Gender and Divorce in Europe: 1600 – 1900: A Praxeological Perspective [1 ed.] 9781003334552, 9781032369327, 9781032369341

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GENDER AND DIVORCE IN EUROPE: 1600 – 1900

Getting divorced and remarried are now common practices in European societies, even if the rules differ from one country to the next. Civil marriage law still echoes religious marriage law, which for centuries determined which persons could enter into marriage with each other and how validly contracted marriages could be ended. Religions and denominations also had different regulations regarding whether a divorce only ended marital obligations or also permitted remarriage during the lifetime of the divorced spouse. This book deals with predominantly handwritten documents of divorce proceedings from the British Isles to Western, Central, and Southeastern Europe, and from 1600 to the 1930s. The praxeological analysis reveals the arguments and strategies put forward to obtain or prevent divorce, as well as the social and, above all, economic conditions and arrangements connected with divorce. The contributions break new ground by combining previously often separate fields of research and regions of investigation. It makes clear that the gender order doesn’t always run along religious lines, as was too often assumed. This book will be of interest to all scholars and students of economic, social, religious, cultural, legal, and gender history as well as gender and well-being in a broader sense. Andrea Griesebner is a Professor in the Department of History at the University of Vienna. She served as vice chair from 2014 to 2017 and as chair of the department from 2017 to 2020. She obtained her PhD in 1998 and her Habilitation in 2001 in the field of Early Modern Gender and Criminal History at the University of Vienna. In recent years, her work and publications have focused on divorce and the consequences of divorce for Catholic couples. As principal investigator, she directed three third-party funded research projects on this topic. These were supported by the Austrian Science Fund and by the Anniversary Fund of the National Bank of Austria between 2011 and 2020. Evdoxios Doxiadis is an Associate Professor in History at Simon Fraser University in Burnaby, Canada. His research is on Greek, Balkan, and Mediterranean history with a focus on the 18th and 19th centuries and a particular interest in questions of gender, law, state formation, and minorities. He has published two monographs: The Shackles of Modernity: Women, Property, and the Transition from the Ottoman Empire to the Modern Greek State 1750–1850 (2011) and State, Nationalism and the Jewish Communities of Modern Greece (2018), and a co-edited volume with Aimee Placas entitled Living under Austerity: Greek Society in Crisis (2018).

Gender and Well-Being Series editors: Christina Borderias and Bernard Harris

The aim of this series is to enhance our understanding of the relationship between gender and well-being by addressing the following questions:

• How can we compare levels of well-being between women and men? Is it

possible to develop new indicators which reflect a fuller understanding of the nature of well-being in the twenty-first century? • How have women and men contributed to the improvement of individual well-being at different times and in different places? • What role should institutions play in promoting and maintaining well-being? • In what ways have different social movements contributed to the improvement of well-being over the last 300 years? The volumes in this series are designed to provide rigorous social-scientific answers to these questions. Books in the series: Gender, Law and Economic Well-Being in Europe from the Fifteenth to the Nineteenth Century North Versus South? Edited by Anna Bellavitis and Beatrice Zucca Micheletto Well-Being and Extended Working Life A Gender Perspective Edited by Tindara Addabbo, Patricia Carney, Áine Ní Léime, Jeroen Spijker and Siniša Zrinščak Gender and Divorce in Europe: 1600 – 1900 A Praxeological Perspective Edited by Andrea Griesebner and Evdoxios Doxiadis https://www.routledge.com/Gender-and-Well-Being/book-series/ASHSER1313

Gender and Divorce in Europe: 1600 – 1900 A Praxeological Perspective Edited by Andrea Griesebner and Evdoxios Doxiadis

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Andrea Griesebner and Evdoxios Doxiadis; individual chapters, the contributors The right of Andrea Griesebner and Evdoxios Doxiadis to be identified as the author[/s] of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Griesebner, Andrea, 1964- editor. | Doxiadis, Evdoxios, editor. Title: Gender and divorce in Europe, 1600-1900 : a praxeological perspective / edited by Andrea Griesebner and Evdoxios Doxiadis. Description: Abingdon, Oxon ; New York, NY : Routledge, 2023. | Series: Gender and well-being | Includes bibliographical references and index. Identifiers: LCCN 2023010826 (print) | LCCN 2023010827 (ebook) | ISBN 9781032369327 (hardback) | ISBN 9781032369341 (paperback) | ISBN 9781003334552 (ebook) Subjects: LCSH: Divorce--Europe--History. | Divorce--Religious aspects. | Divorce--Law and legislation--Europe. Classification: LCC HQ874 .G46 2023 (print) | LCC HQ874 (ebook) | DDC 306.89094--dc23/eng/20230413 LC record available at https://lccn.loc.gov/2023010826 LC ebook record available at https://lccn.loc.gov/2023010827 ISBN: 978-1-032-36932-7 (hbk) ISBN: 978-1-032-36934-1 (pbk) ISBN: 978-1-003-33455-2 (ebk) DOI: 10.4324/9781003334552 Typeset in Sabon by SPi Technologies India Pvt Ltd (Straive)

