"The relationship between husband and wife cannot be short-lived, so it is regarded as "constant". Consistent means long-lasting." This is the words in "Xu Gua" of "Book of Changes". In traditional Chinese philosophy, the way of husband and wife is based on yin and yang. Harmony

"The relationship between husband and wife cannot be short-lived, so it is regarded as "constant". Consistent means long-lasting." This is the words in "Xu Gua" of "Book of Changes". In traditional Chinese philosophy, the way of husband and wife is based on yin and yang. Harmony of yin and yang results in life, separation of yin and yang results in destruction, and misalignment of yin and yang results in change. Not only that, in social reality, traditional marriage also carries the important task of family harmony between the two surnames, the continuation of the bloodline of the family, and the "beginning of human relations" in society. The stability and harmony of marriage is related to the laws of nature and human relations. Couples need to persevere and cannot take it lightly. Words are discrete.

The ancient Chinese people’s view on marriage and their strict, respectful and protective attitude towards marriage are worth pondering for today’s people. Especially now that flash marriages and divorces are more common, the cultural value of this traditional marriage concept has become increasingly prominent. This article takes the Tang Dynasty etiquette and legal system of marriage dissolution as a perspective to explore the Tang people's institutional and cultural regulations on divorce, in order to review the ancients' seriousness and prudence in treating marriage as a lesson for today.

There are three ways to dissolve marriage in the Tang Dynasty: Qi Chu, reconciliation and forced divorce, with Qi Chu being the main form.

Seven Outcomes - Not abandoning a blameless wife

Seven Outcomes, that is, the husband can unilaterally dissolve the marriage when the wife has one of the following seven circumstances: childlessness, adultery, uninterested aunt, talk, theft, jealousy , a serious disease.

Seven outs are etiquette established since the Zhou Dynasty. However, before the Tang Dynasty, this principle was not strictly observed. In a "husband-right" society where men have the initiative in marriage, wives were arbitrarily divorced without reason. There are many cases of abandonment. The poems about abandoned women in " Book of Songs " depict a group of tragic images of women who are hardworking, docile and abandoned. For example, in the Spring and Autumn Period, Zeng Shen divorced his wife because the steamed pears were not ripe, and in the Warring States Period Mencius wanted to divorce his wife because she was sitting in a disgraceful manner. These are all "non-Qi Chu", and women's rights are in Which is completely ignored. Based on this, since the Qin Dynasty, husbands' rights to divorce their wives have been restricted. In the Tang Dynasty, the "seven outings" were regulated in the form of "Orders" to clearly limit husbands' rights and maintain the stability of marriages.

According to the law of seven outs, a husband is not allowed to divorce his wife without any of the seven statutory reasons. Anyone who divorces his wife arbitrarily must bear the consequences of criminal law. The law of the Tang Dynasty stipulates that for wives who are not in a state of seven-year-old marriage, it will take one and a half years for the relationship between husband and wife to return to the same state as before. The explanation of this article is: the way of husband and wife, the righteousness and period are in the same acupuncture point. Therefore, the wife is not in the state of seven outbursts, and does not match the outbursts.

Not only that, when the wife violates the seven-out rule, the " three no go " can also be used as legal reasons to fight against divorce: she has mourned the death of her uncle and aunt; A wife marries into her husband's family and observes filial piety for her father-in-law or mother-in-law for three years - the wife is kind; the husband is poor when he marries his wife, but later becomes rich and prosperous - the wife is meritorious; the wife is left homeless after being abandoned - the wife is helpless. The three exclusionary clauses reflect the principle of fairness and the protection of the interests of the wife in a vulnerable position. At the same time, the opposition to wealth and wealth abandoning their wives is especially based on guarding against human weaknesses and embodying moralism. It is a strong restriction on men's behavior of "loving the new and hating the old". The law of the Tang Dynasty stipulates: Even if the wife commits seven offenses and fails to do so in three, she will be punished with a hundred sticks. The marital relationship is restored as before.

Therefore, returning to the basic fact of "a patriarchal society", the "Seven Out" laws of the Tang Dynasty restricted the husband's power and protected the stability of marriage - except for the seven articles, the husband was not allowed to divorce his wife, and Even the seven reasons themselves reflect the intention of protecting marriage. For example, the first item in the seven chapters, "No children," is explained by Shuyi: If a wife is over fifty and has no children, she can be raised by concubines. That is, those under forty-nine have no children and have not yet produced children. From a practical point of view, the probability of being childless at fifty and being divorced after spending half of your life with your husband should be extremely low. Seven out of the third article "not to do anything to my uncle", in the etiquette system, it means "to be disobedient to my uncle", "things" focus on behavior, "obedience" focuses on the heart, one is an objective standard, the other is a subjective judgment , the protection of women’s rights is obviously more reliable in the former.

