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PHILIPPINE LAW JOURNAL

AN A .CT BSTUUSBlNG DIVOIlClt.A .C T N . U ti

BT~.1QQ AN~ B.A., LL.B.

(CantiR'lM4/'t t1m Morek num6er)

COMPARATIVE S'l'UllY OF DIVORCE LA.WOF DlFFERlt~Nl' COUNTlU~

(0) Fruee

0.) ~

(4') J~(el) Vllited StateR

(s) Swi~d

(j) Philip

Havins in !DiDdthe ~ of the lNbject and the idea that it would be very

lwd,if notimpoll8ibl~ to ~ aUthe laWi on the subject in minute detail in a work

of this kind, I 8 b a u ~ m~1f iD,~ng thl! Pftl8eDttopic to the making of comparative etlldy of the l>ivorce Law of Franco, Germany, Japan, America,

Switaerland and the Philippines.My endeavor will be to contrast cme law with another and make comparisoDS

among them, notwithstlloDdinctheir difterenees of CUStomll,orientations and ge0-

graphical positions. From this eomparative study of divorce IllW of these countries,

we can erect new laws of our own that are more eonvenient and adaptable to the

Philippines. m the study of the divorce law of America, it will not be diseUSlledtheprovieions in force in each State, but the writer will confine to the caUS611as recom-

mended by the commissioners on Uniform Laws to be adopted by ('A)ngreKIlfor the

whole Union.

As far as the definiticmof absolute divorce is cont'ernt'ti, all the above mentioned

nations are in accord in the definition of the 8ame: "Divort.ium a vinculo ml1tri-

monii is the dis$olution of the JDaI'ria,gebone!."

Adultery of both spouses is regarded as legitimate cause for divorce in Germany,

France, Switzerland, America and the Philippines. But such provision is not fol-

lowed in Japan wherein only the adulteYyof the wife is punished, basing their refuslIl

on the fact that for physical and social considerations the hUllbandshould be ~vengreater freedom of action on the ground that the consequences of a man breaking his

marriae vows are far less harmful and far reaching. The husband is not the chilli

bearer, and his lapae from virtue does not so seriously' affect.the status of the family

while the wife's sin actually destroys it.

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.tRoth . iimiiaritY' whieh we flndtn all these CfOttnttlell, eXcept in'tbll Philippines

for under our law there is but one cause, are cnlelty, harshness, grave insults and iIl-

\rea.!ments, although each country hAs fiXeda different degree of cruelty infticteet tojustify a decree.

America,,-I&J?,a,~wn)jllJld; Sw,itzel'land, ,admit ,the rea.'jOnableness of wil-

full desertion as a legitimate ~~ :for, d\vor~"alt~ough some of them require the

continuance of the abandonment for a certain period fiXed by Statute wh.ile others

do not so require, but the mere fact' of a wilful and unjustifiable ahandonme~t is a

sufficient cause.

incurable menful and contagious diseases are regarded O s causes f6r' divorce in

America, Germany and Switzerland, while France and Japan are silent on this

matter; but on the other hand .Japan and America, unlike f'xermany, Swit.zerland

and France, recognize bigamy of either spouse as a ground of divorce.

Another similarity in the provisions of the American, French and Japanese

codes, is that imprisonment for a certain period is aground of divorce, although they

differ in the duration of the imprisonment and the causes giving rise to imprisonment.

Gekany and Switzerland make no provision on the matter for the reason perhaps

that when both parties' contracted the marriage relation, they intended to live to-

gether and never to separate, except, if for certain reasons which might happen during

the marriage the conjugal community become unendurable and no possible restora-

tion of such community is expected. Imprisonment for two years does not neces-

sarily, destroy nor poison the sweetness of the conjugal community, but it deprives

only one of the. spouses of the services and companionsh.ip of the other spouse for

a very litnited period of time. Besides, it is the basis of divorce proceedings to sepa-

rate the spouses w~enever the crime is committed against the other, but the imprison-

ment of one of the spouse is not an offense against the other, but it is rather against

the victitn.

Besides these causes enumerated above, Japan recognizes three more grounds'such as divorce' by mloltal consent, or when for a period of not less than 3 years, it

has been uncertain whether the spouses are alive or dead; or when in case of a "muka-

yosh.i" the adoption is dissolved, or in case of an adopted son married to a daughter

of the house, the adoption is dissolved or annulled; These other causes are not ree-. 'ognized in the other above mentioned countries, except in Switzerland where

divorce by mutual consent is recognized.

Predicated therefore upon th~ provisions of law on the subject of each and .evefY.

one of the above mentioned nations, the question which now presents 'itself, is the

advis8.bility of moulding our laws on the subject according to their Jaws.

Every principle of law has to be chosen and adopted with great care and h.igh

regards must be had before accepting any new borrowed principle of law to our own

customs and traditions.

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AA to the ad\tiMbi1ity 6l~ti_ O\B' lAw With the flowo f the Anglo -

Saxon prillclplel, the Il.llthor would much ~ to lee thfa oountry serving an ap-preI lttOOllhip, making het own IlI.wamoulded ~ to her proper orientations,

tather than UIBlmilll.ting the IIl.W8,Cl1Storfil!l and ttdittona of foreign countriell.