Contents

List of Tables vii Acknowledgments viii List of Contributors ix 1 Introduction

1

ANDREA GRIESEBNER AND EVDOXIOS DOXIADIS

2 Women and Work

16

MARIA ÅGREN

PART I

Divorce from Bed and Board

31

3 Separated Beds – Interwoven Property: Separation and Divorce in the Habsburg Monarchy between the mid-16th and the mid-19th Centuries

33

ANDREA GRIESEBNER AND SUSANNE HEHENBERGER

4 Separating Persons and Property in Early Modern English Marriages 54 K.J. KESSELRING AND TIM STRETTON

5 Divorce in Early Modern Bilbao

70

NERE JONE INTXAUSTEGI JAUREGI

6 Judicial Separation and Its Material Effects in France during the 16th and 17th Centuries CLAIRE CHATELAIN

84

vi Contents

7 Interwoven Ecclesiastical and Civil Divorce Trials: A Venetian Case Study (1785)

97

MARIE MALHERBE

8 Divorce during the Concordat at the Marriage Courts of Prague and Trent (1857–1868)

115

ZUZANA PAVELKOVÁ ČEVELOVÁ AND JESSICA REICH

9 Material Matters: Dissolution of Economic Ties in the Context of Divorces in Rural Lower Austria in the 1920s and 1930s

128

BIRGIT DOBER

PART II

Divorce with Dissolution of the Marriage

145

10 Enduring Animosity: Negotiating Post-Separation Conflicts in the German County of Lippe (17th and 18th Centuries) 147 IRIS FLEßENKÄMPER

11 The Indistinct Line between Marriage and Divorce: The Ambiguous Nature of Marital Status in the 17th-Century Ottoman Empire

161

GAMZE YAVUZER

12 The Influence of Islamic Law on Greek Orthodox Divorce under Ottoman Rule

177

EVDOXIOS DOXIADIS

13 The Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina (1878–1918)

195

NINJA BUMANN

14 New Possibilities – New Practices? Divorces of Jewish Couples under the Purview of the Austrian Civil Code in the 19th Century: Provisions, Agreements, and Property Issues

213

ELLINOR FORSTER

Glossary 226 Name Index 230 Subject Index 232

Tables

2.1 Work Activity Patterns of Ever-married Women and Men, Grouped by Category of Work. (Västerås, Snevringe, Tuhundra (Sweden), 1720–1880) 2.2 Evidence of the Use of Hustru According to Five Types 3.1 Verdict in Divorce or Separation Proceedings (1558–1783) 5.1 Age at Marriage

19 25 38 73

Acknowledgments

This book is the result of an international conference organized by Andrea Griesebner. Originally scheduled as the final conference of the research project “Separated Beds – Interwoven Property: Regulation of Separation Consequences since the 16th century” (Nr. 1791311), based at the Department of History at the University of Vienna and funded by the Anniversary Fund of the National Bank of Austria, the conference had to be postponed twice due to the coronavirus pandemic. With the financial support of the Faculty of Historical and Cultural Studies it finally took place in a hybrid format, in person and via Zoom, at the University of Vienna on 1–2 October 2021, with most participants present in person. This volume includes a chapter by Ellinor Forster, who chaired one of the conference panels. Her contribution regarding divorce options for Jewish couples adds a discussion on a faith that was absent at the conference. The editorial team undertook the editing of the present volume, supported by Jennifer Blaak, who proofread the entire manuscript. For making this possible we have to thank the Faculty of Historical and Cultural Studies at the University of Vienna and the Faculty of Arts and Social Sciences at the Simon Fraser University. The editing of the chapters was a particular challenge because the authors not only have ten different mother tongues, but also come from different scientific cultures. Translating pre-modern terms and institutions from different regions from all over Europe that either have no equivalent in the English language or have different meanings and thus different legal effects was not an easy task. Our thanks therefore go to Jennifer Blaak and all the contributors for their professional cooperation and their willingness to answer our constant terminological inquiries. Last but not least, we are very grateful to Cristina Borderías and Bernard Harris for their continuous support, for reviewing the manuscript and their enthusiasm and willingness to include the book in the series, and to Claire Jarvis for making this a reality.

