Second marriage, refers to the second, third or any subsequent union contracted by a person who had been previously married and has since then become in state of widowhood.

Second marriages have always been regarded rather unfavorably, either in regards to religion or in regards to the interest of families.

In regards to religion, they are considered as a sort of lack of restraint contrary to the first state of marriage according to which God gave man only one wife.

One also regards them as contrary to the families’ interest, in that they often bring trouble, either by reducing the wealth of the children of the first marriage or because the one who remarries usually turns all his/her affection towards his/her new spouse and the children born of that union.

Tertullian [1] even attempted to dogmatize that second marriages were condemned, and various authors writing on the topic filled their works with declamation against second marriages.

The Roman Church has nevertheless constantly authorized them as a remedy against incontinence, melius est nubere quam uri [it is better to marry than to burn] . It is the doctrine present in the canon aperiant , the canon Deus masculum [God is a man] , and in the canon quod si dormierit, xxxi. quest. i. and other sacred texts.

If the Church does not bless second marriages, it is not because it considers them impious but rather because the blessing of the first marriage supposedly lives on.

In Russia second marriages are tolerated but are barely regarded as legitimate. Third marriages are never allowed without a serious reason. Finally, the Russian having adopted the doctrine of the Eastern Church, a fourth union is never permitted.

The Roman Church allowed second and other subsequent marriages but not without attaching certain consequences to them: the man who married twice, or married a widow cannot be promoted to sacred orders.

Civil laws have also permitted second marriages but have imposed consequences and conditions, not as much to persuade against these second marriages as to prevent the major inconveniences. Thus, Roman gave the crown of chastity to widows who had remained in widowhood after their first marriage.

Among Roman laws establishing sanctions or conditions to those who remarry, the most famous ones are [the laws] femina generaliter, and hoc edictali in the code de secundis nuptiis.

The first of these laws states that a widow with children from her first marriage who remarries after one year of mourning must keep for the children of the first marriage anything she received in any capacity whatsoever from the generosity of her first husband.

The law generaliter extends to men who remarry what the first law had ordered for women.

Finally the law hoc edictali forbids women entering a second or any subsequent marriage to give, in any capacity whatsoever, a bigger share of their assets to their new husbands than the one given to any of her child who would normally receive the least in the succession.

In France there was no ordinance against second marriages before that of Francis II in 1560, commonly called the Edict of the Second Marriage. It was the work of the Chancelor of the Hospital who allegedly crafted it on the occasion of the second marriage of Anne d’Alegre to Georges de Clermont.

The reasons given in the preamble of this ordinance are that widows with children are often asked to remarry and, not knowing they are prayed upon more for their wealth than for their person, they abandon their assets to their new husbands, and that they make substantial donations, under the pretext and on account of the marriage, to their new husbands forgetting their natural duty towards their children. From these donations, beyond quarrels and divisions between the children and their mothers, result the desolation of good families, and consequently the diminution of the power of public state. Finally, the Roman emperors had already seen to it with several good laws; the King, who understands the inabilities of the sex, and for the same reasons, praises and approves of these laws, and adopts their arrangements by two articles commonly called the first and the second rights of the edict on second marriages .

The King ordered with the first rights that if widows with children or grand-children contract another union, they shall not be allowed, in any circumstances, to give a greater portion of their assets – furniture, acquest, or acquisition they made from their first marriage - nor from their own belongings to their new husbands or to the father, mother or children of the above mentioned husbands or any other person who can presumably be a fraudulent third party, than to any of their children or the children of these children. In case there is an unequal division of the assets among the children or the children of the children, the donations she made to her new husband shall be reduced and measured according to the person who will receive the least.

The second disposition of this edict stipulates that, in regard to some of the assets of these widows, acquired through gifts and the generosity of their deceased husbands, they shall not be able to give any part to their new husbands. They shall however be obliged to reserve them for the children born from the first marriage.

The same ruling is extended to the assets acquired by the husbands through gifts and generosity of their deceased wives, so that they may not give them to their second wives but shall pass them onto the children born of their first wives.

Finally, by this very article the King declares that it is not in his intention to give women more rights and freedom to dispose of their assets than they had been given by the customs of the regions. This edict does not depart from the customary rules of the regions regarding the restrictions made to women.

Article 182 of the Ordinance of Blois includes specific dispositions against a widow who remarries someone unworthy of her condition.

There is no other ruling prescribing rules against second marriages.

In regards to customs there are several rulings that have dispositions rather similar to the femina and hoc edictali laws, such as those of Paris, Valois, Amiens, Bretagne, Calais, Châlons, Laon, Rheims, Saint-Server, Sedan, Acs, la Rochelle, Orleans, Normandie.

Since detailing the particular dispositions for each of these customs would be too long, we will look into the disposition of Article 279 of the customs of Paris just to get an idea of the law of Customs on this topic.

According to this article, a woman with children who enters a second or any subsequent marriage may not favor her second or subsequent husband with her assets and acquisitions over any of her children. Regarding the earnings made with her former husbands, she may not dispose of them in any way so that the children born from a previous marriage would sustain a loss in the inheritance they normally ought to receive from their mother. Nevertheless, still according to this article, the children born from subsequent marriage receive an equal part to the succession of the mother’s assets as the children born from preceding union. So do the children born from a former union receive their share of the succession of the assets and acquisition made during subsequent unions. However, this article also states that, if the marriage is dissolved or if the children of the preceding union die, the mother may dispose of it as her own.