18 THERE A RELATIVE DIVORCE 11 ' 1'Im PRESEN1' TIMJ!;?IF SO, sHOUtD 1'1' lUl: UI!:1'AINEt>?

lWatl\te divorce is the partial.lllillpetUlion by law of the Inll.l'ria.tcerela.tion. It.

is Il.iIep&l'Il.tionIImensa ct tlwro (from. bed and hoard), (Bouvier's Dict.ioftllry). Be-

tore the enactment of A(lt. 2710, there were provi8ions of IIl.WHrtlglLl"llingrelative

divorce. Our Civil Code provides that divorce only produces the sll!IPCnsion of the

common life of the ~UlleIl(tbl.. l(4),lI.n IHiele ~ken from thol1COOnd part of

~ . ~ o f ,the.Law of 1870. 1')1e !llI.tl\IJd()(~trine is CIItn.bli8hed hy thl) Coundl ofrrent in. the 24th se8l!ion, mnon 8th. This liIJ(:tioll,however, of the Civil COOI\ hIlS

.~ ~ded In 1889, December ~, by It.decree of the t{JlIth. Governor of the

Philippines; St. Weyler, hi.(lOmplinnr.e WiUl t.he instrul:t.ion reccivl-'1l Crmu the.Gov-

e~nt of Madrid t.o the eft'cet of .su~}(lIldiDg IiCCtions42 to 107 and aU to aa2 ofthe.Civii Code, 01' rather t,it.hll'l. and 12 , hl!lI)CCt,ively,of Hook1of the Civil CIIUI!.

~n the catle of ~ la RamA 113.IlI1la l~lna, :J Phil. Hep., a4, it WWoldocidt-'11that titles

4 :and 12 of Book Iof the Civil Code, whil!h tl't',t\t. rtJ1oIpoot,ivelyof ml\rriog

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.laws beyond what is necessary to effect the lIpecifi.cpurpose aftbe act in question.

There are two theories so to lI&yin the way of interpreting the effect of & I&te lIta.t~te

on the old statutes. lJl a late decision by the Judge of Court of First lnlItance for

the City of Manila, Hon. Avance6a., the second theory has been applied and the

reason of his decision was more or less the lack of any provision in the new divorcelaw abolishing or contradictiJlg the provision of the old one.

Besides, we would not be reasonless to say that a relative divorce exists and it

is provided in the new law. Par. 2 of Sec. 9 laysit to be the law that, if the spouses

fail within one year to deliver the legitime of their children, the bonds of matrimony

shall not be considered as dissolved as to th~. The law puts the delivery of the

property as a condition precedent to the dissolution of the bonds of marriage, but

this condition lasts only a year, and after that year the opportunity to comply with

it is lost. "The bonds of matrimony," says the law, "shall not be considered as dis-

solved with regard to the spouses who has not delivered the proPerty with.-

in the said period of one year." It is true that the period stated is not presCripti'~e,

but it is neither a condition precedent simply. It is a -condition precedent with cer-

tain fixed period within which the delivery should be made if the spouse wishes to

have the bonds of matrimony dissolved. In such case, the separation of property

has already been adjudged, the bodily separation effected, but that the bonds of

matrimony still exiRt. This is a relative divorce, or at least it has the effect of a rela-

tive divorce.

Paragraph 1 of the same section 9 seems to allow the existence of a relative

divo!ce between the spouses, such divorce to last for the period of one year. "The

decree of property as soon as such decree becomes final, but shall not dissollJ6U te bonds

oj matri1ntmy until one year therea,fter:therefore, before the one year period has elapsed,

the spouses are separated bodily or from bed and hoard, which is equivalent to a

relative divorce.Changing the course o[ the reasoning an argu,ment against this theory wttuld

be based on par. 1 of sec. 9. It reads as follows: "The decree '1 > divorce shall dis-

solve the community of property as soon as such decree is final, but shaU not dissolve

the bonds of matri1ntmy until one year therea,fter." According to this legal provision,

the divorce is absolute after a year has elapsed from the rendition of the judgment;

8O.this law holds that the effect of divorce is absolute. The former law holds that

the effect. of divorce is only a legal separation of the spouses. Thus, the contradic-

tion is patent and the repeal of the former one is the unavoidable consequence of the

enactment of other.

In view of this argument. and with due respect to the opinion of Judge Avan-

cella, I do not believe that it is dangerous to l!ffirm that no relative divorce eJrlstsin

the Philippines !lotthe present time.

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TI\e lJOuM forelative diVON't,1IP'Cihd. by the Sietc Parti... waa adulty

only. n.pwtdof au abeoIu.tedi~"" adultery. Thepo-existenee oftUtwo, theD,. iJQpossible. Thee~d.~ 01the oneJe p ea !1 I the exiatenooof the other.

Nothinl Callbe_ct not he at tho llaIlJ8tUne. If the contention of a claimant isu

absolute divorce, the ground is adultory. Cau a ellUmon divorce on the gro\lad of

adul~ be granted by our jlOurts by only decreeing a relative divorce? I do not

th~ thoy have, 000a,* the new law only recognizes divorce in its absolute sense.

The ground of adultery is the only ground the law saY'!,t.hullooverln,; prnctieeJly

the pound for relative divQl'C8.

SH OU LD T HE P RO VISIO N m 'T HI": O LD L AW m: Rl

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forum; which law should govern? To this question there are various.theories ad-

vocated; some holding that the law of the place where the offenseis committ.ed should

prevail; others are in favor of the law of the domicil of the parties at the time the

offense was committed; and others in favor of the law o( the parties, domicil at the

time the divorce is sought.