Contributors

Maria Ågren is a Professor of History at the University of Uppsala with a special interest in the early modern period in Sweden and elsewhere. Her research interests concern the intersection of social history, economic history, and legal history, and the role of gender at this intersection. She is also interested in the use of language and language technology in research methods and research infrastructures. She is the head of the large “Gender and Work” project at Uppsala University, within which the GaW database has been developed as an example of Digital Humanities. Her latest English publications are The Family Economy (2020) and Lower State Servants and Home Office Work (2020). Ninja Bumann is a PhD candidate at the Doctoral School for Historical and Cultural Sciences (DSHCS) at the University of Vienna, where she also serves as a university assistant at the Institute for East European History. In her dissertation project, she examines the negotiation of marriage and divorce at Sharia courts in Bosnia and Herzegovina under Habsburg rule (1878–1918). She studied history and Slavic languages and literature in Zürich, Prague, and Vienna. Claire Chatelain is a researcher at the CNRS/Centre Roland Mousnier/ Sorbonne Université in Paris. She received her PhD and Habilitation with theses on social mobility and kinship strategies in the Parisian nobility of the Robe (16th and 17th centuries). She is continuing her investigations in kinship and gender studies, divorce, legal and judiciary history, and history of urban Parisian elites. She is now leading the CNRS International Emerging Action Project “Justice, Action, États, Écriture (16th–19th c.)”. Birgit Dober studied history, educational sciences, and German as a foreign language at the University of Vienna; she also worked as a lecturer for German as a foreign language in Georgia and Ukraine; from 2017 to 2019 she was a staff member of the FWF project “Ehen vor Gericht” (Marriages at Court). Her ongoing dissertation is on economic factors in divorce proceedings between 1783 and 1938 as part of the DocTeam project “Doing Divorce. Research Interests: Secular Marriage Jurisdiction in Austria under the Enns in the 19th and Early 20th Centuries”.

x Contributors Evdoxios Doxiadis is an Associate Professor in History at Simon Fraser University in Burnaby, Canada. His research is on Greek, Balkan, and Mediterranean history with a focus on the 18th and 19th centuries and a particular interest in questions of gender, law, state formation, and minorities. He has published two monographs: The Shackles of Modernity: Women, Property, and the Transition from the Ottoman Empire to the Modern Greek State 1750–1850 (2011) and State, Nationalism and the Jewish Communities of Modern Greece (2018), and a co-edited volume with Aimee Placas entitled Living under Austerity: Greek Society in Crisis (2018). Iris Fleßenkämper is the General Secretary of the Institute for Advanced Study in Berlin (Wissenschaftskolleg zu Berlin). She received her PhD at the University of Augsburg with a thesis on the Scottish Enlightenment and is currently researching the conflicts of marriage norms and matrimonial jurisdictions in early modern Germany. Ellinor Forster is an Assistant Professor in the Department of History and European Ethnology at the University of Innsbruck since 2018. In 2015 she was a Visiting Fellow for Humanities at the Silesian University in Opava (Czech Republic), in 2016/2017 a scholar at the Austrian Historical Institute in Rome, and in 2017/18 Senior Lecturer at the Department of Modern and Contemporary History at the Johannes Kepler University in Linz. She has published on spatial concepts, cultural history of politics and administration, and legal and gender history from the 18th to 20th centuries. Andrea Griesebner is a Professor in the Department of History at the University of Vienna. She served as vice chair from 2014 to 2017 and as chair of the department from 2017 to 2020. She obtained her PhD in 1998 and her Habilitation in 2001 in the field of Early Modern Gender and Criminal History at the University of Vienna. In recent years, her work and publications have focused on divorce and the consequences of divorce for Catholic couples. As principal investigator, she directed three thirdparty funded research projects on this topic. These were supported by the Austrian Science Fund and by the Anniversary Fund of the National Bank of Austria between 2011 and 2020. Susanne Hehenberger received her PhD in Early Modern Criminal History from the University of Vienna in 2003; since March 2016 she has been working as an archivist at the Kunsthistorisches Museum (KHM) Vienna; from 2009 to 2016 she worked (with Monika Löscher) as a provenance researcher at the KHM on behalf of the Commission for Provenance Research and between 2011 and 2020 part-time in the research projects Marriages at Court, headed by Andrea Griesebner. Since 2018 she has been co-editor of the Lexicon of Austrian Provenance Research.

