The First Covenant Marriage Proposal
Debate on Mazeaud Proposal in the French Civil Code Reform Commission,
Part of the Divorce
Reform Page, sponsored by Americans for Divorce
| Statistics | Articles/Opinion
| Quotations | Other
WORK OF THE COMMISSION ON CIVIL CODE REFORM 1947-48
REVISIONS TO DIVORCE LAWS
DISCUSSION OF COUNTERPROPOSAL BY HENRI MAZEAUD
Proposed addition to Code's provisions on divorce:
A divorce cannot be pronounced unless at the time of the celebration of
the marriage the spouses did not declare that they were contracting a marriage
that was indissoluble by divorce. This declaration is received by the officer
of the state who registers the marriage.
Plenary Commission, Session of December 5, 1947
JULLIOT de la MORANDIERE, President of the Commission: Today we will examine
the question of divorce. You have the preliminary proposal elaborated by
the subcommittee on Persons and Family, but we have received from our colleague
Mr. Mazeaud a counterproposal. This question having dominated the whole
project, I believe that we must discuss it first.
Mr. Mazeaud proposes in effect to decide that the divorce will not be possible
unless the spouses have not declared that they are contracting an indissoluble
marriage. He proposes therefore to provide that there will be in our legislation
two types of marriages, one dissoluble by the divorce and one indissoluble.
The couple, at the time when they present themselves before the civil state
officer to be married, will declare whether they choose one or the other
of these forms of marriage.
I now give the floor to Mr. Mazeaud, so that he can tell us the reasons
that justify his proposition.
MR. MAZEAUD: The reasons that appear to me to justify my counterproposal
are the following. I don't know if everyone will be in agreement with me.
First, that it is useful at this particular moment, in France, to save the
family, to fight against the constant increase of the number of divorces.
I think also that in this problem of divorce, which is evidently an irritant,
because it touches on the convictions of each of us, the solution is to
leave the liberty to each, so that they who want a divorce can profit from
it, and those who are against divorce can contract a marriage that will
be an indissoluble marriage.
This has the advantage of avoiding the deceptions that often exist at the
time of the marriage, because often one of the spouses believes they are
contracting an indissoluble marriage but the other reserves the exit door
I believe that it would be good if the spouses knew when they married whether
the person who they are marrying has the same conception of what they're
doing with the marriage as they do. I insist again on this point, that this
system would assure the liberty of each. We have in this system a marriage
dissoluble by divorce that one can choose, and an indissoluble marriage
one may equally choose if one finds it in conformity with one's convictions.
MR. NIBOYET: I think people at the time of marriage aren't thinking about
divorce, and that they will all choose indissoluble marriage; and if that's
what happens, what will be the consequence of this reform?
MR. MAZEAUD: I don't think that future spouses who believe in divorce will
choose indissoluble marriage.
MR. NIBOYET: Certain situations present themselves in the course of life
which you cannot foresee at the moment of marriage. You cannot keep someone
from divorcing for their whole life if there truly exist profound reasons
such as sometimes present themselves.
MR. MAZEAUD: But there are certain people who do not want to contract anything
but an indissoluble marriage.
MR. NIBOYET: But there are circumstances that are not foreseeable.
MR. MAZEAUD: Is it not better that a marriage not happen than that it be
founded on fraud?
MR. NIBOYET: But there are unforeseeable circumstances. For example, one
of the spouses is imprisoned or he abandons the other and leads a totally
MR. MAZEAUD: No one argues that we should condemn these spouses to live
together; but what they're agreeing is that they will not be able to make
a new life for themselves.
MR. NIBOYET: I agree as strongly as you do that we should somewhat limit
the domain of divorce, but I don't believe that you can do that by the means
that you propose.
MR. DELEPINE: I think that if we pass this law 90 to 95% of people will
choose an indissoluble marriage.
MR. MAZEAUD: Well, don't you think it would be a good result if about 90%
of people couldn't divorce?