The civil law theory is that the right to dissolve the marriage contract depends

upon the law of the place where the contract was entered into, .because th4ildivor~

alters not only the condition and capacity of the spouSes but also the status, and for

this reason it is but natural that the law which give rise to the status should have

exclu.'Jive control over it in its dissolut,ioll. (Fiori, Tratado de Darecho Interna-

cional Privado, vol. 3, p 43 et seq.)

But upon principles it would seem clear that the question whether or not a par_

ticular act or omission is a w-ound for divorce, should be determined by the munici.-

pal law. of the divorce forum. Hunt V8. Hunt, 72 N. Y., 217; People V8. Qarw:ell,

25 Mich., 247; 12 Am. Rep., p. 260; Shreck V8. Shreck 32 Tex., 578; 5 Am. Rep.,

251; Hood V8. Hood, 11 Allen (Mass.) 196; 87 Am. Dec. 709.

This commonly accepted principle is ba.'Jedupon the lawful exercise of the sov-

ereign power of a state, whose control over inhabitants within its territory is absolute

~nd a lawful exercise of its police jurisdiction.But if the object of the suit is not to dissolve the marriage status, but to pro-

nounce the union invalid ab-initio for causes rendering the contract void, the law

Ilopplicableis the lex celebrationis of the marriage contract.

The serious-difficulty which confro~ts us lies as to the effect to be given in another

State of a judgment lawfully rendered in another St,ate.

,"It is a fact that not all the countries recognize and admit the absolute divorce.

Andso the difficult,y arises when the quest.ion is between two parties domiciled or

married in a country where no such l!\w is in force, who transferred afterwards in

another country where such law prevails, or vice-versa, and their petition for the

dissolution. In this case, since there will be a conflict of right and interest when

they return to their country where divorce is not allowed, it is the best pOlicy for

the court taking cognizance of the case to adopt an' attitude which would protect

the interest of bothJparties, either in the place where the party intended to have the

bond dissolved as well as in their own country. Of course, the courts of the country

where the parties sought to have protection can declare th~mselves incompetent totake cognizance of the case; but, if they prefer U>exercise jurisdiction over the case

and the parties to t,he suit are those above described, the best policy for the court

is to grant only the legal separation!according to the law of the parties, regardless

of the lex fori. This policy of the court is salutary, because it does not prejudice

in' any manner the rights and interests of the parties, and on the contrary it protects

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-d1e plII'IJies DOt eu1Y widtia 68 ~ of Ute ~ courts, bat ahJo witAia theirGWIl.4lOuntry ia eMe t1ley ....,... (M atiM lo d e Joy&, Dereeho IrlterDaeioaa.I~).

But when tM que!ltioD is betneD wea t - . - where abtlol.te divorce prevaiII,the difficulty disappears and quest iOn wDich OO1Iifroats WI to detiemlilte is the elhct

to be given toa foreign judgment.

The fourteenth amendment to the federal OODstitlltio& provides that "I'l() StAte

shall deprive any person of life, liberty or property, without due PIOOeII8of law", that

is, without notice an4 reasonable oppol'tunity to be beard in his OW1\ beho.lf. If

there has been no such due proooss of law as is demanded under the feden\t C01ll!ltitU

't.ion, the { ' .A>urt , is without jurilldict.ion tmd its decree absolutely void within the

limits of its own State as well a.~elsewhere. And if the defendant resides outside of

the jurisdiction of the Court wherein t,lle act,ion iR pendillK, II.serviee of notiCll by a

'general publication of the fact that a sui' has been instituted a~nin8t him, unlesll

the defendant voluntarily,appears, will not~ive the f'..A>Urtjurisdiction over bis pf!l'IlOn,

and alt.hough the judgment is valid where renden..-d, yet in general will be regarded

as void and of no effect outside the jurisdiction where it is rendered. A H it WI\Il held

in the leading ('.ageof Pennoyer 118.Neff, 95 U. S., 714, It personal jud~lnent relldered

against a non-resident defendant, in put"Sua.nce to a l'lel"Viccof DOUet'by a general pub-

lication, was beyond the Court's jurisdiction to bind the defendant; and that, a sta-tuteauthorizing such a COUl'I!lecontravened the fcderalconstitution. Tilt, laws of

DneState have no binding effect and force beyond it.s territorial jUriKtlictioll, IloIld

therefore the procedure followed in this case to subjoct the nun-resident defendan t

to the jurisdiction of the Court, did not bind him in so far that t,he judl{rrlPnj; wall

intended to be binding heyond its territorial Iimitll.

However, in order that the judgment of a liilitA:,rl'!f.ate may he J(iven lltl'eet in

another State of the Union, it is neOOHSarythlLt the defendant lJe pllrHOnally HCrved

with notice of the action within the territorial limits of tho Court'R jurilldil\tion, or

that he voluntarily appears allowing the Court to acquire jurisdiction over hislllll'llOn.

As between the States of the Union, the comity enjoined by private international

law, touching the effect to be given to fore~n judgment is reinforced and supple-

mented by the clause in the federal constitution providing that "full faith and credit

shall be given each State to the judicial proceedinRli of (.'Very oUlor State", hilt thil!l

constitutional privilege is subject t.o the limitation that t,he COllrt pronouncinp; the

judgment must have jurisdiction over the ca.~ and [Ierson of the partill!!. And

when an action is brought in one of the States of the Union to enforce a judtlment

rendered in another, in general only such defenses Cllollbe m~e thereto, as I.'ould he

made in the State where it was rendered. The defell!lCllthat a defendant may show

to defeat the validit,y of the judgment are the lack of jurisdiction of the Court. which

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proDOUIlOild the judgment over the subject~'ter over ~ person of the ~.

