A Remembrance of the Past; Building for the Future." ~ Eve Eckert Koehler

Remembering Our Danube Swabian Ancestors

Marriage and Divorce, 1867-1906

Published at 10 Jun 2014 by Jody McKim Pharr

Croatia & Slavonia

As already indicated, there are three separate sets of regulations in force in Croatia and Slavonia, governing the matrimonial affairs, respectively, of the Catholics, the Oriental Greeks, and the Protestants and Jews. As a result of this fact , together with the complexity that is found to some extent in the different systems themselves, the various sets of prescriptions relative to marriage and divorce in these I provinces are extremely involved in character.


The matrimonial affairs of Catholics in Croatia and Slavonia are still regulated by the imperial patent of October 8, 1856, which was issued for the purpose of putting into effect the Concordat of the previous year, and was retained in force over the provinces in question after Austria and Hungary proper had a few years later been restored to their former status.

By this patent the state surrendered to the ecclesiastical authorities all jurisdictions over matrimonial affairs, except so far as concerned the civil consequences of marriage, which were to be regulated by the provisions of the Austrian Civil Code. For the guidance of the ecclesiastical authorities, however, two supplements were appended to the patent, entitled, respectively, "Law Concerning the Marriage of Catholics" and '"Instructions to Ecclesiastical Courts in Matrimonial Causes." These appendices established a comprehensive set of regulations on the subject of marriage, which were to be carefully observed in all cases. The provision was made, moreover, that any cases which might arise for which no provision was found in the present law should be adjudicated according to the canon law. The patent of 1850, however, made no material change in reference to the Catholics of Croatia and Slavonia, as their matrimonial affairs had never been brought under the control of the state.

The system thus established represented in effect a combination of the provisions of the Austrian Civil Code and those of the canon law. The so-called "Catholic Marriage Law" was in the main but a repetition of the principal provisions of the Austrian Code relative to marriage, together with such modifications and additions as were rendered necessary in order to harmonize the separate systems and avoid friction between the civil and ecclesiastical courts. The "Instructions," on the other hand, incorporated the principal provisions of the canon law and, in addition, established a very elaborate Bystem of procedure for matrimonial causes in the ecclesiastical courts. The net result was an extremely complex and elaborate set of regulations.



I. Capacity.—As under the Josephine Patent.

II. Age.—As in the Austrian Code. Females may, however, be permitted to marry after reaching the age of 12 upon dispensation from the bishop or Pope, but the parties to such a marriage must be separated until both have attained the age required by the state.

III. Consent of parents or legal representative, etc.—As in the Austrian Code. But failure to observe the provisions relative to consent does not affect the validity of the marriage, although it renders the offender liable to penalty. In particular, the parents of a child contracting a marriage without their consent are freed from the obligation to give the child a portion or dowry, and may even disinherit him. The provisions relative to the marriage of military persons are of a similar nature to those contained in the Austrian Code.

IV. Relationship.

1. Consanguinity or affinity to the fourth degree, inclusive.

2. Spiritual relationship, i. e., that existing between the one who administers the sacrament, or the godparents, on the one side, and the one who is baptized or confirmed, or his parents, on the other.

3. Relationship by adoption, as in the present Hungarian marriage law.

4. Relationship arising from illicit intercourse, up to the second degree, inclusive.

5. Relationship by betrothal. A valid and unconditional betrothal is an impediment to marriage between one parly and the blood relatives in the first degree of the other party.

V. Impediments arising from a prior marriage.

1. Already existing marriage.

2. Adultery.  As in the Austrian Code. But this impediment, under the ecclesiastical law, stands in the way of marriage only if the guilty parties promised or actually concluded marriage in the lifetime of the innocent party, or attempted the latter's life. But if a marriage is contracted contrary to the civil impediment of legally proven adultery, and yet according to the ecclesiastical law must be considered as valid, the parties forfeit all right of inheritance from each other, while their children are excluded from all claim to property reserved by family settlements to legitimatechildren, and possess no right of inheritance to intestate relatives of their parents.

3. Homicide. A person guilty of the murder of a previous spouse may not marry his accomplice in crime, if even one of the parties alone committed the deed with a view to rendering their marriage possible.

