suivant ces regies, pouvaient ^tre faites durant la communaute, ne I'ont point ete, il en sera du recompense, h 1' epoux non pro- prietaire du fonds ou k ses heri- tiers. Si les carrieres et mines ont 6te ouvertes pendant le mariage, les produits n'en tombent dans la communaut6 que saui recompense ou indemnite ^ eelui des &poux d qui eUe pourra ^tre d.ue. unless the donor bas express- ed a contrary intention ; 2. Of all tbe rents and profits, revenue, interest, and income of wbatsoever nature, accrued or got in during the marriage, and derived from tbe property belonging to the parties at tbe time of its celebration, as well as of that acquired by them during the marriage by ■whatsoever title ; 3. Of aU realty purchased dur- , ing the marriage. Art. 1402. AU realty is deemed to belong to the community, unless it be proved that one of the parties had the ownership or legal posses- sion thereof prior to the marriage, or has acquired it subsequent thereto by way of (intestate) suc- cession or gift. Art. 1403. Timber and the produce of quarries and mines belong to the community as to such portion thereof as is con- sidered as usufruct within the intent of the rules laid down in the title Of Usufruct, Use, and Habi- tation. If timber which might, accord- ing to these rules have been felled during the community, has not been felled, credit for the same shall be given to the party not the owner of the property, or to his heirs. If the quarries and mines were opened during the marriage the produce thereof belongs to the community only on condition of an allowance or indemnity therefor in favour of the party to whom it is due. FRENCH CIVIL CODE. 197 Aet. 1404. Les immeubles que les epoux possedent au jour de la celebration du manage, ou qui leur echoient pendant son cours k, titre de succession, n'entrent point en eommunaute. Neanmoins, si I'un des epoux avait acquis un immeuble depuis le contrat de mariage, contenant stipulation de eommunaute, et avant la celebration du mariage, I'immeuble acquis dans cet inter- vaUe entrera dans la commujiaute, k moins que 1' acquisition n'ait ete faite en execution de quelque clause du mariage, auquel cas elLe serait reglee suivant la con- vention. Aet. 1405. Les donations d'im- meubles qui ne sont faites pendant le mariage qu'd I'un des deux epoux, ne tombent point en eom- munaute, et appartiennent au don- ataire seul, k moins que la donation ne contienne expresse- ment que la chose donnee appar- tiendra k la eommunaute. Art. 1406. L'immeuble aban- donne ou cede par pere, mere ou autre ascendant, k I'un des deux 6poux, soit pour le remplir de ce qu'il lui doit, soit k la charge de payer les dettes du donateur k des etrangers, n'entre point en eom- munaute ; sauf recompense ou in- demnite. Akt. 1407. L'immeuble ac- quis pendant le mariage k titre d'echange centre I'immeuble ap- partenant k I'un des deux epoux, n'entre point en eommunaute, et est subroge au lieu et place de Art. 1404, Eealty which the parties possess at the time of cele- bration of the marriage, or which they acquire during the marriage by title of succession does not belong to the community. Nevertheless, if one of the parties shall have acquired real property since the contract of marriage containing the commu- nity agreement, and before the celebration of the marriage, such realty acquired during this in- terval shall belong to the com- munity, unless the acquisition thereof was made in execution of a clause of the contract, in which case it shall follow the agreement. Art. 1405. Gifts of realty made during the marriage to one of the parties only, do not belong to the community, but are the separate property of the donee, imless the gift contains an express clause to the effect that the pro- perty given shall belong to the community. Aet. 1406. Eealty surrendered or conveyed by the father, mother, or any other ascendant, to one of the parties, either in satisfaction of a debt, or charged with the payment of the debts due by the donor to third parties does not belong to the community ; subject to allowance or indemnity. Art. 1407. Eealty acquired during the marriage in exchange for realty belonging to one of the parties, does not belong to the community, and is substituted in place of the realty alienated; 198 FRENCH CIVIL CODE. celui qui a ete aliene; sauf la recompense s'il y a soulte. Akt. 1408. L' acquisition faite pendant le mariage, i titre de licitation on autrement, de por- tion d'un inuneuble dont I'un des 6poux etait proprietaire par in- divis, ne forme point un conquet ; sauJ k indemniser la communaute de la somme qu'elle a fournie pour cette acquisition. Dans le cas ou le mari devien- drait seul, et en son nom personnel, acquereur ou adjudicataire de por- tion ou de la totality d'un im- meuble appartenant par indivis i, la femme, celle-ci, lors de la disso- lution de la communaute, a le clioix ou d'abandonner I'efEet ^ la communaute, laquelle de-vdent alors debitrice envers la femme de la portion appartenant i celle-ci dans le prix, ou de retirer I'immeuble, en remboursant ^ la communaute le prix de I'acquisition. II, — Du passif de la communaute, et des actions qui en risultent contre la communauti. Aet. 1409. La communaute se compose passivement : 1° De toutes les dettes mobi- U^res dont les epoux etaient greves au jour de la celebra- tion de leur mariage, ou dont se trouYcnt cbargees les suc- cessions qui leur echoient subject to allowance in case of Art. 1408. The acquisition made during tbe marriage, by way of licitation, or otherwise, of part of a piece of real property of which one of the parties was undivided owner, does not belong to the community, subject to an allowance to be made to the com- munity for the sum paid thereout for such purchase. In case the husband alone, and in his own name, has acquired or purchased part or the whole of a piece of realty of which the wife was part owner, the wife, upon dissolution of the community, has the option of either abandoning the property to the community which then becomes the wife's debtor for that portion of the pur- chase money belonging to her, or of retaining the property, and re- imbursing the purchase price thereof to the community. II. — Of the liabilities of the com,' m,unity, and of the rights of action against the community resulting therefrom. Art. 1409. The liabilities of the community consist : — 1 . Of all the debts of personalty with which the parties were charged at the time of cele- bration of the marriage, or with which the property ac- quired by them by succes- Aet. 1407. — Sotilte, a money payment made on partition of realty in order to equalise shares. Aet. 1408. — Licitation, a judicial auction of realty held by two or more persons in undiyided ownership. Abt. 1409. — For the meaning of the expression defies mobiliires, see page 83. FRENCH CIVIL CODE. 199 durant le mariage, sauf la recompense pour celles rela- tives aux immeubles propres k I'un ou k 1' autre des epoux; 2° Des dettes, tant en capitaux qu'arrerages ou int4rits, contractees par le mari pen- dant la conununaute, ou par la femine du consentement du mari, sauf la recompense dans les cas ou elle a lieu ; 3° Des arrerages et interets seulement des rentes ou dettes passives qui sont personneUes aux deux epoux ; 4° Des reparations usufructu- aires des immeubles qui n'en- trent point en communaute ; 5° Des aliments des epoux, de 1' education et entretien des enfants, et de toute autre charge du mariage. Aet. 1410. La communaute n'est tenue des dettes mobiH^res contractees avant le mariage par la femme, qu'autant qu'eUes resultent d'un acta autbentique anteiieuj au mariage, ou ayant regu avant la meme epoque una date certaine, soit par I'enregis- trement, soit par le dec^s d'un ou de plusiaujs sig^ataires dudit acta. Le creancier de la famme, an vertu d'un. acte n'ayant pas de date certaine avant le mariage, ne peut en poursuivre contre eUe le paiamant que sux la nua propriete de sas immeubles personnels. Le mari qui pretendrait avoir paye pour sa femma une dette de sion during the marriage is charged, subject to allowance for such as relate to the sepa- rate realty of either party ; 2. Of debts, both as to principal and interest or income, con- tracted by the husband during the community, or by the wife, with the consent of the husband, subject to allowance in cases provided ; 3. Of the income and interest only of annuities or debts personal to the two parties ; 4. Of life tenants' repairs to real property not belonging to the community ; 5. Of the support of the hus- band and wife, of the educa- tion and maintenance of the children, and all other house- hold expenses. Aet. 1410. The community is not held for the debts of personalty contracted by the wife before mar- riage, unless they originated in a deed prior to the marriage, or unless they acquired a fixed date prior to the marriage, either by having been recorded or through the death of one or more of the parties who signed the instniment. The wife's creditor, deriving his right as such from an instrument which has not acquired a fixed date prior to the marriage, can only follow up his remedies against her upon the reversion of her separate realty. The husband who claims to have paid a debt of this class on behalf Aet. 1410. — Aete authentique, a deed involving the intervention of a public officer of record. Practically a notarial deed or a judgment. 200 FRENCH CIVIL CODE. cette nature, n'en peut demander la recompense ni i sa f emme, ni a ses heritiers. Art. 1411. Les dettes des suc- cessions purement mobilieres qui sont echues aux epoux pendant le mariage, sont pour le tout k la ctarge de la communaute. Art. 1412. Les dettes d'une succession purement immobiliSre qui echoit d I'un des 6poux pen- dant le mariage, ne sont point a la charge de la communaute ; sauf le droit qu'ont les creanciers de poursuivre leur paiement sur les immeubles de ladite succession. Neanmoins, si la succession est echue au mari, les creanciers de la succession peuvent poursuivre leur paiement, soit sur tons les biens propres au mari, soit meme sur ceux de la communaute ; sauf, dans ce second cas, la recompense due a la femme ou ^ ses beritiers. Art. 1413. Si la succession purement immobiliere est echue k la femme, et que ceUe-oi I'ait ac- ceptee du consentement de son mari, les creanciers de la succession peuvent poursuivre leur paiement sur tous les biens personnels de la femme : mais si la succession n'a ete acceptee par la femme que comme autorisee en justice au refus du mari, les creanciers, en cas d'in- 6ufB.sanoe des immeubles de la succession, ne peuvent se pourvoir que sur la nue propriete des autres biens personnels de la femme. Art. 1414. Lorsque la succes- sion ecbue k I'un des 6poux est en of his wife, cannot claim an aUow- ance therefor either from the wife or her heirs. Art. 1411. The liabihties of estates, consisting solely of per- sonalty inherited by the parties during the marriage, are entirely chargeable to the community. Art. 1412. The debts of an estate, consisting solely of realty inherited by one of the parties during the #marriage, are not chargeable to the community ; saving the right of the creditors to enforce payment out of the realty of the said estate. Nevertheless, if the estate is inherited by the husband, the creditors of the estate have re- course, either against all the separate property of the husband, or against that of the community; subject, in the second case, to the proper ^allowance to the wife or her heirs. Art. 1413. If the estate con- sisting solely of realty is inherited by the wife, and has been accepted by her with the consent of her husband, the creditors of the estate may have recourse against all the separate property of the wife; but if the estate was accepted' by the wife under the authority of the Court, the husband having refused his consent, the creditors, in case the realty of the estate is insuffi- cient, have recourse only against the wife's reversion in her other separate property. Art. 1414. When the estate inherited by one of the parties FRENCH CIVIL CODE. 201 paxtie moliili^re et en partie im- mobiliere, les dettes dont elle est grevee ne sont k la charge de la communaute que jusqu'd concur- rence de la portion contributoire du mobilier dans les dettes, eu egard k la valeui' de ce mobilier comparee d ceUe des immeubles. Cette portion contributoire se regie d'apr^s I'inventaire auquel le mari doit faire proceder, soit de son chef, si la succession le con- ceme personneUement, soit conune diiigeant et autorisant les actions de sa lenune, s'il s'agit d'une suc- cession k eUe echue. Aet. 1415. A defaut d'inven- taire, et dans tous les cas ou ce defaut prejudicie k la femme, elle ou ses heritiers peuvent, lors de la dissolution de la communaute, poursuivre les recompenses de droit, et meme faire preuve, tant par titres et papiers domestiques que par temoins, et au besoin par la commune renommee, de la con- sistance et valeur du m^obilier non inventorie. Le mari n'est jamais recevable k faire cette preuve. Aet. 1416. Les dispositions de I'article 1414 ne font poiat ob- stacle k ce que les creanciers d'une succession en partie mobiliere et en partie immobiliere poursuivent leur paiement sur les biens de la communaute, soit que la succes- sion soit echue au mari, soit qu'elle soit ecbue k la femme, lorsque celle-ci I'a acceptee du consente- ment de son mari; le tout sauf les recompenses respectives. II en est de meme si la succes- consists partly of realty and partly of personalty, the debts of the estate are chargeable to the community to the extent only of the contributory share of the per- sonalty to the payment of the debts, having regard to the value of the personalty by comparison with that of the realty. This contributory portion is as- certained from the inventory to be made by the husband, either on his own account if the estate concerns him personally, or as directing and authorizing his wife's acts in case of an estate inherited by her. Aet. 1415. In default of an in- ventory, and in every case where such default entails prejudice upon the wife, she or her heirs may, upon the dissolution of the com- munity, claim due allowance therefor, and may establish by documents and family papers, by witnesses, and, in case of need by common report, the extent and the value of the personalty not inventoried. In no case is the husband per- mitted to make such proof. Aet. 1416. The provisions of Article 1414 do not preclude the creditors of an estate consisting of both realty and personalty from having recourse against the com- munity property, whether the estate is inherited by the husband or by the wife, when the latter has accepted it with the consent of her husband ; in every case subject to the respective allow- ances being made. Similarly, in case the estate was 202 FRENCH CIVIL CODE. sion n'a ete acceptee par la femme que coimne autorisee en justice, et que neamnoiiis le mobilier en ait ete conf ondu dans celui de la com- munaute sans un inventaire pre- alable. Art. 1417. Si la succession n'a ete acceptee par la femme que comma autorisee en justice au relus du mari, et s'D. y a eu inven- taire, les creanciers ne peuvent poursuivre leur paiement que sur les Liens tant mobiliers qu'immo- bOiers de ladite succession, et, en cas d'insuffisance, sur la nue pro- priete des autres biens personnels de la femme. Abt. 1418. Les regies etablies par les articles 1411 et suivants regissent les dettes dependantes d'une donation, comma celles re- sultant d'une succession. Art. 1419. Les creanciers peu- vent poursuivre le paiement des dettes que la femme a contractees avec le consentement du mari, tant sur tous les biens de la commu- naute qua sur ceux du mari ou da la femme ; sauf la recompense due k la communaute, ou I'indemnite due au mari. Art. 14S0. Toute dette qui n'est contractee par la femme qu'en vertu de la procuration generale ou speciale du mari, est k la charge de la communaute ; et le creancier n'en peut poursuivre le paiement ni centre la femme ni sur ses biens personnels. accepted by the wife under the authority of the Court, and where notwithstanding, the personalty belonging thereto, has been min- gled with that of the community without having been previously inventoried. Art. 1417. If the estate was accepted by the wife under the authority of the Court, the hus- band having refused his authority, and if an inventory was made, the creditors have recourse only against the property real and per- sonal of the said estate, and, in case of insufficiency, against the reversion of the other separate property of the wife. Art. 1418. The rules laid down in Articles 1411 et seq. govern the debts charging property comprised in a gift as well as those charging an (intestate) estate. Art. 1419. Creditors have re- course for payment of debts con- tracted by the wife with her hus- band's consent, both against the community property and against the property of the husband or the wife; subject to the allowance due to the community or the in- demnity due to the husband. Art. 1420. Every debt con- tracted by the wife acting solely under a general or special power of attorney from her husband, is a community debt ; and the credi- tor has no recourse in respect thereof against the wife or her separate property. FRENCH CIVIL CODE. 203 Section II. — Db l' administration DE LA COMMTJNAtTTE, ET DB l'bFEBT DBS AOTES DE l'uN OU DE l'aUTEE fiPOUX EBLATIYE- MENT A LA SOOIETE CONJTJGALB. Aet. 1421. Le man administre seul les biens de la conuaunaute. II peut les vendre, aliener et hypotliequer sans le concours de la femme. Art. 1423. II ne peut disposer entre vifs d titre gratuit des immeubles de la communaute, ni de I'lmiversalite ou d'une quotite du mobilier, si ce n'est pour I'etablissement des enfants com- muns. II peut neanmoins disposer des effets mobiliers k titre gratuit et particulier, an profit de toutes personnes, pourvu qu'R ne s'en reserve pas I'usufruit. Art. 1423. La donation testa- mentaire faite par le mari ne peut exceder sa part dans la com- munaute. S'il a donne en cette forme un effet de la communaute, le dona- taire ne peut le reolamer en nature, qu'autant que I'efEet, par I'evene- ment du partage, tombe au lot des heritiers du mari : si I'effet ne tombe point au lot de ces heritiers, le legataire a la recompense de la valeur totale de I'efEet donn6, sur la part des beritiers du mari dans la communaute et sur les biens personnels de ce dernier. Art. 1424. Les amendes en- courues par le mari pour crime n'emportant pas mori civile peu- Section II. — Of the management OF THE COMMUNITY AND OF THE EFFECT OF THE ACTS OF HUSBAND OB. "WIFE UPON THE MATRIMONIAL PARTNERSHIP. Art. 1421. Tbe busband alone manages tbe community property. He may sell it, alienate and mort- gage it witbout tbe concurrence of tbe mfe. Art. 1422. He may not make a gift inter vivos of tbe realty of tbe community, nor of tbe wbole or of an aliquot portion of tbe personalty, unless it be for tbe estabbsbment of tbe cbiMren of the marriage. He may, bowever, part witb tbe personalty witbout consideration, in favour of anyone, provided be do not reserve to bimself a life interest tberein. Art. 1423. A testamentary gift made by tbe busband may not exceed bis sbare in tbe community. If be bas tbus made a gift of an asset of tbe community, tbe legatee cannot claim specific debvery tbereof, unless by tbe effect of tbe partition, sucb asset falls into tbe sbare of tbe busband's beirs ; if it does not do so, tbe legatee is en- titled to an allowance tberefor to tbe full value of tbe legacy, out of tbe sbare of tbe busband's beirs in tbe community, and out of tbe separate property of tbe busband. Art. 1424. Fines incurred by tbe busband for a crime not in- volving civil death may be re- Abts. 1484, 1425. — Mart civile; see p. 176, n. 204 FEENCH CnriL CODE. vent se poursuivre sur les biens de la commimaute, saul la recompense due k la femme ; ceUes encourues par la femme ne peuvent s'executer que sur la nue propriete de ses biens personnels, tant que dure la communaute. Aet. 14S5. Les condamnations prononcees centre I'un des deux epoux pour crime emportant mart civile, ne f rappent que sa part de la communaute et ses biens person- nels. Aet. 1426. Les actes faits par la femme sans le consentement du mari, et meme avec I'autorisation de la justice, n'engagent point les biens de la communaute, si ce n'est lorsqu'elle oontracte comme marchande publique et pour le fait de son commerce. Aet. 1427. La femme ne pent s'obliger ni engager les biens de la communaute, meme pour tirer son mari de prison, ou pour I'etab- Hssement de ses enfants en cas d'absence du mari, qu'apr^s j avoir ete autorisee par justice. Art. 1428. Le mari a I'ad- ministration de tons les biens personnels de la femme. II pent exercer seul toutes les actions mobilieres et possessoires qui appartiennent i, la femme. II ne pent aUener les immeubles personnels de sa femme sans son consentement. II est responsable de tout de- perissement des biens personnels de sa femme, cause par defaut d' actes conservatoires. covered out of the community property, subject to aUowance due to the wife ; those incurred by the wife can only be recovered upon the reversion of her separate pro- perty, as long as the community lasts. Art. 1425. Sentences passed upon husband or wife for a crime involving civil death, charge only their respective shares in the com- munity and their separate pro- perty. Aet. 1426, Acts performed by the wife without the husband's consent, and even under the authority of the Court, do not bind the community property, unless she contracted as a public trader for the purposes of her trade. Art. 1427. The wife cannot bind herself nor the community, even in order to rescue her hus- band from prison, or to establish the children of the marriage in case of disappearance of the hus- band, without the authority of the Court. Aet. 1428. The husband has the management of all the separate property of the wife. He alone is entitled to exercise all the wife's rights of action in respect of personalty and posses- sory actions. He may not alienate the separate realty pf the wife without her con- sent. He is responsible for any depre- ciations of the separate property of the wife, the result of lack of proper upkeep. TRENCH CIVIL CODE. 205 Art. 1429. Lesbauxquelemari seul a faits des biens de sa femme pour un temps qui excMe neuf ans, ne sont, en cas de dissolution de la communaut6, obligatoires vis-i,-vis de la femme ou de ses beritiers que pour le temps qui reste k courir soit de la premiere periode de neuf ans, si les parties s'y trouvent encore, soit de la seconde, et ainsi de suite, de maniere que le fermier n'ait que le droit d'acbever la jouissance de la periode de neuf ans ou il se trouve. Ae,t.1430. Les bauxde neuf ans ou au-dessous que le mari sexd a passes ou renouvelles des biens de sa femme, plus de trois ans avant 1' expiration du bail courant s'il s'agit de biens ruraux, et plus de deux ans avant la meme epoque s'il s'agit de maisons, sont sans effet, ^ moins que leur execution n'ait commence avant la dissolu- tion de la communaute. Aet. 1431. La femme qui s' ob- lige soHdairement avec son mari pour les affaires de la communaute oudumari, n'est reputee, al'egard decelui-ci, s'etre obligee que comme caution ; elle doit etre indemiiis6e del'obHgationqu'eUe a contractee. Aet. 1432. Le mari qui garantit solidairement ou autrement la vente que sa femme a faite d'un immeuble personnel, a pareiUe- ment un recours contre elle, soit BUT sa part dans la communaute, Boit BUT ses biens personnels, s'il est inquiete. Art. 1429. Leases which the husband alone has granted upon the property of his wife for a term exceeding nine j^ears are only- binding on the wife or her heirs in case of dissolution of the com- munity, for the period remaining unexpired of the first term of nine years, if that be unexpired, or of the second, and so forth, in such manner so that the tenant shall only be entitled to complete the nine years' term then running. Art. 1430. Leases of nine years or less which the husband has granted or renewed upon the wife's property, more than three years prior to the expiration of the current lease in case of rural leases, and more than two years before the same period in case of houses, are of no effect, unless their exe- cution has commenced before the dissolution of the community. Art. 1431. The wife who binds herself jointly and severally with the husband as to matters concern- ing the community or her husband, is deemed, as regards the husband, to be bound as surety only ; she shall be indemnified of the obliga- tion contracted by her. Art. 1432. The husband who guarantees, jointly and severally, or otherwise, the