CHAPTER XXX.

THE REPUBLIC OF CUBA.

A nation may in a day overthrow a dynasty which has ruled for centuries, it may in a few years completely revolutionize its system of government and methods of trading, but its ancient code of marriage will live on unchanged for ages.

It is a noteworthy fact that the law of Rome concerning marriage survived the Roman Empire by a thousand years, and even to-day it is the foundation of the law on that subject in all of the Continental countries of Europe and of the entire Western Hemisphere, with the exception of the United States of America and Canada.

In the Civil Code of Cuba we can see not only its recent origin from the Spanish Code, but traces of the Law of the Twelve Tables and the Institutes of Justinian.

Cuba is to-day a Republic composed of six Provinces. The seat of government is located at Havana, where sit the Senate and House of Representatives, which constitute the national legislature.

The Civil Code is the _Codigo Civil_ of Spain, with such changes and modifications as have become effective since Spain lost its sovereignty over Cuba.

The statement of Cuban law which follows is, therefore, predicated upon the _Codigo Civil_, which by royal decree of May 11, 1888, was extended to the islands of Cuba, Porto Rico and the Philippines, upon proclamations and orders issued during the recent American military occupation and on the interpretation and construction of the positive law by Cuban courts and jurists.

MARRIAGE.--The law considers marriage as a civil contract, which may be concluded by either a civil (_matrimonio civil_) or a religious (_matrimonio religioso_) celebration.

A male cannot marry until he has completed his fourteenth year of age; a female until she has completed her twelfth year.

Marriages contracted by minors under the legal age become, however, _ipso facto_ legal if a day after having arrived at the legal age the parties continue to live together without bringing suit to annul the marriage, or if the female becomes pregnant before the legal age or before the institution of a suit for annulment.

Only such persons as are in the full enjoyment of their reason can contract marriage.

Marriage is forbidden to all persons who suffer from absolute or relative physical impotency for the purposes of procreation.

Persons ordained _in sacris_ and those professed in an approved canonical order, who are bound by a solemn pledge of chastity, cannot lawfully conclude marriage until they have obtained the proper canonical dispensation.

Those who are already bound in marriage cannot contract a new marriage.

Persons who are twenty-three years of age or upwards may conclude marriage, if otherwise of legal capacity, without parental consent or advice.

Persons under twenty years of age require the consent of their parents, or of such persons whose right it is to give or withhold such consent.

Persons who are more than twenty years of age, but under twenty-three, are under the obligation of asking the advice or counsel of their parents or of such persons standing in the parental relation before contracting marriage, and if the advice is refused, or it should be unfavourable, the marriage cannot take place until three months after the petition was made.

The consent and the favourable advice for the celebration of a marriage must be proven, if requested, by means of an instrument authenticated by a civil or ecclesiastical notary or by the municipal judge of the domicile of the petitioner.

When the advice has been proven the lapse of time shall be proven in the same manner.

If a marriage is concluded by persons more than twenty years of age, and under twenty-three years of age, without compliance with the rules just stated, the marriage will be recognized as valid, but the offender is subject to certain disabilities and penalties.

CONSANGUINITY AND AFFINITY.--The following persons are prohibited from contracting marriage with each other:

1. The ascendants and descendants by legitimate or natural consanguinity or affinity.

2. Collaterals by legitimate consanguinity up to the fourth degree.

3. Collaterals by legitimate affinity up to the fourth degree.

4. Collaterals by natural consanguinity or affinity up to the second degree.

The government, for sufficient cause, may on the petition of a party grant a dispensation permitting a marriage of minors who have not obtained the proper permission or advice of the persons whose legal right it is to authorize one or the other.

For grave reasons the government may also grant a dispensation relieving a party from the prohibition of marrying within the third and fourth degrees of collaterals by legitimate consanguinity; the impediments arising from legitimate or natural affinity between collaterals and those relating to the descendants of the adopter.

SPECIAL PROHIBITIONS.--The following persons cannot contract marriage with each other:

1. The adopting father or mother and the adopted; the latter and the surviving spouse of the former, and the former and the surviving spouse of the latter.

2. The legitimate descendants of the adopter with the adopted, while the adoption lasts.

3. Adulterers who have been condemned by a final judgment.

4. Those who have been condemned as authors, or as the author and accomplice, of the death of the spouse of either of them.

