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. |
|