CHAPTER XVI.

DIVORCE.

Frequency of divorces—The new Civil Code on marriage and divorce—Conditions of a valid marriage—Invalid marriages—Cohabitation—The wife’s legal position—Her separate property—The rights of the head of the family—Care of the wife’s property—Forms of divorce—Grounds for divorce—Custody of children—No damages against the co-respondent—Breaches of promise of marriage—Few mercenary marriages—Widow-hunting also rare.

In the old days divorces took place on the slightest pretext. Among the higher classes, it is true, the family connections which a marriage brought into existence could not be dissolved without more or less serious consequences, and the parties were, as in other countries, expected to sacrifice their personal happiness to family considerations; but among the other classes which were not influenced, as a rule, by such worldly motives in their marriages, divorces were of pretty frequent occurrence. And moreover, as they often took place from no fault of the persons divorced, they came to lose to some extent the stigma which usually attaches to them. Still, those women who had been brought up with a strict, old-world sense of honour, looked upon divorce as a stain upon their reputation; for if it did not necessarily imply misconduct, it was attributable to want of tact on the part of the _divorcée_, and although it arose not unfrequently from the husband’s caprice, she was not, until that could be proved, held altogether free from blame. As she was from the first supposed to be prepared for a wilful, cross-tempered mother-in-law, it signified a certain defect in her character that she should have failed to get into her good graces; and the girl, therefore, ashamed to be exposed to the ignominy of divorce, did her best to please her husband’s family and would put up with almost anything rather than be sent away. But the family relations sometimes became so strained that she ran away or was packed home. Divorce was, moreover, easy to effect; it needed nothing more than the re-transfer of the divorced wife’s domicile from her husband’s home to her father’s. There was no official inquiry, and a remarriage could take place at any time.

This unsatisfactory state of affairs was to a certain extent remedied by the new Civil Code which came into operation in 1898, though it is too early yet to say what permanent reform it has brought about in our system of marriage and divorce; and it may be well, before entering into the grounds on which a divorce may be sought under the new law, to consider the conditions requisite for a valid marriage as they will give some idea of the position taken by the legislature in regard to matrimonial relations and so help us to understand its attitude towards divorce.

A marriage, in the first place, is valid only if the parties are married of their own will. This condition may at first sight appear superfluous; but it is formulated to enable the parties concerned to nullify a marriage contracted through mistaken identity and to prevent unions with persons who have lost control of their will or are otherwise in a disordered state of mind. Only such marriages are valid as are contracted between those who are not deceived in making their choice and are in full possession of their faculties. The object of this condition is then to protect those persons who are joined in wedlock against their will; but, as a matter of fact, many marriages are arranged by the parents before their children are old enough to know their own minds, and the betrothed, upon coming of age, acquiesce in the engagement which they would consider unfilial to refuse to carry out. So that in many cases free will in marriage is merely formal. The second condition of a valid marriage is that it must be reported and registered at the local district office. The bride’s father reports to the local office of his district that she has ceased to be a member of his family and requests her name to be struck off and transferred to the local office of the district in which her husband lives. This is accordingly done, and at the same time the husband’s report confirms the father’s request and the girl’s name is registered as that of his wife. This transfer of the domicile constitutes the official act of marriage.

A defect in either of these two conditions naturally renders a marriage void, for it cannot then be recognised as a lawful union. But a marriage may subsequently to its registration be annulled in various ways. Such annulment is not, however, a divorce, because the marriage was not complete and cannot be said to have been consummated. In the first place, the parties must be of the legal age for marriage, which is for the male seventeen years and fifteen for the female. This is a great advance on the old limit which was fourteen years for the male and twelve for the female. The right of annulling a marriage in which either party is under the legal age expires in three months after the marriage or when the age-limit is reached. Marriages contracted by force or fraud may be annulled upon application by the victim. The application must be made to a court of justice within three months after the discovery of the fraud or removal of the force; the right of application is forfeited by condonation. A marriage is naturally invalidated by a previous marriage; the right of application for its annulment is vested in the aggrieved party, the head of that party’s family, the relatives, and the public procurator, and also in the first wife or husband; and as bigamy is a criminal offence, there is no time-limit for the application. One who has been judicially divorced for adultery cannot marry the other party to the offence; that is, marriage is forbidden between the respondent and the co-respondent. It may appear somewhat unjust that a man whose conduct has led to the divorce of a married woman should be disqualified from making to her the only reparation in his power for her loss of home and honour; but the idea is, as in the Scots law, that the ability to marry each other would rather encourage such illicit connections and make the offenders brave the ignominy of judicial divorce for the prospective pleasure of a lawful union. The prohibition is therefore intended to be a deterrent against infidelity. Marriage is also forbidden between ascendants and descendants in the direct line and between those down to the third degree of consanguinity in the collateral line, that is, it is prohibited with one’s parents, grand-parents, children, and grandchildren, and between brother and sister, uncle and niece, and aunt and nephew, but permitted between cousins-german and more distant blood-relations. It is also prohibited between similar relations of affinity in the direct line, but not between those in the collateral line, so that while one cannot marry a parent or a child of one’s deceased spouse, there is no impediment to a marriage with the deceased wife’s sister or the deceased husband’s brother, or their uncle, aunt, nephew, or niece.

