The Spirit of the Laws :: :: University of Virginia Library

There is this difference between a divorce and a repudiation, that the former is made by mutual consent, arising from a mutual antipathy; while the latter is formed by the will, and for the advantage of one of the two parties, independently of the will and advantage of the other.

The necessity there is sometimes for women to repudiate, and the difficulty there always is in doing it, render that law very tyrannical which gives this right to men without granting it to women. A husband is the master of the house; he has a thousand ways of confining his wife to her duty, or of bringing her back to it; so that in his hands it seems as if repudiation could be only a fresh abuse of power. But a wife who repudiates only makes use of a dreadful kind of remedy. It is always a great misfortune for her to go in search of a second husband, when she has lost the most part of her attractions with another. One of the advantages attending the charms of youth in the female sex is that in an advanced age the husband is led to complacency and love by the remembrance of past pleasures.

It is then a general rule that in all countries where the laws have given to men the power of repudiating, they ought also to grant it to women. Nay, in climates where women live in domestic slavery, one would think that the law ought to favour women with the right of repudiation, and husbands only with that of divorce.

When wives are confined in a seraglio, the husband ought not to repudiate on account of an opposition of manners; it is the husband's fault if their manners are incompatible.

Repudiation on account of the barrenness of the woman ought never to take place except where there is only one wife: [21] when there are many, this is of no importance to the husband.

A law of the Maldivians permitted them to take again a wife whom they had repudiated. [22] A law of Mexico [23] forbade their being reunited under pain of death. The law of Mexico was more rational than that of the Maldivians: at the time even of the dissolution, it attended to the perpetuity of marriage; instead of this, the law of the Maldivians seemed equally to sport with marriage and repudiation.

The law of Mexico admitted only of divorce. This was a particular reason for their not permitting those who were voluntarily separated to be ever reunited. Repudiation seems chiefly to proceed from a hastiness of temper, and from the dictates of passion; while divorce appears to be an affair of deliberation.

Divorces are frequently of great political use: but as to the civil utility, they are established only for the advantage of the husband and wife, and are not always favourable to their children.

Footnotes

[21]

It does not follow hence that repudiation on account of sterility should be permitted amongst Christians.

[22]

They took them again preferably to any other, because in this case there was less expense. — Pirard, "Travels."

[23]

Solis, "History of the Conquest of Mexico," p. 499.