The First Covenant Marriage Proposal

Debate on Mazeaud Proposal in the French Civil Code Reform Commission, 1947.

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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 of divorce.

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 dissolute life.

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 for men.

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 worked?

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 as him.

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 marriage.

Mr. Mazeaud's counterproposal was voted on and failed 9-12.

[Translation by John Crouch]

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