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


Authorities: Leske and Loewenfeld: Die Rechtsver/olgung im Internationalen Verkehr, IV Band, Das Eherecht der Europdischen Staaten und ihrer Kolonien, ed. Hahn, Berlin, 1904. Back: Das ungarische Ehegeselz, Vienna, 1906. Geselz-Sammlung/Ur 1894 (published by minister of the interior).

The existing regulations concerning marriage and divorce in the Kingdom of Hungary are somewhat complex. In Hungary proper and Transylvania, together with Fiume and the parts of the earlier Military Boundary belonging thereto, the marriage law of 1894 is in force for all citizens, without distinction of religious belief. In Croatia and Slavonia, which, although legally parts of the Kingdom of Hungary, are autonomous so far as internal affairs are concerned, three separate systems of marriage regulation are in force, governing, respectively, the Catholics, the Oriental Greeks, and the Protestants and Jews. Prior to 1861 the different parts of the kingdom were all under the same body of law; in that year the so-called "JudexKurial-Konferenz" of July 23 revoked, so far as Hungary proper and Transylvania were concerned, the application of the Austrian Civil Code, which had been extended over t he Kingdom of Hungary by a royal patent of November 29, 1852, and restored the old body of law, with a few modifications, but made no change in the status of Croatia and Slavonia.

Hungary Proper and Transylvania

Law OF 1894

Marriage and divorce are regulated at the present time in Hungary proper and Transylvania by the marriage law of 1894, supplemented by the civil registration law of the same year. Under this law civil marriage is the only form recognized by the state. The rights of the different religious authorities in respect to ecclesiastical marriage are left unchanged, but severe penalties are inflicted upon any clergyman who shall proceed to such marriage without first having satisfied himself that the parties have already been married before the civil authorities.


Impediments: The impediments to marriage established by the marriage law of 1894 fall into two classes—the absolute impediments and the prohibitions. Marriages contracted in spite of the existence of any of the absolute impediments either are absolutely void or else may be declared void upon petition of the proper party. Marriages contracted in spite of the existence of any of the other impediments are considered as valid, but severe penalties are imposed upon those who knowingly enter into such marriages.

Absolute impediments.—The following impediments affect the validity of the marriage:

1. Lack of capacity. A person incapacitated for acts in the law can not conclude a marriage. Such persons are (a) all under 12 years of age; (b) those who on account of mental disorder or other cause are deprived of the enjoyment of their reason, so long as this condition endures; minors and persons of full age whose minority has been continued, or who have been placed under a curator on account of mental disorder or of being deaf-mutes unable to make themselves understood.

2. Lack of marriageable age. A man can not marry before the conclusion of his eighteenth year; a woman, before the conclusion of her sixteenth year. Dispensation from this requirement can be obtained from the minister of justice.

3. Lack of consent of legal representative or parents. A minor1 can not conclude a marriage without the consent of his legal representative. In addition, for the marriage of a minor under 20 years of age, in case his legal representative is not his father, mother, or grandfather, the consent of his legitimate father is required. If the legitimate father is dead, or if the minor is of illegitimate birth, the consent of the mother is required. If the parents have obtained a legal separation, or if their marriage has been dissolved, the consent must be given by the mother for the child under her care. If no parents exist, the consent of the guardianship court is necessary; this consent may also be substituted for consent refused either by the parents or by the legal representative. Parents are to be treated as nonexistent j'hen they are prevented from giving consent to the marriage through absence or physical or mental infirmity, or when they have been removed from the paternal authority or guardianship, provided such removal was not on account of their administration of property.

4. Consanguinity and affinity. The following persons can not conclude marriage with each other:

a. Blood relatives in the direct line.

b. Brother and Sister.

c. Brother or sister and offspring of brother or sister. But the king, on recommendation of the minister of justice, may grant a dispensation from this impediment.

d. A person who has been previously married and a blood relative in direct line of that person's former consort, even after the end or annulment of the marriage.

It is immaterial in this connection whether the relationship arises from legitimate or illegitimate descent, or whether it is of the full or of the half blood.

5. Existing previous marriage. No one can enter into a new marriage whose earlier marriage has not been dissolved or declared invalid. But if the earlier marriage was absolutely void (nichtig),2 the validity of the subsequent marriage is not affected, even if at the time it was contracted the previous marriage had not been legally annulled.