Since the Tang Dynasty's Seven Departures Law, in reality, the husband's behavior of arbitrarily divorcing his wife has been prohibited by law and despised by public opinion. In the pre-Qin period, the phenomenon of wives being divorced "at every turn" has become less common. By the Ming and Qing Dynasties, it was very rare for men to divorce their wives.

Heli - not a simple "breakup"

Heli, according to the interpretation of Tang Law, "means those who are not in love with each other and want to separate", that is, the husband and wife agree to break up. The Heli system seems to give both men and women equal rights to express and decide on divorce issues. In the context of the relatively open society and high degree of marital autonomy in the Tang Dynasty, will this system have a disintegrating effect on the stability of marriages?

In fact, the so-called harmony and divorce can be regarded as a supplement to the seven-out system. It is a completely unconditional and unrestricted peaceful divorce based on mutual consent and consensus between husband and wife. It is difficult to exist in that era, whether it is from the legal text itself, the ethical code, or the time. This conclusion can be drawn in all marriage situations.

First of all, as mentioned above, in the Tang Dynasty, "unreasonable" divorce from a wife required criminal consequences, and the emergence of the divorce clause allowed a husband to divorce his wife outside of the seven reasons - the so-called "a divorcer does not divorce his wife without reason". , does not constitute criminal liability. In this regard, the divorce clause expands the husband's right to divorce his wife. But at the same time, the "consent principle" undoubtedly also gives the wife the "right to refuse", posing an obstacle to arbitrary divorce. Maintaining a balance between the rights of husband and wife is a legislative consideration embedded in this law. It is difficult for either spouse to obtain more marital rights and freedoms from this law.

Of course, the harmony and divorce system also gives the wife the right to claim for the dissolution of the marriage, but this right to claim can only be realized with the consent of the husband. Only in this way can it be reconciled and divorced; leaving without the consent of the husband is "leaving without authorization." . The law of the Tang Dynasty stipulates that if a wife leaves a concubine without permission, she will be sentenced to two years; if she remarries, she will be given a second class. Shuyi explains: A woman obeys her husband and has no independent way...if she has the intention to sing harmoniously, intends to separate, goes behind her husband's back, or harbors other ambitions, the wife and concubines must each be punished.

Secondly, deducing from the legal text "If the love does not meet each other, the two will separate", it is easy to draw the conclusion that as modern people understand, couples "fall apart" and act willfully. The stability of marriage is worthy of concern. But in ancient China, marriage was an alliance between two surnames based on family interests. The marriage was concluded with the family as the main body, and the ancestors had to be sacrificed and the "parents' orders" were followed. Similarly, the dissolution of a marriage should also be attributed to the family, and the parties involved had no conditions. Free negotiation between two parties, divorce between two willing parties is difficult to establish based on etiquette and law.

Third, in practice, the government also treated Heli with a negative attitude. "Taiping Guangji" records that when Yan Zhenqing was the governor of Fuzhou, he took over a divorce case. There was a scholar Yang Zhijian who devoted himself to reading the books of sages but failed. His wife could not bear to be poor and "begged to leave". Yang Zhijian sent off his wife with a poem. His wife took the poem and went to the state capital to request a public release in preparation for another marriage. Yan Zhenqing wrote a verdict in his handwriting, criticizing the wife who disliked poverty and loved wealth: "Insulting the village and destroying the social customs. If there is no punishment, how can we stop the chaos?" The final verdict: The wife can be whipped twenty times and she can remarry as she pleases. . This verdict showed the Tang Dynasty’s official attitude towards Heli, and the moral judgment and preaching in it were intended to warn future generations. After the case, “everyone from far and wide heard about it and was convinced. She was Jiang Biao’s wife, and no one dared to abandon her.” Husband. "The reputation and effect are both good.

Therefore, although Heli in the Tang Dynasty formally expanded the husband's right to divorce his wife, in reality it was more of a flexible form of divorce adopted to preserve the dignity of both parties, especially the woman, because in Heli's "freedom" In the "Wife's Letter", there is no need to directly state the woman's fault because she is considering her reputation when she remarries. The divorce clause is different from the freedom of the parties in the modern sense, and its emergence does not open the door for men and women to despise marriage. In fact, marriages in the Tang Dynasty did not become arbitrary, willful, and convenient because of the entry of this clause into the law. On the contrary, the traditional rules and order were still adhered to by people.