VI. Impediments arising from lack of free consent.

1. Error. Essentially as in the Austrian Code. The impediment of error does not, however, permit a marriage to be attacked on the ground of the pregnancy of the woman at the time it was concluded, but a legal separation from bed and board may be granted by the civil courts on the ground of extramarital pregnancy by a third party, if the marital relationship is broken off immediately upon the discovery of her condition and a complaint is lodged within one month.

2. Illegal force. Essentially as in the Austrian Code.

3. Abduction of the woman.

VII. Other invalidating impediments.

1. Impotence.

2. Holy orders or membership in a religious order which exacts a solemn vow to celibacy.

3. Difference in religion. As in the Austrian Code.

4. Clandestinity, i. e., failure to comply with the essential requirements as to form.

5. The making of the marriage dependent upon a condition that is opposed to the essential nature of marriage. Immoral or impossible conditions not coming under the foregoing description are to be regarded as nonexistent.

VIII. Prohibitions.—The following circumstances constitute grounds of simple prohibition against marriage, but marriages contracted in spite of them are not invalid, although the guilty parties render themselves subject to penalties:

1. Betrothal between one of the parties to the marriage and a third party.

2. Simple (as opposed to solemn) vows of chastity.

3. Theso-called "closedtime"(tempusclausurn). Marriagemay not be entered into between the first Sunday in Advent and Epiphany, or between Ash Wednesday and the first Sunday after Easter.

4. Lack of publication.

5. Difference of confession, i. e., between Catholics and non-Catholic Christians.

6. Prohibition of the church. It is incumbent upon the bishop to forbid the marriage if it appears to him that it will give rise to dissension and scandal or other evil. Furthermore, no one is permitted to marry before becoming grounded in the fundamental principles of Christianity.

Condemnation to death or penal servitude on account of crime formerly constituted a ground of prohibition so long as the sentence was in force. The provision establishing this impediment was, however, repealed in 1890.

Except where otherwise stated, the effect of the various impediments enumerated is to make absolutely invalid any marriage contracted in spite of them. Publication and celebration:

The regulations as to the publication and conclusion of marriage are essentially the same as in the Austrian Code. In the case of marriage between Catholics and non-Catholics, however, publication must always be made in the Catholic church of the parish in which the non-Catholic party resides, as well as in his own church, and the marriage must always be performed by the competent Catholic priest. The law also makes the distinction between permanent and temporary residence (the latter being a place where a man contemplates no continuing residence, but in which he is detained for a purpose the accomplishment of which requires some lime), and where either party has both a permanent and a temporary residence, the publication must be made in both places. In cases where either party has no permanent residence and has been domiciled for less than a year in his temporary residence, publication must be made either in his legal residence or in his birthplace.

Dispensation from impediments established by the civil regulations (age, consent, adultery) must be sought from the civil authorities. Dispensation from all other impedimenta must as a rule be sought from the Pope, or, in certain minor cases, from the bishop or his officially appointed deputy. Jurisdiction over dispensations from publication also lies with the bishop, but such dispensations must be confirmed by the civil authorities. Appeal from the refusal to make the publication or proceed to the marriage may be made to the diocesan consistory. The law recognizes conditional marriages, provided the permission of the bishop is first obtained. 

A marriage illegally contracted may be validated by a subsequent dispensation. If the dispensation is granted for an impediment established by the civil regulations, the declaration of consent must be renewed in the presence of clergyman and witnesses; otherwise a simple renewal by both parties without clergyman or witnesses is sufficient.


As a rule, actions of annulment must be initiated by the church officials. In the case of actions brought on the ground of error or illegal force or for nonfulfillment of the conditions on which marriage was dependent, however, the right of attack belongs solely to the innocent party. Either party may initiate an action on the ground of impotence, and anyone contracting a marriage while under marriageable age may attack it after attaining such age. The right of action on the ground of error and force is extinguished if the person possessing this right exercised or submitted to the conjugal rights freely and knowingly after the cessation of the impediment, or in case this can not be proved, continued cohabitation for six months. In the case of abduction the woman must bring the action immediately after restoration to freedom.