6. Conspiracy against the life. Two persons can not conclude a marriage if one of them in understanding with the other has made an attempt upon the life of his own or the other's consort.

Prohibitions—The following impediments constitute simple prohibitions against marriage, but have no influence upon the validity of a marriage contracted in spite of them.

1. Pending action for incapacity. As a rule, one against whom an action is pending for a curatorship on account of mental disorder, or on account of being a deaf-mute unable to understand signs, may not conclude a marriage.

2. Lack of consent of curator. A person under a curatorship

a. The time at which a person ordinarily becomes of age in Hungary is on the completion of his twenty-fourth year.

b. For the causes rendering a marriage absolutely void, see section on annulment, page 340. on account of feeble-mindedness, or on account of being a deaf-mute who is able to make himself understood through signs, may not marry without the consent of his curator. But the consent of the court of guardianship may be substituted.

3. Lack of consent of parents. A minor who has completed his twentieth year is forbidden to marry without the consent of his parents, even if his legal representative has consented. The general rule as to the giving of this consent is the same as for minors under 20.

4. Cousinship. First cousin may not marry, except on dispensation from the minister of justice.

5. Relationship by adoption. So long as the adoption is in legal force the adopting parent may not marry the adopted child, nor may either party marry a former consort of the other party. Marriage is also prohibited between the natural offspring of the adopting parent and the natural offspring of the adopted child, as well as the latter's former consort, and between the natural offspring of the adopted child and the former consort of the adopting parent. In this latter case, however, a dispensation may be granted.

6. Guardianship. So long as the guardianship continues, marriage is prohibited between a guardian or his offspring and his ward.

7. Adultery. Marriage is prohibited between those to whom marriage has been forbidden in a decree of divorce on the ground of adultery. But the king can grant a dispensation from this impediment on report of the minister of justice.

8. Void marriage. Marriage is forbidden so long as the earlier void (nichlig)2 marriage of one of the parties has not been dissolved or declared invalid.

9. Erroneous declaration of death. Marriage may not be concluded on the ground of a legal declaration of death, if it is susceptible of proof that the person declared dead was still alive at a date subsequent to the supposititious date of death.

10. Deed of violence. No person may conclude a marriage with anyone who has been legally sentenced for a murder or murderous assault committed on the former's consort, even if the sentence has not yet entered into effect. But the king may grant a dispensation from this impediment.

11. Period of delay. The woman is forbidden to marry again within ten months from the dissolution or annulment of her former marriage, unless in the meantime she has given birth to a child. This impediment, however, is not effective where the annulment was for impotence. Dispensation may be granted.

12. Lack of ecclesiastical consent. No one may conclude a marriage without the consent of his ecclesiastical superiors if he has taken ecclesiastical orders or vows which, under the rules of the church to which he belongs, prevent his marrying. But this impediment ceases if the person in question goes over to another church or religious faith in which the vows are without force.

13. Lack of military consent. For military persons, the consent of their superiors is necessary to marriage. Restrictions similar to those found in the Austrian law also exist in respect to marriage before reaching the age of military service or departure from the third age class.

14. Lack of legal publication. Marriage is forbidden before the requirements of the law as to legal publication have been complied with.

This clause is apparently phrased ambiguously in the original Magyar. The foregoing translation is that appearing in the official German translate ion issued bv the Hungarian minister of the interior; other authorities, however, have translated it as follows: "Marriage is also prohibited between the adopting parent and the natural offspring of the adopted child, as well as with a former consort of the offspring." Vide Back, Das ungarische £liegesetz, Vienna, 1906, 