Forced divorce - marriages that violate etiquette and law must be terminated

If a marriage violates etiquette and law, even if the parties are happy, the government must force the dissolution. This also expresses the cautious and serious attitude of the state and society in the Tang Dynasty towards marriage. But treating marriage with caution does not mean maintaining the stability of marriage without principles.

There were two situations of forced divorce in the Tang Dynasty: divorce due to righteousness and illegal marriage.

Yijue means that if there is a situation between husband and wife or their relatives that harms the righteousness between husband and wife, the marriage must be declared to be dissolved, regardless of whether both parties agree.Specifically, it includes beating, scolding, killing, injuring, raping, etc. between husband and wife and between relatives of both spouses, or one spouse against the other's relatives. After the above situations occur, if the official judges it to be righteous, the relationship between husband and wife will be forcible. If either party refuses to leave, he or she will be imprisoned for one year. If both parties are unwilling to leave, they will be considered as jointly guilty and the principal and subordinate will be distinguished.

Tang Law stipulated righteousness for the first time in Chinese history. According to the understanding of the ancients, the relationship between husband and wife is based on "righteousness". Righteousness means appropriateness and Tao. "The way of husband and wife is that if there is righteousness, they will be together, and if there is no righteousness, they will be separated." "Bai Hu Tong" said, such as " Those who rebel against human relations, kill their wives and parents, destroy the rules and regulations, and cause serious chaos must go away if they have no righteousness." When the relationship is severed, the marriage will naturally disintegrate. To maintain it again is contrary to the ethics of marriage. Obviously, the subject scope of the traditional "righteousness" between husband and wife has completely exceeded the parties themselves, but covers the two families. The kindness and righteousness between the families have been eliminated. Even if the husband and wife love each other, there is no reason for the continuation of the marriage. This once again reflects the familial, social and status aspects of ancient Chinese marriage, as well as the purpose and essence of ancient marriage: family harmony, social stability, and long-term stability of the country. This is the mission of marriage.

Marriage is against the law and was also a mandatory clause for the dissolution of marriage in the Tang Dynasty. According to the laws of the Tang Dynasty, illegal marriages include the following: presumptuous marriage, marrying a wife more than once, taking a wife as a concubine, marrying when the husband is deceased, marrying someone with the same surname, forcibly marrying after the husband is deceased, marrying a fugitive woman, A prisoner would marry the daughter of his prisoner, a married woman would marry a married woman, a slave would marry his beloved's daughter, an official from a miscellaneous household would marry his beloved, and so on. For the above acts, the parties must bear the consequences of criminal law and the marriage relationship must be dissolved. Even if you are forgiven, you must stay away from it and correct it.

Illegal marriage, on the one hand, destroys or even tarnishes the original meaning of marriage; on the other hand, it also constitutes an infringement on the relevant social relations protected by the criminal law. Only by correcting the law can the true meaning of marriage be obtained and the protection of marriage be restored. Destroyed social relationships, such as patriarchal service relationships, social hierarchical order, administrative order, etc. Take the article "Jian Linguan marries Jian Lin's daughter" as an example. The law of the Tang Dynasty stipulates: Any official who marries the prisoner's daughter as a concubine will be punished with a hundred sticks; if he marries a relative, he will be punished with the same punishment. Those who violate the law and marry other people's wives, concubines, or women will be considered guilty of adultery and the punishment will be increased by two degrees; those who marry for relatives will be punished in the same way. Jian Linguan, according to the law of the Tang Dynasty, is an official who supervises and supervises the region. If he or she engages in marriage within the jurisdiction, he will inevitably be suspected of exchanging benefits or taking advantage of his position to force a marriage. This not only violates the prohibition of officialdom, but also violates the meaning of marriage. , so it is strictly prohibited. During the Kaiyuan period of the Tang Dynasty, Xuanzong also issued a special edict: "On the day when officials of various states and counties are in office, they are not allowed to marry the common people under their subordinates. Anyone who violates the rules will be pardoned but still divorced." If you marry a woman within your jurisdiction, the marriage will be invalid. , officials were punished.

