This guide is not designed to cover the entire Code Napoléon. It is mostly designed to explain elements useful in creating family histories so that one can have a grasp of how to deal with certain issues.
Civil divorce was allowed under the Code Napoléon until the restoration abolished it in 1816. This was a mutual consent divorce system, and France did not return to such a system until 20th century. Divorce at all was not legal until 1884, and then on the common Western terms of female adultery, mental illness, or other incapacity of the woman to fulfill her marriage obligations.
Female adultery could be punished by up to 2 years in prison throughout the nineteenth century. This applied to either participant - the man with whom the married woman cheated could be convicted of adultery as well. The sentencing differed, however, in that the woman, if convicted for a further offense, could have her 2 year sentence doubled upon each conviction (4 years for a second conviction, 6 for a third, etc.). Male adultery, on the other hand, was punishable only by a fine and then only if proved that the man maintained his concubine in the family home. Thus a man could do whatever he liked outside the house, but he could be public humiliated for getting caught shagging the maid on a regular-enough basis to cause concern. There was one way in which the law did not solely benefit the man, however: the law on legitimacy. If a man believed his wife to be unfaithful and doubted that he was the father of children born into the marriage, he had to declare his suspicions upon the birth of those children. All children born into a marriage were considered legitimate in the absence of a timely complaint. If he were documented as the father upon the children’s birth, then there was no legal mechanism for paternity to be revoked, no matter what he might discover in later years. He could prosecute his wife to the full extent of the law, but the children would remain his heirs.
Among the middle and noble classes, most marriages included the signing of a marriage contract, though it was not legally required. Property brought into the marriage by the woman was considered the property of the man, to be disposed of as he wished. Thus, in theory, if a woman brought a very large dowry to the marriage, and the man died the next day, it would pass not back to her but to his relatives (parents or collateral heirs). The lower classes, having little to no property, rarely bothered with the expense of hiring a notary to protect their small interests.
The marriage contract was conducted between the families and notarised, but there were no specific prohibitions in the Code Napoléon as to its terms. The purpose of a contract was to protect the woman’s dowry from the man’s predations, ensuring that the principal could be passed down to the next generation. Property at this time was largely real estate and bank shares, which for inheritance purposes were considered to be real estate. When a person is stated to have an income of so many francs per annum, this is either the rents and produce of any lands or an estimated 5% annual return on investments, generally as shares of the Bank of France. The stock exchange was open and active, but considerably smaller than a modern reader might expect and investment in shares of private companies was not a way to make a significant living at this period. The railway companies did promote an expansion of investing as a get-rich-quick mechanism, though they quickly collapsed and required government bailouts of lately-begun infrastructure projects.
For any propertied class, marriage remained more of a legal alliance than a romantic one through this period. From small artisans who married an employer’s daughter to augment their position in the business to noble houses who sought to strengthen connections to others with money or influence, the suitability of the marriage depended more on finances and power relations than on the personalities of the couple. That is not to say that love was not a guiding factor in contracting a marriage, but that women in particular were restrained from close social intercourse with men who were not deemed suitable, and a love match could easily be broken off by a family who would refuse consent if the other party did not bring important financial factors to the marriage.
Family consent was required for most marriages. Women under the age of 22 and men under the age of 26 needed permission from a parent or guardian (the state was considered the guardian of children legally registered as foundlings), though only the father’s permission was required if the parents were in disagreement. If parents refused consent for women between the ages of 22 and 25 or men between the ages of 26 and 30, the couple had to make three written requests, at one-month intervals, seeking permission. If all three requests were denied, then one-month after the third denial, a marriage license would be issued. For women over the age of 26 and men over the age of 30, only a single written request and denial was required.
In addition, both parties to the marriage had to present birth certificates (or notarised acts in the case of lost or destroyed birth certificates), death certificates of parents if other relatives are acting as guardians, notarised acts of consent if the parents are unable to come to the town hall to give consent in person, all of which were frequent occurrences as nascent industrialisation moved people of all ranks further from their native villages or towns. In the case of two migrants of no wealth, expenses could run anywhere from 10 francs to 200 francs, putting legal marriage outside the reach of much of the working class simply because the necessary documents were too expensive to obtain. (Many labourers and working women got by on approximately 1 franc a day with no chance of putting anything by as savings. The cost of documentation was less of an issue for farm workers, as they were often resident in the commune of their birth, while cities and industrial towns attracted migrants from near and far, though concubinage was common throughout France, both urban and rural, among the working classes.)