A son up to thirty years of age and a daughter up to twenty-five years cannot marry without the consent of their parents. If either parent is dead, irresponsible, or has left the house, the consent of the other is deemed sufficient; but if both parents are dead or of unsound mind, or if their whereabouts are unknown, only those parties who have not yet reached the majority-age of twenty need ask for the consent of their guardians or appeal to the family council for approval. If the parties are afflicted with a stepfather or stepmother who refuses to consent to their marriage, the approval of the family council will suffice as these persons cannot always be presumed to have at heart the interests of their step-children. A woman cannot for obvious reasons remarry until after the lapse of six months from the annulment or dissolution of her first marriage; but if in the interval she gives birth to a child, there is no hindrance to the second marriage taking place immediately after. Lastly, in the case of a man who has been adopted as husband to the daughter, the severance of his connection as adopted son may be brought forward as a ground for the avoidance of the marriage. As he has twofold relations as son and husband, the dissolution of either relation would lead to that of the other, for the only alternative would be for the daughter to leave her family at the same time as her husband; but as it was to keep her in the family that the husband was adopted, her father would not consent to such a step. The usual procedure is to adopt for her another husband.

Upon the consummation of marriage, the wife is obliged to live with her husband, who is required by the Civil Code to make her cohabit with him. Thus, cohabitation is in the eyes of the law an indispensable condition of matrimony; and therefore, such a thing as judicial separation is unknown in Japan, and there is no middle course between cohabitation and divorce. The wife usually takes her husband’s surname; but if she is the head of the family or the heiress to it, the husband by adoption assumes her surname.

If the wife is under age or judicially pronounced incapable of managing her own affairs, the husband becomes her guardian for the time being; but if the husband is pronounced incapable in a similar manner, the wife becomes his guardian and takes charge of his affairs. The wife, however, in ordinary circumstances is under the husband’s control. Her disabilities arise not from her sex as such, but from her status of _feme-covert_; for though political rights are still denied to women, no discrimination is made in the private rights of the two sexes. It is only when she marries that she cedes to her husband many of her rights as _feme-sole_. There are certain acts, for instance, for which she is required by the Civil Code to obtain her husband’s permission, such as the receipt and use of a capital sum, contracting of debts, bringing of actions at court, carrying on of a trade or business on her own account, and making of contracts binding herself to service for a specific term; but the permission may be dispensed with if her husband’s whereabouts are unknown, or he has wilfully deserted her, is pronounced incapable, is under restraint for lunacy, or is serving a term of imprisonment exceeding one year, or if his interests clash with hers.

The wife may have separate property. She is at liberty to make any arrangement with her husband for its management and disposal; but such arrangement must be registered not later than the registration of the marriage itself, or it cannot be upheld before her heirs or set up against third parties. In fact, all contracts between husband and wife may by mutual consent be altered or cancelled at any time; but such alteration or cancellation cannot be upheld to the prejudice of a third party. This right to hold property in her own name is a great concession to the wife, for such rights were formerly utterly ignored. In the old days, everything belonged to the husband as head of the family, not only any property that the wife might bring or inherit, but also any estate, real or personal, that might be acquired by any other member of the family. All its members were supposed to work for the benefit of the family, and the head as its sole representative had absolute control of the property so acquired. But now in recognition of the rights of the individual as against those of the family as a whole, the Civil Code permits the separate registration of property by its subordinate members.

Where no special arrangements have been made between husband and wife with respect to either party’s property the law directs a certain course to be followed in its use and disposal. In the first place, while the owner of any property is naturally deemed to possess absolute right to the interest or profit arising therefrom, any property which has been acquired but cannot be definitely credited to either party, is to be taken, pending production of proof to the contrary, as belonging to the head of the family. The head has also the right to put to use the other party’s property and derive profit therefrom, provided the character of such property remains unaltered. Thus, the head may cultivate the other’s fields or rent them to a tenant and occupy or rent the other’s houses, but may not, for instance, convert a field into building land or a dwelling-house into a godown. This power is given to the head to offset the obligation he or she is under to bear all expenses resulting from the marriage, that is, to defray all household expenses, support the family, and pay for the bringing up of the children. If, however, the head is in needy circumstances, the other party, if possessed of separate property, must support the family.