:s.ns ...Haidemaa, 14 . 118.Fore, 142 N. Y., 90.

However, although it is within the sovereign capacity of a State to enact laws

whereby parties may obtain a divorce even when neither husband nor wife is there

domiciled, yet, such a course is (',ondemned by the principles of comity and Private

International Law. The consent of the partieS cannot give jurisdiction over their

foreign status, for that would be to infringe the sovereignty of the State of domicil

which is interested in the continuation of the relation. Jackson 118.Jackson, 1 N.Y., 424; Harrisonv8. Harrison, 20 Ala., 129; Smith V8. Smith, 13 Gray (Mass.) 209.

These general principles of International Law are now so clearly recognized that

municipal laws invariably require that for the granting of a divorce, the parties

should be domiciled within the jurisdiction. Williamson 118.Parison, 1 N. Y., 389;

Hoffman 118.Hoffman, 46 N. Y., 30; Sure 118.I.uidsfelt, 19 I... R. A., ins.

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"fb.e question to be 4PermQled ie ..mettler- the Cowtll'aPtiDg the divorce

uwlIt have iJueh 00IQP1ete ju.risdiotioa of the eotiN rei uto justify the other 8tUee

iaadmit~ it6l1Overeip riaht to OODlPletelyregulate or dillOlve tie marital.D.

Be,oDd doubt, when the Court bas abllOlute and complete jurisdiction of the rei,

that is, if both parties are domiciled within it6 juri8diction, decrees rendered underthese chcumstancee will be Ilven full dect everywhere, becaUlle there ill no poIlIIible

.grou,nd for any o~ State to complain that it6 lIOVereip right6 over it6 own citizellil

have been violated. Clark N. Clark, 8 CUBh. (Mass.,) 380; Barber liB. Root, 10

MU8., 260; Hood w. Hood, 87 Am. 000. 709; HarrillOn N. HarrillOn, 20 Ala., 629.

On the other hand, if neither of the parties are domiciled in the State where

the divorce is obtained, it6 (101111;s are completely without jurisdiction over t,he res,

aad other State might and WQuld just.ly complain that the State granting the divoroo

had usurped lIOvereignty that it should not have exercised. And coDBequently de-

crees rendered under these circwnstanoo, th"ugb its validity may be admitted within

the divorcing State, yet, no exterritofi!l.1 effect can be given to it in foreign countriell.

Janover N. Turner, 14 Mass., 127; Kerr lIB. Kerr, 41 N. Y., 272; Neff liB. Beohman,

74 Ja., 92; Shanon lIB. Shanon, 4 Allen (M~'lIl), 134.

But a different qUCf'ltionpreaents where one of the partillll is domiciled in t,he

State granting the divorce, while the other is domiciled ell!eWhere. In thill cue, the

divorce court has only jurilldiction over part of the rei, and dOCIIthe taking cog-

nizance of the calle mean a ullUrpation of the soverei~ty of another State over its

citizeDII?

The marriage status ill a reciprocal one and therefore ItdoonlC of divorce must

in any Atate 'be valid as to both consort or void as to both. It cannot be valid all to

one and void 88 to the other, for that would be to affirm that there might be a husband

without a wife or vice-veraa. So that the Court must do one or the other, it must

exercise jurisdiction' over the whole or over none.

These queatioDII have agitated the Courts and many theoriell have from time to

tame been advanced by the Courts, but all of which have now been difll',s,rded, ex-

cept three leading oneil.

FirBt T1Ieory.-Acoording to the firIIt theory, it is only essential that one of the

partiee should be domiciled in the State granting the divorce, it if! immaterial which

party though It will usually be the plaintiff. The Courts of the party's domicile

having jurisdiction over his or her status will draw to themselves, by re880n of mu-tuality of the marriage relation, jurisdiction over the other party. And the service

of proOOBsin this C88C can be made by publicat.ion. This theory presents a great in-

convenienee because. it oftentimee permits grave injUlltice to be aone to the defendant

who frequently finds himllelf or hel'llelf divorced without any previous know1edp

whatever that proceedings for that purpose were pending.

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Second Theory.-In this !!OOOndt~eory the personal element preponderates and

causes a proceeding wh9se purpose is to dissOlve a status to be regarded in the light

of a proceeding ill penionam rather thana proceeding in rem. . The N ewYork Courts

hold that no foreign ,divorce in a State where the plaintiff alone is domiciled will be

valid exterritorially, unless the defendant voluntarily appears oris personally served

with process within the territorial jurisdiction of the divorce Court.

This theory offers a great inconvenience, for it practically frcesthe plaintiff

who desires a divorce at the very least to seek put the defendant, and one in the

State selected hy the latter, for the very reason perhaps that its laws are more hostile

to the plaintiff than his or her own; and. since the munici~llaws of most States re-

quire that the pl&intiff be domiciled in the States where he seekS a divorce~ this theory

would often compel him to abandon his own State altogether and take up his per-

manent residence in the domicil of the defendant, or else forego his right to a divorce

entirely.

Third Theory.-The third theory does not require the plaintiff to go to the

State of the defendant and subject himself.to its laws in order to obtain hi~ divorce,

but he. is permitted to get the full benefit of the divorce law of his own State; but a

general publication, as is advocated by the first theory, is not sufficieJlt. The notifica-

tion required here to give the Court jurisdiction over the person of the non-resident

defendant is that he should be given the best notice practicable of the pendency of

the suit, or by mail, message or actual service of notice, a,nd not by advertisement

merely.

