Le divorce de Napoléon par sénatus-consulte, les droits d’une épouse sacrifiés sur l’autel de la nécessité

Inspired by ancient Rome, the Napoleonic senatus-consulte is a legal norm drafted by the conservative Senate under the aegis of Napoleon. This text embodies a norm that is both contra legem and contra constitutionem. The dissolution of the marriage between Napoleon and Josephine was contrary to the articles of the Civil Code concerning divorce by mutual consent. Joséphine's rights were violated. Moreover, the senatus-consulte violated article 14 of the Imperial Constitution of Floréal 28, Year XII, which provided for the establishment of a statute relating to the imperial family. The latter, dated March 30, 1806, prohibits divorce for all members of the imperial family, including the Emperor. Such violations were justified by necessity: the continuity of the Empire depended on the birth of an imperial prince. Joséphine would thus be responsible for the absence of a male heir, according to the Emperor and the Senate. The senatus-consulte, the Emperor's political weapon, crossed a new threshold with Napoleon's divorce. Whereas this senatorial norm had hitherto been used in the context of public law to further the Emperor's designs, it now came to regulate private law and provoke Empress Josephine's vulnerability.