sale made by his wife of a portion of her separate realty, has likewise a recourse for indemnity against her, either upon her share in the community or on her separate property, in case re- course is had against him. 206 FRENCH CIVIL CODE. Abt. 1433. S'il est vendu un immeuble appartenant ^ I'un des SpoxLX, de meme que si I'on s'est redim6 en argent de services fonciers dus d des heritages pro- pres i, I'un d'eux, et que le prix en ait ete verse dans la commu- naute, le tout sans remploi, il y a lieu au prelevement de oe prix sur la communaute, au profit de 1' epoux qui etait proprietaire, soit de 1' im- meuble vendu, soit des services racbetes. Aet. 1434. Le remploi est cense fait d I'egard du mari, toutes les fois que, lors d'une acquisition, il a declare qu'elle etait faite des deniers provenus de 1' alienation de I'immeuble qui lui etait per- sonnel, et pour lui tenir lieu de remploi. Aet. 1435. La declaration du mari que 1' acquisition est faite des deniers provenus de I'immeuble vendu par la fern me et pour lui servir de remploi, ne sufiit point, si ce remploi n'a ete formellement accepte par la f emme : si elle ne I'a pas accepte, eUe a simplement droit, lors de la dissolution de la com- munaute, d la recompense du prix de son immeuble vendu. Aet. 1436. La recompense du prix de I'immeuble appartenant au mari ne s'exerce que sur la masse de la communaute ; celle du prix de I'immeuble appartenant k la femme s'exerce sur les Mens per- sonnels du mari, en cas d'insuffis- ance des biens de la communaute. Dans tons les cas, la recompense n'a lieu que sur le pied de la vente, Aet. 1433. Wlien realty be- longing to the husband or the wife is sold, or when an easement appertaining to separate realty has been redeemed by a money pay- ment, and the price thereof hasbeen paid into the community, in each case without re-investment, the party who was ovnier of the estate sold, or of the easement redeemed, is entitled to an allowance of such price out of the community. Aet. 1434. Ee-investment is deemed to have been accomplished as regards the husband whenever, at the time of purchase, he has declared that such purchase is made out of moneys arising from his separate realty, and by way of re-investment. Aet. 1435. The declaration of the husband that the purchase is made out of moneys arising from realty sold by the wife and by way of re-investment wiL. not suffice, unless such re-investment has been formally accepted by the wife ; if she has not accepted it she is merely entitled, upon dis- solution of the community, to an allowance for the price of the realty sold. Aet. 1436. The aUowanee for the price of realty belonging to the husband is chargeable only on the community : that of the price of realty belonging to the wife is further chargeable on the separate property of the husband, in case the community property does not suffice. In every case the allow- ance is made solely upon the basis FRENCH CIVIL CODE. 207 quelque allegation qui soit faite toucliant la valeur de rimmeuble aliene. Akt. 1437. Toutes les fois qu'il est pris sur la communaute une somme soit pour acquitter les dettes ou charges personnelles k I'un des epoux, teUes que le prix ou partie du prix d'un immeuble k lui propre ou le racliat de ser- vices lonciers, soit pour le recou- vrement, la conservation ou 1' ame- lioration de ses Mens personnels, et generalement toutes les fois que I'un des epoux a tire un profit personnel des Mens de la com- munaute, U. en doit la recompense. Akt. 1438. Si le p^re et la m^re ont dote conjointement 1' en- fant commun, sans exprimer la portion pour laqueUe ils enten- daient y contribuer, ils sont censes avoir dote ohacun pour moitie, soit que la dot ait ete fournie ou promise en effets de la com- munaute, soit qu'eUe I'ait ete en Mens personnels k I'un des deux epoux. Au second cas, 1' epoux; dont I'immeuble ou I'effet personnel a ete constitue en dot, a, sur les Mens de 1' autre, une action en indemnite pour la moitie de ladite dot, eu egard k la valeur de I'effet donne, au temps de la donation. Art. 1439. La dot constituee par le man seul k 1' enfant commun, en effets de la communaute, est k la charge de la communaute ; et, dans le cas ou la communaute est acceptee par la femme, ceUe-ci doit supporter la moitie de la dot, of the selling price, whatever may be alleged in regard to the value of the realty sold. Art. 1437. Whenever a sum of money is taken from the com- munity either to pay debts or liabilities personal to the hus- band or wife, such as the whole or part of the purchase price of separate realty, or the redemption of easements, or for the recovery, maintenance, or improvement of their separate property, and gene- raUy speaking, whenever husband or wife has derived personal profit from the community property, an allowance is due therefor. Art. 1438. If a father and a mother have jointly granted a marriage portion to the child of their marriage, without stating in what proportion they intended to contribute thereto, they are deem- ed to have each contributed a moiety, whether the portion was granted or promised out of com- munity or out of separate property. In the latter case the party whose realty has been granted by way of marriage portion, has an action of indemnity against the property of the other party for one half of the stated portion, having regard to the value of the property granted, at the time of the grant. Art. 1439. The marriage por- tion granted by the husband alone to the child of the marriage, out of community property, is charge- able to the community ; and in case the community is accepted by the wife, she is chargeable with 208 FRENCH CIVIL CODE. k moins que le mari n'ait declare expressement qu'il s'en chargeait pour le tout, ou pour una portion plus forte que la moitie. Aet. 1440. La garantie de la dot est due par toute personne qui I'a constituee ; et ses iiit6rets courent du jour du mariage, encore qu'il y ait terme pour le paiement, s'il n'y a stipulation contraire. Section III. — De la DissoLtrrioN DE LA COMMtrNATJTE ET DE QUELQTJES-TJNES DE SES SriTES. Art. 1441. La communaute se dissout, 1° par la mort natujeUe ; 2" par la mort civile ; 3" par le divorce ; 4° par la separation de corps; 5° par la separation de Mens. Art. 1442. Le defaut d'inven- taire apres la mort naturelle ou civile de I'un des epoux, ne donne pas lieu d la continuation de la communaute ; sauf les poursuites des parties interessees, relative- ment k la consistance des biens et effets communs, dont la preuve pourra etre faite tant par titres que par la commune renommee. S'il y a des eniants mineurs, le defaut d'inventaire fait perdre en outre k I'epoux survivant la jouis- sance de leurs revenus ; et le subroge tuteur qui ne I'a point oblige a faire inventaire, est solid- airement tenu avec lui de toutes les condamnations qui peuvent etre prononcees au profit des mineurs. half the maniage portion unless the husband has expressly de- clared that he intended to bo liable for the whole or for more than a moiety thereof. Art. 1440. Security for the marriage portion is due by the person granting it, and interest thereon runs as from the date of the marriage, even though a term is fixed for the payment, unless the contrary be stipulated. Section ILE. — Op the dissolution OE THE COMMDIflTY AND OF SOME OF ITS CONSEQUENCES. Art. 1441. The community is dissolved, (1) by natural death; (2) by civil death; (3) by divorce; (4) by judicial separation ; (5) by separation of property. Art. 144S. The omission of an inventory after the natural or civil death of husband or wife, does not involve continuation of the com- munity ; subject to the remedies of the interested parties in regard to the extent of the common pro- perty and effects, proof of which may be made by documents and by common report. If there are infant children, the omission of an inventory deprives the surviving husband or wife of the enjoyment of their income ; and the deputy guardian who has failed to compel the survivor to make inventory is liable jointly and severally with such survivor for all judgments pronounced in favour of the infants. Abt. 1441, 144:2.— Mort civile : see p. 176, n. FRENCH CIVIL CODE. 209 Art. 1443. La separation de biens ne peut etre poursuivie qu'en justice par la femme dont la dot est mise en peril, et lorsque le desordredes affaires dtimari donne lieu de eraindre que les biens de celui-ci ne soient point sufB.sants pour remplir les droits et reprises de la femme. Toute separation volontaire est nulle. Abt. 1444. La separation de biens, quoique prononcee en jus- tice, est nulle si elle n'a point ete exeoutee par le paiement reel des droits et reprises de la femme, effectue par acte authentique, jusqu'i, concurrence des biens du mari, ou au moins par des pour- suites conunencees dans la quinz- aine qui a suivi le jugement, et non interrompues depuis. Abt. 1445. Toute separation de biens doit, avant son execution, etre rendue pubUque par I'affiche sur un tableau k ce destine, dans la principale salle du tribunal de premiere instance, et de plus, si le mari est marcband, banquier ou commer9ant, dans celle du tribunal de commerce du lieu de son domicile ; et ce, i, peine de nuUite de 1' execution. Le jugement qui prononce la separation de biens, remonte, quant ^ ses effets, au jour de la demande. Art. 1446. Les creanciers per- sonnels de la femme ne peuvent, sans son consentement, demander la separation de biens. N^anmoins, en cas de faillite ou de d6eonfiture du mari, ils peuvent F. Aet. 1443. Separation of pro- perty can only be demanded judi- cially by the wife whose portion is imperilled, and wben tbe dis- organization of the husband's affairs gives rise to the fear that his property will not suffice to satisfy the claims of the wife. All voluntary separations are void. AuT. 1444. A separation of property, although pronounced judicially, is void if it has not been carried into effect by the actual payment of the wife's claims, in a notarial instrument, to the extent of the husband's property, or at least by proceedings begun within a fortnight after the judgment, and not since interrupted. Art. 1445. Every separation of property must, before being carried into effect, be made public by advertisement upon a special notice board, in the principal hall of the tribunal of first instance, and also, if the husband is a mer- chant, banker or trader, in the hall of the tribunal of commerce, of his domicile ; in default of which the decree is void and of no effect. The effect of a judgment which pronounces a separation of goods, relates back to the date of the application. Art. 1446. The personal credi- tors of the wife cannot, without her consent, apply for a separation of goods. Nevertheless, in case of bank- ruptcy or insolvency of the hus- 210 FEENCH CIVIL CODE. exercer lea droits de leur debitrice jiisqu'^ ooncurrence du montant de leurs creances. Aet. 1447. Les creanciers du mari peuvent se pourvoir oontre la separation de biens prononcee en fraude de leurs droits ; Us peuvent meme intervenir dans I'instanoe Bur la demande en separation pour la contester. Art. 1448. La femme qui a obtenu la separation de biens, doit contribuer, proportionnellement d ses facultes et k oeUes du mari, tant aux frais du menage qu'^ ceux d' education des enfants com- muns. EUe doit supporter enti^rement ces frais, s'U ne reste rien au mari. AuT. 1449. La femme separee soit de corps et de biens, soit de biens seulement, en reprendla libre administration. EUe pent disposer de son mobi- Her, et I'aliener. EUe ne peut aUener ses immeu- bles sans le oonsentement du mari, ou sans etre autorisee en justice k son refus. Art. 1450. Le mari n'est point gar ant du defaut d'emploi ou de remploi du prix de I'immeuble que la femme separee a aliene sous I'autorisation de la justice, i moins qu'U n'ait concouru au contrat, ou qu'il ne soit prouve que les deniers out ete regus par lui, ou ont tourne k son profit. 11 est garant du defaut d'emploi ou de remploi, si la vente a et6 band, they may exercise the rights of their debtor, the wife, to the extent of their claims. Art. 144T. The creditors of the husband may attack a separation of goods pronounced in fraud of their rights ; they may also inter- vene and file objections to the separation in an action therefor. Art. 1448. The wife who has obtained separation of goods shaU contribute in proportion to her means and those of her husband, towards both the household ex- penses and the expenses of educa- tion of the children of the marriage. She shaU pay the whole of such expenses if nothing remains to the husband. Art. 1449. A wife separated both as to bed and board and as to property, or as to property only, recovers the free management of her property. She may dispose of and seU her personalty. She may not seU her realty without the consent of her hus- band, or the authority of the Court in case of his refusal. Art. 1450. The husband is not Uable for the omission to in- vest or re-invest the proceeds of realty sold by the wife who is separated, under the authority of the Court, unless he joined in the deed, or it can be proved that the proceeds were received by him, or he has benefited thereby. He is liable for omission to in- vest or re-invest, in case the sale FRENCH CIVIL CODE. 211 faite en sa presence et de son con- sentement : il ne I'est point de I'utilite de cet emploi. Art. 1451. La communaute dissoute par la separation soit de corps et de Mens, soit de biens seulement, pent ^tre retablie du consentement des deux parties. EUe ne pent I'etre que par un acte passe devant notaires et aveo minute, dont une expedition doit ^tre afficliee dans la forme de I'article 1445. En ce cas, la communaute reta- blie reprend son effet du jour du mariage ; les clioses sent remises au meme etat que s'il n'y avait point eu de separation, sans pre- judice neamnoins de I'execution des actes qui, dans cet intervaHe, ont pu etre faits par la f enune, en conformite de I'article 1449. Toute convention par laqueUe les epoux retabUraient leur com- munaute sous des conditions dif- ferentes de ceUes qui la reglaient anterieurement, est nidle. Art. 1452. La dissolution de communaute operee par le divorce on par la separation soit de corps et de biens, soit de biens seule- ment, ne donne pas ouverture aux droits de survie de la f emme ; mais celle-ci conserve la faculte de les exercer lors de la mort naturelle ou civile de son mari. was made in Hs presence and with, his consent : he is not re- sponsible for the expediency of such investment. Akt. 1451. The community dis- solved by separation from bed and board and of property, or of pro- perty only, may be revived by mutual consent of the two parties. Such revivor can only be accom- plished by a deed executed before notaries and with a minute, a certified copy of which must be advertised in the form provided by Article 1445. In such case, the revived com- munity takes effect from the date of the marriage ; the position of things is as though there had been no separation ; without pre- judice, nevertheless, to the execu- tion of the wife's obligations entered into during such interval, in conformity with Article 1449. Any agreement by which the parties purport to re-establish the community on conditions different from those which originally go- verned it, is void. Art. 1452. The dissolution of the community by divorce or separation of persons and pro- perty, or of property only, does not give rise to the rights of survivorship of the wife ; but she retains the right of exercise thereof upon the natural or civil death of her husband. AnT. 1452. — Mort civile. See p. 176, n. p2 212 ■FRENCH CIVIL CODE. Section IV. — Db l' acceptation db LA COMMtTNATJTfi, ET DE LA EE- NONCIATION QUI PEUT T STUB FAITB, AVEC LBS CONDITIONS QUI T SONT KBLATITES. Art. 1453. Apres la dissolu- tion de la communaute, la femme ou ses heritiers et ayants cause ont la faoulte de I'accepter ou d'y re- noncer : toute convention contraire est nulle. Art. 1454. La femme qui s'est immiscee dans les biens de la coin- munaute, ne peut y renoncer. Les actes purement adminis- tratifs ou conservatoires n' em- portent point iminixtion. Art. 1455. La femme majeure qui a pris dans un acte la qualite de commune, ne peut plus y re- noncer ni se faire restituer centre cette qualite, quand meme eHe I'aurait prise avant d'avoir fait inventaire, s'il n'y a eu dol de la part des heritiers du mari. Art. 1456. La femme survi- vante qui veut conserver la f aculte de renoncer ^. la communaute, doit, dans les trois mois du jour du deces du mari, faire faire un in- ventaire iidele et exact de tous les biens de la communaute, contra- dictoirement aveo les heritiers du mari, ou eux dument appeles. Get inventaire doit etre par elle af&rme sincere et veritable, lors de sa cloture, devant I'ofRcier public qu'il I'a re^u. Art. 1457. Dans les trois mois et quarante jours apr^s le dec^s Section IV. — Of acceptance of the community and OB RE- NUNCIATION THEEBOB, WITH THE CONDITIONS APPEETAININa THERETO. Aet. 1453. After the dissolu- tion of the community, the wife or her heirs and assigp.s have the right of accepting or renouncing the same : all agreements to the contrary are void. Art. 1454. The wife who has intermeddled with the community property cannot renounce it. Acts of management or con- servatory acts do not amoimt to intermeddling. Art. 1455. The adult wife who has described herself in a deed as having community rights, canuot thereafter renounce, or obtain re- lief against such description, even although she assumed it before having made inventory, unless there has been fraud on the part of the husband's heirs. Aet. 1456. The surviving wife who desires to preserve her right of renouncing the community, shall, within three months from the death of her husband, cause to be made a true and faithful inventory of all the property of the community, in presence of, or after due notice to the heirs of the husband. This inventory shall be declared by her to be true and faithful, when completed, before the public oflB.cer who has received it. Aet. 1457. Within three months and forty days from the death of FEENCH CIVIL CODE. 213 du mari, elle doit faire sa renon- eiation au greffe du tribunal de premiere instance dans I'arron- dissement duquel le mari avait son domicile ; cet acte doit etre insorit sur le registre etabli pour recevoir les renonciations d suc- cession. Art. 1458. La veuve pent, sui- vant les circonstances, demander au tribunal de premiere instance une prorogation du delai prescrit par I'article precedent pour sa re- nonciation ; cette prorogation est, s'il y a Ueu, prononcee contra- dictoirement avec les heritiers du mari, ou eiix dument appeles. Aet. 1459. La veuve qui n'a point fait sa renonciation dans le delai ci-dessus prescrit, n'est pas dechue de la faculte de renoncer si elle ne s'est point immiscee at qu'elle ait fait inventaire; elle peut seulement etre poursuivie comme commune jusqu'd ce qu'elle ait renonce, et elle doit les frais faits contre eUe jusqu'S, sa renon- ciation. EUe peut egalement etre pour- suivie apr^s I'expiration des qua- rante jours depuis la cloture de I'inventaire, s'il a ete clos avant les trois mois. AuT. 1460. La veuve qui a diverti ou recele quelques effets de la communaute, est declaree commune, nonobstant sa renoncia- tion ; il en est de memo k I'egard de ses beritiers. Aet. 1461. Si la veuve meurt the husband, she shall execute her renunciation at the registry of the tribunal of first instance in the district in which her husband had his domicile ; this deed shall be entered upon the register provided for the record of renunciations of estates. Aet. 1458. The widow may, according to circumstances, apply to the tribunal of first instance for an extension of the period prescribed by the preceding article for her renunciation ; such exten- sion is, in case of need, pronounced in the presence of the heirs of the husband, or after due notice to them. Art. 1459. The widow who has failed to make her renuncia- tion within the period above pre- scribed, does not forfeit her right to renounce provided she has not intermeddled and has made in- ventory ; but she may be pro- ceeded against as being subject to community until she has re- nounced, and is liable for costs incurred against her up to her renunciation. She may also be proceeded against after the expiration of forty days since the completion of the inventory, if it was completed before the end of the three months. Art. 1460. The widow who has converted or concealed any assets of the community is de- clared to be liable to community in spite of her renunciation ; the same is the case as regards her heirs. Art. 1461. If the widow dies 214 FRENCH CIVIL CODE. avant I'expiration des trois mois sans avoir fait ou termine I'in- ventaire, les h^ritiers auront, pour f aire ou pour terminer I'inventaire, un nouveau delai de trois mois, i, compter du deo^s de la veuve, et de quarante jours pour deliberer, apres la cloture de I'inventaire. Si la veuve meurt ayant termdne I'inventaire, ses heritiers auront, pour deliberer, un nouveau delai de quarante jours ^ compter de son deoes. Us peuvent, au surplus, renoncer a la communaute dans les formes etabHes ci-dessus; et les articles 1458 et 1459 leur sent applieables. Aet. 1462. Les dispositions des articles 1456 et suivants sent applieables aux femmes des in- dividus morts civilement, k partir du moment ou la mort oivUe a commence. Art. 1463. La femme divorcee ou separee de corps, qui n'a point, dans les trois mois et quarante jours apres le divorce ou la sepa- ration definitivement prononces, accepte la communaute, est censee y avoir renonce, h, moins qu'etant encore dans le delai, elle n'en ait obtenu la prorogation en justice, contradictoirement avec le mari, ou lui dument appele. Aet. 1464. Les creanciers de la femme peuvent attaquer la re- nonciation qui aurait ete faite par elle ou par ses beritiers en fraude de leurs creances, et accepter la communaute de leur chef. before the expiration of the three months without having made or concluded the inventory, her heirs shall have a further period of three months from the widow's death within which to make or conclude the inventory, and a fur- ther period of forty days after the completion of the inventory within which to make their election. If the widow dies after having concluded the inventory, her heirs shall have a further period of forty days from her decease within which to make their election. They may also renounce the community in the forms provided above ; and Articles 1458 and 1459 are applicable to them. Aet. 1462. The provisions of Articles 1456 et seq. are applicable to wives of individuals civilly dead, from the time when the civil death began. Art. 1463. A wife divorced or judicially separated, who has not accepted the community within three months and forty days after the divorce or the separation has become final, is deemed to have renounced, unless, before the period has expired, she has ob- tained an extension of time from the court, in presence of the hus- band, or after due notice to him. Art. 1464. The creditors of the wife may object to the renuncia- tion made by her or her heirs in fraud of their claims, and may accept the community on their own account. Aet. 1462. — Mort civile. See p. 176, n. FKENCH CIVIL CODE. 215 Aet. 1465. La veuve, soit qu'elle accepte soit qu'elle renonce, a droit, pendant les trois mois et quarante jours qui lui sent accordes pour faire inventaire et deliberer, de prendre sa nourriture et celle de ses domestiques sur les provisions existantes, et, a defaut, par emprunt au compte de la masse commujie, k la cliarge d'en user moderement. Elle ne doit aucun loyer k raison de I'habitation qu'elle a pu faire, pendant ces delais, dans une maison dependante de la com- munaute, ou appartenant aux heritiers du mari ; et si la maison qu'habitaient les epoux k I'epoque de la dissolution de la com- munaute, etait tenue par eux k titre de loyer, la femme ne con- tribuera point, pendant les m^mes delais, au paiement dudit loyer, lequel sera pris sur la masse. Aet. 1466. Dans le cas de dis- solution de la communaute par la mort de la femme, ses heritiers peuvent renoncer k la communaute dans les delais et dans les formes que la loi prescrit k la femme Burvivante. Section V. — Dxr paetagb de la COMMTJNAUTf; APeSS l' ACCEPTA- TION. Aet. 1467. Apres I'acceptation de la communaute par la femme ou ses li6ritiers, I'actif se partage, et le passif est supporte de la mani^re ci-apres determinee. I. — Du partage de I'actif. Aet. 1468. Les epoux ou leurs heritiers rapportent k la masse Aet. 1465. The widow, whether she accepts or renounces, is en- titled, during the period of three months