[Footnote 126: GEFFCKEN, _op. cit._, 26, 27; ESMEIN, _op. cit._, II, 89.]
The same principle obtains among the German nations after the conversion. Divorce is a private act, and there is no proper divorce process in the temporal courts. Separation by free consent is usually effected merely through exchange of duplicate copies of a written agreement, or _libellus repudii_;[127] and if sometimes the intention of the parties must be declared before judicial authority, it does not follow that there is any examination of the grounds of action or any judgment admitting or refusing the separation. The "function of the court can have only the purpose of establishing the formal correctness of the act of self-divorce."[128] In the case of one-sided divorce the same general rule prevails. There may be judicial action; but it is an action to punish the crime of the guilty person or to enforce the penalty for unjust repudiation. "The form of one-sided divorce in the Teutonic folk-laws rests upon the same fundamental principles as that of the _leges Romanae_. Self-divorce is in equal degree true Roman and true German. In each case justifiable separation may be preceded by a penal action to determine the guilt of the accused. In each case, moreover, it is not the divorce which the sentence directly decrees, but its justification. It still rests with the aggrieved spouse whether he will make use of his right of separation, or whether he will allow a reconciliation to take place."[129]
[Footnote 127: The _libellus_ was copied from the Roman model. For an example, see above p. 35, note.]
[Footnote 128: GEFFCKEN, _op. cit._, 47, referring to the _formulae salicae Merkelianae_, where the intention of the parties must be personally announced "an Gerichtsstätte vor dem Grafen und der Gerichtsgemeinde." His view, he declares, is intermediate between that of LOENING, _Geschichte des deut. Kirchenrechts_, II, 627 n. 1, who regards the count and judicial community as mere witnesses of the transaction (_Solennitätszeugen_); and that of SOHM, _Trauung und Verlobung_, 7, who sees here a judicial sentence.]
[Footnote 129: GEFFCKEN, _op. cit._, 48, 49.]
The church was ambitious to take the matter of divorce procedure entirely into her own hands; to establish a real jurisdiction which would enable her effectually to forbid separation except on the grounds which she herself approved, and to compel the restitution of married life when separation occurred for any other cause.[130] It was long before this ambition was realized. The council of Agde as early as the year 505 did indeed declare, in effect, that, besides the penal sentence of the temporal court, a recognition of the grounds of divorce by the ecclesiastical authority shall be required for a separation; and whoever puts away his wife without first satisfying these conditions shall be excommunicated.[131] To this decree, so emphatic in its demands, the origin of spiritual jurisdiction in divorce questions is commonly traced;[132] but this seems far from being the truth. The decree must rather be accepted as an early but "isolated" expression of an ideal toward which the church for ages was striving; and as such it became of more and more importance as the great doctors of the canon law found themselves in a position to give it meaning.[133]
