This law, which prescribes a uniforn manner of recording births, marriages,
and deaths throughout the confederation, also prescribes the formalities
necessary to constitute a valid marriage, and regulates the question of
divorce. Though enacted in December, 1874, it did not go into operation
until January 1, 1876.
While the law, being uniform throughout all the cantons, has done away with
many annoying provisions formerly existing in some of them, it is not free
from objection on the part of a number of our citizens who desire to marry
in this country. These objections are, however, principally
[Page 942]
due to the difficulty of procuring in the
United States the documents, such as copies of records or certificates
concerning the pro visions of law of the respective. States required by the
Swiss law. This difficulty is mainly owing to our different method of
recording births, marriages, and deaths, and the recognition in our
legislation of religious solemnization of marriage, and to the records being
kept in parish registers, as well as to the impossibility of the legation
assuming to certify to questions of law arising under the legislation of the
various States.
Since my connection with this mission (August 3, 1877), there have been
received 39 communications relating to questions arising under this law, 25
of which merely transmit to the legation certificates of births, marriages,
and deaths. The remaining 14, emanating from the Federal Government, the
officials of the état civil, and from private
individuals, are so varied in their nature that I inclose an abstract of
their record on the register of the legation.
So far as I can gather, no return has been furnished you of the certificates
of births, marriages, and deaths which have been transmitted to the legation
by the Swiss authorities under the operation of this law. I therefore
inclose a statement of them from January 1, 1876, to August 31, 1879. These
certificates are sent to the legation sometimes from the federal chancery,
and sometimes directly by the local authorities. Among the persons whose
certificates of birth, marriage, or death have thus been sent, I believe
that there are several whose claim to be considered citizens of the United
States is at least doubtful, but as I know of no law by which the deposit of
such certificates in this office would confer on them or their descendants
any greater claim to our nationality than that to which they were already
entitled, I have not deemed it expedient to ask for the evidence of the
nationality of the parties concerned.
I have also obtained from each of the principal consular officers a statement
of similar certificates on file in their offices. A comparison of these with
the one from the legation shows that there are several names included in
both the consular and the legation’s statements.
At the legation there have been filed the certificates of 35 births, 15
marriages, and 19 deaths. At the consulate at Zurich 6 births, 5 marriages,
and 2 deaths; but of these the certificates of 2 births, 1 marriage, and 1
death refer to persons whose certificates are on file at the legation. At
the consulate at Basle the certificates of 2 births, 2 marriages, and 1
death have been filed. At Geneva the consular records do not show a single
such certificate filed under the provisions of this law. At the commercial
agency at St. Galle, the certificate of 1 birth and of 1 marriage have been
filed, but the latter is also on file at the legation.
That these represent the whole number of births, marriages, and deaths among
the Americans in Switzerland I do not for a moment believe, for in a period
of three years and seven months there have been no certificates received
from a majority of the cantons, and those received account for only 46
births, 21 marriages, and 21 deaths; and moreover I know of individual cases
which do not appear in any of the lists. I infer therefore that the sending
of the certificates depends rather on the local official of the place, than
on his superiors, the cantonal or federal authorities.
It may be of interest to you to know the nature of the inquiries propounded
by this government to the legation, and of the replies furnished, in order
that you may judge whether the latter have been judicious and in accordance
with your views.
I therefore inclose copies of all such correspondence from the date on which
the Swiss law went into effect.*
I have endeavored in my answers to this government, in view of the somewhat
different provisions of law of some of our States, to avoid any committal of
the legation upon questions arising under legislation of the various States,
and have confined myself to stating the provisions of our Revised Statutes
and the construction of them as set forth in the consular regulations. In
reply to similar requests from private individuals and local officials, I
have suggested the propriety of their procuring the desired information from
the United States, through the Swiss consul, in whose jurisdiction the State
in question may be situated.
In a recent case I have been asked by this government whether the marriage of
a citizen of the United States celebrated in Switzerland in accordance with
Swiss law would be recognized as valid in the United States, or whether to
give it validity the presence of the consular officer of the United States
is requisite. In my answer, I cited section 4082 of the Revised Statutes,
and stated that there can be no doubt that a marriage performed in
Switzerland under Swiss law and in conformity with said section of the
Revised Statutes would constitute a valid marriage and be recognized as
such.