and forty days allowed her to make inventory and to elect, to her maintenance and that of her servants, out of existing pro- visions, and in the absence thereof by a loan chargeable on the common patrimony, on condition of using the same with moderation. She owes no rent for her resi- dence, during this period, in a house belonging to the community, or to the heirs of the husband ; and if the house which the hus- band and wife occupied at the dissolution of the community was held by them under a lease, the wife shaU. not contribute to the payment of the rent thereof during the same period, but the rent shall be taken out of the common fund. Aet. 1466. In case of dis- solution of the community by death of the wife, her heirs may renoimce the community within the same period and in the same forms as those prescribed for the surviving wife. Section V. — Of partition op the COMMUNITY APTEE ACCEPTANCE. Aet. 1467. After acceptance of the community by the wife or her heirs, the assets are distributed, and the liabilities apportioned in manner following : I. — Distribution of the assets. Aet. 1468. The parties or their heirs restore to the common fund 216 FEENCH CIVIL CODE. des biens existants, tout ce dont ils sont debiteurs envers la oom- munaute 4 titre de recompense ou d'indemnite, d'apr^s les regies ci- dessus prescrites, k la section II de la premiere partie du present chapitre. Art. 1469. Ohaque epoux ou son heritier rapporte 6galement les sommes qui ont ete tiroes de la communaute, ou la valeur des biens que 1' epoux y a pris pour doter un eniant d'un autre Ut, ou pour doter personneUement 1' en- fant commun. Art. 1470. Sur la masse des biens, cliaque epoux ou son heritier preleve : 1° Ses biens personnels qui ne sont point entres en commu- naute, s'ils existent en nature, ou ceux qui ont ete acquis en remploi ; 2° Le prix de ses inmieubles qui ont ete aKenes pendant la communaute, et dont il n'a point ete fait remploi ; 3° Les indemnites qui lui sont dues par la communaute. Art. 1471. Les preBvements de la femme s'exeroent avant ceux du mari. lis s'exercent pour les biens qui n' existent plus en nature, d'abord sur 1' argent comptant, ensuite sur le mobilier, et subsidiarement sur les immeubles de la communaute : dans ce dernier cas, le cboix des immeubles est delere d la femme et ^ ses lieritiers. Art. 1472. Le mari ne pent exercer ses reprises que sur les biens de la communaute. of actually existing property, everytbing which they owe to the community by way of allowance or indemnity, according to the rules hereinbefore laid down in Section II. of the first part of the present chapter. Art. 1469. Each party or their heirs also bring in the moneys withdrawn from the community, or the value of the property taken by one of the parties for the por- tioning of a child of a prior mar- riage, or for personally portioning a child of the marriage. Art. 1470. Each party or their heirs take out of the common fund: 1. Theirseparatepropertywhich. has not fallen into the com- munity, if it exists in kind, or such as has been purchased by way of re-investment ; 2. The proceeds of realty sold during the community, and which have not been re-in- vested ; 3. Allowances due to them by the community. Art. 1471. The deductions to which the wife is entitled are made before those of the husband. In respect of the property which no longer exists in kind, they are made first out of cash, then out of personalty, and in last resort out of the realty belonging to the com- munity: in the latter case the selection of the realty is left to the wife and her heirs. Art. 1473. The husband may enforce his claims only upon the property of the community. FEENCH CIVIL CODE. 217 La femme et ses heritiers, en cas d'insiifflsaiice de la cominu- naute, exercent leurs reprises sur les biens personnels du mari. Akt. 1473. Les remplois et recompenses dus par la com- munaute aux epoux, et les recom- penses et indemnites par eux dues i, la communaute, emportent les inter ets de plein droit du jour de la dissolution de la communaute. Abt. 1474. Apres que tous les prelevements des deux epoux out ete executes sur la m.asse, le sur- plus se partage par m.oiti6 entre les epoux ou ceux qui les repre- sentent. Abt. 1475. Si les heritiers de la femme sont divises, en sorte que I'un ait acoepte la commu- naute d laquelle I'autre a renonce, celui qui a accepte ne peut prendre que sa portion virile et Lereditaire dans les biens qui ecboient au lot de la femme. Le surplus reste au mari, qui demeure charge, envers I'heritier renon^ant, des droits que la femme aurait pu exercer en cas de renon- ciation, mais jusqu'i concurrence seulement de la portion virile hereditaire du renongant. Abt. 1476. Au surplus, le partage de la communaute, pour tout ce qui conceme ses formes, la licitation des immeubles quand il y a Heu, les effets du partage, la garantie qui en resulte, et les Boultes, est sounds i toutes les regies qid sont etablies au titre des Successions pour les partages entre coli6ritiers. The wife and her heirs, in case of insufficiency of the community, may enforce their claims on the separate property of the husband. Abt. 1473. Eeinvestments and allowances due by the community to husband and wife, and allow- ances and indemnities due by them to the community, bear interest ipso facto from the date of dis- solution of the community. Abt. 1474. After aU the deduc- tions to which husband and wife are entitled have been made from the common fund, the remainder is divided equally between the husband and wife or their repre- sentatives. Abt. 1475. If the heirs of the wife cannot agree, so that one has accepted the community, which another has renounced, the one who accepts shaU only take his distributive share in the property falling into the wife's share. The remainder belongs to the husband, who is accountable towards the heir renouncing for the claims which the wife might have put forward in the event of renunciation, but only to the ex- tent of the distributive share of the heir who renounces. Abt. 1476. Moreover, the par- tition of the community, in respect of everything concerning its forms, the sale of realty in case of need, the effects of partition, the guaran- tee resulting therefrom, and pay- ments to equalize shares, is subject to aU the rules laid down in the title of {Intestate) Succession in re- gard to partitions amongst co-heirs. 218 FEENCH CIVIL CODE. Art. 1477. Celui des epoux qui aurait diverti ou recele quelques effets de la communaute, est piive de sa portion dans lesdits effets. Abt. 1478. Apres le partage consomme, si I'un des deux epoux est creancier personnel de 1' autre, comme lorsque le prix de son bien a ete employe 4 payer une dette personnelle de 1' autre epoux, ou pour toute autre cause, il exerce sa creance sur la part qid est 4chue db celui-ci dans la commu- naute ou sur ses biens personnels. Art. 1479. Les cr6ances person- neUes que les epoux ont i exercer I'un centre I'autre, ne portent interet que du jour de la demande en justice. Art. 1480. Les donations que I'un des epoux a pu faire a I'autre, ne s'executent que sur la part du donateur dans la communaute, et sur ses biens personnels. Art. 1481. Le deuil de la femme est aux frais des heritiers du mari predecede. La valeur de ce deuil est reglee selon la fortune du mari. II est du meme i la femme qui renonce d la communaute. II. — Du passif de la communaute, et de la contribution aux dettes. Art, 148S. Les dettes de la communaute sont pour moitie a la charge de chacun des epoux ou de Art. 1477. The husband or wife who has converted or con- cealed any assets of the community is deprived of his or her share in such assets. Art. 1478. After completion of the partition, if one of the parties is a personal creditor of the other, as when the proceeds of sale of portion of his separate property have been used to pay a personal debt of the other party, or for any other reason, such claim is en- forceable against the share belong- ing to such other party in the community or upon his or her separate property. Art. 1479. The personal claims which the parties have one against the other, bear interest only from the date of the writ in an action for recovery thereof. Art. 1480. Gifts made by one party to the other are enforceable only upon the share of the donor in the community, and upon his or her separate property. Art. 1481. The wife's mourning apparel is chargeable to the heirs of the deceased husband. The cost thereof is regulated according to the husband's means. The wife who renounces the community is none the less entitled thereto. II. — Of the liabilities of the com- munity, and of contribution to the debts. Art. 1483. The debts of the community are chargeable in equal moieties to each of the parties or FRENCH CIVIL CODE. 219 leurs heritiers : les frais de scelle, iaventaire, vente de mobilier, liquidation, lieitation et partage, font partie de ces dettes. Abt. 1483. La femnie n'est tenue des dettes de lacommunaute, soit k I'egard du mari, soit k, I'egarddescreanciers, que jusqu'i, concurrence de son emolument, pourvu qu'il j ait eu bon et fidele inventaire, et en rendant compte tant du contenu de cet inventaire que de ce qui lui est echu par le partage. Abt. 1484. Le mari est tenu, pour la totalite, des dettes de la conununaute par lui contractees ; saul son recours centre la femme ou ses heritiers pour la moitie desdites dettes. Akt. 1485. n n'est tenu que pour moitie, de celles personnelles a la femme et qui etaient tombees k la charge de la communaute. Art. 1486. La femme peut etre poujsuivie pour la totalite des dettes qui precedent de son chef et etaient entrees dans la com- munaute, sauf son recoujs centre le maii ou son heritier, pour la moitie desdites dettes. Abt. 1487. La femme, meme personnellement obligee pour une dette de communaute, ne peut etre poursuivie que pour la moitie de cette dette, k moins que 1' obli- gation, ne soit solidaire. Abt. 1488. La femnie qui a paye une dette de la communaute au ielk de sa moitie, n'a point de their heirs : the expenses of the seals, inventory, sale of personalty, liquidation, sale of realty and par- tition, form part of these debts. Abt. 1483. The wife is only bound for the debts of the com- munity, whether as towards the husband, or as towards creditors, to the extent of her distributive share, provided a true and faithful inventory has been made, and upon accounting for the contents of such inventory as well as for her share upon partition. Abt. 1484. The husband is liable for the whole of the debts of the community contracted by him ; subjecttohis recourse against the wife or her heirs for one-half thereof. Abt. 1485. He is only liable for one-half of the personal debts of the wife which have become chargeable to the community. Abt. 1486. The wife may be prosecuted for the whole of the debts incurred on her account which have fallen into the com- munity, subject to her recourse against the husband or his heirs for one-half thereof. Abt. 1487. The wife, although personally bound for a community debt, can only be proceeded against for a moiety of such debt, unless the obligation be joint and several. Abt. 1488. The wife who has paid a debt of the community in excess of her moiety, cannot re- 220 FRENCH CIVIL CODE. repetition contre le creancier pour I'excedant, i, moins que la CLuit- tance n'exprime que ce qu'elle a paye etait pour sa moitie. Art. 1489. Celui des deux epoux qui, par I'effet de I'hypotlie- que exeroee sur rimmeuble d lui echu en partage, se trouve poursuivi pour la totalite d'une dette de communaute, a de droit son recours pour la moitie de cette dette contre 1' autre epoux ou ses heritiers. Aet. 1490. Les dispositions precedentes ne font point obstacle A ce que, par le partage, I'un ou 1' autre des copartageants soit charge de payer une quotite de dettes autre que la moitie, meme de les acquitter entierement. Toutes les fois que I'un des co- partageants a paye des dettes de la comm.unaute au de\k de la portion dont il etait tenu, il y a Ueu au recours de celui qui a trop paye contre 1' autre. AuT. 1491. Tout ce qui est dit ci-dessus d. I'egard du mari ou de la femme a lieu k I'egard des heritiers de I'un ou de 1' autre ; et ces heritiers exercent les memes droits et sont soumis aux memes actions que le conjoint qu'ils representent. Section VI. — De la kenonciation A LA COMMTJNATJTE, ET DE SES EFFETS. Art. 1493. La femme qui re- nonce, perd toute esp^ce de droit cover the excess against the creditor, unless the receipt ex- presses that what she has paid was only for her moiety. Art. 1489. The husband or wife who, by reason of a mortgage charged upon the realty, allotted to either of them under a partition, is proceeded against for the whole of a community debt, has recourse against the other party, or his or her heirs, for the moiety of such debt. Art. 1490. The provisions which precede do not prevent one or other of the coparceners from being charged upon partition with the payment of any share of the debts other than a moiety, or even with the payment of the whole of them. "Whenever one of the coparceners has paid the debts of the com- munity beyond the share for which he or she was bound, such party has recourse for the excess against the other party. Art. 1491. AH the above pro- visions in regard to husband and wife hold good as regards the heirs of either of them ; and their heirs exercise the same rights and are liable to the same actions as the party they represent.' Section VI. — Of renunciation of the community and its con- SEftTJENCES. Art. 1492. The wife who re- nounces loses every kind of right FRENCH CIVIL CODE. 221 sur les biens de la communaute, et meme sur le mobilier qui j est entre de son chef. EUe retire seulement les linges et hardes k son usage. Art. 1493. La femme renon- gante a le droit de reprendre, 1°. Les immeubles a eUe appar- tenant, lorsqu'ils existent en nature, ou I'immeuble qui a ete acquis en remploi ; 2°. Le prix de ses immeubles aHenes dont le remploi n'a pas ete fait et accepte comme il est dit ci-dessus ; 3°. Toutes les indemnites qui peuvent lui etre dues par la communaute. Art. 1494. La femme renon- gante est dechargee de toute con- tribution aux dettes de la commu- naute, tant k I'egard du mari qu'k I'egard des creanciers. EHe reste neanmoins tenue envers oeux-ci lorsqu'eUe s'est obHg^e conjointe- ment avec son mari, ou lorsque la dette, devenue dette de la commu- naute, provenait originairement de son cbef ; le tout sauf son recours contre le mari ou ses heritiers. Aet. 1495. EUe peut exercer toutes les actions et reprises ci- dessus detaiHees, tant sur les biens de la communaute quo sur les biens personnels du mari. Ses heritiers le peuvent de meme, sauf en ce qui conceme le pr61^vement des linges et hardes, ainsi que le logement et la nourri ture pendant le delai donne pour faire inventaire et deliberer; over the property of the com- munity and over the moveables which she herseU brought therein. She takes out only her own linen and wearing apparel. Art. 1493. The wife renounc- ing is entitled to take out : 1 . Realty belonging to her ex- isting as such, or realty pur- chased by way of re-invest- ment ; 2. The proceeds of her realty sold, the re-investment of which has not been made and accepted as hereinabove provided ; 3. AU sums due to her by the community by way of in- demnity. Art. 1494. The wife renounc- ing is discharged from all contri- bution to the debts of the com- munity, both as towards the hus- band and as towards the creditors. She is nevertheless liable to the latter when she contracted jointly with her husband, or when the debt, which has become a debt of the community, originated with her ; subject in all cases to her recourse against the husband or his heirs. Art. 1495. She may enforce aU the rights of action and claims hereinbefore mentioned against both the property of the com- munity and the separate property of the husband. Her heirs have the same rights except in so far as concerns the claim for her wearing apparel and effects, and her maintenance and lodging during the period for 222 FRENCH CIVIL CODE. lesquels droits sont purement per- sonnels a la femme survivante. Disposition relative d, la commu- naute legale, lorsque Vun des ipoux ou tous deux ant des enfaiits de precedents mariages. Akt. 1496. Tout ce qui est dit ci-dessus, sera observe meme lors- que I'un des epoux ou tous deux auront des enfants de precedents manages. Si toutefois la confusion du mobHier et des dettes operait, au profit de I'lm des epoux, un avantage superieur k celui qui est autorise par I'article 1098, au titre Donations entre-vifs et des Testaments, les eniants du pre- mier lit de I'autre epoux auront Taction en retranchement. ll'-^'-BKB.TiE.—DELA COMMUNAUTE CONVENTIONNELLE, ET DES CONVENTIONS QUI FEUVENT MODIFIER OU MEME EX- CLUHE LA COMMUNATJTE LEGALE. Art. 1497. Les epoux peuvent modifier la communaute legale par toute espeoe de conventions non eontraires aux articles 1387, 1388, 1389 et 1390. Les principales modifications sont celles qui ont Heu en stipu- lant de I'une ou de I'autre des mani^res qui suivent, savoir, 1° Que la communaute n'em- brassera que les acquets ; 2° Que le mobiUer present ou futur n'entrera point en com- munaute, ou n'y entrera que pour una partie ; making the inventory and lier election; these rights being purely personal to the surviving wife. Provision relating to the legal com- munity, when one or both of the parties have children by a prior marriage. Art. 1496. The above provi- sions shall apply to the case where one or both of the parties have children by prior marriages. n, however, the merging of moveables and debts secures for one of the parties a more favour- able position than that authorized by Article 1098 in the title of Gifts Intervivos and Wills, the children of the first marriage of the other party may bring an action to have the share reduced. Past II.— OJ COMMUNITY BY CONTRACT, AND OF COVE- NANTS WBICS MAY MODIFY OS EXCLUDE THE LEGAL COMMUNITY. Art. 1497. The parties may modify the legal community by any agreements not contrary to Articlesl387, 1388, 1389 and 1390. The principal modifications are those which involve one or other of the following stipulations, viz. : 1. That the community shall comprise only after-acquired gains (" acquets ") ; 2. That the personalty presently owned or after acquired shall not fall into, or shaU. only partially fall into, the com- munity ; FRENCH CIVIL CODE. 223 3° Qu'on y comprendra tout ou partie des immeubles pre- sents ou futurs, par la voie de I'ameublissemeiit ; 4° Que les 6poux paieront sepa- rement leurs dettes anterieures au mariage ; 5° Qu'en cas de renonciation, la femme pourra reprendre ses apports francs at quittes ; 6° Que le survivant aura un preciput ; 7° Que les epoux auront des parts inegales ; 8° Qu'il y aura entre eux com- munaute k titre universel. Section I. — De la coMMUNAUTfi EflDtriTE ATJX ACaufeTS. AnT. 1498. Lorsque les epoux stipulent qu'il n'y aura entre eux qu'une communaute d'acquets, Us sont censes exclure de la commu- naute et les dettes de chacun d'eux actuelles et futures, et leur mobilier respectif present et futur. En ce cas, et apres que chacun des epoux a pr^leve ses apports dument justifies, le partage se borne aux acquets faits par les epoux ensemble ou separement durant le mariage, et provenant tant de I'industrie commune que des economies f aites sur les fruits et revenus des biens des deux epoux. Aet. 1499. Si le mobilier ex- istant lors du manage, ou echu 3. Ihat all or a portion of the realty presently owned or after acquired shall be com- prised therein by way of assimilation to personalty ; 4. That the parties shall sepa- rately pay their debts antece- dent to the marriage ; 5. That in case of renunciation, the wife shall take out her share free of incumbrances and HabUity ; 6. That the survivor shall have an additional share by way of priority ; 7. That the parties shall have unequal shares ; 8. That there shaU. exist be- tween them a community of a determinate universality of property. Section I. — Of the community BEDTJCED TO GAINS OR ACQUETS. Aet. 1498. When the parties agree that there shaU. exist be- tween them a community of gains only, they are deemed to exclude therefrom their existing and future debts and their respective existing and after-acquired personalty. In such case, and after both parties have withdrawn their duly proved contributions, the partition is limited to the gains made by the parties together or separately during the marriage, and arising either from their common industry or from economies realised on the income and profits of their pro- perty. Aet. 1499. The personalty existing at the time of the mar- A3T. 1498. — AcquSts : This term is used in English in the State of Louisiana, •where this rule of property prevails. 224 FEENCH CIVIL CODE. depuis, n'a pas et6 constate par inventaire ou etat en bonne forme, il est repute aoquet. Section II. — De la clause qui EXOLUT DB LA COMMUNAUTE LE MOBILIER EN TOUT OU EN PAETIE. Aet. 1500. Les epoux peuvent exclure de leur cominunaute tout leur mobilier present et futur. Lorsqu'ils stipulent qu'ils en niettront reciproquement dans la comniunaute jusqu'a concurrence d'une somme ou d'une valeur determinee, ils sont, par cela seul, censes se reserver le surplus. AnT. 1501. Cette clause rend I'epoux debiteur envers la com- munaute, de la somme qu'il a promis d'y mettre, et I'oblige k justiiier de cat apport. Abt. 1502. L'apport est suffi- Bamment justiiie, quant au mari, par la declaration portee au con- trat de m.ariage que son mobilier est de telle valeur. II est suffisamment justifie, a I'egard de la fenxme, par la quit- tance que le mari lui donne, ou k ceiix qui I'ont dotee. Aet. 1503. Ghaque epoux a le droit de reprendre et de prelever, lors de la dissolution de la com- munaut6, la valeur de ce dont le mobilier qu'il a apporte lors du ma;riage, ou qui lui est ecbu depuis, excedait sa mise en com- munaute. riage or after acqidred, wMcb. has not been inventoried in proper form, is deemed to be an acquet or gain. Section II. — Ojf the clause ■wieich EXCLUDES the WHOLE OE A PAET OF THE PEESONALTT FEOM THE COMMUNITY. Aet. 1500. The parties may exclude aU tbeir existing and future personalty from tbe com- munity. Wben they agree to include it in the community to the extent of a determinate value, they are deemed to have excluded the re- mainder. Aet. 1501. This clause renders the party debtor to the commimity in the sum which he or she pro- mised to contribute thereto, and puts such party upon the proof of his or her contribution. Art. 1503. The contribution is adequately proved, in regard to the husband, by the declaration made in the contract, that his per- sonalty is of a certain value. It is adequately proved, in re- spect of the wife, by the receipt which the husband gives to her, or to the persons who have given her dower. Art. 1503. Upon dissolution of the community, each of the parties has the right of withdraw- ing the amount by which the value of his personalty, owned at the time of the marriage, or devolved upon him since, exceeded his con- tribution to the community. FRENCH CIVIL CODE. 225 Aet. 1504. Le mobilier qui echoit k chacun des 6po\ix pendant le mariage, doit ^tre constate par un inventaire. A defaut d'inventaire du mo- bilier ecliu au mari, ou d'un titre propre k justifier de sa con- sistance et valeur, deduction f aite des dettes, le mari ne peut en exercer la reprise. Si le defaut d'inventaire porte sur un mobilier ecbu k la femme, ceUe-ci ou ses heritiers sont ad-mis k faire preuve, soit par titres, soit par temoins, soit memo par com- mune renommee, de la .valeur de ce mobilier. Section III. — De la clause d'ameublissement. Art. 1505. Lorsque les epoux ou I'un d'eux font entrer en com- munaute tout ou partie de leurs immeubles presents ou future, cette clause s'appelle ameuhlisse- ment. Abt. 1506. L'ameublissement peut etre determine ou indeter- mine. H est determine quand 1' epoux a declare ameublir et mettre en communaute un tel immeuble en tout ou jusqu'd concurrence d'une certaine somme. II est indetermine quand 1' epoux a simplement declare apporter en communaute ses immeubles, jus- qu'4 concurrence d'une certaine somme. Aet. 1507. L'effet de l'ameu- blissement determine est de rendre Art. 1504. The personalty de- volving upon eacb of the parties during the marriage shall be inventoried. In default of an inventory of the personalty devolved upon the husband, or of a document of title of a nature to establish the amount and value thereof, after deduction of the debts, the husband cannot take it back. In case it is the wife's personalty which has not been inventoried, she or her heirs are permitted