The husband, whether head of the family or not, has the management of his wife’s property. He may make improvements in it; but he cannot without her consent rent her land for more than five years running or her house for more than three. And if the wife is afraid of her husband’s abusing this discretionary power, she may request the judicial authorities to order him to deposit security against any loss that the estate might suffer through his mismanagement. The wife is to be considered as her husband’s agent in household matters, such as the provision of food and raiment. The husband may, however, reserve the right to repudiate partially or wholly her acts as his proxy; but he cannot thereby cancel his obligations to those persons who have been dealing with her in good faith, believing her to possess the powers usually delegated to the wife.

Having thus given an outline of woman’s legal position in matrimony, we may now pass on to the conditions of divorce. The laxity of the custom in regard to divorce was, as we have already observed, partially remedied by the new Civil Code, which is based on European laws and modified by existing Japanese usages. In the matter of divorce, it makes many concessions to the customs hitherto prevailing in Japan, as a strict adhesion to the European laws on the subject would call for a too drastic change in the habits of the people who have for the most part been accustomed to think lightly of divorce. In the old times it was sufficient to give the wife a declaration of divorce, which, from its shortness, came to be known as “the three lines and a half.”

In these days, however, when the supremacy of law is universally recognised, such an informal process cannot be tolerated; and formalities as full as at marriage must be gone through. For divorce in its simplest form judicial intervention is not needed. It is enough that the parties agree to separate. All that is necessary is to make a declaration attested by two reputable witnesses at the local office that the divorce takes place by mutual consent. If there is sufficient cause which would be recognised by a court of justice, the offending party would readily consent to this form of divorce, for few people would care to wash their soiled linen in public when the same end could be gained more quietly in private. Hence, judicial divorces are comparatively rare. The attestation of two witnesses is of considerable use in preventing rash divorces made in a moment of passion and repented immediately after, as the witnesses who may be expected to be cooler-headed than the principals, would do their best to patch up the quarrel or difference before finally setting their seal and signature to the deed of divorce. Moreover, if the parties are under twenty-five years of age, they must obtain the consent of those persons, that is, parents, guardians, or family councils, whose consent would be necessary for a marriage in which the bride is under twenty-five years of age and the bridegroom under thirty. In a divorce the domicile of the wife or the adopted husband is re-transferred from the domicile of the family into which they were married to that of their original family; the process is reverse of that required upon marriage. In a divorce by mutual consent the request for re-transfer is voluntarily made by the parties concerned, while in a judicial divorce, since the appeal to law is made in consequence of the refusal of one of the parties to sign the request to the local office, the re-transfer is made by order of the court.

Judicial divorces are granted on several grounds. First, for bigamy. Bigamy is punishable with penal servitude for a term not exceeding two years, and the second marriage is annulled; but the offence may also be made the ground for the dissolution of the first. Thus, the bigamist may, when he has served his term, find himself single and be ready for a third marriage. Secondly, the wife may be divorced for adultery, but not the husband. He may be divorced if he is convicted of adultery with a married woman. The unfaithful wife and her paramour are liable to penal servitude for a term not exceeding two years if the charge is brought by the outraged husband. The lover cannot be punished alone; the woman must share his fate; and only such a lover’s wife can bring a divorce suit for adultery against her husband. But it is very seldom that the husband applies for divorce from his wife on the score of infidelity; such divorces are generally effected by mutual consent unless the husband is ready to expose his family affairs for the mere gratification of wreaking vengeance. The delinquent wife, if brought before court, is, as has already been stated, both punished and debarred from marrying her paramour. Besides infidelity with a married woman, the husband, may be divorced for immoral crimes. Divorce may also be sought if the other party is guilty of forgery, theft, burglary, fraud, embezzlement, and other heinous crimes. As the guilty party is usually the husband, the wife may refuse to live any longer with one who has brought dishonour upon the family. She may also bring an action for divorce if her husband is imprisoned for three years or more for offences other than those mentioned above or if she has been so ill treated or grossly insulted by him as to make cohabitation intolerable.

