90

Divorce derived from a secularization of the marriage contract and from the principle of freedom of conscience, and Napoleon (along with a majority of courts of appeal) was a confirmed supporter of the measure. His opinion however met with the hostility of a majority of the writers of the Code civil; indeed they felt it important to formulate a law in this respect which would not offend the Catholic mores of the French. But the controversy over divorce was not to be reduced to a simple contradistinction between freedom of conscience (derived from the spirit of the Enlightenment) and respect for the institution of the family (of Ancien Régime inspiration). Some exceedingly pragmatic solutions had been proposed, as many pamphlets and brochures of the Revolutionary period attest. Indeed, the deleterious effects of bad marriages on the prosperity of the state and the growth in population and the dignity of the legitimate family were all used as arguments in favour of breaking the nuptial bond. However, such arguments could not convince those against divorce, since the latter saw marriage as lifelong by its very nature. In this context, it is probably certain that it was the observations made by the Appeal Court in Lyons which tipped the balance in favour of the adoption of divorce in the Code civil, because such restrictive conditions were adjoined to the measure as to render it almost completely impracticable. In these circumstances, when the Loi Bonald prohibited divorce in 1816, it would appear that the jurisprudence became aligned with practice in that the law destroyed the vestiges of a faculty which had very rarely been put into practice.