This theory adopted by the Courts of New Jersey is the best in point of reason,

principle and juStice to all parties, combining as it does the advantages of both and

the other theories and minimizing the disadvantages of both. According to this

theory, the personal element entering into a divorce suit is neither disregarded t~

the extent of making the divorce a proceeding in rem, nor so magnified as to make

it a proceeding in personam, but is regarded as a proceeding quasi in rem.

SHOULD THE GROUNDS FOR DIVORCE BE INCREASED?

AND IF SO, WHAT NEW GROUNDS SHOULD BE ADOPTED?

The very nature' of marriage, its purposes, its effects upon the persons immedi-

ately concerned, its effe~ts upon the well-being of the soCiety, and lastly the influ-

enQe which it plays in the very existence of the State. These are some of the forces

which compelled the government of all civilized nations to adopt a policy to regulate

marriage; they encourage marriages; they provide protections and privileges and other

means necessary for its continued existence during the natural lives of the consorts;

they safeguard the welfare of the spouses from impurity and immorality, secures

them the blessings of home and family and creates a noble nursery for the commOn-

wearth. It is the policy of the government to maintain the existence of marriage

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nilati0D8 so long 88 :it is eon8iet.ent With peace &ad welfare of the cpmmunity. It

protects ~ family from diatUl'banoea coming from bttwde. When the caW18of the

disturbance to the peace and lwmony of the family. ariIea within the family itilelf;

when luch trouble is caused by the very membenl of the family; when it is beyond the

power of the government to uppress such disturbance without altering the orglLDisa-tion of the family, then the government provides for a me&D8whereby the marri&Ke

bond may be dissolved. ThUll, the authOr of the trouble iselimirtatl.

From the above consideration, it may be concluded that the fundamental'ou-

ject of the divorce law, in so far &8it permits the separation of t'he SPOU868is to dis.,

solve the nui.rriage bond when it; is found in such a condition that the "pOU868call

no longer endure living such a union; when life to them has become unsupportable

under the circumstances.

Keeping in view this fundamental object of the divorce law, we flhall proceed

to consider the justification of adultery M I' ground for divorce.

The essential feature in the marriage relation is the affection. The ceremonials

obeerved in thesolemnisation of marriage are nothing but legal fonnalities pref!cribed

for leason8 of public policy, &8safeguards to good order and good morals. But once

the marriageoontract is consUInated, there spring mutual ril(hts and duties, the

faithful observance of which is indispensable to the accomplishment of marriage's

human and divine miSsions. Theile tights and obligationI'! are of social and moralnature and a violation of the SlLmecrl',af,es a dllltllrbanf',(J in the orlCanization of the.

family and disorder in the community.

I believe that the true ground of justification for adultery WI a CUUMO for divoree

is the non-observance of fidelity on the part of the offender, which both IlflOU8CII,

when they intended to unite for life, ROlemnly swore to keep mutual faithfulness

toward each other. This lack of fidelity on the part nf nne of t,hc spollRe8ereates

trouble in the family and its effeetR go direcUy to the very foundation of marrin.ge.

When distrust will exist between the SpOUSCR,the ceinfidential relatinn is reduced to

its minimum, and there is danger of bring Rt,rangers int.o t.he family. The offender

will not devote as much time and energy to his family a.'!he would boo he remained

faithful, btJcause his attention is now divided; and lastly, t.here is the oon!lideration

that in the eyes of the public the husband is diRhonored. WhP.ll one of t.ho HpoUseS

commits adultery, the conyugal (,'Ommunit.y which heforo was the sanetuary of lov6

and affections has become the amphitheater of temptable immorality, the stute of the

most abominable crime against IOnrriage and the forever Rilcnt witnCSRof the dis-grace of the offended party. Under these circumstances, it is said that marriage ~

lation is unbearable and that it beL'Omesa burden in life instead of being the liOurce

of happiness. In this case divorce then is the proper means to' remedy the condition

in order to bring the spouses to normal happineRR hy ~ivinJ/; them an opport,unity fA )

find a condit.ion where happinCllS may he found.

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lf1fbat hujust been said of adultery is true, shall the family remain UDdisturb-

ell in U. 1lal'm000Yand pea.ee,' if none of thelpOUSell commit adultery? Oul' ob8erva-

tM. iillti lmutecl sphere shows 1Uithat sUch a Condition CllmlOt alWayS b e attained.'me fabric of which hWnan society is made up is so intricate and perfIexing tba.t

mairiItp rel&tioJl .cannot be secured from the infinite number of misfortunes. '.To

eite lID instance; if a husband, without committing adultery, wilfully and without

cause, abandoDS his family and children' without leaving any life provision whatso-

ever for his wife and children, will the family remain ill peace? Shall the law close

ite eyes and its ea.:s completely ~ the bitter cries and ini'serable situation of the

'-i1y? There is no one to support; no one to p~tect the membe1'8 of the family.

_ what is WOl'8e,the natural object of ma.rriage can no longer be accomplished.

Desertion is no less an offense than adultery with respect to the marriage relation,

While in desertion the suffering inflicted is moral &8 well as material injury. H suchgaIuy of unhappy circumstances will loom out in the sacred sanctuary of marital

aftection,it is beyond peradventure of doubt that that poor helpless wife will seek

refuge in the heaven of carna.t profession in order to maintain the union of her body

and soul together and also those of her children. In view of these reasons, we shall

naturally include desertion as one of those causes with thoIle wise limitations which

aie necessary to prevent abuses and miscarriage of justice. Desertion is rooog-

ilized as ground for divorce in England, United States, Germany (Art. 1567), Vene-

mala (Art. 152 pro 2), Porto Rico (Art. 164 pro 5), Italy (Art. 148), Guatemala (Art.