In order to fully understand what our custom in regards to second marriage entails, one must distinguish between the marriages contracted within the one year of mourning and those contracted after that.

In the old law, the widow who remarried before the end of the year-long mourning was seen as vile.

The penalty for this loathsome deed was only against women, propter turbationem sanguinis et incertitudinem prolis [because of the confusion and uncertainty of the child’s blood] so that the widow who would give birth a few days after the death of her husband could remarry before the end of the year-long mourning.

The sentence of infamy was extended to the man marrying a woman knowing that the year-long mourning was not over and to the husband’s father and that of the widow. The sentence of infamy could be lift up by a letter from the prince.

We know that the length of the year-long mourning was not always the same: under Nouma it lasted twelve months, or 355 days with a few more days that were added from time to time and it was finally set under Julius Cesar to 365 days and 366 days in the leap years.

At first the mourning period lasted only ten months like the former civil year; but under the emperors it was set at twelve months.

The penalties for second marriage contracted during the mourning period were also reinforced.

Beside the sentence of infamy, it was decided that:

1. The widow remarrying during that year would be deprived of all the benefits given to her by her first husband.

2. She would also be deprived of the inheritance of her children and parents beyond the third degree.

3. She would be declared incapable to profit from any dispositions due to a death.

Finally it was prescribed that she would not be allowed to give her new husband more than a third of her assets even though she had no children from her first marriage, and that, in case she had some, she could only give her husband a share no bigger than that of the child receiving less.

Some authors claims that all the penalties for breaking the year-long mourning has been abolished in France. What is certain is that the canonical law has reinstated the sentence for infamy.

In regards to the other penalties, they are not legally recognized at the Parlement of Paris, Bordeaux, Rennes, and Normandy; but they occur at the Parlement of Toulouse, Grenoble, and Aix. The Parloment of Dijon seems to have admitted them, at least partially.

The authors think also that the penalties for breaking the year-long mourning occur when the widow leads a shameless life during the mourning period. There are indeed several rulings that, in such instances, have deprived the wife of her dower and other benefits received from her late husband. However, one does not consider that, in this particular case, the widow has been subjected to all the other penalties for second marriage contracted during the year-long mourning.

There were no penalties for second marriage contracted after the year of mourning in the old Roman law: a widow could remarry freely after the year of mourning. They were even obligated to do so if they were still young, for there were punishments against unmarried women over the age of fifty, and against men over sixty of age. This was established after the civil wars in order to repopulate the city of Rome, and was abided by for more than four hundred years.

It was only under the reign of the last emperors that the femina generaliter and hoc edicatali laws, which we mentioned earlier, were made. Punishments for contracting a second marriage after the year of mourning were then established, first against women, then against men.

The first penalty established under the femina law is that the widow is to lose any advantages made to her by her former husband. This clause was since then extended to men by the generaliter law.

The second one is the interdiction made by the hoc edicatali law to men and women who remarry to favor the second spouse over any of the children born from the first marriage.

The first punishment affects the succession of the children born from the first marriage: the femina law deprived the mother of it completely. This was repealed by the Novellae II , however Novellae XXII. Ch. xlvi. et c. prescribed that the mother would only have the right to enjoy the use (but not dispose) the assets given to the children by the father.

These various sanctions take place in regions where the law is written; in regions where the law is based on customs, these sanctions were not enforced for a long time with the exception of some customs that had some specific dispositions. These customs were then few.

These sanctions were received only by the edict of 1560, and by the customs that have been reformed since this edict.

We have already seen what the dispositions of the Edict of 1560 and that of the Customs of Paris entails. The other customs must be followed each in their own way as long as they do not contradict the disposition of the Edict.

The deduction in the edict refers to what is docked from advantages made in favor of the second spouse when they exceed what is permitted by law. In the regions under written law, this deduction only belongs to the children born from the first marriage, whereas in the regions under customary law, they would share it with the children born during the second marriage.

Besides, according all laws, second marriages penalties cease to be after one year of mourning when there are no children, or when they die, or when they are guilty of being ungrateful toward their father or mother who had remarried. The same is true of children who have been legally registered as deceased. Yet, daughters who have renounced to right to future succession are still considered in this matter because they become candidate to the succession for lack of other children.

This matter was also dealt with in the Code tit. de secundis nuptiis [Of second marriages], Novellae [Justinian] ch.i. and iii. and Novellae XXII.ch.xxiii., xxvi, xl. Novellae XXXIX. ch.iii. and in Fontanon, Corbin, Neron, Carondas, Bacquet, Rebuffe, Bouchet, Ricard, le Brun, and the treaty on second marriage by Bechet and de Dupin, regarding the penalties in second marriage. See also the entries Edict on second marriages, Marriage, Child’s Inheritance, Deductions from Second Marriages.

Note

1. Tertullian or in Latin Quintus Septimus Florens Tertullianus.