Preliminaries to marriage: Before a marriage can take place it must be preceded by publication. This is to be made in the commune or communes where the parties ordinarily reside. If either party has resided less than three months in the commune of present residence, the publication must be made in the last commune where his residence endured for the specified time; if this can not be ascertained it must be made in the commune of birth or legal residence. The publication is ordered by the registrar competent to perform the marriage ceremony, who notifies the registrar of any other commune in which publication is to be made. Publication can be proceeded with only after the parties have satisfied the registrar that they fulfill all the requirements of the law. As a rule, they are required to present documentary evidence to this effect, but if the circumstances are personally known to the registrar, he may dispense with this, except in respect to the consent of ecclesiastical or military superiors. Publication is made by posting an official notice for fourteen days in the office of the registrar and in a public place in the communal house. In the communes not under the municipal form of government, one of the local officials must also make oral announcement on two Sundays during the period of publication. The publication must state the full names of the parties, the names of their parents, their marital condition, age, occupation, religion, birthplace, and residence, and in case of necessity, other means of identification, and must include the demand that anyone knowing of a legal impediment, or of a circumstance excluding the possibility of free consent, shall make the fact known to the registrar. The marriage can not take place until three days have elapsed after the expiration of the period of publication. If the marriage does not take place within a year from the last day of publication, the publication must be repeated before the marriage can be celebrated. The chief magistrate of the locality can grant a dispensation from publication, but only after the parties have personally, either orally or in a properly authenticated document, declared that to the best of their knowledge no legal impediment exists. If the magistrate refuses the dispensation, it may be sought from the minister of the interior. The dispensation loses its effect if the marriage does not take place within a year from the date of its granting.


Marriage is, as a rule, to be concluded before the registrar of the district in which at least one of the parties has his residence or domicile, although certain other officials may, for satisfactory reasons, be designated to officiate. Unless authorized by the competent registrar, a registrar can officiate only in his own district. The competent registrar may in any case designate another registrar to perform the ceremony. In case of sickness threatening speedy death to one of the parties to the marriage, the competent registrar may, in the exercise of his official discretion, perform the marriage without cither publication or dispensation, if both parties declare in his presence that according to the best of their knowledge no legal impediment exists between them; an oath to this effect may also be exacted. The marriage is to take place publicly in the public office designated for that purpose, although for weighty reasons the official in charge may, on the petition of the parties, allow the marriage to be performed privately and outside of the public office.

At the celebration of marriage the parties are obliged to appear together before the officiating magistrate and in the presence of two competent witnesses declare that they conclude a marriage with each other. This declaration can be united neither with a condition of any kind nor with a limitation as to time. After the declaration has been made, the magistrate declares the parties to be legally married. In case the registrar refuses to proceed to the publication or marriage, the parties may appeal to the chief magistrate of the locality, and ultimately to the higher courts.

Record of marriage:

Immediately after the marriage has been concluded it must be entered on the official register, with full details as to the parties, their parents, the witnesses, and the officiating magistrate, together with the declarations of the parties and the magistrate. A marriage certificate is also to be given to the parties.

Marriage in other countries:

In general, for a marriage contracted by a Hungarian citizen in a foreign country to be recognized as valid in Hungary, the parties to the marriage must satisfy the requirements of their respective states as to age and legal capacity, and must be free from all other impediments contained in the law of either state. The Hungarian citizen must comply with the regulations of the Hungarian law regarding publication. The marriage itself is valid if concluded in accordance with the requirements of the state where it was performed. In the case of marriage between a male Hungarian citizen and a woman who is a citizen of a foreign country, however, the validity of the marriage is determined solely by the Hungarian law, except so far as the age and competency of the woman are concerned, these questions being determined by the laws of the state of which she is a citizen. Encouragement of marriage:

Illegitimate children aieipsojurc legitimatized by the subsequent marriage of their parents, provided that at the time the children were born the parents could legally have married each other. Annulment:

Marriage may be annulled for violation of various provisions in reference to marriage impediments or the formalities necessary to conclude marriage. The Hungarian law, however, makes a precise differentiation between the grounds for annulment, the marriage being in some cases absolutely void (nichlig) and in others simply impugnable (anfechtbar). In the former case the impediment is perpetual in its effect, and in addition to the parties themselves, the royal prosecuting attorney, as well as anyone who can prove that he has a legal interest dependent upon the annulment of the marriage, may institute an action. In impugnable marriages, however, the right of attack is subject to extinction, and belongs only to the injured party or the authority legally empowered to act in his behalf. A marriage, however, is not to be considered as annulled until a judicial decree to that effect has been rendered.

Void marriages.—Marriage is void in the following cases:

1. If the marriage was performed before an incompetent official, except in cases where the supposition was that the official was competent and neither party to the marriage knew the contrary.

2. If the provisions relative to declaration of consent were not observed. If, however, the parties have declared in person before the proper official that, they conclude a marriage with each other, and have thereafter lived together for a year as man and wife, the marriage is not rendered void by failure to observe any of the other provisions relative to the conclusion of the marriage.