to prove its value by documentary evidence or by witnesses, or even by common report. Section III. — Of the clause of ASSIMILATION TO PEESONALTT. Aet. 1505. When the parties or one of them include in the community all or a portion of their present or future realty, this clause is called ameuhlissement ("mobilisation," or conversion to personalty). Aet. 1506. Ameublissement may be determinate or indeter- minate. It is determinate when one of the parties declares that he con- verts into personalty and places in the community a specific piece of realty either in its entirety or for a particular value. It is indeterminate when one of the parties declares that he brings his realty into community up to a certain value. Aet. 1507. The effect of de- terminate conversion is to render Q 226 FRENCH CIVIL CODE. I'immeuble ou les immeubles qui en sont frappes, biens de la oom- munaute comme les meubles memes. Lorsque I'imiaeuble ou les im- meubles de la f em.me sont ameublis en totalite, le mari en pent dis- poser comme des autres eflets de la communaute, et les alienor en totalite. Si I'immeuble n'est ameubU que pour une certaine somme, le mari ne pent I'aHener qu'avec le con- sentement de la femme; mais il pent I'hypothequer sans son con- sentement, jusqu'^ concurrence seulement de la portion ameublie. Art. 1508. L'ameublissement indetermine ne rend poiiit la com- munaute proprietaire des im- meubles qui en sont frappes ; son effet se reduit d obligor I'epoux qid I'a consenti, k comprendre dans la masse, lors de la dissolu- tion de la communaute, quelques- uns de ses immeubles jusqu'^ concurrence de la somme par lui promise. Le mari ne pent, comme en I'article precedent, alienor on tout ou en partie, sans le consontement de sa femme, les immeubles sur lesquels est etabH I'ameublisso- ment indetermine ; mais U pout les bypotbequer jusqu'd con- currence de cot amoublissoment. Aet. 1509. L'epoux qui a ameubli un heritage, a, lors du partage, la faculte de le retenir en le precomptant sur sa part pour le prix qu'il vaut alors ; et ses heri- tiers ont le memo droit. the realty subject thereto com- munity property like personalty. When the whole of the wife's realty is mobUized, the husband may dispose thereof like any other community property, and soU the whole thereof. If the realty is only mobilized for a certain sum, the husband may only soil it with the wife's consent ; but he may mortgage it without her consent to the extent of the portion mobOizod. Aht. 1508. Indeterminate mobilization does not make the community owner of the realty subject thereto ; its efEoct is limited to obliging the party who has agreed thereto to include in the common fund, at the dissolution of the community some portion of his or her realty up to the value promised. The husband cannot, as imdor the preceding article, without the consent of the wife, alienate the whole or a part of the realty in- cluded in indeterminate mobiliza- tion ; but he may mortgage it to the extent of the mobilization. Aet. 1509. The party who has mobilized an inheritance, is en- titled upon partition to retain the same, on condition of charging it against his or her share at its value at that time ; and the heirs of such party have the same privi- lege. TRENCH CIVIL COBE. 227 Section IV. — De la clause de SflPAEATION DB DETTES. Abt. 1610. La clause par laquelle les epoux stipulent qu'ils paieront separ^ment leurs dettes personnelles, les oblige d se faire, lors de la dissolution de la com- munaute, respectivement raison des dettes qui sont justifiees avoir 6t6 acquittees par la communaute ^ la decharge de celui des epoiix qui en etait debiteur. Cette obligation est la meme, soit qu'U y ait eu inventaire on non : mais, si le mobUier apporte par les epoux n'a pas ete constate par un inventaire ou etat autben- tique anterieur au mariage, les ereanciers de I'un et de I'autre des epoux peuvent, sans avoir egard k aucune des distinctions qui seraient reclamees, poursuivreleur paiement sur le mobilier non in- ventorie, com me sur tous les autres biens de la conununaute. Les ereanciers ont le meme droit sur le mobilier qui serait ecbu aux epoux pendant la communaute, s'U n'a pas ete pareillement con- state par un inventaire ou etat autbentique. Abt. 1511. Lorsque les epoux apportent dans la communaute une somme certaine ou un corps cer- tain, XLR tel apport emporte la convention tacite qu'iL n'est point greve de dettes anterieures au mariage ; et il doit etre fait raison par I'epoux debiteur k I'autre, de toutes celles qui diminueraient I'apport promis. Aet. 1512. La clause de sepa- ration des dettes n'empecbe point que la communaute ne soit chargee Section IV. — Oe the olatjse of SEPAEATION OF DEBTS. Art. 1510. Tbe clause by wbicb the parties stipulate that tbey wiU separatelypaytbeir personal debts, binds them to account to each other respectively, upon dissolution of the community, for the debts which are proved to have been discharged by the community on behalf of the party who owed them. This obligation is the same whether there be an inventory or not : but if the personalty brought in by the parties has not been determined by an inventory or notarial schedule prior to the marriage, the creditors of both husband and wife may, without regard to any distinctions which may be claimed, proceed for pay- ment against the personalty not inventoried, as well as against all the other community property. The creditors have the same right against the personalty de- volved upon husband or wife during the community, if it has not been in Hke manner deter- mined by inventory or notarial schedule. Abt. 1511. "When the parties bring into community a deter- minate sum of money or object, such contribution implies a cove- nant that it is unencumbered by antecedent debts ; and the party who is debtor shall account to the other for aU such debts as depre- ciate the promised contribution. Art. 151S. The clause of sepa- ration of debts does not prevent the community from being charged q2 228- FRENCH CIVIL CODE. des interets et arrerages qui ont couru depuis le mariage. Art. 1513. Lorsque la com- munaute est poursuivie pour les dettes de I'un des epoux, declarl, par contrat, franc et quitte de toutes dettes anterieures au mariage, le conjoint a droit ^ une indemnite qui se prend soit sur la part de conununaute reve- nant k 1' epoux debiteur, soit sur les biens personnels dudit epoux ; et, en cas d'insuffisance, cette in- demnite pent etre poursuivie par voie de garantie centre le pere, la mere, 1' ascendant ou le tuteur qui I'auraient declare franc et quitte. Cette garantie pent meme etre exercee par le mari durant la communaute, si la dette provient du chef de la femme ; sauf , en ce cas, le remboursement du par la femme ouses beritiers aux garants, apres la dissolution de la com- munaute. Section V. — De la facxtlte ac- COKDEE A LA PEMME DE EE- PRENDRE SON APPOET FRANC ET QTTITTE. Art. 1514. La femme peut stipuler qu'en cas de renonciation el la communaute elle reprendra tout ou pai-tie de ce qu'elle j aura apporte, soit lors du mariage, soit depuis ; mais cette stipulation ne peut s'etendre au del^ des choses formellement exprimees, ni au profit de personnes autres que ceHes designees. •witb interest and charges accrued since the marriage. Art. 1513. When the com- munity is prosecuted for the debts of one of the parties, who is de- clared by contract to be exempt from all debts antecedent to the marriage, such party is entitled to an indemnity, to be taken either out of the share of the community belonging to the party who is debtor, or out of the separate property of the said party ; and in case of insufficiency, such indem- nity is recoverable by way of guarantee against the father, mother, ascendant or guardian who shall have made such decla- ration of exemption. This guarantee may also be en- forced by the husband during the community, if the debt is the wife's ; subject, however, in such case, to the reimbursement due by the wife or her heirs to the guarantors, after dissolution of the community. Section V. — Of the priyilege granted to the wife of taking back her share ttn- INCTJMBERED. Art. 1514. The wife may stipu- late that in case of renunciation of the community she shall take back all or part of the property she has contributed thereto either at the time of the marriage or since ; but such stipulation may not be ex- tended to things not specificaJly designated, nor for the benefit of persons other than those desig- nated. FKENCH CIVIL CODE. 229 Ainsi la faculte de repreadre le mobilier que la femme a apporte lors du mariage, ne s'etend point k celui qui serait echu pendant le mariage. Ainsi la facidte accordee k la femme ne s'etend point aux enfants; celle accordee k la femme et aux enfants ne s'etend point aux lieritiers ascendants ou col- lateraux. Dans tous les cas, les apports ne peuvent ^tre repris que deduc- tion faite des dettes personnelles k la femme, et que la communaute aujait acquittees. Section VI. — Du preciptjt con- VENTIOmfEL. Art. 1515. La clause par laquelle I'epoux survivant est autorise k prelever, avant tout partage, une certaine somme ou ime certaine quantite d'effets mobiliers en nature, ne donne droit a ee prel^vement, au profit de la femme survivante, que lorsqu'elle accepte la communaute, k moins que le contrat de mariage ne lui ait reserve ce droit, memo en renonsant. Hors le cas de oette reserve, le preciput ne s'exerce que sur la masse partageable, et non sur les biens personnels de I'epoux prede- cede. Aet. 1516. Le preciput n'est point regarde comme un avantage sujet aux formaUtes des donations, mais comme une convention de mariage. Ttus, tlie privilege of taking back the personalty which, the wife brought in at the time of the marriage, does not extend to that which devolves upon her during the marriage. Thus also the privilege granted to the wife does not extend to the children ; and that granted to the wife and children does not extend to the ascendant heirs or col- laterals. In every case, the contribution can only be taken back after deduction of the personal debts of the wife, which have been paid by the community. Section VI. — Of prefeeeed shares BY CONTRACT. Art. 1515. The clause whereby the surviving husband or wife is authorized to take out a certain sum or a certain quantity of m.ove- able effects in kind before j)artition, only entitles the wife so to do in case she accepts the community, unless the same right is expressly given to her by the contract in case of renunciation. With the exception of this case, the preference falls upon the divisible common fund, and not on the separate property of the deceased party. Art. 1516. The right of prefer- ence is deemed to be not a liber- ality subject to the rules relating to gifts, but a marriage covenant. 230 FRENCH CIVIL CODE. Art. 1517. La mort naturelle ou civile donne ouverture au pre- ciput. Art. 1518. Lorsque la dissolu- tion de la communaute s'opere par le divorce ou par la separation de corps, il n'y a pas lieu ^ la deliv- rance actuelle du preciput; mais l'6poux qui aobtenu soitle divorce, soitla separation de corps, conserve ses droits au preciput en cas de sujvie. Si c'est la f enune, la sonune oula cliose qui constitue le preciput reste toujours provisoirement au mari, k la charge de donner caution. Art. 1519. Les creanciers de la communaute out toujours le droit de faire vendre les effets compris dans le preciput, sauf le recours de I'epous, conformement k Particle 1515. Section VII. — Des olatjses pae LESQITELI/ES ON ASSIGNE A OHACTJN DES fiPOUX DES PAETS XfrfiGADES DANS LA COMMTT- NATJTE. Art. 1530. Les epoux peuvent deroger au partage 6gal etabU par la loi, soit en ne donnant k I'epoux survivant ou k ses Mritiers, dans la communaute, qu'une part m.oindre que la moiti6, soit en ne lui donnant qu'une somme iixe pour tout droit de communaute, soit en stipulant que la commu- naute entiere, en certains cas, appartiendra k I'epoux survivant, ou k I'un d'eux seulement. Art. 1517. Natural or civil death gives rise to the exercise of the preference. Art. 1518. When the dissolu- tion of the community takes place by divorce or judicial separation, no actual delivery of the preferred share takes place; but the party who has obtained either the divorce or the separation preserves his or her rights to the preferred share in case of survivorship. In case it is the wife, the sum or the thing which constitutes the preferred share remains provisionally with the husband, subject to his giving security therefor. Art. 1519. The creditors of the community have at all times the right of selling the property com- prised in the preferred share, subject to recourse of the party, according to Article 1515. Section VII. — Oe the clauses WHEREBY THE PARTIES ARE ASSIGNED UNEQUAL SHARES IN THE COMMUNITT. Art. 15S0. The parties may derogate from the equal partition prescribed by law, by either giving to the surviving party or his or her heirs less than one-half share of the community, or a fixed sum in full satisfaction of aU com- munity claims, or by stipulating that the whole community shall in certain cases belong to the sur- viving party, or to one of the parties solely. Aet. 1517. — Mort civile. See p. 176, n. FRENCH CIVIL CODE. 231 Aet. 1531. Lorsqu'il a ete stipule que I'epoux ou ses heri- tiersn'aurout qu'une certaine part dans la comraunaute, comme le tiers ou le quart, I'epoux ainsi reduit ou ses heritiers ne sup- portent les dettes de la commu- naute que proportionneUement d la part qu'ils prennent dans I'actif . La convention est nulle si eUe oblige I'epoux ainsi reduit ou ses heritiers d supporter une plus forte part, ou si eUe les dispense de supporter une part dans les dettes egale k ceUe qu'ils prennent dans I'actif. Akt. 1522. Lorsqu'il est stipule que I'un des epoux ou ses heritiers ne pourront pretendre qu'une cer- taine soTirme pour tout droit de communaute, la clause est un for- fait qui oblige 1' autre epoux ou ses heritiers d payer la somme convenue, soit que la communaute soit bonne ou mauvaise, sufflsante ou non, pour acquitter la somme. AuT. 1523. Si la clause n'etablit le forfait qu'i I'egard des heritiers de I'epoux, oelui-ci, dans le cas ou U survit, a droit au partage legal par moitie. Abt. 1524. Le man ou ses heritiers qui retiennent, en vertu de la clause enonoee en I'artiole 1520, la totality de la communaute, sont obliges d'en acquitter toutes les dettes. Les creanciers n'ont, en ce cas, aucune action centre la femme ni contre ses heritiers. Si o'est la femme survivante qui a, moyennant une somme con- Art. 1521. When it has been stipulated that husband or wife or their heirs shall have only a fixed share in the community, as for example, a third or a fourth, the party thus restricted, or his or her heirs, are only chargeable with a corresponding portion of the debts. AH agreements purporting to oblige the party thus restricted or his heirs to pay a larger share of the debts, or to exempt them from paying a share of the debts equal to their share of the assets, are void. Art. 1522. When it is stipu- lated that one of the parties or his heirs may only claim a certain sum in full satisfaction of all com- munity rights, such clause is in- defeasible, and binds the other party or his heirs to pay the sum agreed upon, whether the com- munity is good or bad, or sufiicient or insufficient for the purpose. Art. 1523. If the penalty is stipulated as regards the heirs of the party only, such party, in case he or she survives, is entitled to the ordinary partition in equal shares. Abt. 1524. The husband or his heirs who keep the whole of the community in accordance with Article 1520, are bound to pay all the debts. The creditors have, in such case, no right of action against the wife or her heirs. If the surviving wife has the right to the whole of the com- munity as against the heirs of the 232 FRENCH CIVIL CODE. venue, le droit de retenir toute la communaute centre les heritiers du man, elle a le clioix ou de leur payer cette somme, en demeurant obligee d toutes les dettes, ou de renoncer ^ la communaute, et d'en abandonner aux heritiers du mari les biens et les charges. Abt. 1525. H est permis aux epoux de stipuler que la totalite de la communaute appartiendra au survivant ou k I'un d'eux seule- ment, saui aux heritiers de 1' autre k faire la reprise des apports et capitaux tombes dans la commu- naute, du chef de leur auteur. Cette stipulation n'est point re- putee un avantage sujet aux regies relatives aux donations, soit quant au fond, soit quant k la forme, mais simplement una convention de mariage et entre associes. Section VIII. — De la commtj- nautI; a tithe ttnivebsel. Art. 1526. Les epoux peuvent etablir par leur contrat de mariage une comjnunaute universelle de leurs biens tantmeubles qu'immeu- bles, presents et k venir, ou de tous leurs biens presents seulement, ou de tous leurs biens k venir seule- ment. Dispositions communes aux huit sections ci-dessus. Abt. 1527. Ce qui est dit aux huit sections ci-dessus, ne limite pas k leurs dispositions precises les stipulations dont est susceptible la communaute conventionneUe. husband in consideration of a stipulated sum, she has the option of either paying them such sum and remaining bound for the pay- ment of aU the debts, or of re- nouncing the community and abandoning to the heirs of the husband both assets and debts. Abt. 1525. The parties may agree that the whole of the com- munity shall belong to the sur- vivor or to one of them only, subject to the right of the heirs of the other to take out the contri- butions and capital sums brought into the community by the party they represent. This stipulation is not deemed to be a liberality subject to the rules governing gifts, either in substance or in form, but merely a marriage covenant and as made between partners. Section VIII. — Or the community OE A ■ONIVEESALITT OF PEOPERTT. Aet. 1526. The parties may agree in their marriage contract that there shall be a community of all their property then owned or after acquired, real and per- sonal, or of all their present pro- perty, or of all their future property only. Provisions common to the eight foregoing sections. Art. 1527. The stipulations which may be comprised in a contractual community are not Umited by the literal provisions contained in the eight preceding sections. FRENCH CIVIL CODE. 233 Les epoux peuvent faire toutes autres conventions, ainsi qu'il est dit ei I'article 1387, et sauf les modifications portees par les articles 1388, 1389 et 1390. Neanmoins, dans le cas ou il y aurait des enfants d'un precedent mariage, toute convention qm ten- drait dans ses effete d donner el I'un des epoux au deld, de la por- tion reglee par I'article 1098, au titre des Donations entre-vifs et des Testaments, sera sans efiet pour tout I'excedant de cette por- tion ; mais les simples benefices resultant des travaux communs et des economies faites sur les re- venus respectifs, quoique inegaux, des deux epoux, ne sont pas con- sideres comme un avantage fait au prejudice des eniants du premier Ut. Aet. 1528. La communaute conventionneUe reste soumise aux regies de la communaute legale, pour tous les cas auxquels il n'y a pas ete deroge implicitement ou expHcitement par le contrat. Section IX. — Des cohtentions BXCLTJSIVES DE LA COM- MUNAUTi. Akt. 1539. Lorsque, sans se soumettre au regime dotal, les epoux declarent qu'ils se marient sans communaute, ou qu'ils seront separes de biens, les effets de cette stipulation sont regies comme il suit. I. — De la clause portant que les Spoux se marient sans com- munaute. Aet. 1530. La clause portant The parties may make any other agreements as stated in Article 1387, subject to the restrictions contained in Articles 1388, 1389, and 1390. Nevertheless, in case there are children of a prior marriage, any agreement the effect of which would be to give to one of the parties a larger portion than that determined by Article 1098, in the title o/" Gifts Inter Vivos and Wills, is of no effect as regards the excess thereof; but ordinary profits resulting from joint labour and economies realized out of their respective incomes, although un- equal in amount, are not considered as liberalities made to the detri- ment of children of the first marriage. Art. 1528. The contractual community is subject to the rules of legal community, in all cases where exception is not made thereto tacitly or expressly by the contract. Section IX. — Oe ageeements ex- CLTJDnsra the commtintty. Aet. 1529. When, without adopting the dotal system, the parties declare that they are married without community, or that they are separated as to pro- perty, the effects of such stipula- tion are the following : I. — Of the clause providinff that the parties are married without community. Aet. 1530. The clause pro- 234 FEENCH CIVIL CODE. que les epoux se marient sans communaute, ne donne point k la femme le droit d'administrer ses biens, ni d'en percevoir les fruits : ces fruits sent census apportes au mari pour soutenir les charges du mariage. Art. 1531. Le mari conserve r administration des biens meubles et inuneubles de la f enune, et, par suite, le droit de percevoir tout le mobilier qu'elle apporte en dot, ou qui lui ecboit pendant le mariage, sauf la restitution qu'il en doit faire apr^s la dissolution du mariage, ou apres la separation de biens qui serait prononcee par justice. Aet. 158S. Si, dans le mobilier apporte en dot par la f emm.e, ou qui lui echoit pendant le mariage, il y a des cboses dont on ne peut faire usage sans les consommer, il en doit etre joint un etat estimatif au contrat de mariage, ou il doit en etre fait inventaire lors de I'eclieance, et le mari en doit rendre le prix d' apres 1' estimation. Aet. 1533. Le mari est tenu de toutes les charges de I'usufruit. Art. 1534. La clause enoncee au present paragrapbe ne fait point obstacle d, ce qu'il soit con- venu que la femme toucbera annuellement, sur see seules quit- tances, certaines portions de ses revenus pour son entretien et ses besoins personnels. viding that the parties are married without community does not en- title the wife to manage her pro- perty, or to collect the income thereof: such income is deemed to be delivered to the husband to defray the expense of the house- hold. AuT. 1531. The husband keeps the management of the real and personal property of the wife, and consequently has the right of receiving all the personalty which she brings as her marriage portion, or which devolves upon her during the marriage, subject to his obligation of returning the same after the dissolution of the mar- riage, or after a judicial separation of property. Aet. 1532. If in the personalty brought in by way of dowry by the wife or which devolves on her during the marriage, there exist things which are consumed by use, a scheduled appraisenaent thereof must be annexed to the marriage contract, or an inventory made thereof at the time of delivery, and the husband must reimburse the estimated value thereof. Art. 1533. The husband is bound by all the obligations of a usufructuary. Aet. 1534. The provisions of this paragraph do not preclude an agreement permitting the wife to receive every year, on her sole receipts, a certain portion of her income for her maintenance and personal needs. FRENCH CIVIL CODE. 235 Abt. 1535. Les immeubles con- stituSs en dot, dans le cas du pre- sent paragraphe, ne sont point inalienables. Neanmoins ils ne peuvent etre alienes sans le consentement du mari, et, k son refus, sans I'autori- sation de la justice. II. — De la clause de separation de Abt. 1536. Lorsque les epoux ont stipule par leur contrat de mariage qu'ils seraient separes de biens, la femme conserve I'en- ti^re administration de ses biens meubles et immeubles, et la jouis- sance Hbre de ses revenus. Abt. 1537. Cbacun des epoux contribue aux charges du mariage, suivant les conventions contenues en leur conf rat ; et, s'il n'en existe point i cet egard, la femme con- tribue h ces charges jusqu'i con- currence du tiers de ses revenus. Art. 1538. Dans aucun cas, ni k la favour d'aucune stipulation, la femme ne pent alienor ses im- meubles sans le consentement special de son mari, ou, k son refus, sans etre autorisee par justice. Toute autorisation generale d'aUener les immeubles donnee k la femme, soit par contrat de mariage, soit depuis, est nulle. Abt. 1539. Lorsque la femme separee a laisse la jouissance de ses biens k son mari, celui-ci n'est tenu, soit sur la demande que sa Abt. 1535. Eealty brought as a marriage portion under the pro- visions of this paragraph, is not inalienable. It cannot, however, be alienated except with the consent of the husband, or upon his refusal, with the authority of the court. II. — Of the clause