The regulations governing actions for annulment are especially strict, and an elaborate body of procedure is drawn up for the guidance of the court. In all cases a defender of the marriage must be appointed with functions corresponding to those of the similar official prescribed by the Austrian ('ode. The presumption is always for the validity of the marriage until the opposite is conclusively proven, and the rules of procedure are generally such as to throw as many obstacles as possible, in the way of proving invalidity while facilitating proof that the marriage is valid. The action is in no case allowed to proceed to trial until every possible attempt has been made by clerical admonitions and by obtaining the necessary dispensation, if one is permissible, to remove the impediment to the validity of the marriage. From all decisions of annulment the defender of the marriage must appeal to the court of next higher instance and, if necessary, to the courts of third and fourth instance. The invalidity of the marriage will not be considered as established until it has been affirmed by three separate courts. On the other hand, two affirmations of the validity of the marriage preclude any further appeal.

The annulment of a marriage leaves both parties free to marry again, except in case of an annulment on the ground of impotence, where the party suffering from the impediment is prohibited from further marriage. In the latter case, however, if the party in question later becomes free from the impediment, the annulled marriage enters once more into full force. The other civil consequences of annulment are determined by the prescriptions of the Austrian Civil Code.


Marriage can as a rule be dissolved only by the death of one of the parties, or by a legal declaration of death according to the Austrian Code. ' Rut such a declaration of death confers the right to remarry only if a concurrent decree to this effect has been rendered by both the civil and the ecclesiastical courts. A rejection by the ecclesiastical court of last instance is final. In addition, in cases where the marriage has not been consummated, the party refusing may be summoned either to consummate it within two months or to enter a religious order approved by the Pope. In the latter case the marriage may be dissolved and the other party be declared free to remarry.

Divorce from a validly concluded but not consummated marriage may also be obtained by papal dispensation. Furthermore, when both parties were non-Christians at the time of their marriage, and one later becomes converted to Christianity, if the other either refuses absolutely to continue cohabitation, or refuses to continue it without affront to Christianity, the marriage is considered as dissolved and the Christian spouse becomes free to marry again. 

Separation from bed and board may be permitted by mutual consent if one of the parties desires to enter a religious order or to take holy orders. Otherwise permanent separation is permitted only for adultery, if the adultery has not been connived at or pardoned.

Temporary separation may be granted on the following grounds:

1. Apostasy from Christianity.

2. Attempt to seduce the other party to apostasy from the Catholic faith, or to vice or crime.

3. Ill treatment or designs endangering life or health.

4. Vexatious mortifications continued for a considerable time.

5. Contagious bodily disease of long duration.

6. Malicious abandonment.

7. Such violations of obligations as threaten serious disadvantage or grave danger to property rights or civil honor.

In addition, legal separation may be obtained from the civil courts on the ground previously noted.

All actions for separation must be preceded by three attempts at reconciliation, through the mediation of the parish clergyman of the parties, at intervals of at least eight days. The third attempt may, however, be omitted in the discretion of the priest, if he considers that too much bitterness is being engendered. All temporary separations are to continue only until the marital community may be resumed with safety to the innocent party, and the guilty party gives evidence of being ready once more to perform his duty. Every decree must declare the party for whose guilt it is pronounced. Questions as to support, property, and custody of children are as a rule to be decided by the civil courts in accordance with the provisions of the Austrian Code. At the desire of the parties, however, the ecclesiastical court may act as court of award in property matters, as well as in questions of damages arising out of broken betrothals or annulments.

Source: Marriage and Divorce, 1867-1906: Summary, laws, foreign statistics U.S. Government Printing Office, 1909
Authorities: Stubenrauch: Commentar zum bsterreichischeu allgemeinen biirgerlichen Geselzbuche, 8 Auflagc, Hand I, Vienna, 1902. Von Schey: Taschenausgabe des allgemeines bilrgerliches Gesctzbuches mit Erlduterungen, 17 Auflagc, Vienna, 1902.

Last Updated: 08 Aug 2020 ©2003 Donauschwaben Villages Helping Hands, a Nonprofit Corporation.
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