Foreigners residing in France were subject to the same laws, but with additional restrictions depending on marriage law within their country of origin. Several Swiss cantons, for example, required that couples marrying prove to the state that they would not require state support, generally in the form of a fee to the cantonal government. The French marriage would be legitimate, but there were no reciprocity agreements with neighbouring countries, meaning that the foreigner could not return home with his/her spouse and expect that the marriage be considered valid. To avoid issues of unemployed foreigners stuck on French welfare rolls, the French government ordered its officials to ensure that foreign residents adhere to all regulations of their countries of origin before performing a French civil marriage.
Civil marriage was required before the Catholic Church would perform a religious marriage. This separation of the church and the state is a legacy of the French Revolution. A civil marriage can only be conducted by an official of the state, and clergy were not nominated state officials for this purpose. Compare this to the British solution of the same period, where clergy could be nominated officials for the purposes of marriage: the Jewish community of London split over doctrinal issues, and it took a generation for the government to agree to permit the rabbi of the new synagogue to perform marriages. During that time, all members of the new synagogue had to undergo two ceremonies - a legal signing of the relevant documents by a state official, then the religious ceremony - while members of the old synagogue merely had to undergo the religious ceremony. Upon the Bourbon Restoration, the French government agreed to continue to recognise the full citizenship of Jews and Protestants, requiring the state to provide maintenance to rabbis and ministers as well as priests, and the dual civil and religious ceremonies were maintained.
For a bourgeois marriage, the grand celebration took place not on the wedding day, which was a family affair, but on the signing of the marriage contract. The signing of the contract bound the two families legally, while the marriage would only bind the woman to the man’s family. The signing was usually conducted in the evening as the prelude to a huge dinner and/or ball to which as many family friends were invited as could be accommodated. The woman herself was expected to sign, marriage often being the only piece of business a bourgeois woman would carry out in her own name. On the wedding day, it was preferable to conduct the civil and religious ceremonies one after the other, but often the civil ceremony would have been completed a couple days in advance. The civil ceremony required only the couple, four witnesses (two for each side), and the closest family members. The legal business required no fees, thus only the documentation in advance made legal marriage difficult for the poor. The religious ceremony could cost large amounts of money and might have hundreds of guests, though the sort of reception festivities that a modern reader might expect were more often conducted for the signing of the contract.
The honeymoon did not become fashionable until the 1830s. Before that, the couple stayed at home, receiving ritual visits from close family and then friends. The honeymoon was styled an English import, one of many English cultural imports of that era. Several weeks at a country estate or traveling to Italy were most common.
It was expected that the first child should come at least 9 months after the wedding, but in the lower classes, this expectation was severely reduced. Engagements were often fairly short, usually only a few months at most. Moreover, there was no required waiting period for a marriage should the parents of both parties give consent: a child on the way almost certainly propelled many parents into saying yes rather than risk having a daughter bear an illegitimate child. However, children could be legitimised after the fact: a co-habiting couple with children could make a formal declaration recognising the child(ren) prior to engaging in a civil marriage. All children recognised in this way would then become legitimate in the eyes of the law. Legitimation was less common than it might have been, however, as most illegitimate children were born to people without property, and the Napoleonic Code provided for inheritance by any illegitimate children recognised at birth. Legitimation was more rare than various Catholic benevolent societies might have wished because there was little financial gain to marriage for the cohabiting poor, who had no property to leave to their children. (Legitimate children were entitled to full inheritance; illegitimate children received lesser portions of the estate unless topped off from the résèrve légale.)
Children’s births had to be registered at the town hall within three days of the birth, either by the father and two witnesses or by hospital authorities. All parties had to be resident in the town of registration. Within 24 hours of a declaration, an official physician would be sent to the address of registration to verify the birth and the sex of the child. For Catholic families, baptism usually took place three days after a healthy birth, or as soon as possibly for an unhealthy child. If the mother were unwell but the child healthy, the baptism could be put off as long as three months to enable the mother to attend.
Death was registered in much the same way as birth. A family member or a hospital official would file a declaration of death at the town hall, and a coroner would visit, examine the corpse, and issue a burial permit. Only when the burial permit had been issued would a death certificate be issued by the town.
For inheritance law, please see the companion piece: Nineteenth Century French Inheritance Law.
Lynch, Katherine A. Family, Class, and Ideology in Early Industrial France: Social Policy and the Working-Class Family, 1825-1848. Madison: University of Wisconsin Press, 1988.
Perrot, Michelle and Anne Martin-Fugier. “The Actors”. A History of Private Life: From the Fires of Revolution to the Great War, eds. Philippe Ariès, Georges Duby, and Michelle Perrot, trans. Arthur Goldhammer. Cambridge, MA: The Belknap Press of Harvard University Press, 1990.
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