of separation of goods. Abt. 1536. When the parties have stipulated in their marriage contract that they shall be sepa- rated as to property, the wife retains the entire management of her property, real and personal, and the free enjoyment of her income. Art. 1537. Each of the parties contributes to the expenses of the household in the proportion de- termined by the contract ; if the contract makes no mention thereof, then the wife contributes thereto to the extent of one -third of her Abt. 1538. In no case, and under no form of stipulation, can the wife alienate her realty Avith- out the special authority of her husband, or upon his refusal, that of the court. Any general authority to alien- ate her realty given to the wife, whether by contract of marriage or subsequently, is void. Abt. 1539. When the wife, separated as to property, has left the enjoyxaent of her property to her husband, he is bound, upon 236 FEENCH CIVIL CODE. femme pourrait lui faire, soit si la dissolution du mariage, qu'A la representation des fruits existants, at il n'est point oomptable de ceux qui ont ete consommes jusqu'alors. CHAPITEE III. Du EfiGIME DOTAL. Aet. 1540. La dot, sous ce regime comme sous celui du chapitre II, est le bien que la femme apporte au mari pour sup- porter les charges du mariage. Aet. 1541. Tout ce que la femme se constitue ou qui lui est donne en contrat de mariage, est dotal, s'il n'y a stipulation con- traire. Section I. — De la constitution DE dot. Aet. 1542. La constitution de dot pent frapper tons les biens presents et a venir de la femme, ou'tous see biens presents seule- ment, ou une partie de ses biens presents et h venir, ou meme un objet individuel. La constitution, en termes gene- raiix, de tons les biens de la femme, ne comprend pas les biens Aet. 1543. La dot ne peut etre constituee ni m^me augmentee pendant le mariage, the demand of the wife, or at the dissolution of the marriage, to account only for the existing in- come, and is not accountable for the income spent prior thereto. CHAPTEE III. Of the dotal system. Art. 1540. The dot (or dowry) under this system, as weU as under that of Chapter II., is the pro- perty brought by the wife to the husband in order to meet the ex- penses of the household. Aet. 1541. AU property which the wife settles upon herself, or which is given to her by contract, is dotal, unless the contrary is expressed. Section I. — Op the settlement OE GEANT OF THE DOT. Aet. 1542. The grant of the dot may include all the present or future property of the wife, or aU. her present property only, or a portion of her present and future property, or even a particular piece of property. The grant, in general terms, of all the wife's property, does not include her future property. Aet. 1543. The dot may not be granted or increased during the marriage. FRENCH CIVIL CODE. 237 Art. 1544. Si les p^re et mere constituent conjointement une dot, sans distinguer la part de chacun, elle sera censee constituee par portions egales. Si la dot est constituee par le pere seul pour droits paternels et matemels, la mere, quoique pre- sente au contrat, ne sera point engagee, et la dot demeurera en entier ^ la charge du pere. Abt. 1545. Si le survivant des p^re ou mere constitue une dot pour biens paternels et maternels, sans specifier les portions, la dot se prendra d'abord sur les droits du futur epoux dans les biens du conjoint pr6deoede, et le surplus sur les biens du constituant. Art. 1546. Quoique la fille dotee par ses pere et mere ait des biens d, elle propres dont Us jouis- sent, la dot sera prise sur les biens des constituants, s'il n'y a stipu- lation contraire. Aet. 1547. Ceux qui consti- tuent une dot, sont tenus k la garantie des objets constitues. Art. 1548. Les interets de la dot courent de plein droit, du jour du manage, contre ceux qui I'ont promise, encore qu'il y ait terme pour le paiement, s'il n'y a stipu- lation contraire. Art. 1544. If tbe father and mother grant the dot jointly, with- out determining their respective shares, the grant is deemed to be made by them in equal shares. If the dot is granted by the father only to satisfy paternal and maternal rights, the mother, al- though a party to the contract, is not bound, and the father is alone liable for the dot. Art. 1545. If the survivor of the father and mother grants the dot for paternal and maternal property, without specifying the shares, the dot shall be taken in the first place out of the share of the future husband or wife in the property of the father or mother deceased, and the excess only shall be taken out of the property of the grantor. Art. 1546. Although the daughter endowed by her father and mother has separate property of her own of which they have the legal enjoyment, the dot shall be taken out of the property of the grantors, unless otherwise provided. Art. 1547. The grantors of the dot are bound to give security for the property comprised therein. Art. 1548. Interest on the dot runs by operation of law, from the date of the marriage, against the grantors, even although a term is fixed for payment, unless other- wise provided. 238 FRENCH CIVIL CODE. Section II. — Des deoits dv maei SUE LES BIENS DOTAXTX, ET DE l'inalienabilite DU EONDS DOTAL. Aet. 1549. Le man seul a radministratiori des biens dotaiLs pendant le mariage. II a seul le droit d'en poursuivre les debi- teurs et detenteurs, d'en percevoir les fruits et les interets, et de recevoir le remboursement des capitaux. Oependant U pent etre convenu, par le contrat de manage, que la f emm.e toucbera annuellement, sur ses seules quittances, une partie de ses revenus pour son entretien et ses besoins personnels. Aet. 1550. Le mari n'est pas tenu de fournir caution pour la reception de la dot, s'U n'y a pas ete assujetti par le contrat de mariage. Aet. 1551. Si la dot ou partie de la dot consiste en objets mobi- liers mis k prix par le contrat, sans declaration que 1' estimation n'en fait pas vente, le mari en devient proprietaire, et n'est debiteur que du prix donne au mobilier. Aet. 1553. L'estimation don- nee ^ I'immeuble constitue en dot n'en transporte point la propriete au mari, s'il n'y en a declaration expresse. Aet. 1553. L'immeuble acquis des deniers dotaux n'est pas dotal, si la condition de I'emploi n'a ete stipul6e par le contrat de mariage. Section II. — Of the eights of THE HtrSBAND OTBE THE DOTAL PEOPEETT, AND OF THE IN- ALIENABILITY OF THE DOTAL EEALTT. Aet. 1549. The husband alone has the management of the dotal property during the marriage. He has alone the right of action against the holders and debtors thereof, as well as of collecting the profits and income thereof and receiving the repayment of capital sums belonging thereto. Nevertheless, it may be stipu- lated by the contract that the vpif e shall receive annually on her sole receipts, a portion of her income for her maintenance and personal needs. Art. 1550. The husband is not obliged to give security for the dot, unless such obligation has been imposed upon him by the contract. Art. 1551. If the doi or part thereof consists of moveables valued in the contract, without any de- claration that such valuation is not equivalent to sale, the husband becomes owner thereof, and is debtor only of the price of the valuation. Aet. 1552. The valuation of realty comprised in the dot does not convey the ownership thereof to the husband, unless by express agreement. Aet. 1653. Eealty purchased with dotal moneys is not dotal, unless the contract contains an investment clause. FRENCH CIVIL CODE. 339 II en est de meme de I'iimneuble doiiii4 en paiement de la dot con- stitu.ee en argent. Art. 1554. Les immeubles con- stitues en dot ne peuvent etre alienes on liypotlieques pendant le mariage, ni par le mari, ni par la lemme, ni par les deux con- joiatement, sauf les exceptions qui suivent. Abt. 1555. La femme peut, avec I'autorisation de son mari, ou, sur son refus, avec permission de justice, donner ses biens dotaux pour I'etablissement des enfants qu'elle aurait d'un mariage ante- rieur ; mais, si elle n'est autorisee que par justice, elle doit reserver la jouissance d son mari. Aet. 1556. EUe peut aussi, avec I'autorisation de son mari, donner ses biens dotaux pour I'etablissement de leurs enfants commuus. Ajrt. 1557. L'immeuble dotal peut ^tre aliene lorsque I'aUena- tion en a ete permise par le con- trat de mariage. Akt. 1558. L'imm.euble dotal peut encore etre aliene avec per- mission de justice, et aux ench^res, apr^s trois aflB.cL.es : Pour tirer de prison le mari ou la femme ; Pout foumir des aliments k la famille dans les cas prevus par les articles 203, 205 et 206, au titre du Mariage ; Pour payer les dettes de la fenuue ou de ceux qui ont con- So also in the case of realty- given in payment of the dot granted in money. Art. 1554. Realty comprised in the dot may not be sold or mortgaged during the marriage either by the husband or the wife, or both jointly, except in the foUowing cases. Aet. 1555. The wife may, with the authority of her husband, or, upon his refusal, of the Court, give her dotal property for the estab- lishment of her children by a prior marriage ; but if she acts only under the authority of the Court she must reserve the enjoyment thereof for her husband. Aet. 1556. She may also, with the authority of her husband, give her dotal property for the establishment of their own chil- dren. Aet. 1557. Dotal realty may be alienated when such alienation has been permitted by the mar- riage contract. Aet. 1558. Dotal realty may also be alienated with the autho- rity of the Court, and at auction after three publications : To release the husband or wife from prison ; To provide maintenance for the family in the cases mentioned in Articles 203, 205 and 206, in the title of Marriage; To pay the debts of the wife or of the grantors of the dot, whea 240 FRENCH CIVIL CODE. stitue la dot, lorsque ces dettes ont une date certaine anterieure au contrat de mariage ; Pour f aire de grosses reparations indispensables pour la conversa- tion de rimmeuble dotal ; Enfin lorsque cet immeuble se trouve indivis avec les tiers, et qu'il est reconnu impartageable. Dans tous ces cas, I'excedant du prix de la vente au-dessus des be- soins reconnus restera dotal, et il en sera fait emploi comme tel au profit de la femme. Art. 1559. L'inuneuble dotal pent etre ecbange, mais avec le consentement de la femme, contre un autre immeuble dememevaleur, pour les quatre cinquiemes au moins, en justifiant de I'utilite de I'ecbange, en obtenant I'autorisa- tion en justice, et d'apres une estimation par experts nommes d' office par le tribunal. Dans ce cas, 1' immeuble regu en ecbange sera dotal ; I'excedant du prix, s'il y en a, le sera aussi, et il en sera fait emploi comme tel au profit de la femme. Akt. 1560. Si, hors les cas d' exception qui viennent d'etre expliques, la femme ou le mari, ou tous les deux conjointement, aUenent le fonds dotal, la femme ou ses beritiers pourront faire revoquer I'alienation apres la dis- solution du mariage, sans qu'on puisse leur opposer aucune pre- scription pendant sa duree : la femme aura le meme droit apres la separation de biens. Le mari lui-meme pourra faire sucb debts Lave a date certain prior to the marriage contract ; To make heavy repairs indis- pensable for the preservation of the dotal realty ; Lastly, when such realty is held in undivided ownership with third parties, and is admittedly incapable of partition. In every case, the excess of the proceeds of the sale over and above recognized needs remains dotal, and investment shall be made thereof for the benefit of the wife. Abt. 1559. Dotal realty may be exchanged, with the consent of the wife, for other realty of the same value, within foux-fifths, by establishing the expediency of the exchange, by obtaining the autho- rity of the Court, and in accord- ance with an estimation made by experts appointed by the Court of its own motion. In such case, the realty received in exchange shall be dotal ; the surplus proceeds, if there are any, shall be dotal also, and shall be invested as such for the benefit of the wife. Abt. 1560. If the husband or the wife, or both jointly, alienate the dotal realty in cases other than those above specified, the wife or her heirs may revoke such alienation after the dissolution of the marriage, and no prescription will run against them during the marriage : the wife shall have the same right after a separation of goods. The husband may also revoke the alienation during the marriage, PEENCH CIVIL CODE, 241 revoquer I'alienation pendant le mariage, en demeurant neamnoins sujet aux dommages at interets de I'aclieteiir, s'il n'a pas declare dans le contrat que le bien vendu etait dotal. AnT. 1561. Las iimneubles dotaux non declares alienables par le contrat de mariage, sont imprascriptibles pendant le mari- age, k moins qua la prescription n'ait commence auparavant. lis deviennent neanmoins pre- scriptibles apres la separation de biens, quelle que soit I'epoque k laqueUa la prescription a com- mence. Abt. 1562. Le mari est tenu, k I'egard des biens dotaui, de toutes les obligations de I'usu- fruitier. H est responsable de toutes prescriptions acquises et deterio- rations survenues par sa negli- gence. Aet. 1568. Si la dot est mise en peril, la f emme pent poursuivre la separation da biens, ainsi qu'U. est dit aux articles 1443 et sui- vants. Section III. — De la eestitittion DE LA DOT. Art. 1564. Si la dot consiste en immaublas, ou en meubles non estimes par le contrat da mariage, ou bian mis k prix, avec declara- tion que 1' estimation n'en ote pas la propriete k la famme, le mari ou ses beritiers peuvent etre eon- traints de la restituer sans delai, apr^s la dissolution du mariage. subject to liability in damages towards the purchaser, if he has not declared in the contract that the property sold was dotal. Aet. 1561. Dotal realty not declared to ba alienable by the contract is not subject to prescrip- tion during the marriage, unless the prescription began before the marriage. It becomes liable to prescription, however, after a separation of. goods, at whatever period the prescription has commenced. Art. 1562. The husband is bound, as regards the dotal pro- perty, by aU the obligations of an usufructuary. Ha is liable for aU prescriptions acquired and dilapidations occa- sioned by his negligence. Aet. 1563. If the dot is im- perilled, the wife may apply for separation of property, as stated in Articles 1443 et seq. Section III. — Of eestoeation of THE dot. Aet. 1564. If the dot consists of realty or of personalty not appraised in the contract, or ap- praised, but with a declaration that the appraisal does not de- prive the wife of the ownership thereof, the husband or his heirs may be compelled to restore the dot immediately upon dissolution of the marriage. R 242 PKENCH CIVIL CODE. Art. 1565. Si elle oonsiste en une somme d' argent, ou en meubles mis eL prix par le contrat, sans declaration que 1' estimation n'en rend pas le mari proprietaire, la restitution n'en pent gtre exigee qu'un an apres la dissolu- tion. Art. 1566. Si les meuMes dont la propriete reste k la femme ont deperi par I'usage et sans la faute du mari, il ne sera tenu de rendre que ceux qui resteront, et dans I'etat ou Us se trouveront. Et neanmoins la femme pourra, dans tons les oas, retirer les linges et hardes i son usage aotuel, sauf k precompter leur valeur, lorsque ces linges et hardes auront ete primitivement constitues avec esti- mation. Art. 1567. Si la dot comprend des obligations ou constitutions de rente qui ont peri, ou souffert des retranchements qu'on ne puisse imputer d la negligence du mari, n n'en sera point tenu, et il en sera quitte en restituant les con- trats. AnT. 1568. Si un usufruit a ete constitue en dot, le mari ou ses heritiers ne sont obliges, a la dis- solution du mariage, que de resti- tuer le droit d'usuiruit, et non les fruits echus durant le mariage. Art. 1569. Si le mariage a dur6 dix ans dequis I'eclieance des termes pris pour le paiement de la dot, la femme ou ses heri- tiers pourront la rep6ter contre le Art. 1565. If the dot consists of a sum of money or of personalty, appraised in the contract without any declaration that the appraisal does not make the husband owner thereof, the restoration thereof cannot be required untU one year after the dissolution. Art. 1566. If the moveables, the ownership of which remains with the wife, have depreciated by use and without any fault of the husband, he is only bound to restore such as remain, and in the condition in which they are. Nevertheless, the wife may always take back her wearing apparel and linen in her own use, subject to accounting for their value, when such wearing apparel has been originally brought in with an appraisal. Art. 1567. If the dot includes bonds or annuities which have become entirely worthless or have depreciated without any fault on the part of the husband, he shall not be liable therefor, and shall be discharged by delivery of the documents of title. Art. 1568. If an usufruct has been granted by way of dot the husband, or his heirs, are bound upon dissolution of the marriage to restore only the usufruct, and not the income accrued during the marriage. Art. 1569. If the marriage has lasted ten. years since the arrival of the term fixed for pay- ment of the dot, the wife or her heirs may claim it from the hus- FRENCH CIVIL CODE. 243 mari apres la dissolution du ma- nage, sans ^tre tenus de prouver qu'il I'a regue, k moins qu'il ne justifiit de diligences iautilement par lui faites pour s'en procurer le paiement. Aet. 1570. Si le mariage est dissous par la mort de la lemme, I'interet et les fruits de la dot k restituer courent de plein droit au profit de ses Leritiers depuis le jour de la dissolution. Si c'est par la mort du mari, la femme a le choix d'exiger les in- t^rets de sa dot pendant I'an du deuil, ou de se faire fournir des aliments pendant ledit temps aux depens de la succession du mari ; mais, dans les deux cas, 1' habita- tion durant cette annee, et les habits de deuil, doivent lui etre foumis sur la succession, et sans imputation sur les inter^ts k elle dus. AnT. 1571. A la dissolution du mariage, les fruits des immeubles dotaux se partagent entre le mari et la femme ou leurs heritiers, k proportion du temps qu'il a dure, pendant la demiere annee. L' annee commence k partir du jour oil le mariage a 6te celebre. Aet. 1573. La femme et ses heritiers n'ont point de privilege pour la repetition de la dot sur les creanciers ant6rieurs k elle en hypothSque. Art. 1573. Si le mari etail dejel insolvable, et n'avait ni art ni profession lorsque le p^re a constitue une dot k sa fille, celle-ci band after dissolution of the marriage without being bound to prove that he has received it, unless he proves that he has shown due but fruitless dOigence to obtain delivery thereof. Aet. 1570. If the marriage is dissolved by death of the wife the interest and income of the dot to be restored run by mere operation of law for the benefit of her heirs from the date of dissolution. If the dissolution takes place by the death of the husband the wife has the option of claiming payment of the interest on her dot during her year of mourning, or alimony during the same period from the estate of her husband; but in both cases her residence and mourning apparel during that period shall be supplied her by the estate of her husband without being charged against the interest due to her. Art. 1571. On the dissolution of the marriage the income of the dotal realty is divided between the husband and wife or their heirs proportionately to the period which has elapsed during the last year. The year begins from the day when the marriage was celebrated. Aet. 1573. The wife and her heirs have no priority for the restoration of the dot over credi- tors whose mortgages are pre- vious to hers. Ajbt. 1573. If the husband was insolvent, and had no occupation or profession when the father settled a dot upon his daughter, e2 244 E*RENCH CIVIL CODE. ne sera tenue de rapporter h la succession du p^re que Paction qu'elle a centre celle de son mari, pour s'en faire rembourser. Mais si le mari n'est devenn in- solvable que depiiis le manage, ou s'il avait un metier ou une profession qui lui tenait lieu de bien, la perte de la dot tombe uniquement sur la femme. Section IV. — Des biens PABAPHERNAUX. Aet. 1574. Tous les biens de la femme qui n'ont pas ete eon- stitues en dot, sont paraphernaux. Art. 1575. Si tous les biens de la femme sont parapbernaux, et s'il n'y a pas de convention dans le contrat pour lui faire supporter une portion des charges du ma- nage, la femmey contribue jusqu'd concurrence du tiers de ses re- Art. 1576. La femme a I'ad- ministration et la jouissance de ses biens paraphernaux ; mais elle ne pent les aliener ni paraitre en jugement i raison desdits biens, sans I'autorisation du mari, ou, d son refus, sans la permission de la justice. Art. 1577. Si la femme donne sa procuration au mari pour ad- ministrer ses biens parapbernaux, avec charge de lui rendre compte des fruits, il sera tenu vis-d-vis d'elle comme tout mandataire. the daughter is only bound to account to the estate of her father, for her right of action against her husband's estate for restoration of her clot. But if the husband only became insolvent after the marriage, or if he had a trade or profession which stood him in stead of property, the loss of the dot falls wholly upon the wife. Section IV. — Of paeaphernai, property. Art. 1574. All the property of the wife which has not been settled upon her as dot is para- phernal. Art. 1575. If all the property of the wife is paraphernal, and if there is no agreement in the con- tract to the effect that she shall share the household expenses, she shall contribute thereto in the measiu'e of one-third of her in- Aet. 1576. The wife has the management and enjoyment of her paraphernal property; but she may not alienate the same, nor sue in respect thereof, without the authority of her husband, or upon his refusal, that of the Coui-t. Art. 1577. If the wife gives a. power of attorney to her husband to manage her paraphernal pro- perty, with the obligation of ac- counting to her for the income thereof, he is bound towards her' like an ordinary agent. FRENCH CIVIL CODE. 245 Art. 1578. Si le man a joui des biens paraphernaux de sa f emme, sans mandat, et neanmoias sans opposition de sa part, il n'est tenu, k la dissolution du mariage, ou d la premiere de- mande de la femme, qu'd la re- presentation des fruits existants, et n n'est point comptable de ceux qui ont ete consommes jusqu'alors. Aet. 1579. Si le mari a joui des biens paraphemaux malgre 1' opposition constatee de la femme, 11 est comptable envers elle de tous les fruits tant existants que consommes. Abt. 1680. Le mari qui jouit des biens paraphemaux est tenu de toutes les obligations de I'usu- fruitier. Aet. 1581. En se soumettant au regime dotal, les epoux peuvent neanmoins stipuler une societe d' acquets, et les effets de cette societe sont regies comme U est dit aux articles 1498 et 1499. Art. 1578. If the husband has enjoyed the paraphernal property of his wife, -without a power and nevertheless without any opposi- tion on her part, he is only bound, on dissolution of the marriage or upon the first demand of the wife, to hand over the outstanding in- come, and is not accountable for the income theretofore spent. Art. 1579. If the husband has enjoyed the paraphernal property in spite of the didy evidenced opposition of the wife, he is ac- countable to her for all the income both outstanding and spent. Art. 1580. The husband who enjoys the paraphernal property is bound by all the obligations of the usufructuary. Art. 1581. While subjecting themselves to the dotal system, the parties may at the same time agree upon a partnership of gains, and the effects of such partnership shall be as determined in Articles 1498 and 1499. ( 247 ) APPENDIX A. MAEEIAGES AT UNITED STATES EMBASSY (p. 68). February 28tli, 1883. My dear Mr. "Wliiteing, I have just read your interesting letter of the 22nd ultimo, which refers particularly to Americans marrying in France, and I venture to address you these. few lines in the hope that they will remove the misiinderstanding which seems to prevail in this important matter. In the first place, let me quiet your uneasiness about the "thousands of Americans married over here, at their Legation, and who may find that they have not been married at all." Such an awful thing is not likely to happen, for the simple reason that no such marriages take place at the Legation. We are instructed to allow a marriage to be solemnized at the Legation only when the parties have complied with aU the require- ments of