I considered it more courteous to this government to confine myself to this
answer rather than to discuss the special case to which it referred (that of
Egon Kohler), as had I entered on a discussion of the merits of the case, I
might have shown that the cantonal government of Schaffhausen was in error
in stating that the official of the état civil did
not know the requirements of our law in regard to this particular case, for
those requirements had been communicated to him at his own request before
the marriage took place, with special reference to Kohler’s case. I dwell
upon these details, as it is not the first time that I have found that the
federal government has been misled by the inaccurate statements furnished it
by the cantonal governments.
I have noticed in our press several articles advocating a United States
statute regulating the questions of marriage and divorce, and while I am not
prepared to say that the adoption of such a law, furnishing a uniform system
throughout the Union, would be advisable just at present, I believe that a
better acquaintance with the Swiss law would be of interest to many of our
citizens; and should the movement in favor of a similar law at home assume a
more definite shape, I think this law would merit the attention and study of
our legislators. Like any law we may hereafter enact on this important
subject, it was carefully drawn, after great and thorough study, to meet the
requirements of varied legislation in numerous cantons or states; and while
it has set aside some of the previous requirements of the latter, it has
been successful in reconciling the conflicting questions to which they too
often gave rise. While some provisions of the law occasionally cause
individual embarrassments, on the whole the practical working of the law is
satisfactory, and it affords a much more convenient form of marriage to such
of our citizens as desire to avail themselves of it. Its requirements are
likewise much more clearly defined than they were in many cases under the
former cantonal enactments which it supersedes.
[Inclosure in No.
219.—Translation.]
SWISS LAW CONCERNING THE SOCIAL STATE, THE KEEPING OF REGISTERS
RELATING TO IT AND MARRIAGE, OF DECEMBER 24, 1874.
[Recueil Officiel I, page 471.]
federal law concerning the social
state, the keeping of registers relating to it and marriage, of
december 24, 1874.
The Federal Assembly of the Swiss Confederation, in execution of articles
53, 54, -and 58, second paragraph of the federal constitution,
considering the message of the federal council of October 2, 1874,
decree:
A.—General Provisions.
Article 1. The civil state (état civil) and the keeping of the registers relating thereto
belong to the civil authorities in the whole territory of the
Confederation.
The officers of the civil state must be laymen, and they alone have the
right to make entries on the register of the civil state and furnish
extracts therefrom.
Art. 2. Each officer of the civil state (état civil) shall keep, according to uniform
formulae determined by the federal council, three registers, bearing the
following denominations: “Register of Births,” “Register of Deaths,”
“Register of Marriages.”
These registers are furnished by the cantons; they are to be kept in
duplicate, each being an original. At the end of each year they are
closed, and certified as true by the officer of civil state. One of the
copies remains at the disposition of the officer of civil state, and the
other is transmitted, within ten days after the end of the year, to the
designated authority in each canton, to be placed and kept in its
archives.
The entries made on the first copy after the filing of the second must be
communicated immediately in the form of a certified copy to the
functionary in whose hands the latter copy has been placed, and
inscribed by the latter on that register.
Art. 3. The determination of the districts of
the civil state and the provisions relative to the nomination and
emoluments of the officers of the civil state remain a cantonal
prerogative.
The boundaries of the cantonal districts must be communicated to the
federal council before the going into effect of the present law, and
afterwards at each subsequent modification.
Art. 4. Each birth, each death, and each
marriage shall be first inscribed in the district where it occurs.
Art. 5. The officers of the civil state are
compelled—
- a.
- To inscribe in the registers destined for that purpose the
births, the deaths, the publications, and the marriages which
occur within their district, and moreover to proceed with the
publications and the celebration of marriages.
- b.
- To communicate officially within a period of 8 days to the
Swiss officers of the civil state of the place of domicile and
of the place of birth, the entries of births, deaths, or
marriages, concerning persons who are domiciled or were born in
another district of the civil state.
- c.