3. If one of the parties was incapacitated for the performance of acts in the law. The voidability of the marriage on this ground, however, ends if, after the cessation of the incapacity, the person affected thereby, before the dissolution or annulment of the marriage, declares his approval thereof, provided that in the meantime the absolute impediments under 4 d, 5, or 6' above have not arisen. Whether continuance of cohabitation constitutes such approval is to be decided by the court.

4. If the marriage was contracted despite the absolute impediments indicated under 4, 5, and 61 above. But a dispensation can be obtained from impediment 4 c if dissolution or annulment has not already taken place.

Impugnable marriages.—Marriage is impugnable in the following cases:

1. If contracted before reaching the marriageable age.

2. If contracted without the necessary legal consent. But the marriage of a minor who had completed his twentieth year and had received the consent of his legal representative, is not impugnable even if contracted without the consent of his parents.

3. On the ground of force, if either party entered into the marriage in consequence of a well-grounded fear induced by threats.

4. On the ground of error, in the following cases:

5. If the victim of the error did not intend to conclude a marriage, and was unaware that by his declaration he was doing so; or

6. If he concluded the marriage with another person than the one he intended to marry, and at the time was not aware of this fact.

7. If either party was permanently impotent at the time of the marriage, and the other party was not cognizant of this fact and could not judge from the circumstances.

8. If either party had been condemned to death, or to a sentence in prison or the penitentiary, or to jail for a crime arising from love of gain, provided condemnation occurred before marriage, and it can well be supposed that the other party would not have concluded the marriage had he been cognizant of the facts.

9. If at the time of the marriage the woman was pregnant by another, and the fact was not known to the husband, provided that this pregnancy was not the result of a previous legal union.

10. If the former consort of one of the parties, who had been legally declared dead, appears after the conclusion of the new marriage, and neither party to the marriage knew at the time of marriage that the former consort was yet alive.

5. On the ground of deception, if the deception relates to essential personal characteristics of the other party, and if it was knowingly evoked by him or he was cognizant of the deception perpetrated by a third party. It must appear reasonable, however, that the marriage would not have been concluded without the deceit.

Actions impugning a marriage may be initiated by the party affected. In addition, the royal prosecuting attorney may initiate actions on the ground of lack of age, and the court of guardianship, actions on the ground of lack of consent, and for minors on the ground of force, error, or fraud.  

The right of impugning the marriage is extinguished after a year has elapsed from the time when the party possessing the right of action became cognizant of the facts or acquired the capacity to institute an action. The period of limitations is considered as in abeyance during the period in which the party to the marriage possessing the right of action is hindered from initiating the action by force or incapacity for acts in the law. In case of marriage under the legal age or without legal consent, the obstacle may be removed by subsequent dispensation or consent, so long as the party remains under the disability, or by approval of the marriage by the party in question, after he has attained marriageable age or after consent is no longer necessary.



Marriage can be legally dissolved only by a judicial decree, on certain grounds specified by law. These grounds are of two classes—absolute and relative.

Absolute grounds.—The following causes constitute absolute grounds for divorce. A divorce asked for on any of these grounds must be granted if the allegations are proven:

1. Adultery, crime against nature, or willful bigamy.

2. Abandonment, knowingly and without just cause, provided—

a. The party at fault, after the lapse of six months from the date of the abandonment, was ordered by a judicial decree to renew the marital community and failed to conform within the time appointed;

b. The party at fault, after his whereabouts has been unknown for at least a year, was by judicial edict ordered to resume the marital community within one year, and unjustifiably failed to conform to this requirement.

3. Attempt upon the life, or willful and serious maltreatment such as to endanger bodily safety or health.

4. Sentence to death or to at least five years in prison or the penitentiary.

Relative grounds.—Divorce may be granted on the following grounds if the judge, after careful consideration of the individuality and characteristics of the parties, is satisfied that the marriage relation is so sorely disturbed as a consequence of the alleged grounds that the continuance of cohabitation has become unbearable for the one asking the dissolution of the marriage:

1. Serious and willful violation of marital obligations, other than the violations included under the absolute grounds.

2. Inducing, or attempting to induce, a child belonging to the family to commission of a criminal act or to an immoral manner of life.

3. Stubborn persistence in an immoral manner of life.

4. Sentence to prison or the penitentiary for less than five years, or to jail for an offense arising from love of gain.

Limitations to right of action.—The right of action is extinguished by connivance or complicity in the criminal act, and by condonation. But it is not extinguished by the fact that the complainant also has given ground for the dissolution of the marriage.