170 pro 8) and Japan (Art. 813 pro 6).

Cruelty inflicted bY'one spouse to another should also be one of the grounds for

divorce with certain carefully defined limitations. Some of these limitations are that

such cruelty must be such as being intolerable, barbarous, savage or inhUIDB;nacts.

Or, according to Connecticutt statute, such cruelty must be such as to cause "da.Qger

to life, limb or health", or such as to make the conyugal community undurable.The apprehended harm must be bodily, including detriment to health, but not mere

mental suffering, because the court has 'no scale of sensibilities by which it can' gauge

the quantum injury done and felt. This rule rests not strictly on j\!.8tice, but on the

difficulty of making proof. But mere rudeness of language, petulance of mannel'8,

austerity of temper, or an occasional sally of temper which does not injure or threaten

to injure the hcalth or body of the complaining party, does not constitute cruelty

within this law. The justification of cruelty as ground for divorce rests on the vin-

dication of the weaker (Usually the wife). The wrong done to the wife in this partic-

ular case may be actually greater than when the husband commits adultery.

On the other hand since love and affection is deemed the foundation, corner-

stone and unit of the social order, once that such natural love has disappeared, does

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it ootfollow "that it is improper, Wljuat aDd immoral to force man 8oI1d woman to

continue to live topther as huabaad and wife while Ion has been destroyed by cruel

ty aDd betrayal?

Cruelty 8!J groundo fdivorce is recopised in all States of the Union, except in two

or three. .It is also MOOgniJ.edin Japan (art. 813 pro5), Guatemala (Art. 170"pro3).U1'11p&y(Art. 148,)Porto Rico (Art.1Mpr. 4), Italy (Art. 148), VenelUela (Art. 152

pro2), Spain (Art. 1~ pro2), Germany (Art. 1568)and Fiance (Art. 231).

The third ground which I believe ought to be included as a ground of divorce

is where one of the spouses is sutlering ablolute, perpetual and incurable impotency,

occurring after marriage. Impotency used in this caae means the total loss or des--

truction of the sexual organ, 80that copulation is absolutely impossible. .It is need

less to state that the principal and immediate object of marriage is reproduction.

I see no reason, no valid reason why the marriage relation be still maintained against

the will of one of the spouses when there is absolute certainty of the impossibility of

realizing the very object of marriage.

The fourth ground which I recommend is where one spouse has attempted

against the life of the other spouse.

The justification of this ground is even more apparent than in adultery, d~

sertion and cruelty. In cruelty, the body of the offended party is injured; in the one

under consideration the very life of the offended is exposed to destruction. Thisground of divorce is recognized in Germany (Art. 1566, Uruguay (Art. 148), and

Guatema1a (Art. 170).

EFFECT OF DIVORCE LA\VB IN DIFFERENT COUNTRU;B

(a) Advantages:

It is precisely under the system of matrimonial indissolubility that crime is re

warded and innocence punished; for them the unpreposscssed and reckless husband

can live in adultery outside of his house and demands however that this wife, faith-ful and submissive, should continue living with him under the s&IDeroof and tolerat-

ing his incontinence protected by'law. The only thing to be attained from this

system in the prostitution of the sanctity of the home, protection of vice and punish-

ment of innocence, without avoiding the unfaithful spouse from committing the

crime.

It is an undeniable fact that wherever the matrimonial institution exist, there

are disagreeable marriages which only recognize hatredness and the home llOnvcrted

into a birth place of immorality and unfaithfulness.

In these cases when by the fault of one of the spouses the tiCllof marriage have

been lossened and the conditions imposed by the illlltitution cannot be fulfillClI,it

is an immorality, a tyranny t o compel one of the spouses to remain perpetually andindissolubly subjected under the yoke of the guilty spouse.

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To theeeuaforiunate marriages whieh canno loqer fiodJiappiness inth~ union

eo.tract.eelbut ~rtune and shlime, the balilam is apPliCable,and not to the havPY

Dia!riBge8thatb~the in an environment saturated with happiness.

QUi ,,~perclianee kJokupon with good eyes when 6tii' dall~telil haviIig ootltract-

eel ~:in searett of l$ppinell8, do not find; however, butlltueltiell, ihsult8 &b.dvtIiAtiOnlJ.fihm the. man of whofii.theypfllclse1y a~ait hapVbiell8,protection. and

esteem? Thai worillin is forever iJ1i8etableand dead for kindrtese, beMuse she' has

DO miledy to free her OPP lilsBOt. .It is vet;' unJust thBt love bA'Ving disapPeared~ween t w i : > beings who onoo loved each otbet and haviDg OOenCOrivertedinto an

illto1erableliUtferingthe cOnyugafbed thai was IItime a ileSt of fragrant ftawet8, of

pdetieal buSses''and of ti~kable felicities, they should he condemned t6 remain

during thelrlifeiime dtownedin ti1illforiU1le;when each of them could look for 8:

new.love and new happiness. T o delly this terilooy to UIifottuitat.ebeings who aregrieving Iltlder the'p~ of an ettlmal unbAppineiJS,is Utijti8t, iti1Jilotalt.hat criee

against.the justice of men and of God.