- To inscribe in the subdivisions of the register of births,
deaths, and marriages the communications of a like nature for
births, deaths, and marriages coming from other districts of
Switzerland or from foreign countries, as well as to inscribe
the divorces or the decrees of nullity of marriage pronounced by
the courts, so far as these various documents concern the
inhabitants or natives of their districts.
- d.
- To deliver extracts of these registers, upon the request of
those interested upon the payment of the cost of
transmission.
- e.
- To deliver statistical extracts, and to furnish information to
the federal authorities in conformity to the formulae
established by the latter, upon an indemnity to be determined by
the federal council.
- f.
- To keep all other registers which may be prescribed by the
laws or the regulations of the cantons and to deliver the
necessary extracts for cantonal and communal
administrations.
Art. 6. The acts of the civil state are
inscribed on the registers in the order of date of succession, without
any margin, with a single series of numbers, terminating with each
year.
There must be nothing written in abbreviation, and no date shall be
inscribed in figures. The entries, the erasures, and there turns must be
signed by the officer of the civil state.
Art. 7. Nothing shall be written on the
registers which is foreign to the subject. The family names and
Christian names of the persons who figure in the acts must be inscribed
in accordance with the acts of birth and other acts of the civil state;
they
[Page 945]
may be accompained by the
indication of the profession and functions which the person exercises or
has exercised.
Art. 8. The officer of the civil state shall
immediately proceed to the entry of the acts upon the register
immediately after the declaration has been made to him, or the receipt
of the official reports, extracts, or judgments which are forwarded to
him.
The entries and official communications required by the present law are
to be made free of charge.
The other extracts and copies are subject to forwarding charges,
according to a tariff established for their territory by the cantonal
governments, and approved by the federal council.
Art. 9. The officer of the civil state shall
not modify or add anything to the acts inscribed in the registers.
The rectification of the acts of the civil state can only be ordered by
the judgment of the competent cantonal tribunals.
Notwithstanding when there is a manifest error, the cantonal authority
charged with the superintendence of the civil state may order the
correction of it by way of administration.
Summary mention is made in margin on the entry of all decisions or
judgments ordering the correction of an act of the civil state.
Art. 10. All documentary proofs which serve as
a basis for the entries on the registers of births, deaths, and
marriages, shall be preserved by the officer of the civil state, and
classed for each year in three distinct series in accordance with or
agreeably to article 2, in the order of the numbers of the register.
Art. 11. The registers of the civil state, and
the extracts rendered, which are certified to as correct by the officer
of the civil state, are authentic acts in which entire faith is placed
as to the contents so long as the falsity or inexactitude of the
indications and statements upon which the entries are based is not
proved.
Art. 12. The officers of the civil state are
responsible for the carrying out of their duties towards the cantonal
authorities, who give them the necessary instructions conformably to the
present law.
The cantonal governments are obliged to order annual inspections of the
administration of the officers of the civil state, and to address to the
federal council a report upon the result of these inspections.
In case of irregularities or abuse, the federal council has the right to
interpose, and to order, at the expense of the cantons, such measures as
it may hold expedient. The federal council is furthermore authorized to
institute special inspections.
Art. 13. The federal council is authorized to
grant, where it sees fit, to diplomatic and consular agents of the
confederation in foreign countries, prerogatives relative to the
authentication of births and deaths of Swiss citizens, and to the
celebration of i marriages between Swiss citizen’s, and between Swiss
citizens and foreigners. It will publish with this object the rules and
regulations necessary upon the basis of the present law.
B.—Special Provisions upon the keeping
of Register of Births.
Art. 14. Every birth, as well as each premature
birth after the sixth month pregnancy, shall be verbally declared within
three days to the officer of the civil state of the district in which it
occurs.
Births which occur in public establishments (lying-in hospitals,
hospitals, or prisons) are declared by an official letter from the
directors of these establishments.
Art. 15. The following are obliged to make the
declaration of birth:
- 1st.
- The legitimate father, or the person authorized to represent
him.
- 2d.
- The midwife or physician present at the confinement.
- 3d.
- Any other person present.
- 4th.
- The person in whose house or in whose apartment the
confinement took place.
- 5th.
- The mother as soon as she recovers.