CELEBRATION OF MARRIAGE.--A civil marriage must be celebrated according to the requirements of the code, as changed or modified by subsequent orders, decrees and legislation.

Any clergyman, priest or minister, irrespective of faith or sect, who belongs to a religious denomination actually established in the Republic of Cuba, and who has been duly authorized, may solemnize marriage.

A register is kept in the office of the Secretary of Justice containing the names and addresses of all clergymen, priests and ministers who are qualified to solemnize marriage in the Republic.

Persons who desire to contract a religious marriage must present to the clergyman, priest or minister who is qualified to perform the ceremony a declaration signed by both of the contracting parties, stating:

1. The names, surnames, profession, domicile or residence of the contracting parties.

2. The names, surnames, profession, domicile or residence of the parents.

3. Certificates of birth and of the status of the contracting parties, the consent or advice, if proper, and the dispensation, when it is necessary.

Upon the presentation of such a declaration the clergyman, priest or minister shall announce the future celebration of marriage between the parties according to the form or method prescribed by the rites and regulations of his religious denomination.

If the religions denomination of such clergyman, priest or minister has no established form for such announcement, then a publication must be made in the form established by the Civil Code. The method required by the Civil Code for proclaiming an intended marriage is set forth in Article 89, which directs a publication by posting the written declaration of the parties for fifteen days and calling upon those who have information of any obstacle to oppose the marriage.

A civil marriage can only be solemnized by a municipal judge (_Juez Municipal_), to whom must be presented as an indispensable preliminary such a signed declaration of the parties as is necessary in the case where the parties desire a religious ceremony.

A municipal judge chosen to celebrate a civil marriage will also direct as a preliminary to marriage such a proclamation as is required by Article 89 aforesaid.

A priest, minister or clergyman duly authorized to perform marriages may, for sufficient cause, dispense with the publication as before set forth; but in every case where a publication is made the marriage cannot be concluded after fifteen days after the first day of such publication.

No priest, clergyman or minister is now authorized to grant a dispensation permitting a marriage for any reason forbidden by the laws of the Republic.

An opposition to a marriage made by an interested person must be heard and determined by the municipal judge of the district before any person whatsoever is authorized to solemnize the nuptials.

The celebration itself must be witnessed by two adults, who may be relatives of the parties. Article 87 of the code, permitting one or both of the parties to a marriage to appear at the celebration, either personally or by proxies to whom a special power is given, is still in effect.

The municipal judge, priest, minister or clergyman who solemnizes a marriage must immediately furnish to the parties a certificate of marriage and cause a full and particular record of said marriage to be filed in the Civil Registry of the District (_Registro Civil del Distrito_), in default of which such judge, priest, minister or clergyman will be subject to a fine of one hundred _pesos_, or imprisoned for not less than 30 days, or not more than 90 days, by the Correctional Judge (_Juez Correccional_) of his domicile.

ANNULMENT OF MARRIAGES.--The civil courts have exclusive jurisdiction to decree an annulment of marriage.

The following marriages are void:

1. Those celebrated between persons related within the prohibited degrees, except in cases of dispensation.

2. Those contracted by error as to the person or by compulsion or intimidation.

3. Those contracted by the abductor with the abducted while she is in his power.

4. Those which are not solemnized by an authorized official.

A marriage contracted in good faith produces civil effects, although it may be declared void.

If good faith existed on the part of only one of the spouses it shall produce civil effects only with regard to said spouse and to the children.

Good faith is presumed if the contrary does not appear.

When bad faith existed on the part of both spouses the marriage shall only produce civil effects with relation to the children.

After the annulment of a marriage the sons over three years of age shall remain in the care of the father and the daughters in the care of the mother, provided there was good faith on the part of both spouses.

If either or both were guilty of bad faith the tribunal has power to make such disposition of the children as justice may require.

RIGHTS AND OBLIGATIONS.--The spouses are obliged to live together, to be faithful to, and mutually assist, each other.

The husband must protect his wife, and the latter must obey her husband.

The wife is obliged to follow her husband wherever he may establish his residence. The tribunals may, for just cause, exempt her from this obligation when the husband removes his residence beyond the seas or to a foreign country.

The husband is the administrator of the property of the conjugal partnership, except when the contrary is stipulated.

The wife, however, retains ownership of the paraphernal property, which consists of such property as the wife brings to the marriage, not included in the dowry.