Except in the case of abandonment the right of action is extinguished six months after the injured party becomes cognizant of the culpable act or learns of the criminal sentence. The period of limitation does not run, however, during the time the party possessing the right of action is hindered by force or by incapacity for acts in the law from exercising that right. In any event, however, an action for divorce is not permissible ten years after the date of the performance of the guilty act, or after the time when the penal sentence entered into effect.

Jurisdiction.—The court of first instance in matrimonial causes is that circuit court under whose jurisdiction the parties had their last common residence. In cases of abandonment, however, where the residence of the defendant is unknown, jurisdiction is determined by the residence of the complainant.

Service.—The defendant is ordinarily to be notified by personal service. If, however, the complainant shows by certificate of the local authorities that he has not succeeded in ascertaining the residence of the defendant; if the defendant was not found at home, and there was no person in the household to whom service could be made; or if the defendant lives outside the province, and a return of the writ issued for personal service has not been made within a reasonable time, a curator ad actum is appointed. In the first two cases personal service is made to the curator; in the third case an edict is issued by the court requiring the defendant either to communicate his defense to the curator, or to indicate to the court some one else who shall act as his advocate. This edict is to be published in the official journal and, if occasion demands, in foreign newspapers, and is to be posted publicly in the courthouse. If the complainant conceals his knowledge of the defendant's residence, the whole proceedings are void, and the complainant is required to pay the costs of the case and a heavy fine in addition.

Court procedure. —A separation from bed and board for the purpose of permitting an attempt at reconciliation must first be ordered by the judge in actions of divorce brought on any of the absolute grounds other than abandonment, unless such a reconciliation appears absolutely not to be hoped for, and it must always be ordered in actions based on relative grounds. It may also be ordered during the trial, on the petition of either party. This separation must be for a period of not less than six months nor more than one year, and can not be repeated, but may be prolonged by mutual request of the parties. The right of action on the ground alleged in the complaint is extinguished if the parties renew the marriage relation during the period of separation, or if within three months from the end of the period the one bringing the complaint or cross bill does not formally ask the dissolution of the marriage.

In every action for annulment or divorce a defender of the marriage is appointed, who is obliged to seek all available means of legal relief from a decree annulling or dissolving the marriage.

The court has to make an attempt to reconcile the parties before proceeding with the trial. Hearings are usually private. If both parties fail to appear, the case is continued for not longer than three years; if but one party fails to appear, the case may be continued for this period upon the petition of the other party. The court decides upon the weight of the evidence; default and concurring acknowledgment of the parties do not have their usual force of proof. With the exceptions noted, the case follows the ordinary rules of procedure. Representation by counsel is compulsory.

The decree of divorce names the party on account of whose guilt the marriage was dissolved. If as a result of a counter complaint the divorce is granted in consequence of the guilt of both parties, this fact is to be stated. The respondent may, without a counter complaint, ask the court to declare the complainant also guilty if the latter has proved a cause of complaint against himself, even if the right of action that accrued to the respondent on this ground has become extinguished, provided this right was still in existence at the time the ground alleged by the complainant arose. The guilty party in a divorce on the ground of adultery is to be forbidden in the decree to marry the one with whom the adultery was committed.

Alimony and property effects.—After a divorce the guilty party is required to restore to the innocent party all gifts made by the latter before or during the marriage. If this is not possible, he is bound to make restitution to the amount of their value. The right to demand restitution must, however, be exercised within a year.

The man who is declared guilty is obliged to maintain the innocent woman in a position in keeping with his estate and social position, in so far as her income is insufficient. The parties are, however, free to make any agreement they may desire on the subject. Alimony is payable, as a rule, in monthly cash installments in advance. Under certain circumstances it may be increased. The right to alimony continues after the death of the man, but at the request of the heirs it may be reduced to the amount of the net income of the estate." The right to alimony ceases if the woman marries again.

Change of name.—The guilty wife can not retain the name of her former husband, but the innocent wife may, provided she specifically makes request to that effect at the time of the action.