This obligation is successively imposed upon the persons above
designated, and only commences in the case where the preceding persons
have failed to fulfill it, or are prevented therefrom.
Art. 16. The entry on the register of births
must state—
- a.
- The place, the year, the month, the day, and the hour of the
birth. If two or more twins are born, this circumstance is
mentioned, indicating at the same time, as precisely as
possible, the moment of the respective births of each of
them.
- b.
- The family name, Christian names, and sex of the child. When
the child is stillborn, or dies before the expiration of the
delay fixed for the declaration, the entry does not mention the
Christian names.
- c.
- The family and Christian names, the profession, the birthplace
and domicile of the father and mother if the child is
legitimate, or of the mother if the child is born out of
wedlock.
- d.
- The family and Christian names, profession, place of birth and
domicile of the person making the declaration.
Immediately after the declaration the birth is inscribed upon the
register and the entry is signed by the person making the declaration.
When the person making the declaration does not know how to or is unable
to sign, special mention of this fact is made on the register.
Art. 17. The officer of the civil state, when,
the statements of the declaration do not appear to him worthy of belief,
shall make the necessary inquiries, and make the entry only when he is
satisfied of the correctness of the statements. If the person who makes
the declaration is not personally known to him he will cause his
identity to be certified to.
Art. 18. The modifications which occur in the
civil state (état civil) subsequently to the
entry on the register of births (settling the paternity of an
illegitimate child by decree of court, or voluntary recognition,
legitimization, adoption, &c.) are, at the request of one of the
parties concerned, entered in the margin on the act of birth, when the
facts are certified to by authenticated documents.
In case of the adjudication of an illegitimate child by decree of court,
the judicial authority shall notify the officer of the competent civil
state thereof.
The recognition of an illegitimate child in the declaration of birth,
made by him who admits being the father of the same, is inscribed on the
register, if the cantonal legislation authorizes this recognition.
Art. 19. For foundlings the notice authority of
the commune is obliged to announce for the entry, within three days
after the child is found:
- a.
- The place, the time, and the circumstances in which the child
has been found.
- b.
- The sex of the child, with presumable age, as well as any
particular marks and signs by which it may be recognized.
- c.
- The nature of the clothing and other objects found with the
child.
- d.
- The names given it.
- e.
- The person with whom the child is placed.
C.—Special Provisions upon the keeping
of the Register of Deaths.
Art. 20. Every death must be announced verbally
to the officer of civil state of the district within forty-eight hours
at the latest.
Those obliged to make this declaration are the head of the family, the
widow or the other nearest relations of the deceased; in their default,
or in case of their being prevented, the person in whose apartment or in
whose house the death has occurred, or the persons present at the death,
or, finally, the local police.
The dispositions of articles 17, 14 second paragraph and 15 last
paragraph, are equally applicable to declarations of deaths.
Art. 21. No burial can take place without the
permission of the authority of the local police before the death has
been inscribed upon the register of the civil state. If the burial has
taken place contrary to this limitation, the entry of death can only he
made with the permission of the authority charged with the
superintendence of the civil state after proving of the facts.
Art. 22. The register of deaths shall state—
- a.
- The year, the month, the day, the hour, and the place of
death.
- b.
- The family names, Christian names, and, should the case occur,
surnames of the deceased and his parents; his place of birth and
of domicile (in the cities, the name of the street and number of
the house), his religion, his profession, and his civil state
(single, married, widowed, or divorced), the year, month, or day
of his birth.
- c.
- The family names, Christian names, and profession of the
surviving party, husband or wife, deceased or divorced.
- d.
- The cause of death assigned by the physician, as far as
possible.
Immediately after the declaration, the death is inscribed on the
register, and the entry is signed by the person who makes the
declaration. When the person who makes the declaration does not know-how
or is unable to sign, special mention of the fact is made on the
register.
Art. 23. When an unknown person is found dead
in the district of the civil state, the declaration of decease is made
by the communal police.
The entry shall state—
- a.
- The place, the time, and the circumstances in which the body
has been found.
- b.
- The sex and presumable age of the deceased.
- c.
- Marks on the body and particular signs which could serve to
recognize or identify the deceased.
- d.
- The nature of the clothing and other objects found with the
body.
- e.