the French law — that is to say, only when the marriage at the Legation is no more open to any objection. The reason for this instruction, which is generally misunderstood, is not that the French Government does not admit the validity of such marriages, for it does ; nor is it because they are forbidden by American Statutes, for they are not; but because, in certain cases, the validity of such marriages might be contested, and have been contested, both abroad and in the United States, on the ground that some legal requirement or other has not been strictly complied with. Without mentioning the diflicidty for our Legations of being always well informed of the changes which might take place in the local laws of our thirty-eight States and ten Territories, and the impossibility, in certain cases, of complying with all the requirements of these laws, there is an obvious impropriety in using the privileges of a legation for the performance of a ceremony which, as Mr. Hamilton Fish remarks in a printed dispatch to Mr. Washburne, "may be held by the tribunals of the country in which the legation is situated to be in contravention of the laws of that country." In view of such consideration, and for this additional and important reason, that a marriage is valid everywhere in the United States when made in accordance with the laws of the country where it has taken place, it has been found proper to inform every American who desires 248 APPENDIX A. to be married abroad that he should do so in accordance with the legal requirements of the country in which he may find himself. "In the instructions it has issued," says Mr. Fish in the dispatch above mentioned, " the aim of the Department has been one of precaution and admonition, prescribing only what was clearly within the statutory enactments, cautioning against what is uncertain or doubtful, and withholding the use of the Legation in cases where the possibilities of a decision adverse to the legality of a marriage cele- brated within it seem to approach to a certainty, or at least are potential." (Foreign Eolations, 1875, p. 447.) I may add that, owing to the great kindness of the French autho- rities, this Legation has been put in the way of furnishing to American citizens desiring to marry in France such papers as will remove or smoothen many of the formalities exacted from French people. I am, my dear Sir, Very truly yours, Henbt Vignaud, Assistant Secretary. FEANCE. No. 206. Mr. HoiTMAif to Mr. Fish. (No. 1027) Legation of the United States, Paris, August 31, 1874. [Eeceived September 17.] Sir, During his recent visit to Paris, on his way to Berlin, Mr. Davis exhibited to me the advanced sheets of the instructions you propose to issue to the diplomatic officers of the United States. Amongst them I observed one upon the subject of marriages celebrated at the Legations of the United States between Americans. During the seven years I have been secretary of this Legation, one hundred and fifty marriages have been celebrated here, probably more than in all the other Legations of the United States in Europe during the same period. The importance of the subject, and my natural desire to protect my countrywomen from the sad consequences of an illegal marriage, have induced me to give to this subject an exceptional attention. You will, therefore, excuse me if I venture to offer some observations upon the proposed instructions in this matter. I may perhaps remark, in the first place, that the legality of these marriages has been the object of serious consideration by the able and conscientious men who have represented the United States in France, The volume of certificates which I have before me runs back to 1858, APPENDIX A. 249 Mr. Mason, Mr. Faulkner, Mr. Dayton, Mr. Bigelow, Mr. Dix and Mr. Washburne, after full examination of the subject, were of opinion that such marriages were perfectly legal, and acted accordingly. The subject seems naturally to divide itself into three points of view : the legality of these marriages under French law, under United States law, and under State law. When I came here as Secretary of Legation with General Dix, 1866, being impressed with the importance of the subject, I applied with his assent, to Mr. Moreau, the eminent counsel of the United States in the Armand suits, for his opinion upon the subject of the legality of such marriages under French law. His opinion lies before me. I translate a portion of it : — " The undersigned, counselor at law at the Imperial Court of Paris, having been consulted as to the validity of a marriage contracted between Americans before the Minister of the United States, and at the hotel of the Legation, is of opinion that such marriage is valid in the eyes of the French law." Mr. Moreau then proceeds to give his reasons for this opinion. Under this head I will add that, iu two instances in which marriages between an American man and a Frenchwoman, celebrated at their respective embassies, have been annulled by the French Courts, it was upon the ground that the woman was French ; and it was implied that, had she been American or English, as the case might be, the marriage would have been held vaUd. The second point of view of this subject is the legality of the marriage under United States law. This is a poiut of which I must speak with diffidence. You are necessarily better informed upon this matter at the Department than I can be, and you always have the opportunity of procuring the opinion of the Attorney-General upon the question, if you think it worth while to do so. In the elaborate and learned opinion of Mr. Gushing, then Attorney-General, upon this subject, however, and which, if I am not mistaken, forms the base of its full discussion in the Consular Regula- tions of 1868, it is assumed that such a marriage, celebrated at a legation, is vaUd, and the weight of his argument is directed to show that if celebrated at a consulate it is not valid ; and it was in con- sequence of this opinion that Congress framed the Statute of June 22, 1860 (12 U. S. Stat., page 72), making such marriages valid when celebrated at a consulate under certain prescribed conditions. Had Congress doubted the validity of such marriages at legations, it is scarcely to be supposed that it would not have conferred similar powers upon them. Will it be held irrelevant to suggest that Congress may perhaps have exceeded its powers in passing this law ? Upon the general principle that the powers which are not expressly confided to Congress are reserved to the States, it may be that, should 260 APPENDIX A. a conflict hereafter arise between National and State law upon tHs subject, involving property, the Supreme Court of the United States would decide that the State law was supreme in matters of marriage. But the third point is that to which I wish especially to caU your attention, — ^the validity of a marriage between Americans celebrated at a United States Legation under the laws of these States. Two residents of Massachusetts come to this legation desiring to be married. The minister quotes to them your instruction, and declines to permit the marriage except under the conditions therein prescribed. They reply that in this matter they have nothing to do with the United States law ; that they are citizens of Massachusetts ; that the statute of Massachusetts is supreme for them in this matter ; that this statute prescribes that "marriages celebrated in a foreign country by a consul or diplomatic agent of the United States shall be valid ia this State ; and a copy of the record, or a certificate from such consxd or agent, shall be presumptive evidence of such marriage." (Mass. Gen. Stats., oh. 106, § 23.) They ask to be married under this statute. Is the United States Minister to refuse them the courtesy of the Legation for this purpose ? And, if so, could he not with equal propriety refuse to take their acknowledgment to a deed, under the power conferred upon him by the statute of Massachusetts and not by any United States statute ? There is only one other point to which I woiild caU your attention — a minor one iu my estimation and ia yours, I am sure, but unhappUy not such in the opinion of many married people — the question of divorce. LE Americans in France are compelled to comply with the laws of France iu reference to the formalities to be observed for a marriage, they will be married at the mairie where alone these formalities can be complied vrith. Shoiild these Americans afterward be divorced by a competent tribunal in their own country — in Indiana, or elsewhere, the French courts will not respect such a decree. It would be otherwise were they married in the United States or at this Legation. And thus the American citizen is deprived of his inalienable right of divorce. The question of the disturbance and anxiety which will be thrown into many families by any doubt cast upon the validity of these marriages by so high an authority as your own has no doubt already received your attention. I am, &c., WlOKHAM HoiTMAlf. APPENDIX A. 251 No. 208. Mr. Fish to Mr. WASHBTiBirE. (No. 660.) Department of State, Washington, Novemljer 14, 1874. Sir, Eef erring to Mr. HofEman's dispatcli of the 31st of August last. No. 1027, on the subject of marriages abroad between American citizens, I deem it proper to call your attention to the recent instruc- tions of the Department on that subject, to which the observations of Mr. Hoffman, in. the dispatch referred to, are directed. The question, no less from the intrinsic importance which attaches to a contract of so serious a nature, than in view of the g^ave conse- quences which may result, not only to the parties themselves, but to their offspring, from a misapprehension of the law governing such contracts, has been one of no Uttle solicitude to the Department. It may be stated as a general rule, subject to few and rarely-occurring exceptions, that a marriage, solemnized according to the laws of the country in which it is celebrated, wiU be recognized as valid and blad- ing under the laws of all other civilized or Christian nations ; hence, while it was deemed proper to gratify the natural wish of American citizens to have a contract of such interest to them solemnized under the flag of their own country, and that the hospitality of the Legation should be extended to them for that purpose, the Department at the same time considered it only safe and prudent to advise them, "that a ceremony of marriage performed within the precincts of a Legation may nevertheless be deemed to be performed in the country within which the Legation is situated, and therefore ought, in all respects, to comply with the requirements of the laws of that country, in order to insure its validity." The wisdom of this precautionary measure with regard to the marriage of Am.erican citizens at the United States Legation in Paris is at once evident from the two cases which Mr. Hoffman instances, in which marriages, solemnized in each case at the respective embassy of one of the contracting parties, were both subsequently annulled by a French judicial tribunal. These two cases suggest a rather awkward commentary on the opinions of Mr. Moreau, adduced by Mr. Hoffman in support of his own criticism of the views of tho Department. Mr. Moreau's opinion is to the effect that a marriage contracted between Americans before the Minister of the United States, and at the hotel of the Legation, "is valid in the eyes of French law." In both of the cases in which the marriages were held void by the French court, the women were French, and it was upon this ground, as Mr. Hoffman states, that the contracts were held invalid, but the consequences were no less unfortunate on that account; rights of •252 APPENDIX A. of property acquired by tlie husbands or wives, either m consequence of or during coverture, were more or less afEected by the decrees annulling the marriages. There may have been children of those marriages, and the consequences to them would be of a still more serious character. And if, in the case of a marriage solemnized at the Legation between Americans, who might from any cause be incompe- tent to enter into such contract under the laws of France, its validity should be brought in question before a French tribunal, it is to be feared that even the opinion of the learned counsel in question would be found insufficient to secure the sanction of the coiirt to its validity. It was in view of such considerations as these, and admonished by the frequent recurrence of questions growing out of the subject, that the Department deemed it advisable to instruct the diplomatic repre- sentatives of the United States, when application might be made for the use of the Legation for such a purpose, to satisfy themselves by inquiry whether the parties might lawfully marry according to the laws of the country in which the Legation is situated, and in case they were found incompetent thus to marry, to inform them that the ceremony could not be permitted to be performed in the Legation. There is, moreover, a manifest impropriety in thus using the privileges of the Legation to give even an implied sanction to the completion of a contract which may be held by the tribunals of the country in which the Legation is situated to be in contravention of the laws of that country. It may also be supposed that these considerations were not over- looked by Congress in prescribing, as it did, by the thirty-first section of the Act of the 22nd of June, 1860, a general and uniform rule for the consular officers of the United States in relation to such marriages of American citizens in foreign countries. The Department fi.nds itself im.able to agree with Mr. Hoffman in his inference that Congress, in omitting to name the diplomatic officers, is to be taken as having assumed that a marriage solemnized in presence of the minister woxdd be per se valid. It may with qidte as much propriety be assumed that Congress looked upon the functions of the diplomatic representative as pertaining more to national affairs, and that, as there is a consul of the United States at every considerable port, while there is but one diplomatic representative, and he at the capital of the country, the conveniences of the parties to the marriage may also have had some weight in the legislative deliberation. "With reference to the suggestion that Congress may have transcended its constitutional powers in the passage of the law referred to, it may be observed that, the power of determining that question being reserved to the judicial branch of the government, it is no part of the duty of the executive branch, or its administrative officials, to question the constitutionality of an act of Congress that has become a law according APPENDIX A. 253 to tte prescribed constitutional forms. The law in question, moreover, was evidently intended for the better protection of the rights of American citizens abroad. It imports the sanction of legal validity within the United States to a most solemn contract entered into by them in a foreign land during a temporary absence from their own co\mtry. It is difficult to perceive that Congress, in thus investing Federal officers with certain powers to be exercised beyond the territorial limits of the United States, can have transcended the just limits of their constitutional powers, or infringed upon any reserved sovereign rights of the States. Mr. Hoffman supposes a case of two citizens of Massachusetts presenting themselves at the Legation for the purpose of having a marriage ceremony performed, and, upon their being informed of the minister's instructions from this Depart- ment, insisting that in that matter they have nothing to do with the. United States law ; that for them the statute of Massachusetts is supreme. It is scarcely supposable that citizens of Massachusetts would, at any period in the history of this government, have advanced that doctrine, and it is scarcely to be expected that so extreme a practical assertion of State sovereignty will henceforth be put forward from any section of the country. Nor is it probable, especially with reference to the marriage contract, and the relations resulting therefrom, that any prudent persons would wiUingly put themselves in such an attitude with reference to a law of the United States ; but, should such a case arise, it is only necessary to say that a Federal officer is not bound to execute a State statute unless required to do so by act of Congress, and in the case supposed by Mr. Hoffman, it would be an answer to the imaginary citizens of Massachusetts, who might thus insist upon forcing themselves into the legation, to require from them the produc- tion of their right to the use of the legation for their private or family arrangements. The Department's instructions on this, as on other subjects, are intended as a guide for the diplomatic and consular officers of the United States, with the supervision of whose official duties it is charged ; these instructions are promulgated from time to time with a view of enabling such officers the better to conform their action to the laws of the United States, the laws being a guide of official conduct for the Department and its officers, whether abroad or at home. Marriages of American citizens abroad, celebrated according to the requirements of the act of Congress of the 22nd of June, 1860, are recognized as valid by the Department. But while thus confining its own action within the prescribed limits of the statute, the Department carefully avoids the expression of an opinion in regard to the validity or non-validity of the marriage of citizens celebrated abroad in any other manner than in conformity with, the statute requirements^ The 254 APPENDIX A. forms and modes wliieh may attend the performance of that interesting ceremony, as -well as the particular place in which it shaU. be celebrated are properly left to the determination of the parties themselves ; wlul( the legal consequences of the adoption or omission of the observancei prescribed by the act of Congress rest with the judicial tribunals of the country, whose exclusive province it is to decide upon such questions, when, in the course of legal proceedings, such decision may become necessary. The aim of the Department, in the instruction which it has issued, has been one of precaution and admonition, prescribing onlj what was clearly within the statutory enactments, cautioning againsi what is uncertain or doubtful, and withholding the use of the Legation in cases where the possibilities of a decision adverse to the legality of a marriage celebrated within it seem to approach to a certainty, or a1 least are potential. I am, etc., (Signed) Hamilton Fish. ( 255 ) APPENDIX B. CONSULAE CERTIFICATES (p. 50). Manage entre Frangais et Anglais. [Instruction adressie par M. le Minis tre des Affaires Etrangeres aux Consuls de France en Angleterre le 23 dicemhre 1884.) Monsieur, A I'occasion de dififtciiltes concernant des mariages mixtes contractus dans la Grande-Bretagne entre Frangais et Anglais, le Gouvernement de la EepubHque a recherclie, de concert avec le Gouvernement Britannique, les moyens de prevenir certaines irregularites dans I'accomplissement des formaHtes qui sont prescrites par la loi fran9aise et dont remission peut donner Ueu k des instances en nullite. Par notes diplomatiques 6cliangees entre les deux Cabinets U. a ete etabH que les Consuls de France en Angleterre seraient desormais autorises k delivrer un certificat qui, ayant pour objet demieux assurer la vaHdite des unions mixtes, constaterait 1' execution des formaHtes dont il s'agit. Vous trouverez, ci- joint, copie de ce certificat, et je vous invite. Monsieur, k vous conformer, le cas echeant, aux dispositions qui viennent d'etre adoptees. Vous voudrez bien, en outre, lorsqu'O. y aura lieu de delivrer un document de cette natuje, en faire rentrer la perception sous 1' Article 174 du tarif des droits k appliquer dans les chancelleries consulaires, sauf dans le cas prevu par le numero 1 des observations generales toucbant I'article un du tarif precite. Vous aurez, d'aiUeurs, soin d'ouvrir un registre special dans lequel seront transcrits, au fur et ^ mesure, les certificats qui vous seront demandes par les interesses. Eecevez, Monsieur, les assurances de ma consideration distinguee. Jtjibs Feeet. 256 APPENDIX B. Annexe a V Instruction de M. le PrSsident du Conseil, Ministre des Affaires Etrangeres. Le Consul de France A declare : 1° Que les frangais ne peuvent se marier sans avoir, prealaUement, fait en France les publications legales de leur manage et obtenu le consentement de leurs parents ou des autres personnes indiquees par la loi ; 2° Que des pieces et documents produits : a. II resulte que M. (noms, prenoms et profession) ne k le demeurant ^ et qui se propose de contracter mariage avec M. (noms, prenoms et profession) ne k le demeurant k est de nationality frangaise : h. Que les publications de son futur mariage prescrites par la loi de France ont ete regulierement f aites aux domiciles specifies par la loi ; c. Que le futur epoux a produit les pieces (indiquer ces pieces) qui etabHssent soit qu'il a obtenu pour son mariage le consentement des parents ou d' autres personnes dont le consentement est exige, soit que les parents dont le consentement eut ete necessaire, sont decedes, soit que des aotes respectueux ont ete signifies aux parents, lesquels actes suppleent k leur consentement (le Consul pourrait indiquer ici de queUes personnes le consentement emane) ; d. Qu'auoune opposition k ce mariage ne s'est produite jusqu'd ce jour, et que s'il ne s'en revele pas jusqu'au moment de la celebration du mariage, les epoux seraient admis k contracter mariage en France. Le Consul declare, en outre, que le mariage contracte en pays etranger, entre un frangais et un etranger, est valable s'il a ete cel6bre conformement aux lois du paj's, et k la condition : 1° Que les publications legales en France et les consentements exiges par la loi aient precede le mariage (Articles 148 k 159 du Code civil) ; 2° Que les futur s epoux aient I'age requis par la loi : 18 ans pour le futur et 15 ans pour la future (Article 144 du Code civil) ; 3° Que le consentement de cbacun des deux gpoux ait ete absolument libre (Article 146 du Code civil) ; 4° Que I'un des epoux ne soit pas dans les Hens d'un pr6cedent mariage (Article 147 du Code civil) ; 5° Que le mariage projete ne viole pas les defenses de mariage entre parents et allies au degre prohibe (Articles 161 4 163 du Code civil) ; Le Consul declare encore que I'etrangere qui epouse un frangais devient frangaise par le fait seul de son mariage, et que les enfants issus du mariage, meme nes en pays etranger, sont frangais (Articles 12 et 10 du Code civil). En foi de quoi, nous avons delivre le present certificat pour valoir ce que de raison. APPENDIX B. 25^ [TuAlfSLATION.J Marriage between French and English (^Instruction addressed by the Minister of Foreign Affairs to the Consuls of France in England, 23rd December, 1884). Sir, In consequence of the difficulties that have arisen with regard to mixed marriages celebrated in Great Britain between French citizens and English subjects, the Government of the Republic has, in concert with that of Great Britain, sought means for preventing certain irregu- larities in the accomplishment of the formalities prescribed by French law, the omission of which renders such marriages voidable. It has been agreed by diplomatic correspondence between the two Cabinets that consuls of France in England shall be henceforth autho- rized to deliver a certificate which, in order the better to secure thevalidity of mixed marriages, shall certify the accomplishment of the formalities in question. Tou will find annexed hereto a copy of the certificate, and I beg you, Sir, to comply, upon the occasion presenting itself, with the tenns of the adopted agreement. In case you are called upon to deliver a certificate of this character, please charge therefor the fee set forth in Article 174 of the consular tariff, except in the case provided for in number one of the general observations regarding Article 1 of the said tariff. You wlU please also open a special register, in which you will transcribe the certificates which interested parties may ask of you in the order in which you deliver them. Permit me, Sir, to assure you of my highest consideration. (Signed) Jtjxes Feeet. Certificate annexed to the instructions of the Premier, Minister of Foreign Affairs. The Consul of France at declares : 1. That French citizens may not marry without having previously published in France the notices of the marriage required by law, and without having obtained the consent of their parents or such other persons as are set forth in the law. 2. That from the papers and documents produced : a. It appears that M (surnames. Christian names and pro- fession) bom at the residing at who pro- poses to many M (surnames. Christian names and profession) bom at the residing at is of French nationality. 