The common custom in Japan of the couple living under one roof with the parents of either party is doubtless responsible for two other grounds for divorce, which are that an action for divorce lies if either party ill-treats or grossly insults the ascendants of the other or is ill treated or grossly insulted by them. Thus, without there being any strained relations between the couple themselves, either of them may seek divorce if ill treated or grossly insulted by the parents or grand-parents of the other, or be sued for it if similar treatment is offered to them. Mothers-in-law are proverbially hard to please, and once a quarrel takes place, it is always easy to detect insult in the high words that may pass between them and their children’s spouses or ill-treatment in their subsequent behaviour to each other. If they lived apart, such occurrences would be rare. Though the wife may keep her temper and submit as far as possible, adopted husbands are not so amenable to parental authority, and their divorce is not unfrequent.

Wilful desertion is a valid ground for divorce. The term of absence justifying such action is three years. An adopted son who severs his connection with the family is divorced from his wife if she is the daughter of the house; but if she is not, she may leave it with her husband. If she is the head of the family, the divorce of her adopted husband dissolves both family and marital relations at the same time; and if she wishes to follow him, she must give up her position as head of the family and be married to him afresh.

Any arrangements may be made for the custody of the children after divorce; but in the absence of special agreement, the principle followed is that the children belong to the family in which they were born. Thus, they belong as a rule to the father; but if he has been adopted as husband, they fall to the care of their mother.

Judicial divorces are, as already stated, seldom applied for. There have been a few cases of divorce for adultery, which, where proved, always ended in the imprisonment of the unfaithful wife and her paramour. These criminal suits have not so far been accompanied by civil actions; the Japanese husband is satisfied with the incarceration of the destroyer of his domestic happiness. Seeing that his wife is party to the ruin of his home, he would not dream of being indemnified for it, as a woman who is capable of infidelity is in his opinion bound sooner or later to dishonour her husband. To the Japanese there is something repugnantly mercenary in claiming damages for his wife’s forfeiture of chastity in the same way as he might for the loss of any piece of property.

Pecuniary considerations enter as little into actions for breach of promise of marriage. Since the new Civil Code came into operation, there has been only one such case brought into court. It was decided in favour of the plaintiff; but the court merely ordered the promise of marriage to be carried out and did not enter into consideration of any pecuniary compensation for the breach. But then there is really nothing to assess when an engagement is broken off in Japan. All that is necessary when the other party consents to its being broken off, is to return in kind or value the betrothal presents. As the engaged couple, if they ever do write to each other, only send formal letters with the compliments of the season or inquiries after each other’s health, these epistles afford no means of measuring the suffering entailed by the breach of faith. Neither do the lovers go out together; and on the very rare occasions when they walk with each other, they are accompanied, not by a conniving gooseberry, but by an Argus-eyed chaperon who frowns upon the least departure from strict propriety. So that their behaviour in each other’s company gives as little guidance as the letters in the assessment of the damage done to the jilted lover’s heart.

In a similar manner mercenary marriages are not so numerous with us as in other countries. Many men marry, it is true, with ulterior motives daughters of wealthy or influential families; and these latter naturally do their best to promote the interests of their sons-in-law. By judicious marriages young men have risen to high and influential positions in official and commercial circles. But marriages that are crudely, unblushingly mercenary are rare for the simple reason that it is not the common custom to give away daughters with large dowries. The wives bring with them plenty of dresses and personal articles, but seldom money, though their fathers may give them something to start with when they marry. There is still a strong prejudice against dowries; and a man who marries a woman with a _dot_ is often considered very mercenary and, still worse, even suspected of having taken the money as an offset against some personal defect in his wife. There is of course the possibility that the wealthy parent would help his daughter in difficulties and when the worst came to the worst, keep her and her family from starvation. But the most effectual way in which a man may make money by marriage is to get adopted as a husband by a wealthy family; it is indeed the only means a poor man has of acquiring wealth without any exertion on his part; the difficulty is to find a well-to-do family willing to adopt him. If he has nothing to expect from his father, he need not hope for a legacy from an uncle, aunt, or any other relative, as an estate is seldom allowed to go out of the family. A bachelor or a childless person adopts some one to succeed to his name and property.

In the same way a settlement is seldom made on the wife. A widow is, as long as she remains in the family, maintained by her son or daughter’s husband. Until recently she had, if she wished to remarry, first to return to her own family and become a spinster again, so to speak, by re-assuming her maiden name; but the new Civil Code allows her to marry direct from the family in which she has become a widow; this is merely to save her the trouble of needlessly removing to her old home. She must, however, secure the consent of the heads of her own family and her late husband’s to her second marriage. As the widow brings from her husband’s home only her clothes and other personal property, she is not courted by fortune-hunters. A girl does not in Japan give her hand to a dotard with the object of enjoying his property after his death with a husband more suited to her age.