- The probable cause of death. The names and place of birth
should be inscribed when they are known.
Art. 24. Persons who have disappeared whose
decease is acknowledged or recognized by decree of court are inscribed
on the register of deaths with the mention that
[Page 947]
this entry takes place on the strength of a
declaration of decease pronounced by the competent authority.
The authority who declares the death shall communicate either to the
officer of the civil state of the last known domicile of the person, or
to the officer of the place of birth.
d.—Special Provisions relative to the
celebration of and the keeping of the Register of Marriage.
i.—of the qualifications and
conditions necessary in order to contract marriage.
Art. 25. The right of marriage is placed under
the protection of the confederation.
No hinderance to marriage can arise from confessional motives, from the
indigence of the one or the other contracting party, from their conduct,
or from any other police motive whatever.
Every marriage solemnized in a canton or a foreign land agreeably to the
legislation which is there in force, shall be recognized throughout the
confederation.
The wife acquires by marriage the right of citizenship and burgership of
her husband.
Children born out of wedlock are legitimatized by the subsequent marriage
of their parents.
There shall be no marriage fee or any such tax collected from either of
the contracting parties (article 54 of the federal constitution).
Art. 26. No marriage is valid without the free
consent of the contracting parties. Compulsion, fraud, or a mistake in
the identity of the contracting parties, exclude the presumption of
consent.
Art. 27. To contract marriage the man must have
completed his eighteenth year, the woman her sixteenth.
Persons who have not yet reached the age of twenty full years cannot be
married without the authorization of that one of their parents, father
or mother, who exercises the parental authority. If they are deceased,
or in the impossibility of manifesting their wishes, the consent of the
guardian is requisite. The parties interested can have recourse to
lodging an appeal with the superior tutelary authority against the
refusal of the guardian to give his consent.
Art. 28. Marriage is forbidden—
- 1st.
- To those persons already married.
- 2d.
- For cause of parentage or alliance.
- a.
- Between ancestors and descendants of all degrees,
between brothers and sisters of the whole blood, or by
half blood by the father’s side, or of the same mother
but not by the same father; between uncle and niece,
between aunt and nephew, whether it be a legitimate or
illegitimate relationship.
- b.
- Between relations in line direct ancestral or of
descent, between parents and adopted children.
- 3d.
- Between persons attacked with insanity or imbecility.
Widows and divorced women, as well as those women whose marriages have
been pronounced null, shall not contract a new marriage before the
expiration of 300 days from the time of the dissolution of the
marriage.
ii.—of formalities relative to the
celebration of marriage.
Art. 29. Every celebration of marriage within
the territory of the confederation must be preceded by the publication
of the intention of marriage. This publication must be made in the place
of domicile and place of birth of each of the contracting parties. When
the publication is to be made in a foreign country and is refused as
being needless or inadmissible according to the laws of the country, a
eertificate stating this fact takes the place of the publication.
Art. 30. In order to proceed to the publication
of the intention of marriage, the officer of the civil state must have
presented to him—
- a.
- The certificates of birth of both contracting parties.
- b.
- For those persons who have not yet completed their twentieth
year, a declaration of consent of that one of the parents who
exercises parental authority, or of the guardian, or finally of
the competent tutelary authority.
- c.
- In case the two contracting parties do not personally appear,
a promise of marriage signed by them and legalized by the
competent or proper authority.
Art. 31. If the result of the declarations and
documents produced prove that the prescribed conditions are carried out,
the officer of the civil state draws up the act of the intention of
marriage and proceeds to its publication; he transmits it officially to
the officers of the Swiss and foreign civil state in whose district the
publication should also be made, according to article 29.
[Page 948]
All these transactions arc made free of charge in as far as the officers
of the Swiss civil state are concerned.
The officers of the Swiss civil state are obliged to give their attention
to the applications addressed to them by foreign authorities for the
marriage of Swiss citizens or of foreigners born or living in
Switzerland.
If the future husband is a foreigner in Switzerland, the publication is
only made upon the presentation of a declaration from the competent
foreign authorities, stating that the marriage will be recognized with
all its legal results.
The cantonal government is authorized to dispense with this formality,
and to admit, in default of the declaration required, any other
sufficient justification.