Divorce procedure - witness by close relatives and neighbors of both parties

Divorce in the Tang Dynasty did not need to be reported to the government for review and approval, but it had to go through the legal "witness" procedure. "Tang Ling Supplementary Household Orders" stipulates: Those who divorce their wives, "all husbands write in handwritten letters to abandon her, and the male, parents, aunts, and female parents, aunts, and neighbors to the east and west and everyone they see sign them; if they do not understand the calligraphy, draw It can be seen that when a husband divorces his wife, he must have a written "letter of divorce", and if he divorces, he must have a "letter of letting go of his wife", and there must be witnesses from both parties' close relatives, neighbors and other witnesses. Sign or sign jointly. In the "Book of Wife Release" of the Tang Dynasty unearthed in Dunhuang, there are many words that reflect the requirements of the above procedures, such as "I am afraid that I will not be trustworthy, so I will write this diploma and briefly describe the reasons for it to be used to verify the contract." "meaning", "parents of two families, six relatives and dependents", "gathering of two relatives", etc., and also have the words "push your knuckles as proof". This shows that in the Tang Dynasty, the above legal procedures were generally followed during the divorce process.

During the Yuanhe period of Emperor Xianzong of the Tang Dynasty , the case of Li Yuanyu, the Minister of Household Affairs who wanted to divorce his wife Wang, can be used as an example of the divorce process in the Tang Dynasty. Li Yuanyu wanted to abandon his wife, so he "expressed his sincerity in the petition" and got the emperor's permission. Later, Li Yuanyu "never reported his wife's family and had no clear record of fault" and seriously underpaid his wife's property. Later, he hurriedly sent his wife back, causing dissatisfaction with his wife's family and being prosecuted. Xianzong ordered people to find out the whole story, and Li Yuanyu was dismissed and suspended.The imperial edict of Emperor Xianzong said: "Managing the family in this way is worthy of punishment." Officials and scholar-bureaucrats are role models for the people and should lead social morality. Li Yuanyu abandoned his wife who had no obvious fault. After investigating the real reason, he found that he was "a doting servant." "concubine" and failed to perform the necessary procedures, so she should be punished.

It can also be seen from this case that in the Tang Dynasty, officials who divorced their wives needed to perform special procedures for reporting the matter to the public. Although there is no legal provision for this, the meaning can be seen in the "Above Table" section in the case. In addition, in the divorce cases of Fang Rufu during the period of Emperor Dezong of Tang Dynasty, there was also a "preface" plot. When Fang Ru was reinstated as the governor of Hangzhou, he married Cui, the daughter of the Taizhou governor. Cui was "very jealous" and one night ordered people to kill Fang Rufu's two maids with a stick. After they were accused, Fang Rufu was so jealous. He was demoted to Lianzhou Sima and sentenced to divorce from Cui for "righteousness". The children in the rear room went to Shang Shu to request remarriage, and the edict was given. Two years later, "Zou" divorced Mr. Cui again. This record seems to confirm the conclusion that officials in the Tang Dynasty needed to file a petition for divorce. But regardless of whether the imperial edict was obtained or not, in the Tang Dynasty, it was a dishonorable matter for officials to divorce their wives in public opinion. The separation and reunification of the married couple, and the reunification and reunification, "Old Book of Tang" called it "choice" The same goes for being careless and ignoring etiquette." During the reign of Emperor Xuanzong of the Tang Dynasty, Cui Hao, who wrote the famous work "Yellow Crane Tower", married his wife based on appearance and divorced several times, which was criticized at all times.

Marriage in the Tang Dynasty was difficult to conclude and difficult to break up. This is true. All the conditions and procedures for the dissolution of marriage were intended to express people's respect and prudent attitude toward marriage at that time. " Zhouyi " says: "There is heaven and earth, and then there are all things; there are all things, and then there are men and women; there are men and women, and then there are couples; there are couples, and then there are fathers and sons; ... then there are mistakes in etiquette." The relationship between husband and wife is the basis of all societies. The starting point of a relationship, the righteousness of husband and wife is the foundation of social ethics and morals . There are differences between men and women, righteousness between husband and wife, father and son are related, and only when the family is stable and harmonious can the peace and harmony of society be guaranteed. The etiquette and legal system of marriage dissolution in the Tang Dynasty has given us a profound enlightenment: marriage needs to be treated rationally and sincerely by the parties involved. The conclusion and dissolution of marriage are not simply individual behaviors of men and women. It is related to family, family, and all social relationships derived from marriage. It is related to customs and people's hearts, and the order of chaos in the world. The most important thing about husband and wife is harmony, longevity, and communication: the relationship between husband and wife. Harmony, sharing joys and sorrows; filial piety to parents, harmony among relatives; continuation of children, ancestor worship - through the etiquette system of marriage dissolution in the Tang Dynasty, we can see the beautiful expectations of marriage in that era, and its implications are worth pondering today. (Author: Sun Jiping, Professor of Law School of Yantai University)

Source: People's Court News

Editor: Ma Qian Wang Ning Chen Qing

Review: Hu Zhiyong Fu Jiacai

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