16.15. 15. Of Divorce and Repudiation.
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.