Art. 32. The certificate of the intention of
marriage should indicate: The family and Christian names, the
profession, the place of domicile, and place of birth of the future
husband and wife, and of their parents; for widowed or divorced persons,
the family and Christian names of the former husband and wife; finally,
the delay fixed for the oppositions.
Art. 33. In the entire territory of the
confederation this publication is made by the officer of the civil state
designated by law, in the same manner for all intentions of marriage,
either by posting up a placard, or by insertion in the official
newspaper.
Art. 34. The obstacles to the marriage must be
announced within a delay of ten days after the publication of the
intention of marriage to one of the officers of the civil state who have
proceeded to the publication. Forty-eight hours at the utmost after the
expiration of this delay the other officers of the civil state who have
proceeded to the publication must notify the officer of the place of
domicile of the husband whether or no there is opposition.
Every opposition or obstacle not founded upon one of the motives foreseen
in articles 26, 27, and 28 of the present law should be officially put
aside, and cannot be taken into any consideration whatever.
Art. 35. All opposition to the celebration of
the marriage is communicated to the husband by the officer of the civil
state of his place of domicile; the husband must declare within a delay
of ten days whether he admits or contests the correctness of this
opposition. In the latter case, the declaration of the husband is
communicated to the adversary, who must within a delay of ten other days
bring an action before the competent judge of the place of residence of
the husband, or it this latter has no residence or place of domicile in
Switzerland, before the competent judge of the place of residence of the
wife. In the default of the bringing, of any action within this delay,
the opposition falls to the ground.
Art. 36. At the expiration of the delay of
fourteen days after the publication of the intention of marriage at the
place of residence of the husband, the officer of the civil state of
this domicile, if he has been notified of no opposition, or if the
opposition has been set aside by the competent judge, shall deliver to
the future husband and wife, at their request, a certificate of
publication certifying that the legal publication has taken place, and
that there exists no obstacle to the celebration of the marriage. The
publication ceases to be valid, if within a delay of six months it has
not been followed by the celebration of the marriage.
Art. 37. Upon the presentation of the
certificate of publication, the officer of the civil state proceeds to
the celebration of the marriage, which takes place as a rule in the
district of the place of residence of the husband.
In case of danger of death, the officer of the civil state may, with the
permission of the competent cantonal authority, proceed to the
celebration of the marriage even without previous preliminary
publication.
With the written authority of the officer of the civil state of the place
of residence of the husband, the marriage can also be celebrated before
the officer of another district within the territory of the
confederation. In such case the latter should immediately send a copy of
the certificate of marriage for entry on the official registers of the
place of residence.
If the husband is a foreigner the marriage can only be celebrated upon
the presentation of a declaration of the competent foreign authority
certifying that the marriage will be recognized in that country with all
its legal results. The right of dispensation is, however, reserved to
the cantonal governments foreseen in article 31, last paragraph.
Art. 38. At last two days in each week the
celebration of marriages must be feasible, the marriage takes place
publicly, and in the hall of a building of public administration.
In the case of serious illness on the part of one of the contracting
parties, certified to by a medical certificate, the marriage may be
celebrated in a private house. Under all circumstances the presence of
two witnesses of full age is necessary.
Art. 39. The marriage is celebrated in the
following manner:
The officer of the civil state asks each of the contracting parties
separately:
“N —— N ——, do you declare that you are willing to take N —— N —— for
your wife?
[Page 949]
“N—— N ————, do you declare, that you are willing to take N —— N —— for
your husband?
“In consequence of this declaration which you have both just made, I
declare you to be, in the name of the law, united in marriage.”
Immediately after this declaration the marriage is inscribed on the
register and the entry is signed by the husband and wife, and by the
witnesses.
Art. 40. A religious ceremony can only take
place after the legal celebration of marriage by the civil functionary,
and upon the presentation of the marriage certificate.
Art. 41. The husband and wife should declare to
the officer of the civil state of their place of residence at the time
of the marriage, or at the latest within a delay of thirty days, the
children they may have had previously, and which are legitimized by
their subsequent marriage. Nevertheless, if for any motive whatever this
declaration has not been inscribed, nothing prejudicial to the rights of
their children born before the marriage or their descendants can arise
from this omission.