The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through an attorney.

Nevertheless, she does not require such permission to defend herself in a criminal suit or to proceed against or to defend herself in suits with her husband.

Neither may the wife, without the permission of her husband, acquire property for a good or valuable consideration, alienate her property, or bind herself, except in certain exceptional cases, and within the limitations established by law.

A wife may without her husband's permission:

1. Execute a will.

2. Exercise the rights and perform the duties which appertain to her with regard to the legitimate and acknowledged natural children she may have had by another, and with relation to the property of the same.

Only the husband and his heirs can enforce the nullity of the acts executed by his wife without proper authorization.

DIVORCE.--Divorce only produces the suspension of the life in common of the spouses; it does not dissolve the marriage.

The legal causes for divorce are:

1. Adultery on the part of the wife in every case, and on the part of the husband when public scandal or disgrace of the wife results therefrom.

2. Personal violence actually inflicted or grave insults.

3. Violence exercised by the husband toward the wife in order to force her to change her religion.

4. The proposal of the husband to prostitute his wife.

5. The attempts of the husband or wife to corrupt their sons, or to prostitute their daughters, and connivance in their corruption or prostitution.

6. The condemnation of a spouse to penal servitude.

EFFECTS OF DIVORCE:

1. The separation of the spouses in every case.

2. The protection of the wife.

3. The placing of the children under the care of one or both of the spouses, as may be proper.

4. The provision for the support of the wife and of the children who do not remain under the authority of the father.

5. The adoption of the necessary measures to prevent the husband, who may have given cause for the divorce, from injuring the wife in the administration of her property.

FOREIGN MARRIAGES.--A marriage contracted in a foreign country, according to the laws of such country, is generally treated as valid in Cuba. Such a marriage, however, must be monogamous and otherwise in conformity with the general laws and usages of Christendom.

If the parties are Cubans, and are married abroad while retaining their domiciles in Cuba, the foreign marriage must also conform to the requirements of Cuban law with regards to the capacity of the parties and the necessary parental consent or advice.

PROOF OF MARRIAGE.--The ordinary manner to prove a marriage concluded in Cuba is to produce a certificate of the record of the civil registry, and this is the proof required unless the books of the civil registry never existed, or have disappeared, or a question is pending before the tribunals, in which case all kinds of direct evidence are admissible.

The uninterrupted status of the parents, together with the certificates of the birth of their children as legitimate, is one competent method of proving the marriage of said parents, unless it is shown that one of the two was bound by a prior marriage.

A marriage contracted in a foreign country may be established by showing an authenticated copy of its registration. If such foreign country does not require a regular or authenticated registration the marriage must be proved by competent evidence of the regulations of marriage in the foreign country in question, together with proof that all such regulations were complied with.

Should a marriage be contracted in a foreign country between a Cuban and a foreign woman, or between a foreigner and a Cuban woman, and the contracting parties do not make special stipulations with regard to their property, it is understood, when the husband is a Cuban, that he marries under the system of the legal conjugal partnership; and when the wife is a Cuban that she marries under the system of laws in force in the husband's country.

ENGAGEMENTS TO MARRY.--Future espousals do not give rise to an obligation to contract marriage. No court will admit a complaint in which their performance is demanded.

However, if the promise has been made in a public or private instrument by a person of age, or by a minor in the presence of the person whose consent is necessary for the celebration of the marriage, or when banns have been published, the person who refuses to marry, without just cause, can be obliged to indemnify the other party for the expenses which he or she may have incurred by reason of the promised marriage.

An action to recover indemnity for such expenses must be instituted within a year, counted from the day of the refusal to celebrate the marriage.

SPANISH PRECEDENTS.--It should be remembered that in throwing off the yoke of Spanish rule the people of Cuba did not change their blood, language or traditions. Just as the law of the United States of America is founded upon the law of England as it existed at the time of the adoption of the American Constitution, so the jurisprudence of the Republic of Cuba has as its foundation the law of Spain as it existed at the time the Republic was established.

In both instances there have been changes and modifications by legislative acts and judicial interpretations, but a Spanish judicial decision has even more weight in a Cuban tribunal than an English decision has in an American court because Cuba, being a younger Republic than the United States, is much nearer to its motherland in point of time, besides its closer resemblance in race, religion and customs.