If Oi l the CoiitraryW'j;only gi'ant thelli personal separation, this indi880lubility

of marriage will place those spouses who have not made ariy vow.of chastity iil an

\018Upportabfucondition, ooinPe!lingthem to be criminals in order to find in the arms

Ofit man or woman some mitigation for their sUfJeriJ1gsouls which are thirsty of love.

Dbt with a legislation on divorce, the anoinalous situation of unhappy marriage andt~econdition of the .cWldrerilIondof society ate thereby remedied; besides,.concu-

binage, polygamy lIondpolian

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will be bettered, for the home where they were reared up i tained with infamy OJ!

~, for their p&reIltllor any of them cannot'pve them but ~~of deceitaiMl,

treuOb jtheir IeIltimentl 'Willbe bettered, for an iQllDOl'llI.hoD'cannot prod1lJ'8noble

IeIltimentaj and 1a8tly, their life will be bettered, for divorce will reduce th9 number

of abortioDS, infanticides, abandonment 'of many children, IODS'of inlatortunell;LookiDa upon the divoree question from the stand point of events; we are con-

vinced that it has notobetructed the proareisive and moral developmentpf procreation

Aecording to the StatistiCl fumished by the Bureau of the Censu8 of the United

Stat., the number of dM>l'CleIillinClleUingin the divorce oountri8ll,88for ~DlDple,J~, which ill the oountry mOlJtradical in dil'Otoe and, yet, itIl population ill ever

inereaaiDg.

Cotnpa~with the PhiJippinell,Java where abeolutAldivorce ill in foree, in 1880

it bil1~hIid two milliOllland a haif pciop1efor ita popiJlation and now that nUmberhu

iiil!teaaedto twtiliy-iUne mUliOnII. On tte ether band, the PhilippiDel where no aboo

lIOhrie d i ' t 'b 1" ce w U in:foree,01one milUonand a balf of people for thell&lDeyear, callonly boat now o f lICBrcelyten million inhabitanta. (Census of the Philippiriea).

(b) ~:

The divorce law which opens the way to the un100tIeningof p88IIionand pvea

facility to the oe1ebfationof new aDd retleated marria&esillthe cause O f the corrup..

tibii of domeetic usaaee aDd cUstom8. Could a ll&dderseene and ai the iiame time amote horrible spect8c1e preeent itle1f before the ctllidren than the Ilipit' of .theit

lathen UJiitedin lawful 1VedJookto other women, and their mothers to oiliermen,

in such a way that they find themselves with two or more father and two or ~

mothen?

ACcordingto Mr. Stearney,-Divorce ill the portal which ill opened to pa88lon,

in order to search for, or create pretextS, whenever the weight of matrimony, the

ccmyup1 tedium ill felt. Who can 88IlU1'e that in such casee, 'where love no lonier

reigns and the hoUlethat was formerly a paradise of delighta, but now oonverted into

a scene of ignominy, oollilion will not be'sought 80 that common life could be made

UDBUpportable?There cannot be a more harmful thing to the moral well-bel of

the Off-eprlngsof a maniap than the divorce of their parents which deatroys ODeor

the other of the two best influences that work on childhood, and may poison even

the inflUence that is left. And according to Mr. Pablo Mankegpza,-UDivotee

is now one of the fathomless founta~ of mishaps, a slow venon which underminea

domeatic felieity, which deatroys the healthful youth' of the children, the moralsof a na~ion, and the development of the economic resources of a country."

Glaasen in his work "Le Marriage at Ie DivorCE''',affirms that, according to

statistics, the num~ of divorces increases continously in raPid ptogrellllionj thatdivorce reaults in ita own abuse and that the abuse of divorce endangers the existence

of the family.

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In Engl&nd,when the bill on abSolute divorce was introduoed.forthe fQst time

iJ i theabgU8tbody of the English Parliamen~, Gladstone, the celebrated 'oratorsaid

the fo!iowingin the courseof his ~oD. regarding the bin: "I donot know where

di~ leads us; but what I knoW'isth&t it drags U s to th~ place where Christianity

Ii!sd'taken us any . H England declares the dissolubiUtyof marriage, it is wise torecord Ilt1Ch an event in the annals of history with black letters rather than with

golden ones."

These positive assertions of eminent men lam~nting j;he condition of their ooun-

tiY "beeiaUleof divorce, would lack weight and authority to convince us of the ~

c6nse4-uenOO8which gOhand in hand with divorce if we do not strengthen with fa~ts

sUffiCientto prove their existence.

In America, for example, where absolute divorce is known, we,hear cries of alarm

which spring rrom the hearts {)fthe poor and the rich alike,i~ the htlt as well as in

th~'~lace,due ~, the rapid increaSe~(div~ that are daily recorded by the tri-b~ls .. As 'a resul~ ofth~ abnormality which elu;iangers~tio~l morality and..

',"1 : . , . ' _, . , . ,' .

tranquility, various, societies were formed to combat and dethrone from the heart

of ~anthe liking' for divo~.

In Boston, a Congress of protestant bishops'was heid,.in which a justice of the

Sq~e Court of Rhode Islandssaid,-"The institution of marriage is undergoing

a.y.ertiginous ev:olutionfrom a contract for life in~ a contract fW :conventionalities;

'Y~are facing a danger which~es pletrerp.ble grea.tly,'and the chruch as well8.11the State should co-operateand take a stand to preserve society from this imminent

~.'"Divorce has increased and extended itself like an epidemic which corrupts moral-

ity and diminishes population.' Thus, in France, the law of divo~ceha~ing been re-

~blished in 1884, thebirtll rate decreased in 1901 by 19% andin 11)07by 32%.