MR. DELEPINE: 99% of future spouses have at the moment of marriage a moral
certainty that they won't divorce, and they're being honest between themselves
when they say that. But when we make an act or a contract we're in one state
of conscience, but five or six years later we're in another state of conscience.
MR. MAZEAUD: Well, would you agree that perhaps if the state of conscience
changes the contract can be modified?
MR. DELEPINE: If it was a contract, that would be different, but marriage
is not a contract. For my part, in my personal conscience, I am against
divorce. I think that's it an abominable thing that you must try to avoid
at any price in all cases, but I think perhaps that I think that because
I've been lucky and have never been tempted to divorce, have never found
in front of me a reason that pushes me to seek a divorce. If a pure young
woman marries a young man full of good intentions but he later debauches
himself, contracts syphilis and conducts himself like a bum, must she remain
faithful and be a victim to the end of her days?
MR. MAZEAUD: Yes, there are women who believe that their marriage should
be indissoluble no matter what, even if their husband debauches himself
or contracts a social disease, and that they are held to remain in their
vows of fidelity. I think therefore that if a girl believes that is her
conception of marriage, she has the right to make sure that she marries
someone with the same view of marriage.
MR. DELEPINE: I agree, but I think we are legislating not for saints but
MR. MAZEAUD: But you all agree that divorce produces very bad results?
MR. NIBOYET: Not always. In certain cases the opposite. It can produce extremely
fortunate results, but it would be good to find some means of limiting divorce.
I am in agreement on that point.
MR. MAZEAUD: From the point of view of the individual, divorce can produce
favorable results, but from the point of view of the general good you're
obliged to recognize that it produces disastrous results.
THE PRESIDENT: At bottom your counterproposal aims to suppress divorce.
MR. MAZEAUD: To restrain it, not to suppress it.
MR. DE LAPANOUSSE: There are perhaps a certain number of people for whom
marriage is nothing but a temporary union.
MR. ANCEL: I think the judges here would agree with me that divorces are
usually the result of unhappy unions and not of people who have preconceived
ideas against the indissolubility of marriage.
MR. MAZEAUD: Well, the danger of divorce is that very often two spouses
divorce for very light reasons. If there was not the unilateral ability
to divorce, remarry and make a new life, then married life would continue
in conditions that perhaps are not really too bad. Every household is troubled
at certain times, but if at the first fault or error divorce is possible,
the household is broken. That is the great danger.
MR. OUDINOT: If you suppress divorce, you are still letting people physically
separate, and that is what people who cannot stand each other will do. It
has been demonstrated that that is not a very happy solution.
MR. MAZEAUD: That would be exactly true if there were going to be as many
separations as there now are divorces; but I repeat that the danger of divorce
resides in the possibility of divorce, and I am persuaded that many marriages
would stay together if there was not divorce. You could then have a separation
that lasts for some months or a year or two years but the household could
still be reassembled.
MR. OUDINOT: That isn't absolutely certain. Divorce is above all damaging
when there are children. It's in that case that it produces odious consequences.
When there aren't any children, I don't really see that you can reproach
divorce; if two people want to separate and take back their liberty, I don't
see how that is a disaster for society. What's offensive is to see parents
divorce once there are children. These children are thrown back and forth
between the father and mother; one gets custody, refuses to let the other
see them, the whole situation is a continuing situation of quarrels between
the spouses and a source of difficulties and demoralization for the children.
MR. MAZEAUD: We must consider not only the interests of the spouses but
the general and national interest. It has been demonstrated, and remarkable
works have been done on this question, that the progression of divorce is
the same as the progression of illegitimacy. You cannot deny that there
is a direct influence of one upon the other.
THE PRESIDENT: The statistics are very contestable.