Custody of children.—Up to their seventh year minor children are entrusted to the care of the mother; after that time, to the innocent party. If both parties are guilty, the father receives the custody of the boys and the mother that of the girls. The parties may, however, settle the custody of the children by mutual agreement, and the judge, in his discretion, may make different provisions in the interest of the children, even to the extent of giving them into the custody of a third party. The expenses of the children's bringing up are to be borne by both parents according to their incomes, if the income from the children's property is not sufficient. In general, the interests of children of divorced parents are to be watched over by the court of guardianship. The parents as a rule retain the right to visit children not committed to their care and to control their bringing up.

There is possibly a misprint in this clause in the official German translation. According to Back, the limit of the reduction is "half the net income of the estate."

Separation from bed and board:

An action for separation from bed and board can be brought on any of the grounds enumerated for divorce. Separation may also be asked for in the counter complaint in an action for divorce. The effects of separation are the same as those of divorce in reference to property, alimony, and custody of children. The separated parties can at any time renew the marriage relation, and on announcement of this fact to the court granting the decree, all effects of the separation cease. After the lapse of two years from the time the decree entered into effect, either party may petition to have it changed into a decree of divorce. Record of decrees in matrimonial causes:

All annulments, divorces, and separations, as well as renewals of the marriage relation after separation, must be reported to the registrar of the district in which the marriage was performed, who must indorse them on the record of the marriage. Validity of foreign decrees in matrimonial causes:

In matrimonial causes where one of the parties is a Hungarian citizen, the judgments of the Hungarian courts alone are recognized as having effect.

Marriage And Divorce Legislation Prior To 1894

Until 1894 marriage legislation in Hungary, even excluding Croatia and Slavonia and the Kingdom of Dalmatia, was among the most confused and complicated in Europe. In general, each religious confession was governed by separate regulations, so that the present uniform marriage law replaced no less than nine distinct systems, as follows:

1. The law of the Roman Catholic Church, based on the canon law.

2. The law of the Oriental Greek Church of Servia.

3. The law of the Oriental Greek Church of Roumania.

4. The marriage patent of Joseph II, dating from 1786, in force for the Protestant churches of Hungary proper.

5. The law of the Evangelical Reformed Church of Transylvania.

6. The matrimonial regulations of 1870 of the Saxon Church (Augsburg Confession) of Transylvania.

7. The law of the Unitarians, fixed in 1889.

8. The law of the Jews of Hungary proper, fixed by an edict in 1863.

9. The law of the Jews of Fiume and Transylvania, based on the provisions of the Austrian Civil Code.

As may be imagined, there resulted from this multiplicity of systems a clash and confusion of interests that became intolerable. This finally resulted in 1894, after a long and bitter contest, in the course of which the bill was once rejected by the House of Magnates, in the passage of the present law, which established a comprehensive system of law on matrimonial affairs that is uniform for all subjects without distinction of creeds.

The Josephine Patent

It will be seen from the enumeration already given that under the different systems prevailing previous to 1894 the regulation of matters concerning marriage was as a rule confided entirely to the ecclesiastical authorities of the respective confessions. The only instances in which the state concerned itself in matrimonial matters, except in so far as related to the civil consequences of marriage, was in respect to the Protestants of Hungary proper and the Jews. For these the state established a comprehensive set of regulations of its own, supplanting the ecclesiastical laws of the different faiths, and the state courts took legal cognizance of all actions for annulment, divorce, and separation. Marriage:

The marriage patent of Joseph II, the provisions of which were in force for all Protestants in Hungary proper during the period previous to 1894, was promulgated March 6, 1786, and incorporated into statutory form in 1791. It was essentially the same as the marriage patent issued for Austria in 1783, which forms the basis of the sections on marriage in the present Austrian Civil Code. There was, therefore, until 1894, little essential difference between the marriage regulations in force in Austria and those for the Protestants in Hungary. Impediments.—The marriage patent, after declaring that marriage when considered as a civil contract, together with the civil rights and obligations flowing out of it, is made effective wholly and solely by the laws of the state, specifies the following impediments as absolutely invalidating marriages concluded in spite of them, all but the first being practically the same as the corresponding ones in the Austrian Code: 

1. Lack of consent. The provisions on this point varied somewhat from those of the Austrian Code. It was required that every minor, before being permitted to marry, should have the consent of his legitimate father, or, if he had no father, of his paternal grandfather. If consent was refused at first, it was necessary to repeat the request before the recourse of appeal to the court could be employed. This appeal could be made by the party with whom the marriage was desired, or his father or guardian, as well as by the party to whom consent was refused. If the decision of the court was adverse to the father or grandfather, it was to be withheld until the court had first, either by kindly representations or by giving time for consideration, attempted to secure from him a voluntary consent. If for any reason a person other than the father or grandfather had been appointed guardian of the minor, his consent also was required. In cases where both the father and the grandfather were dead, the consent of both the guardian and the court was necessary.