258 APPENDIX B. b. That the notices of the proposed marriage prescribed by the law of France have been duly published at the domiciles specified in the law. c. That the party to the proposed marriage has produced papers (specify them), which prove either that he has obtained the consent of the parents or relations, whose consent is necessary; or that the relations whose consent was necessary are dead; or that the aeies respeciueux have been dxily served on the parents, the which service takes the place of consent (the Consul may here set forth from what persons consent has been obtained). d. That no opposition to the marriage has been made to date, and that if none is made prior to the celebration of the marriage the parties would be permitted to marry in France. The Consul declares further, that a marriage celebrated in a foreign country, between a French citizen and an aUen is valid if it has been celebrated in conformity to the laws of their country, but on the following conditions : — 1. That the publications in France and the consent of the persons req[uired by law, shaU have preceded the marriage. (Articles 148 to 159 of the Civil Code.) 2. That the parties be of the age prescribed by law : 18 for the man and 15 for the woman. (Article 144 of the CivH Code.) 3. That the consent of the parties be absolutely unconstrained, (Article 146 of the Civil Code.) 4. That neither of the parties be already bound by a subsisting marriage. (Article 147 Code Civil.) 5. That the proposed marriage do not violate the provisions of the law prohibiting marriage between relations and connections within defined degrees.' (Articles 161 to 163 Civil Code.) The Consul further declares that an alien woman who marries a citizen of France, becomes French by the mere fact of marriage, and that all children bom of such marriage, even abroad, are French. (Articles 12 and 10 Civil Code.) In vdtness whereof, we have delivered the present certificate to serve all due purposes. ' It should te observed that inasmuch as dispensations will not he given to aliens in Prance, on this score it is highly probable that French courts would not admit the validity of a dispensation accorded to a French citizen by a foreign government. (259 ) APPENDIX C. OEETIFICATS DE COUTUME (p. 63). I. — COEEESPONDENCE. 19, rue Scribe, Paris, le 15 avrU 1891. A Monsieur le Garde des Sceaux, Ministre de la Justice. Monsieur le Ministre, Comme suite aux entretiens qu'ont bien voulu accorder k Monsieur Bodington, soussigne. Monsieur le Chef de votre Cabinet ainsi que Monsieur le Directeur des Affaires Civiles, et sur la demande de ce dernier, nous avons I'honneur de soumettre k yotre haute appreciation le cas de ceux de nos nationaux respectifs qui, desireux de se marier en France, se trouvent dans I'impossibUite de se procurer leur acte de naissanoe. Depuis mai 1887 jusqu'au commencement de I'annee courante, cette etude, dans la personne de notre predecesseur M. Edmond KeUy, Con- seil de la Legation des Etats-TJnis, avait ete autorisee, par Monsieur le Procureur de la Eepublique, k delivrer, ainsi qu'U r^sulte de I'echange de la correspondance ci-jointe et des pieces qui I'accompagnent (piece A), deux eertificats, I'un dispensant des publications k I'etranger et du consentement des parents, et 1' autre remplagant I'acte de naissance. La presente demarche, qui a d'ailleurs I'approbation de nos Am- bassades respectives, ainsi que I'attestent la lettre de I'Ambassadeur d'Angleterre qui vous a dejk ete presentee, et celle du Ministre des Etats-TJnis, ci-annexee, est faite k la suite d'une decision r^cente de Monsieur le Procureur de la Eepublique qui, sans elever d'ailleurs aucune objection au sujet du premier certificat 8us-vis6, croit devoir obliger nos compatriotes respectifs ne pouvant pas produire leurs actes de naissance, k se conformer rigoureusement au texte des articles 70 et suivants du Code civil, en dressant un acte de notoriete dans la forme frangaise. M. le Procureur de la Eepublique a bien voulu consentir k nous confirmer les motifs de sa decision dans une lettre en reponse k la notre k ce sujet. Copies de ces deux lettres sont annex6es k la presente (Pi^ce B). s2 260 APPENDIX C. Nous croyons inutile d'insister longuement sur les tr^s graves incou- venients que cette situation a crees k nos compatriotes. Une pratique assez considerable dans cette matiere nous f ait f orta d'affii-mer que, dans la grande majorite des cas, il leur sera impossiMe de reunir le nombre de temoins voulu pour attester les faits essentiels d un tel acte, lequel deviendrait en consequence un veritable acta de complaisance. Nous avons done I'honneur de vous proposer le systSme altematif des certificats, dont les projets sont joints d la presente lettre, la piSce ci-annexee ayant trait au:8: sujets anglais, et la piSce D aux citoyens americains, nous bomant d rappeler k I'appui de ce syst^me altematif les considerations suivantes : Primo. Que les articles 70 et suivants du Code civil n'ont pas ete edictes en vue du cas d'un etranger voulant se marier en France ; Secundo. Que I'acte de naissance, dans le cas qui nous occupe, sert uniquement k etablir un ordre de faits qui se rattacbent k la capacite du futur epoux etranger et relevent en consequence, par un principe bien connu, de sa loi nationale. Nous avons cru preferable toutefois, apres un exanaen attentif de la question, de ne pas nous bomer k un simple certificat de eoutimie, mais d'y annexer en outre une declaration dans la forme qui est admise dans nos pays respectifs, com me suppleant I'acte de naissance, alors que cet acte fait defaut. Cette maniere de proceder a I'avantage de nous permettre, en attestant 1' equivalence de cette declaration k un acte de notoriete frangais, de nous rapproclier davantage du texte de I'art. 70 ; et nous estimons, qu'a I'aide de ces pieces jointes au certificat au sujet des publications et du consentement des parents, dont la redaction s'est legerement modifiee, dans la pratique, de celle primitivement soumise k M. le Procureur par M. Kelly (voir pi^oe E ci-annexee), I'officier de I'etat civil frangais aurait toutes les pieces necessaires'pour lui permettre' de passer outre au mariage de I'etranger en question, Ce sont done. Monsieur le Ministre, les projets de ces declarations, ainsi que des certificats de coutume qui doivent les accompagner, que nous avons I'bonneur de soumettre k votre haute approbation, avec la pleine confiance que la solution dictee par votre sagesse saura concilier les dispositions de la loi avec les legitimes interets de nos compatriotes. Veuillez agreer, Monsieur le Ministre, 1' assurance de nos hommages- tr^s respectueux. (Signe) Olivee E. Bodington, , Avocat de Barreau de Londres, Licencie en droit. (Signe) Hbnet C. Hail, Avocat du Barreau de New York. '- APPENDIX C. 261 Minist^re de la Justice. 1" Bureau. N°. 1018. B. 91. Paris, le 21 mai 1891. Direction des Affaires Civiles et du Sceau. Messieurs, ^ Je m'empresse de vous donner avis que, conformement aux instruc- tions de M. le Garde des Sceaux, M. le Procureur de la Eepublique a autorise les officiers de I'etat civil de la Ville de Paris k accepter comme ■acte de naissance les certificats vises par I'Ambassade d'Angleterre ou la Legation des Etats-Unis, dont vous nous aviez communique la formule. • Eecevez, Messieurs, 1' assurance de ma consideration tr^s distinguee. (Signe) Le Conseiixeb d'I^tat, Directeur des Afiaires civiles et du Sceau. Bard. Messieurs HaU et Bodingfon, 19, rue Scribe. [TBAlfSLATION.] 19 Eue Scribe, Paris, ISth April, 1891. To tlie Keeper of tbe Great Seal, Minister of Justice. Monsieur le Ministre, Following on tbe interviews which the chief of your staff, and the Director of Civil Affairs have been kind enough to grant to Mr. Bodington, and at the Director's request, we have the honour of submitting for your valued consideration, the case of those of our respective countrymen, who, desirous of marrying in France, are un- able to procure a certificate of birth. From May, 1887, to the beginning of the present year this office, in the person of our predecessor, Mr. Edmond KeUy, Counsel to the Legation of the United States, had been authorized by Monsieur le Procureur de la EepubHque to deliver, as appears from the annexed exchange of correspondence and the accompanying documents (docu- ment A), two certificates, one dispensing with publications out of 262 APPENDIX C. France and witli the consent of parents, and the other replacing the certificate of birth. Our present action, which has the approval of our respective embassies, as is attested by the letter of the British Ambassador, which has abeady been presented to you, and that of. the United States Minister herewith, is taken in consequence of a recent decision of the M. le Procureur de la Eepublique who, while raising no objec- tion in regard to the first of the aforesaid certificates, considers it his duty to oblige our respective countrymen unable to produce their birth certificates, to a Kteral observance of the text of article 70 et seq. of the Civil Code, and to the production of an act of notoriety in French form. Monsieur le Procureur de la Eepublique has been good enough to set out the grounds of his decision in a letter in reply to ours on this sub- ject. Copies of these two letters are enclosed herewith (document B). It appears to us superfluous to dwell at great length on the very- grave inconveniences that this position of things has entailed upon our fellow countrymen. An experience in these matters, of no little extent, enables us to aver that in the large majority of cases they would be totally unable to get together the number of witnesses required in order to attest the facts essential to such an instrument, which would therefore become a mere act of complaisance. "We have therefore the honour of submitting to you the alternative system of certificates, the outlines of which accompany this letter, document having reference to English subjects, and document D to American citizens, contenting ourselves'with mentioning the following considerations in support of this proposal : First : That article 70 and following of the Civil Code, were not enacted with a view to the case of a foreigner desirous of marrying in France ; Second : That the birth certificate in the case with which we are dealing, serves solely to establish a class of facts which relate to the capacity of the future husband or wife, and which are consequently governed according to a well-recognized principle, by the law of their nationality. It seemed to us preferable, however, after an attentive study of the question, not to hmit ourselves to a mere certificate of law, but to annex thereto in addition a declaration in the form accepted in our respective countries, as eqiiivalent to a birth certificate, when the la,tter instrument is not forthcoming. This method of proceeding has the advantage of permitting us to certify that such declaration is equivalent to a French act of notoriety and thus more nearly to comply with the text of article 70 ; and we venture to think that with these documents as well as the certificate relating to pubUeations and consent of parents, the wording of which has been slightly modified in practice from that originally submitted to the M. le Procureur by Mr. Kelly (see APPENDIX C. 263 document E herewith), the Eegistrar will have before him all the necessary documents to enable him to proceed to the marriage of the foreigner concerned. We have therefore, the honour, Monsieur le Ministre, of submitting to your valued approval, the drafts of these declarations as well as of the certificates of law to accompany them, in full confidence that the decision which your wisdom shall dictate will reconcile the provisions pf the law with the legitimate interests of our fellow countrymen. Pray accept. Monsieur le Ministre, the assurance of our very respect- ful homage. (Signed) Olivee E. Bodington, Barrister-at-law, Licencie-en-Droit. (Signed) Henet C. Ham;, Attorney and Counselor at Law of the New York Bar. Ministry of Justice. 1st Bureau. No. 1018. B. 91. Paris, 21st May, 1891. Direction of Civil Affairs and of the Great Seal. Gentlemen, I hasten to- inform you that, in accordance with the instructions of the Keeper of- the Seals, Monsieur le Procureur de la Eepublique has authorized the Eegistrars of the City of Paris to accept as birth certificates the certificates authenticated at the English Embassy or the United States Legation, the form of which you have communicated tp us. Accept, gentlemen, the assurance of my highest consideration. (Signed) The Cotjnsbloe of State, ' Director of Civil Afiairs and of the Great Seal, ' " Baud. Messrs. TTat.t. & Bodington, c 19, rue Scribe. 264 APPENDIX C. II. — Forms. SUJETS ANGLAIS. I.— Projet de certificat destine a suppleer I'acte de naissance. Je, soussigne, Oliver Eaton Bodington, avocat du Barreau de Londres, lioencie en droit de la Faculte de Paris, y demeurant rue Scribe, n" 19; vu: La declaration ci-annexee signe par M. par-devant le Ooasid BritannicLue k Paris k la date du 18 — ; CEETIPIE : Que d'apres les lois anglaises (ou de la colonie anglaise de ) ; 1° L'etat civil proprement dit et notamment I'enregistrement obU- gatoire des naissances n'existait pas en dans l'ami6e-— ; 2° A defaut d'un acte de naissance, ses elements essentiels peuvent etre etablis par tons les moyens de preuve et notamment par une declaration en la forme ci-annexee ; 3° Une telle declaration tient lieu d'un acte de naissance, equivaut k un acte de notoriete et fait foi de son eontenu tant en justice c[ue tors. En foi de quoi j'ai deHvre le certificat qui precMe, k Paris, le 18-; Je, soussigne, certifie et atteste que M. Oliver JE. Bodington est avocat du Barreau de Londres, qu'il a quaHte pour deltvrer le certificat qui precMe, et que foi est due k son attestation. Paris, le 18 — , Consul Britannique k Paris. II. — Projet de certificat au sujet des publications et du consentement des parents. Je, soussigne, Oliver Eaton Bodington, avocat du Barreau de Londres, licencie en droit de la Pacult6 de Paris, y demeurant rue Scribe, n° 19, GEETIFIE : Que, d'apres les lois anglaises, tout sujet anglais qui a atteint I'age de vingt et un ans accomplis est majeur, et, n'etant pasaHenS ou autre- ment iacapable, peut contractor manage sans le consentement de ses pere et m^re ou d'aucune autre personne ; Que, d'apres les pieces et renseignements qui m'ont ete fournis, M. a capacite pour contractor un mariage valable ; APPENDIX C. 265 Et qu'aucune publication n'est necessaire en Angleterre pour un maiiage celebre en France. En foi de quoi j'ai signe le present certificat k Paris le , 18 — , Je, soussigne, certifie et atteste que M. Oliver E. Bodington est avocat du Barreau de Londres, qu'il a qualite pour d61ivrer le certificat qui precede, et que foi est due ^ son attestation. Paris, le , 18 — . Consul Britannique ^ Paris. m. — Projet de declaration. Dans 1' affaire du mariage de : 1° Je, soussigne, , demeurant k , declare solennellement que je suis le (parent^) de , demeurant d . 2° Qu'il est le fils legitime de aotuellement decede (ou demeurant k ), et de actuellement decedee (ou demeurant k ). Si c^est un non-parent, ajouter : " que j'ai bien connu les' parents de ainsi que ledit lui-meme depuis son enf ance (ou depuis annees)." 3° Que j'ai maiutes fois entendu sesdits parents declarer qu'il est ne k , dans le comte de , dans la Grande-Bretagne (ou dans la colonie de ) le , 18 — ; et n'ayant jamais entendu le contraire, je crois sinc^rement que cela est vrai. 4° Et je fais la presente declaration croyant consciencieusement qu'elle est confoime k la verite. Signe et declare solennellement par le susdit , k Paris, dans la Eepublique Erangaise, ce , 18 — , devant moi. Consul Britannique k Paris. 266 APPENDIX C. [Translation. J BEITISH SUBJECTS. I. — Form of Certificate destined to take the Place of a Birth Certificate. ' I, tlie undersigned, Oliver Eaton Bodington, Barrister of the London" Bar, Liceneie en droit of the Paculty of Paris, there residing rue ScHbe, No. 19. Having examined the declaration annexed hereto signed by Mr. before the British Consid. at Paris on the , 18 — ; CEKTIFY : That in accordance with English laws {or, the laws of the English colony of ) ; 1. Civil status properly so called, and- in particnlar compulsory regis- tration of births, did not exist in in the year ; 2. In the absence of a certificate of birth its essential elements may be established by all methods of evidence, and in particular by a declaration in the form annexed hereto ; 3. Such declaration takes the place of a certificate of birth, is eq[uivalent to an acte de notoriite, and the contents thereof are entitled to credit both in courts of justice and elsewhere. In witness whereof I have delivered the certificate which precedes at" Paris, the 18 — . I, the undersigned, certify and attest that Mr. Oliver E. Bodington is a barrister of the London Bar, that he is qualified to deliver the certificate which precedes, and that faith is due to his attestation. Paris, the 18—. British Consul at Paris. II.— Draft Certificate with reference to Publication and Consent of Parents. I, the undersigned, Oliver Eaton Bodington, Barrister of the London Bar, Liceneie en droit of the University of Paris, there residing rue Scribe, No. 19. OERTIFY : That in accordance with English laws, every English subject who has reached the age of twenty-one years has attained majority, and, unless of unsound mind or otherwise incapable, may contract marriage without the consent of his father and mother or of any other person ; APPENDIX C. 267 That according to tlie dociunents and information which have been submitted to me, Mr. is capable ol contracting a valid mar- riage; And that no publication is necessary in England in view of a marriage to be celebrated in France. In witness whereof I have signed the present certificate at Paris the 18—. I, the undersigned, certify and attest that Mr. Oliver E. Bodtngton is a barrister of the London Bar, that he is qualified to deliver the certificate which precedes, and that faith is due to his attestation. Paris, the 18 — . British Consul at Paris. III. — Form of Declaration. In the case of the marriage of : 1. I, the undersigned residing at solemnly declare that I am (relationship with interested party) of residing at . 2. That he is the legitimate son of now deceased (or residing at ), and of now deceased (or residing at ). If there is no relationship, add : that I have been well aoquaiated with the parents of as well as the said himself from his childhood (or for years). 3. That I have often heard his said parents state that he was bom at in the county of in Great Britain (or in the colony of ) on the , 1 8 — ; and never having heard anything to the contrary, I sLacerely believe this to be true. 4. And I make the present declaration conscientiously believing that it is in conformity with the truth. Subscribed and solemnly declared by the said at Paris in the French EepubHc, this 18 , before me, British OonsiQ at Paris. AMEEICAN CITIZENS. [^The forms for these are substantially the same as for British subjects, except that affidavits are substituted for solemn declarations.] ( 269 ) GENERAL INDEX. ABSENCE, technical meaning of, 156. AOTH AUTHENTIQUE, nature of, 84. AOTE DE NOTORIETE, nature of, 148. to prove death of parent, 7. to replace certificate of tirth, 13, 14. must be approved of by Court, 61. even in case of aliens, 59. ACTE8 RE8PEGTUEUX, nature of, 8. penalty incurred by registrar in case not served, 32, 157 failure to serve, consequences, 51. ACTIONS TO ANNUL, grounds for, 26, 163. •who may bring, 26. minor must bring, -within year after majority, 27. ratification of marriage, a bar to, 28. ADOPTION, when a bar to marriage, 11. ADITLTEEY, a ground for divorce, 121. in flagrante delicto, how proved, 127. AGE, requisite for marriage, 4. ALIENS, marriage of, in Prance, 57. capacity of, determined by law of country, 57, 67. marriage of, abroad, recognition, 58. ministerial circular as to publications of, 17, 159. requirements of Erench authorities in case of marriage of, 60. marrying iu Prance, property system applicable to, 102. divorce of, 134. ALIMONY, between parents and cMldren-ia-law, 73, 95. right of widow to, under law of 1891... 119. pendente lite iu divorce action, 125. amount of, 126> 270 GENfcEAL INDEX. AMEEIOAN EMBASSY, marriages at, 68. AMEEIOANS, marriage of, in France, 51. at American Embassy, validity of, 68, 69. APPEAL, from decree of divorce, 128. ASSIGNATION, to introduce divorce action, what, 124. BIETHS, DEATHS, AND MAEEIAGES, registers of, kept in duplicate by diplomatic agents of France abroad, 34. and recorded at Ministry of Foreign Affairs, 56. BEITISH EMBASSY, marriages at, 63. marriage of Frenctwoman at, invalid, 67. BEITISH GOYEENMENT, their action as to marriages of French citizens in England, 49, 50. BEITISH SUBJECT, marriage of, at British Embassy abroad, 65. CAPACITY, rules as to, essentials, 4. non-essentials, 8. of alien, determined by law of nationality, 57, 67. of married woman, by what law determined, 78, 79. CAYEAT, nature of, 19. who may make, 19, 20. whether sustainable on grounds not of law only, 161. CELEBEATION, formalities essential to validity, 12. not essential, 13. place of, theories in regard thereto, 14. by whom performed. 12. OERTIFIGAT DE GOUTUME, to replace publications abroad, 59. to prove birth, .61. authorized hj procureur de la BSpulliqite, 62. and by Minister of Justice, 63. to prove powers of alien married woman, 76, 80. CEETIFICATES, of Minister relieving Americans from pubUoations abroad, 18. of landlord or concierge as to residence, 18. of French Consuls as to marriage of Frenchmen in England and Switzerland, 50. birth, absence of, how supplied, 61, ; of notary, as to contrat de manage, I4. GENERAL INDEX. 271 CHILDEEN, of putative marriage, rights of, 53. vested rights of, in estates of parents, 105. consequences in regard to marriage contracts, 106. custody of, in divorce proceedings, 126. OIVrL CODE, text and translation of, 144. marriage, 144. divorce, 177. contrat de mariage, 191. CLANDESTINITY, 12, 51, 52. lack of transcription may determine, 56. CODIEIOATION, remarks on, 142. COMMVNAUTE LEO ALE, in the absence of contrat, 82. COMMUNITY, explained, 82. acceptance of, by wife, 87. ■with benefit of inventory, 86. renunciation of, 88. dissolution of, 87. divided in equal shares, 87. variations of, 88, 89. presumption of in absence of contract, 100. ■whether appHoable to aliens, 101. COMPAEISON of French la^w -with our o^wn, 137. CONFLICT OF LAW, between test of domicile and nationality, 77, 79. between community regime and trust for separate use of wife, 113. reconciled in France in Forgo case, 79. as to status of married women, caused by application of maxim nemo potest exuere patriam, 113. CONNECTIONS BY MARRIAGE, when marriage between prohibited, 4. CONSEIL D'ETAT, discusses nullity of marriage, 21, 27. transcription of foreign record, 65. CONSENT OF PARENTS, 5. not necessary for American marrying in Prance, 57. of ascendants, 5. of parties, 5, 163. of husband, when not necessary, 75. of parties, not a ground of divorce, 121. CONSUL, British, marriage before, 67. certificates of French consul ia case of marriage in England, 50. American, marriages by, 71. 272 GENERAL INDEX. CONTBAT DE MARIAGE, 81—100. distinguished from settlement, 81. aliens marrying in France ■without, what rule applicable to, 101. regimes which may be adopted therein, 82. cannot be modified after marriage, 82, 109. presumption of community in absence of, 100. CUSTODY OF OHILDEEN, in divorce proceedings, temporary, 125. permanent, 131. new practice as to, 126, DAMAGES, maire disregarding opposition liable to, 21. DECLAEATION as to contrat de manage in. case of aliens, 104. DELIVEEY OF PEESONAL EFFECTS, in divorce proceedings, 125. what are included therein, 126. DESEETION, when a ground for divorce, 123. DISABILITIES, of married women under French law, 75. of alien wife in France, 75. DISPENSATIONS, in case of marriage of connections, 4. DIVOECE, re-enactment of, 121. grounds of, 121. by consent no longer admissible, 122. procedure ia, 125. appeal from decree of, 128. transcription of decree of, 128. eflects of, 129. of aliens, 134. DOMICILE, six months' domicile for marriage, 15. of aliens for marriage, 17. the test of capacity in English jurisprudence, 76. different nature of, in French and English law, 78. of fact, effect of in France, 78. effect of change of, on property relations, 107. of husband, how far material, 108. change of, cannot modify French regime, 109. DOT, defined, 91. constitution of, 92. inalienability of, 95. rights of" wife over, 93. GENERAL INDEX. 