MR. DE LAPANOUSSE: I'd like to take exception to what Mr. Charpentier said
earlier about the causes of divorce, which according to him are usually
serious ones. In my judicial experience, I've noticed, in the divorce cases
I have seen, that most often there are not really serious reasons, and if
people did not have this exit door they would have behaved and worked things
out. I've even seen old spouses who divorce at 60 years for pure reasons
of interest, at the instigation of their relatives, and I have seen young
couples pushed by their respective parents into divorce even though without
their parents they would be agreeable after a few spats, but there was this
mother-in-law or this father-in-law ... . If they hadn't known that there
was the exit door offered by divorce everything would have been worked out.
MR. CHARPENTIER: How many times have you seen reconciliations that actually
MR. DE LAPANOUSSE: Once you get into the system, it's all over.
MR. MAZEAUD: Most divorces are demanded because the husband has found a
woman or the woman has found a man. If the possibility of divorce didn't
exist, there would be perhaps one fault which would be committed by the
husband or by the wife and then they would leave it at that.
MR. RATEAU: The judicial experience to which somebody alluded reveals two
essential things. First, divorces are not granted on the grounds that actually
cause them. Often the true reason for them is never found. Secondly, the
fragility of reconciliations. For three years I have been a conciliator
judge of divorces at the Tribunal of the Seine. I've taken my role seriously
and I've often made considerable efforts to facilitate rapprochement in
situations where it appeared to me that reconciliation could be durable.
I've each time been disillusioned and I've seen nothing but deceptions.
It's like repatching old walls. It won't stay!
Marriage decisions are made in a moment of passion, and I don't think anybody
will opt for divorceable marriage. I have some regret however that I cannot
favor Mr. Mazeaud's proposal.
MR. MAZEAUD: But if you follow your reasoning, we're admitting the possibility
of divorce by mutual consent in all cases. We're saying that at the moment
that the spouses are agreed to separate they are going to separate.
MR. CHARPENTIER: The reasons Mr. Mazeaud gives do not accord with his solution.
He invokes reasons of social order: divorce is a flaw, coincides with illegitimacy,
therefore one must limit its effect. Then let's have the courage to say
it and to make legislation that prohibits divorce or limits its effect,
but let's not leave it to the liberty of the spouses.
MR. MAZEAUD: We cannot prohibit divorce because that oppresses the liberty
of those for whom, justly, marriage must be dissoluble.
THE PRESIDENT: I don't understand your argument. In the legislation now
in force, the law doesn't oblige anyone to divorce; but if some event happens
in the course of marriage which renders communal life impossible, the spouse
who is called upon to suffer it can still tolerate if he wants to.
MR. MAZEAUD: The question is to know if the other spouse has the same conception
THE PRESIDENT: The law will impose divorce on him if he has committed a
fault. All he has to do is not commit a fault.
MR. MAZEAUD: But there are people who believe that in conscience, according
to their religious convictions, if you will, they cannot contract a dissoluble
marriage. You are chaining the liberty of these people if you oblige them
to contract a dissoluble marriage.
THE PRESIDENT: But the Church has never said that that's a sin.
MR. MAZEAUD: But the Church tells them that a civil marriage has no worth.
MR. JOUSSELIN: Here's something interesting. Young people don't have to
be told when they marry -- and I, who see them before the marriage, I can
make this observation -- you don't have to tell them that they will always
have the ability to divorce. I think it's necessary that in marrying --
even if the marriage is not considered indissoluble -- they should know
that due to the development of the grounds of divorce, they can be divorced
involuntarily or by artifices of procedure.
MR. NIBOYET: Divorce is not necessarily a social ill. It can be a benefit.
MR. MAZEAUD: I'm not one of those who thinks that the individual interests
THE PRESIDENT: The question is whether we can have two different kinds of
marriage according to the declaration of the spouses. Dissoluble and indissoluble
Mr. Mazeaud's counterproposal was voted on and failed 9-12.
[Translation by John Crouch]
| Statistics | Articles/Opinion
| Quotations | Other
Originally posted and maintained by Americans
for Divorce Reform; now maintained by John Crouch. You can call me at
(703) 528-6700 or e-mail
me through my law office's web site.