Art. 42. The register of marriages should
state—
- a.
- The family and Christian names, the place of origin, of birth,
and of domicile, the profession, and the date of birth of each
contracting party.
- b.
- The family and Christian names, the profession and domicile of
the parents.
- c.
- The family and Christian names of the deceased or divorced
husband and wife, when one of the contracting parties has been
previously married; also the date of the death or
divorce.
- d.
- The date of the publication of the intention of
marriage.
- e.
- The date of the celebration of marriage.
- f.
- A list of the documents deposited.
- g.
- The family and Christian names and domicile of the
witnesses.
E.—Special Provisions as to Divorce,
as to Nullity of Marriage, and as to the entries to be made in such
cases.
Art. 43. Actions for divorce and for nullity of
marriage must be brought before the tribunal of the place and domicile
of the husband. The appeal to the federal tribunal is reserved in
conformity with article 29 of the law of the federal judiciary
organization of June 27, 1874.
In default of a domicile within the confederation, the action may be
brought in the place of birth (bourgeoisie) or at
the last domicile of the husband in Switzerland.
Art. 44. From the time when the action is
instituted, the tribunal permits the wife, at her request, to live apart
from her husband, and orders in general, throughout the continuation of
the suit, the necessary measures for the support of the wife and
children.
Art. 45. When the man and wife are both
applicants for divorce, the tribunal will pronounce whether
circumstances exist of a nature which render a continuation of a life in
common incompatible with the nature of marriage.
Art. 46. At the request of either the husband
or wife the divorce should be granted—
- a.
- For adultery, if not more than six months have elapsed since
the injured party has been aware of it.
- b.
- On account of an attempt upon one’s life, cruelty, or serious
injuries.
- c.
- On account of a condemnation to an ignominious
punishment.
- d.
- For malicious desertion, when it has lasted for two years, and
a judicial summons, fixing a delay of six months for the return,
has produced no effect.
- e.
- On account of mental derangement, when it has lasted three
years and is declared incurable.
Art. 47. If none of these causes of divorce
exist, and nevertheless circumstances have arisen by which the conjugal
bond is gravely affected, the court may decree divorce or separation.
This separation cannot be pronounced for more than two years. If during
that period a reconciliation has not taken place between the husband and
wife, the demand for divorce can be renewed, and the court pronounces
then freely, according to its convictions.
Art. 48. In the case of divorce for a
prescribed cause, the husband or wife against whom the divorce has been
pronounced cannot contract a new marriage before the expiration of a
year after the decree of divorce. This term can nevertheless be extended
to three years at the most by the decree of the court.
Art. 49. The subsequent effects of the divorce
or of the judicial separation as to the persons of the husband and wife,
as to their property, as to the education of the children, and as to the
indemnities imposed upon the guilty party, are regulated by the
legislation, of the canton to whose jurisdiction the husband is subject.
The court pronounces upon these questions officially, or, at the request
of the parties, at the same time as upon the request for divorce.
The cantons which have no legislative dispositions on this subject are
obliged to promulgate them within a period fixed by the federal
council.
[Page 950]
Art. 50. A marriage contracted without the free
consent of the two contracting parties or one of them, by constraint, by
fraud, or through mistaken identity as to the person, may be declared
null upon the request of the person wronged.
The action for nullity cannot, however, be entertained if more than three
months have elapsed since the husband or wife has recovered his or her
full liberty or has acquiesced in the error.
Art. 51. The nullity of marriage should be
officially proceeded with when the marriage has been celebrated contrary
to the provisions of article 28, numbers 1, 2, and 3.
Art. 52. A marriage celebrated between husband
and wife who had not yet attained the age fixed by article 27, or if one
or other of them had not attained that age, may be declared null at the
request of the father, of the mother, or of the guardian. Nevertheless
such action for nullity cannot be entertained—
- a.
- When the husband and wife have attained the legal age.
- b.
- When the wife has become pregnant.
- c.
- When the father, the mother, or the guardian have given their
consent to the marriage.