273 B OT — continued. administration of, by husband, 94, re-investment of, 96. restitution of, 97. arises only by express contract, 92. interest on, 93. subject to reduction on death of grantor, 106. DOWEE, alien -wife has no dower in French real estate, 76. whether French widow entitled to, out of English or American lands, 118. DROITS D'ENREamTBEMENT, on contrai de manage, 104. DEUNKENNESS, when ground for divorce, as injtire grave, 123. EFFECTS OF DIVOEOE, 129. ENQuiTE, procedure as to, 127. ENREQISTREMENT, places date of instrument beyond dispute, 84, d/roita de, on marriage contracts, 104. EYEDENOE, in divorce proceedings, 127. letters, how far admissible, 127. EXOES, a ground for divorce defined, 122. EXTEEBITOEIAIjITY, principle of, how far applicable to marriage at embassy, 64. FAMTTiY COUNCIL, consent of, necessary to marriage of ward, 20, 35, nature of 158. FOEMALITIES, of celebration, essential to validity, 12. not essential, 13, FORMULE EXEOUTOIRE, what is, 194. GEANDPAEENTS, consent of, 5, right to oppose, 20. GROSSE, nature of, 194. GEOUNDS, for divorce, what constitute, 121, what are sufficient, as between aliens, 134, for separation same as for divorce, 132. for action of nullity, 21. F. T 274 GENERAL INDEX. GUAEDIAN, ad hoc to consent to marriage of natural child, 7. may make opposition, 20. cannot oppose a marriage on behalf of his ward, 162, mJSBAOT), his powers of administration of community, 85. his rights oyer dot, 94. his obligations as to restitution of dot, 97. no power to change property relations by change of domicile, 112, not accountable for moneys received by wife unless he joins in receipt, 114, adultery of, how punishable, 122. no restriction on residence of, in divorce proceedings, 125. his right to alimony in divorce proceedings, 126. INJURES GBA7E8, a ground for divorce defined, 122. INTENTION, should determine property rSgime in absence of contract, 103, how it should be expressed, 103, INTEBDIOTION, nature of, 161, INTEENATIONAL LAW, whether or no part of municipal law, 77. whether presumption of community applies to aliens, 101, conflict between lex domicilii and lex patriae, 102. effect of marriage on nationality, 115. conflict resulting from recovery of French nationality by widow, 117. should French Court apply law of their country or French law to question of capacity of aliens, 76. Frederic Harrison's view, 77. Olunet's view, 79. JTJEISDIOTION, of French Courts over aliens in divorce proceedings, 134. KINSHIP, when a bar to marriage, 4. LAW, 8th June, 1893 (registration of births, &c.), 34, 56. 22nd July, 1867 (abolition of imprisonment for debt), 95. 9th March, 1891 (right of succession of widow), 118, 119. 6th February, 1893 (capacity of separated wife), 133. LEGAL DOMICILE, in France, natiiie of, 78. of wife, separSe de corps same as that of husband, 133. consequences of, as to jurisdiction, 135. GENERAL INDEX. 275 LEOAL MORTGAGE, of wife, on husband's property, 54. exists independently of record, 98. as security for husband's administration, 86. LEX LOCI, marriage according to, what, 66. •when applicable to property relations, 109. applicable to BngHsh marriage settlements, 113. LIMITATION, cannot operate to deprive wife of dot, 96. LOUISIANA, rule as to effect of change of domicile on property relations, 109. MAINLEVEE, nature of, 147. MAIBE, his functions as registrar, 145. MAEEIAGE, conditions precedent, 3. void and voidable distinguished, 22. breach of promise of, 28. of French citizens abroad, 30, 51. actes respectueux not essential to, 33. of French citizens in England, action of British Government to secure validity of, 49. at American Embassy, why no longer permitted, 60, 68. at British Embassy, existing law as to, 63, 65. of Frenchwoman at foreign Embassy, invalid, 67. its effect on nationality, 115. parent's right to prevent or delay, 9. kinship and connection by marriage, when a bar, 4. celebration of, 3, 12 — 14. capacity, age, 4. consent of parties, 5, 163. consent of parents, 5. consent of grandparents, 5. putative, what, 36. action for nullity of, when lies, 25. liabilities resulting therefrom, 73. its effects on property under a contract, 81. in absence of contract, 100. contracts of, 81. regime of, how affected by change of domicile, 107. how dissolved, 121. MAEEIED WOMEN, English legislation in regard to property of, 75, 77. disabilities of, in French law, 75. nationality lost by, 115. tight of dower and inheritance, 118. t2 276 GENERAL INDEX. MATEEIAL INJURIES, as ground for divorce, what amount to, 123. MATEIMONIAL DOMIOILE, whether determinant of property rela- tions, 111. MINISTEE OF JUSTICE, authorizes certificats de coutume, 63. M1NI8TEBE PUBLIC, nature of office, 26, 167. cases in which he may move to annul marriage, 26. in divorce proceedings may move for orders as to custody of children, 127, 131. MINISTEEIAL OIEOULAE, 14th March, 1831, as to publication of marriage of aliens, 17, 59, 159. 31st March, 1812, as to acte de notoriStS produced by alien, 59. MUEDEE, of wife and paramour by husband an excusable crime, 122. not so of husband and concubine by wife, 122. NAME, divorced wife must, ipso facto, resume her maiden name, 130. but in case of separation requires an order of Court, 133. NATIONAIITT, effect of marriage on, 115. recovery of French nationality by French widow, 117. NATURAL OHILDEEN, consent to marriage of, 7. bom of putative marriage, whether legitimate, 53. NECESSAEIES, doctrine of, how far prevailing in French law, 99. NEW TOEK, decision as to marriage regime, 110. NOTICE of marriage contract to third parties, 99. OFFIOIEB BE L'ETAT CIVIL, celebration by, 12. his functions explained, 145. , penalties, 11. OPPOSITIONS, nature of, 19. registrar must not disregard, 13. existence of, does not of itself invalidate the marriage, 13. who may make, 19, 20. PAPEES, requisite for celebration, 13, 14. PAEAPHEENAL PEOPEETY, of wife, distinguished from dotal pro- perty, 98. GENERAL INDEX. 277 PAEENTS, consent of, o. restriction upon rigit of disposition in contrat, 106. powers of, to prevent and delay marriage, 9. PATMIA POTESTAS, the foundation of the French law of marriage, 137. PEINE AFFLICTIVE ET INFAMANTE, sentence to, ground for diyoroe, 124. PENAL CODE, penalties for omission of ci-vil marriage, 18. PEESONALTY, possessed on marriage falls into community, 83. of wife, hushand has administration of, 85. PETITION FOE DIVOECB, procedure in regard to, 124. POSSESSION D'ETAT, explained, 168. as proof of marriage, 58. PEESUMPTION, of community in absence of contrat de mariage, 105. whether applicable to aliens depends on intention, 103. PBOCUBEUR DE LA BEPUBLIQUE, his functions explained, 26, 167. to recommend acte de notoriete for ratification, 61. authorizes certiflcats de coutv/me, 62. circular of, as to transcription of divorces, 129, PEOPEETY, how affected by marriage, 81. relations of parties, as to, governed by intention, 103. opinion of judge Davies, 110. PEOVISIONAL MEASUEES, ia divorce action, 125. court has jurisdiction for, even between aliens, 135. PUBLICATION of divorce trials an ofEence, 130. PUBLICATIONS, may be essential to validity, 51. marriage may be valid without, 12. on two successive Sundays, 13. valid for one year, 13. not required abroad for marriage of alien in France, 67. period of, 146. PUBLICITY distinguished from publications, 12. PUISSANCE PATEBNELLE, under putative marriage, 54. 278 GENERAL INDEX. PUTATIVE MAEEIAGE, nature of, 36. can marriage void ah initio be, 39. error of law does not aSect, 41, 44. bona fides sole condition, 45. ciyil effects of, 53. EEAL ESTATE, situated in France governed by French law, 76. altbougb owned by aliens, 109. purchased during marriage, falls into community, 83. of wife, husband cannot alienate without her consent, 85. EECONOILIATION, attempted by deuxieme comparution, 125. by temps d'epreuve, 128. BJEGIMU, general rules as to, 88. classification of different regimes, 89. ended by decree of divorce, 130. how affected by change of domicile, 109. REGIME BE LA GOMMUNAUTE, 82. assets of, 83. liabilities of, 83. administration of, 85. dissolution of, 85. renunciation of, by wife, 87. MEGIME BE NON-GOMMUNAUTE, 89. husband's powers over income only, 90. REGIME BE SEPARATION BE BIENS, 90. REGIME BOTAL, essentials to, 91. REGIME LEGAL BE GOMMUNAUTE, under putative marriage, 64. in absence of contrat de mariage, 100. EEGISTEAE, what corresponds to, in France, 145. penalties, 11. EEGrlSTEAE-GENEEAL, notice as to marriage of French citizens in England, 49. RELIGIOUS MAEEIAGB, must be preceded by civil marriage, 18. penalties for omission, 18. EESIDENCE, six months, for marriage, 15. separate, of wife in divorce proceedings, 125. GENEEAL INDEX. 279 SEPAEATE EESIDENCE, order for, in diyorce proceedings, 125. SEP AR AT ION BE BIENS, judicial, 132. nature of, 85. must always be pronounced by Court, 85. contractual, 87, 90, 132. SEPARATION BE CORPS, nature of, 132. involves separation de Mens, 132. grounds for, same as for divorce, 132. SEEVANTS, when competent witnesses in divorce proceedings, 128. SETTLEMENT, distinguished from contrat de mariage, 81. effect of divorce upon, 131. SEVIOES, a ground for divorce defined, 122. STATE DEPAETMENT, instruction of, as to foreign marriages, 71. correspondence, 248. STATUTE, 4 Geo. rV. 0. 91 (marriages abroad), 65. 12 & 13 Vict. c. 68 (consular marriages), 65. 33 & 34 Vict. c. 14 (Natui-alization Act), 115. 55 & 56 Vict. 0. 23 (Foreign Marriage Act), 65. STJOCESSION, rights of, imder putative marriage, 54. contrat de mariage may not change legal order of, 82. STJPPOET, of parents-in-law by children-ia-law and reciprocally, 73. French doctrine of, not enforced in United States, 74. TEAlSrSCEIPTION, of foreign marriage in France, 54. omission, consequences, 55. of decree of divorce, 128. UNITED STATES, federal law as to marriages abroad, 70. law as to status of women marrying foreigners, 116. VALIDITY OP MAEEIAGES, difference between void and voidable, 22. between French citizens abroad, 30. steps taken by British Government to secure, 49. between aliens in France, 57. VEEBAL INJUEIES, as ground for divorce, what amounts to, 123. 280 GENERAL INDEX. WIDOW, recovery of Frencli nationality by, 117. may not re-marry within ten months of death, of husband, U. rights of, under law of 9th March, 1891. ..119. importance of defining rights of, beforehand, 119. WIPE, her remedies for protection of her property, 85. Tinder sSparation de Mens has complete management, 90. adultery of, how punishable, 122. separate residence of, in divorce proceedings, 125. separee de corps, enlarged capacity of under law of 1893... 132. sSparee de corps, has legal domicile of husband, 133. LONDON : PRINTED BY 0. E. KOWOETH, 0BR4.T NEW STEEET, FETTBB LANE, B.C. October, 1895. 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By Heney Waebueton, Esq., Barrister-at-Law. [Founded on " Shirley's Leading Cases."] DemySvo. 1892. 9*. " The cases have been well selected, and an'anged. . . . We consider that it will amply repay the student or the practitioner to read both the cases and the notes." — Justice of the Peace. LEASES. — Leiy and Peck's Precedents of Leases for Years, and other Contracts of Tenancy, and Contracts relating thereto ; ■with a short Introduction and Notes. By J. M. Lelt and W. A. Peck, Esqrs., Barristers-at-Law. Royal 8vo. 1889. 10s. Sd, " Varied, well considered, and thoroughly practical." — Law Times. LEWCON.— Vide "Dictionary." LIBEL AND SLANDER.— Odgers on Libel and Slander.— A Digest of the Law of Libel and Slander : the Evidence, Procedure and Practice, both in Civil and Criminal Cases, and Precedents of Pleadings. Third Edition. By W. Blaxk Odoees, LL.D., one of Her Majesty's Counsel. {In the press.) *' The best modem book on the law of libel." — Daily Kews. LIBRARIES AND MUSEUIVIS.— Chambers' Digest of the Law relating to Public Libraries and Museums, and Literary and Scientific Institutions: with much Practical Information. SrdEdit. By Geo. F.Chambees, Esq., Barrister-at-Law. Roy. 8vo. 1889. Ss.M. LICENSING.- Lathom's Handy. Guide to the Licensing Acts for the use of Justices, their Clerks, Legal Practitioners, and Licensed Victuallers ; with Introduction. By H. W. Lathom, a Solicitor of the Supreme Court, late Clerk to the Justices of the Division and Borough of Luton. Royal 12mo. 1894. 5s. " This book is arranged in dictionary form, with especial regard to ease of reference, and thould prove an immense saving of time and labour to the large class to whom it is addressed. The mass of confusing statute and case law on this wide subject has been most ably codified." — Law Times. Leiy and Foulkes' Licensing Acts, 1828, 1869, and 1872— 1874; with Notes to the Acts, a Summary of the Law, and an Appendix of Forms. Third Edition. By J. M. Lelt and W. D. I. FoiTLKES, Esqrs., Barristers-at-Law. Roy. 12mo. 1887. 10s. 6rf. LOCAL AND MUNICIPAL GOVERNMENT.— Bazalgette and Humphreys' Law relating to County Councils.— Third Edition. By Geoeqe Htjmpheets, Esq. Royal 8vo. 1889. 7«. &d. " The most stately as regards size, and the best in point of type of all the works. There is a good introduction . . . the notes are caieful and helpful." — Solicitors^ Journal. , , «■ . Bazalgette and Humphreys' Law relatmg to Local and Muni- cipal Government. Comprising the Statutes relating to Public Health, Municipal Corporations, Highways, Burial, Gas and Water, Public Loans, Compulsory Taking of Lands, Tramways, Electric Lighting, &c., with a Table of upwards of 2,500 Cases, and fuU Index. With Addenda containing the Judicial Decisions and Legislation relating to Local and Municipal Government since 1885. By C. NoEMAH Bazaiqette and Geoeoe Hthhpheeys, Esqrs., Bar- risters-at-Law. Sup. royal 8vo. 1888. 3?. 3s. " Thoroughly comprehensive of the law on all points."— iaio Journal. "The work is one that no local ofBlcer should be without; for nothing short of a whole library of statutes, reports, and handbooks could take its place."— Municipal Beview. %* AU standard Law Works are kept w Stock, in lam calf and other imdmgs. ■ 20 STEVENS AM) SON S, LIMITED, _^__ LOCAL AND MUNICIPAL GOVERNMENT— contintied. Chambers.— n 1889, 1892, and 1893. Compiled by Feancis E. Hodoes, Solicitor of the Supreme Court, and SoUoitor of the Supreme Court of the Gold Coast Colony. Royal Svo. 1893. 15s. NISI PRIUS,— Roscoe's Digest of the Law of Evidence on the Trial of Actions at Nisi Prius,— Sixteenth Edition. By Matteiob Powell, Esq., Barrister-at-Law. 2 vols. Demy Svo. 1891. 2^. 10s. " Continues to be a vast and dosdy packed storehouse of information on practice at Nisi Prius." — Law Journal. NONCONFORMISTS.— Winslow's Law Relating to Protestant Nonconformists and their Places of Worship ; being a Legal Handbook for Nonconformists. By Reodiald Winslow, Esq., Barrister-at-Law. Post Svo. 1886. 6s. NOTARY,— Brooke's Treatise on the Office and Practice of a Notary of England.— WithafuU collection of Precedents. FifthEd. By G. F. OhambbbS, Esq., Banister-at-Law. Demy Svo. 1890. ll.ls. %• All itmdard Zmo Works are kept in Stock, in law eOf and other bindings. 22 STEVENS AliTD SONS, LIMITED, OATHS,— Stringer's Oaths and Affirmations in Great Britain and Ireland; being a Collection of Statutes, Cases, and Eorms, -with Notes and Practical Directions for the use of Commissioners for Oaths, and of all Courts of Civil Procedure and OfB.ces attached thereto. By Feanois a. Stbinqek, of the Central Office, Royal Courts of Justice, one of the Editors of the "Annual Practice." Second Edition. Crown 8vo. 1893. is. " Indispensable to all commissioners," — Solicitors^ Journal. PARISH LAW.— Chambers' Popular Summary of the Law relating to Parish Councils and Meetings, with the full text of the Local Government Act, 189i, a Code of Standing Orders, and an exhaustive Index. Second Edition. By Gr. F. Chameees, Esq., Barrister-at-Law. Iloyal8vo. 1895. Neils. 6d. Emery's Complete Guide to the Parish and District Councils Act (Local Government Act, 1894); with Eules for Elections and Polls, the Official Copy of the Act, and a very full Index. — By Gr. F. Emekt, Esq., Barrister-at-Law, Author of a "People's Guide to the Parish Councils Act. " Eoyal 8vo. 1894. 4ts. Humphreys' Parish Councils, — 'The Law relating to Parish Coun- cils, being the Local Government Act, 1894 ; with an Appendix of Statutes, together with an Introduction, Notes, and a Copious Index. Second Edition. By Geobqe Humphbets, Esq., Barrister- at-Law, Author of "The Law relating to County Councils," &o. Eoyal 8vo. 1895. 10s. "Mr. Humphreys may be said to have published an edition de luxe of the Act, •which in form, paper, and print, surpasses the others which we have seen. Hia Introduction and Notes also are done fully and with great care, and the essential work of adequate cross referencing and indexing has been done well." — Law Jour. Steer's Parish Law. Sixth Edition. By W. H. Maonahaea, Esq., Barrister-at-Law. Demy 8vo. {In preparation.) PARTNERSHIP,— Pollock's Digest of the Law of Partnership! incorporating the Partnership Act, 1890. Sixth Edition. By Sir Fbbdebiok Pollock, Bart., Barrister-at-Law. Author of "Principles of Contract," "The Law of Torts," &o. Demy 8vo. 1895. 8«. 6 Works are kept in Stock, in law calf cm4 other iindmgi. 119 & 120, CHANCEKY LANB, LONDON, W-C. 27 SALES, — Blackburn on Sales, A Treatise on the Effect of the Con- tract of Sale on the Legal Eights of Property and Possession in Goods, Wares, and Merchandise. By Lord Blaokbuen. 2nd Edit. By J. C. GrEAHAM, Esq., Barrister-at-Law. Royal 8vo. 1885. 11. Is. " "We have no hesitation in saying that the work has been edited with re- markable ability and success." — Law Quarterly Seview. SALES OF LAND, — Gierke and Humphry's Concise Treatise on the Law relating to Sales of Land. By Atjbbby St. John Cleeke, andHtroHM. Httmphet, Esqrs., Barristers-at-Law. Eoyal 8to. 1885. U. 6s. SALVAGE, — Kennedy's Treatise on the Law of Civil Salvage.— By the Hon. Sir William: E.. Kennedy, a Justice of the High Court. Royal 8to. 1891. 12». *'A learned and scholarly exposition of an important branch of maritime law." — Solicitors' Journal, " The best work on the law of salvage. It is a complete exposition of the subject, and as such is accurate and exhaustive." — Law Times. SHERIFF LAW,— Mather's Compendium of Sheriff Law, espe- cially in relation to Writs of Execution. — By Philip E. Mathee, Solicitor and Notary, formerly Under Sheriff of Newcastle-on-Tyne. Royal 8vo. 1894. 25f. " We think that this book will be of very great assistance to any persons who may fill the positions of high sherijff and under-sheriff from this time forth. We go further, for we are prepared to state our belief that the whole of the legal profession will derive great advantage from having this volume to consult." — 'Law Times. SHIPOWNERS, — Holman's Handybook for Shipowners and Masters. Third Edition. By H. Holman, Esq., Barrister-at-La-w. Royal Svo. 1892. 5s. " The work is well arranged and well written." — Law Journal. SHIPPING,— Pulling's Merchant Shipping Act, 1894,— With Intro- duction, Notes, and Index. By Alexandee PuLLiNa, Esq., Barris- ter-at-Law. Royal Svo. 1894. Net 6s. Pulling's Shipping Code; being' the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60) ; With Introduction, Notes, Tables, Rules, Orders, Eorms, and a Full Index. — By Alexaudee Pullino, Esq., Barrister- at-Law. Royal Svo. 1894. Net la. 6d. Interleaved and hound in blue leather, net lis. Temperley's Merchant Shipping Act, 1894 (57 & 58 Vict, c, 60). With an Introduction ; Notes, including all Cases decided tmder the former enactments consolidated in this Act ; a Compaxative Table of Sections of the Former and Present Acts ; an Appendix of Rules, Regulations, Forms, etc., and a. Copious Index. — By Roeeet Tempeelet, Esq., Barrister-at-Law. Royal 8vo. 1895. 25s. " There is evidence of unusual care and industry in Mr. Temperley's elaborate work, by far the most comprehensive which has yet appeared on this lengthy and important consolidating measure." — Law Times. " A fuU, complete, and moat satisfactory work."— iaio Quarterly Review, July, "The book is a monument of well-directed industry and knowledge directed to the eluddatiou of the most comprehensive and complicated Act of recent years.'* — Law Journal. SLANDER,— Odgers.— r»(f« " Libel and Slander." SOLICITORS,— Cordery's Law relating to Solicitors of the Supreme Court of Judicature, With an Appendix of Statutes and Rules, and Notes on Appointments open to Solicitors, and the Bight to Admission to the Colonies. Second Edition. By A. Coedbet, Esq., Barrister-at-Law. Demy Svo. 1888. 16s. Turner. — Vide "Conveyancing" and "Vendors and Purchasers." %* All standard law Works are kept in Stock, in law calf and other bindings. 28 STEVENS AND SONS, LIMITED, SPECIFIC PERFORMANCE.— Fry's Treatise on the Specific Performance of Contracts. By tlie Right Hou. Sir Edwarti!Fsy. Third Edition. By the Author and E. PoETeMOUTH Ebt, Esq., Barrister-at-Law. Royal 8vo. 1892. 11. 16s. " The standai'd work on Specific Performance." — Law Gazette. STAIVIP ACTS.— Higlimore's Stamp Act, 1891, and tlie Stamp Duties IVIanagement Act, 1 891 . With an Introduction and Notes, and a copious Index. By Nathaktel Joseph HiaHMOEE, Esq., Barrister-at-Law, Assistant-Solieitor of the Inland Revenue. Demy 8vo. 1891. bs, " A useful gruide to those who desire to understand the present state of the stamp laws." — Law Journal. STATE TRIALS.— Wiliis-Bund's Selection of State -Trials.- By J. W. WrLLis-BuHD, M.A., LL.B., Barrister-at-La-w, Professor of Constitutional Law and History, University College, London. Cr. 8vo. Vols. I. and II. In 3 Parts. Vol. I., 1879. Vol. II., 1882. (Originally pubHshed at 46i.) 30*. STATUTE LAW.— Wllberforce on Statute Law. The Principles which govern the Construction and Operation of Statutes. By E. WiLBERFOEOE, Esq., Barrister- at-Law. 1881. 18s. STATUTES, and vide " Acts of Parliament." Chitty's Statutes.— New Edition.— The Statutes of Practical Utility, from the earliest times to 1894 inclusive. Arranged in Alpha- betical and Chronological Order ; with Notes and complete Index. Fifth Edition. By J. M. Lelt, Esq., Barrister-at-Law. Royal 8vo. /« 13 Volumes. Vols. I. to XII. : Act of Parliament to Working Classes. 1894-1895. (Now ready.) Fer Voliune, 11. Is. *„* The Index volume completing the work will be ready in November. " It is needless to enlarge on the value of ' Chitty's Statutes ' to both the Bar and to Solicitors, for it is attested by the experience of many years."— 2%e Times. The " AN NOTATE D ACTS."— An Edition of the Leading Statutes of the Tear. With Explanatory Introduction, Notes, and full Index. Already Published : — The Local Government Act, 1894 (Parish and District Councils), 56 & 57 Vict. c. 73, with Introduction, Notes, and Index. By J. M. Lelt and W. E. Cbaibs, Esqrs., Barristers-at-Law. (Out of Frint.) The Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), with Introduc- tion, Notes, and Index. — By J. M. Lelt and W. E. Ceaies. Net Is. The Finance Act, 1894 (57 & 58 Vict. c. 30) ; with Notes and Index, and an Introduction specially directed to the Death Duties as affected by the Act. — By J. M. Lelt and W. E. Cbaiks. Net Is. The Copyhold Act, 1894 (57 & 58 Vict. c. 46) ; with a short Intro- duction, Notes, and Index. — By W. A. Peoe, Esq., Barrister-at- Law. Net Is. 6d. The Merchant Shipping Act, 1894 (57 & 58 Viot. o. 60); with Introduction, Notes, and Index. — ^By Alexandeb Pxtlling, Esq.," Barrister-at-Law. Net 6». The BuildingSocieties Act, 1894 (57 & 58 Viot. 0.47); with Intro- duction and Index. — ^By W. E. Ceaies, Esq., Barrister-at-Law. Net Is. The London Building Act, 1894(57 & 58 Viot. o. ccxiii); with Introduction, Notes and Index. By W. E. OEAiBa, Esq., Barrister- at-Law. Net Zs: * • All standard Lme Works are kept in Stock, in law calf and other bindings. 119 & 120, OHA.NOERY LANE, LONDON, "W.O. 29 SUMMARY CONVICTIONS.— Paley's Law and Practice of Sum- mary Convictions under the Summary Jurisdiction Acts, 1848 — ^1884j including Proceedings Preliminary and Subse- quent to Convictions, and the Responsibility of Convicting Magistrates and their Officers, with the Summary Jurisdic- tion Rules, 1886, and Forms.— Seventh Edition. By W. H. Macnamara, Esq., Barrister-at-La-w. Demy 8vo. 1892. 24s. Wigram. — Vide "Justice of tte Peace." TAXPAYERS' GUIDES.— ri