2. Difference in religion.

3. Existing previous marriage.

4. Consanguinity and affinity.

5. The fact that the woman had been abducted and not yet restored to freedom.

6. The fact that the parties had been legally adjudged accomplices in adultery.

7. Murder of a former consort of either party, in order to render the new marriage possible.

8. In the case of military persons, lack of consent of their superiors.

Other causes attesting the validity of the marriage.—In addition to the causes above enumerated, in accordance with the contractual view of marriage, anything which affected the validity of the consent affected also the validity of marriage. For this reason those deprived of reason could not contract a valid marriage, unless they had lucid intervals in which they could understand the rights and obligations of the marriage state. The provisions as to marriages contracted under the influence of error, fear, or force were much the same as those later incorporated in the Austrian Code. Impotence supervening before marriage was also a cause for annulment. The procedure in the main was the same as that prescribed in the Austrian Code, with the exception that where the permanence of the impotence was uncertain, the period during which cohabitation must be continued was placed at three years.

Form of marriage.—The Josephine Patent left the marriage ceremony itself completely in the hands of the ecclesiastical authorities. The provisions relative to publication and the declaration of consent, as well as the recording of the marriage, were essentially the same as those later incorporated into the Austrian Code. In cases where the parties were of different religious beliefs, publication had to be made by the parish clergyman of each of the parties. In case the clergyman of one of the parties refused to proceed with the publication, if a certificate was presented from two witnesses to the effect that the clergyman in question had been requested to make the publication, publication by the clergyman of the other party was considered as sufficient. Similarly, if after publication had been made either clergyman refused to give the certificate thereof, a certificate from two witnesses to the effect that the clergyman had been asked by them for the certificate of publication, and had refused to deliver it, although indicating no legal impediment, might be substituted for the certificate of publication. The marriage could be performed by the clergyman of either party. Divorce:

Absolute divorce was permitted upon the following grounds:

1. Attempts upon the life.

2. Adultery.

3. Malicious abandonment. In actions on this ground, however, it was first necessary for the defendant to be summoned three times by judicial edict to justify his action; if he failed to do this within the specified time, the complainant was then to be declared free from the marriage bond.

4. Hostility or invincible aversion, on account of which both parties desired divorce. A separation from bed and board was first necessary, however, and the decree of divorce could be granted only upon a renewed petition of both parties, provided that in the judgment of the court there was no hope of reconciliation, and no disadvantage would result to the children of the union.

Questions as to disposition of the property or custody of the children were settled either by a legally sanctioned agreement of the parties, or, failing this, by the decision of the court itself. Both parties were free to remarry, except that the guilty party could not marry the one who had been his legally proven accessory in causing the dissolution of the marriage. Separation:

If one party was grossly maltreated by the other, or was exposed to seduction to vice or corrupt morals, the right was reserved to the injured party to seek help and safety from the court. A separation from bed and board was, however, to be granted in no case except upon the mutual agreement of the parties, after they had themselves settled their property rights, and upon presentation to the court of a certificate from their pastor that a fruitless attempt at reconciliation had been made by him. If these conditions were satisfied, the parties made application to the court, and the decree of separation followed automatically. It was not necessary in the application to state the grounds of separation.

A decree of separation left all the marriage contracts in full force. The custody of the children was to be given to the father, but both parties, according to their means, were bound for their support and education. The parties were free to reunite at any time, upon notice to the proper authorities.

Regulations governing matrimonial causes arising from mixed marriages:

Prior to 1894 original jurisdiction in matrimonial causes, whether for annulment or for divorce, where the parties were of different beliefs, belonged to the court to whose jurisdiction the defendant was subject. After the case had been decided in this court, it was to be certified within thirty days to the court having jurisdiction over the plaintiff for decision in reference to him. The decision of each court was effective only for those persons over whom it had original jurisdiction; as a result there were innumerable instances where one party, in the view of his own ecclesiastical authorities, was still legally married to one who had obtained a divorce from another court and had married again.

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.

Next: Marriage and Divorce in Croatia and Slavonia, 1867-1906

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