In. the early half of the year 1909, the number of divorces amounted to 398,7~0, andt)lat od deaths to 426,913, that is, an. excess of28,203 d,eaths over births:

; Yon Moltke, the great strategic of the modem age, said: "that from 1870France

beenlosing a battle each day and its cause is the law of divorce, and withinfifteen years France will have 37 or38regiments less. And according to Mr. Bureau,

& famous professor of the University of Paris, in his book entitled "La. Crisis Moral

d~.loslTiemPos Modemos", publishes the follo~ing statistics that proves the increase

of divorce which has been the principal cause of the decrease of the French popula-. , : -

tion.

In 1886 the numbe~ of divQrceswas 2,900

In 1890 the nlDllberof divorces was 5,497

In 1905 the number of divorces was .10,109

In 1907 the number of divorces was 12,304

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N ow , makiog & brief C lO U ;lp a. ris o n of the number of divofOOlllwith th&t ofm ar-

ria&eet welIban be convinced that tho former number is double than the lat. 0Qe.

In FraDce the suits for divorce rank from 1773in the year 1884 to 7M3 in the year

1891;whereaamarriapsnumbered from 892in the year 1884to 3247in the year 1891.

In Cennany. ~ were 534Zdivorces grantAldin 1882 and 6178 in 1891-

InliJngtand,divo~ UlMtfrom 127in 1860to 300 in 1887,an incl"l'.8llCmuch more

~id than that of the population or that of marriages.

In the .Special Census Report on Marrillge and Divorce, statistics reveal W I

the fact that in the United States one million divorces were granted, that is, from

1887 to 1901; or within a period of thirteen YCllrs;and from 1887 W 1907, or within

a period of 2Qyears, 1,340,000iNits for divol'OOl:lwere filed, and out of which more tba~

% obtained a favorable result.Considering now the elfe~ of divorce on Ule vu!>ulation, we find fl"Om8Cv~1

statistics that divorce decreases instead of increasing it. Acoo,rding to the Amer-

ican Ce~us Report, w~ have the following data.: from 187o-1~, the increasep C

population was 30 per.centum; from 1880-1890 it WIlS 25 per centwu; from 1890--

1900 it was 21 per centum and frqm 1900-1906 it was 10.50 per centum.

From the foregoing data. showing the increase of divorce llJl tIle dL'creascl?f

population, we can ll9Dolude.that though the increll8Cof divorce in America ~ wCtlI

as in other natioDS,does not J)ecessari1yshow a decline in tho standard of sociui an~domesticmomlity, nevertheless, it .ml,llltbe admitted that if the inCl'ClUlCcontinues

unchecked, divorce will tend to induce such It dL-cline,it b(~in~the lo~ical and n~-

sary consequence of the abuse.

The natuml vinculum of love is the cssential clL'lOentof the lUarriagllrL'latioll,

and not the nominal bond of legal sanction; if this is so, does it not follow a.'!th(~

night the day that the maintenance of the legnl hond is improper if the natural hondceases? It would not be right to force a man and woman to live as husband and wife

who had no love for one another but only contempt.and hat-redjwhy should we think

it right to force them to live as husband and wife aft(~rlove ha'l 1lC(l!ldL'litroycdhy

cruelty or betrayal?

Now, if notwithstanding the countless restrictions iUlllOlledin thL' application

of the present law, safeguarding the interests of the Stnte, of the family and of the

individual; i f despite the assurances of our Legislative, Executive and Judicial dc-

pa.rtulents, to do their best to check, to guard and to suppress any attempt of abuse

and corruption, there are stillllOme who believe'prejudicoo in their rights as IlCIlCe-

fut citizensby the pa888geof this law, forgetting perhaps that there are in this coun-

try thousandsl of unhappy families, that are forever condcmnoo to suffer tile cruel-

ties, insults, and vexatioDSof the man of whom they precisely await happiness, pro-

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tection, and ~teem; and if in spite of their knowledge that they as progressive citi.

zeDS should uphold the pal!8ageof this law will remain obstinate by continuously

refusing to yield, to them, therefore, I take the liberty of addressing these few words.

. There are many things permitted by law, which the conscience of many, taken

individuallv, cannot toleratej nevertheless, the J.egislature isfoteed to pass such

measures in order to protect the interests of the whole community.

We must not fear that this law might destroy and poison the sweetness of our

family life and degenerate the morality of our country, because this law does not

compel them to resort to it; and if notwithstanding the rare unfaithfulness of some

wives, we prefer to forgive them and extend to them the temptation, the enoourage-

ment, the license of running through the whole calendar of matrimonial offenses,

without redressing the offense, then no body will-interfere to us, and as a result wewill not fail witnessing everyday the gradual but firm downfall of that scared honor

which every body will stake his life for the vindication of the Mme.

Nor need we have any fear tba.t the granting of divorces under these conditions

will menace the stability of the family or threaten the integrity of the State. The

essence of all tnle marriage, 8S we have said, is love, and love is the greatest thing

in all the world. Let full freedom of choice be exercised in mating; let all worldly

and material considerations as incentives to marriage be eliminated; let the unionb e protected and guaranteed by such regulations as we have laid down; let love becherished and encouraged in every youthful heart, and then let it do its perfect

work, and I believe that the instincts which have prompted the formation of the union

may be safely trusted to safeguard its continuance.