THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  CXL  ~
MARRIAGE CAN BE DISSOLVED BY COMMON CONSENT.



 
S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ).
 

 
PREFACE.
  None of the affairs of mortals should be venerated as much as marriage, as, by means of it children are born, and from it entire generations are derived, which furnishes populations to countries and cities, and promotes the foundation and continuance of good government. Hence We are so desirous that married persons should be fortunate that We never allow matrimony to be committed by violence, or husbands and wives to be separated without a just cause for divorce. But as it is extremely difficult for all marriages to be happy (for being so numerous, there must necessarily be found some where atrocious and irreconcilable enmity prevents the parties from living together), We have thought it proper to provide a remedy for this, and especially Where matters come to such a pass that the hatred of the husband and wife towards each other cannot be appeased. In accordance with the ancient law, they were allowed to separate by common consent, but there were many enactments which treated of this subject, and several of them permitted a dissolution of marriage, where the separation took place with the agreement of all the parties interested. Some of these laws were written in the Latin language. But a short time afterwards, the Most Holy Emperor, Our Father (who surpassed all other sovereigns in piety and wisdom), taking into consideration the blessings of matrimony, and also directing his attention to the wretchedness of others, enacted a law which forbade marriages to be dissolved merely by common consent, and it was Our original intention that this law should be strictly observed and remain in full force and effect. Many married persons, however, who entertained for each other intense hatred and aversion, and (what is greatly to be deplored, and is the fruitful source of trouble and sorrow) by their mutual reproaches and recriminations maintained incessant strife in their homes, requested Us to be permitted to dissolve their marriages, although they were not able to advance any of the reasons for which such a dissolution was authorized by law. We have postponed for some time the gratification of the wishes of such people for a separation, either in order to give them advice, or to threaten them, with a view to appeasing the unreasonable hate with which they regard each other, as well as to conciliate them, and quiet their minds, but We have not succeeded in doing so. For it is very difficult to reconcile those who are influenced by violent hostility, as it often happens that married persons will plot against each other, and make use of poison or other means of producing death, to such an extent that even the children who have been born to them cannot again unite them.
CHAPTER I.
  Therefore, as We think these matters to be unworthy of Our reign, We have framed the present Imperial Law, by which We decree that, in conformity to the ancient rule, it shall be lawful to dissolve marriages by common consent, and that the penalties denounced, with the sanction of Our Father, against those who terminate their marriages in this way, shall be abolished. For if matrimony is brought about by mutual affection, it is certainly reasonable that a contrary desire should annul it, where both parties agree to do so, provided that this is sufficiently shown by the service of notice of repudiation. But it is perfectly clear that, so far as the other matters contained in Our laws, and especially those set forth in the Imperial Constitutions of Our Father which have reference to marriages, and the causes which authorize their dissolution, or relate to separations where no cause exists, and to the penalties to which the persons who effect them are liable are concerned, they shall remain in full force. This rule, however, does not apply to husbands and wives who are separated by common consent as prescribed by the present law.
EPILOGUE.
  Hence Your Glory is hereby ordered to communicate the matters included in the present law to all the residents of this Royal City, as is customary.
  Given at Constantinople, on the seventeenth of the Kalends of October, during the first year of the reign of Our Lord the Emperor Justinian.