Art. 53. The nullity of a marriage contracted
without the consent of the parents or guardians (article 27, paragraph
2), and without the publications prescribed by the law having taken
place, cannot be demanded except by those whose consent was required,
and only then when the husband and wife have not yet attained the legal
age.
Art. 54. A marriage contracted in a foreign
country under the jurisdiction of the legislation which is there in
force, cannot be declared null except when the nullity arises at the
same time from the foreign legislation and the provisions of the present
law.
Art. 55. A marriage which has been declared
null produces, nevertheless, the civil effects of i a valid marriage, as
far as regards the husband and wife, as well as the children born or
legitimatized by such marriage, when it has been contracted in good
faith by both parties.
If the good faith exists only on the part of either the husband or the
wife, the marriage produces only the civil effects of a valid marriage
for that one of the couple and for the children.
Finally, if neither of the two parties were of good faith the children
alone profit by the civil effects of the marriage as if it had been
valid.
Art. 56. As to marriages between foreigners, no
action for divorce or nullity of marriage can be admitted by the courts
if it is not established that the country to which the husband and wife
belong will recognize the decree which may be pronounced.
Art. 57. All judgments pronouncing divorce or
nullity of marriage should be immediately transmitted, by the tribunal
which decrees them, to the officers of the civil state of the place of
domicile and place of birth, and recorded by the latter in the register
on the margin of the record of the marriage.
F. —Penal Provisions.
Art. 58. The officers of the civil state are
responsible to the parties interested for all damage caused by their
negligence or lack of observance of their duty.
Art. 59. Those persons should be proceeded
against and officially punished, or upon complaint—
- 1st.
- Those who have not observed the provisions of articles 14, 15,
20, and 21, concerning the declarations of births and deaths, by
a fine not to exceed one hundred francs.
- 2d.
- By a fine not to exceed three hundred francs, those officers
of the civil state who have violated the duties imposed by the
present law as well as the clergy who have acted contrary to the
provisions of article 40. In case of a second offense the fine
is doubled and the functionary dismissed.
The clergy are equally responsible towards the parties interested for the
civil consequences.
The parties interested have the right to appeal to the “tribunal federal”
against the decisions of the cantonal courts as to the application of
the provisions of the present article.
G.—Final Provisions.
Art. 60. The cantonal regulations for the
carrying into effect of the present law must be submitted for the
approval of the Federal Council.
Art 61. The present law shall go into effect
the 1st of January, 1876, subject to the reservation of article 89 of
the federal constitution, and of the federal law of June 17, 1874,
respecting the voting of the people upon the federal laws and
decrees:
Art. 62. The following will be repealed from
that date:
- 1st.
- The federal law of mixed marriages of December 3, 1850.
- 2d.
- The supplementary law of mixed marriages of February 3,
1862.
- 3d.
- The concordat of July 8, 1803 (and July 9, 1818).
- 4th.
- The concordat of July 4, 1820.
- 5th.
- The concordat of July 6, 1821.
- 6th.
- The concordat of August 14, 1821.
- 7th.
- The concordat of July 11, 1829.
- 8th.
- The concordat of July 15, 1842.
- 9th.
- The concordat of February 1, 1855.
- 10th.
- All other cantonal laws and ordinances in opposition to the
present law.
H.—Transitory Provisions.
Art. 63. The final or temporary separations
decreed before the going into effect of the present law may be the basis
of an action for divorce if the causes upon which they are founded can
according to the present law serve as a motive for divorce.
Art. 64. The cantons have the power to cause to
be furnished to the civil functionaries all the registers and documents
concerning the civil state, or copies of such registers and documents so
far as the same is necessary.
From the going into effect of the present law, the new officers of the
civil state are alone authorized to furnish certificates and extracts of
the civil state.
Art. 65. In case that the present registers
concerning the persons mention only the baptism and not the birth, the
certificate of baptism may replace the certificate of birth prescribed
in article 30, letter a.
Thus decreed by the Council of States.
Berne, the 24th of December,
1874.
The President:
KOECHLIN.
The
secretary:
J. L.
Lütscher.
Thus decreed by the National Council.
Berne, the 24th of December,
1874.
The President:
L. RUCHONNET.
The
secretary:
SCHIESS
.