Contributors  xi Nere Jone Intxaustegi Jauregi works at the University of Deusto, where she teaches Spanish Legal History. She has two PhDs one in History, awarded in 2017 by the University of the Basque Country, and one in Law awarded by the Public University of Navarre (Spain) in 2020. Her research is focused on social and institutional history, with specific attention to women, dowries, and divorces. K.J. Kesselring is a Professor in the Department of History at Dalhousie University in Halifax, Canada, where she has taught since 2001. She has previously published works on early modern English law, crime, and politics, with a thematic interest in women’s and gender history. She has written monographs on the royal pardon, the Northern Rebellion of 1569, and homicide. She has a series of articles and book chapters on such topics as adultery, felony forfeiture, and the Court of Star Chamber. With Tim Stretton, she co-edited Married Women and the Law: Coverture in England and the Common Law World (2013) and co-authored Marriage, Separation and Divorce in England, 1500– 1750 (2022). Marie Malherbe received her Agrégation in History after studies at the Sorbonne and her European PhD at the Universities of Rouen and Padua with a thesis entitled “Illegitimate Children Born of Patrician Fathers Confronting the Venetian Aristocracy through Five Inheritance Trials” (1694–1780), co-supervised by Anna Bellavitis and Luciano Pezzolo. It was awarded the 2022 cotutelle thesis prize of the UFI (Franco-Italian University). As a member of the University of Rouen History Research Group (GRHis), she is taking part in the CNRS International Emergent Action Project “Justice, Action, États, Écriture (XVIth-XIXth c.)” headed by Claire Chatelain and Ines Gomez. Zuzana Pavelková Čevelová obtained her PhD at the University of Pardubice in 2009. She had already dealt with the topic of marriage in 19th-century Bohemia in her dissertation. She is currently the principal investigator of a research project on marriage and divorce in Bohemia and Moravia in the 19th century which is being funded by the Czech Science Foundation until 2024. Jessica Reich currently works as a teacher in a middle school. She was a research fellow at the University of Trento. She obtained her PhD in Contemporary History in 2021, with a project that aimed to study the matrimonial proceedings that took place in the Diocese of Trent and were judged by the Marriage Court of Trent during the period of Concordat (1857–1868).

xii Contributors Tim Stretton is a Professor at Saint Mary’s University in Halifax, Canada, where he has taught since 2001. He has a BA and a Law degree from Adelaide University in Australia and a PhD in History from Cambridge University in the UK (awarded in 1993 and supervised by Keith Wrightson). As well as being elected a Fellow of Britain’s Royal Historical Society, he has held fellowships at Cambridge, Toronto, Adelaide, and Cardiff Universities. He specializes in the history of women, law, and litigation in Britain, including the history of divorce, and his most recent publication (co-authored with Krista Kesselring) is a book entitled Marriage, Separation and Divorce in England 1500–1750 (Oxford University Press, 2022 in press). Gamze Yavuzer is currently a postdoctoral researcher at Sabancı University. She received her PhD from the University of Maryland, College Park in 2022. Her dissertation is titled “Legal Plurality in Family Law: Muslim and Christian Families in Seventeenth-Century Istanbul”. Her research interests include family law, legal history, non-Muslims in the Ottoman Empire, Ottoman cultural history, and women’s and gender history in the Middle East.

1 Introduction Andrea Griesebner and Evdoxios Doxiadis

Getting a divorce and getting remarried during the lifetime of the ex-spouse is common practice in European societies nowadays. Even though in all European states civil marriage is either mandatory before or facultative to religious marriages, civil marriage law still differs considerably throughout Europe. This concerns, on the one hand, the normative conditions for the divorce of the civil marriage and, on the other hand, the norms for regulation of issues that may be involved with the dissolution of marriage, such as the distribution of property and debts, the right to spousal maintenance, child custody, child visitation or parenting time. In many countries civil marriage law still echoes religious marriage law, which for centuries determined not only which persons could enter into marriage with each other but also how validly contracted marriages could be ended. The six volumes of the recently published anthology A Cultural History of Marriage emphasized how differently the “universal” institution of marriage was understood and how diverse the agreements were that the bride and groom, or their representatives, made when entering into a marriage. The obligations associated with marriage varied widely, not only when comparing countries from around the world, but also within Europe, depending on religion, secular inheritance law and customs, marriage regimes, and last but not least, on the social position of the bride and groom (Ferraro 2020, see in particular vol. 4, edited by Behrend-Martines and vol. 5, edited by Puschmann; see also Eibach and Lanzinger 2020, Eibach 2022). The same applies to the possibilities of ending a marriage, which is the starting point of the contributions in this book. This volume takes a different approach from past investigations of divorce that looked at only a small part of Europe (usually the westernmost part) and usually focused on the different Protestant denominations. Such examinations, however, not only ignore large parts of the European world, but also fail to examine the similarities and differences as well as the interactions between and influences on the various denominations and religions, presenting a much more simplistic picture of divorce than was actually the case. This volume attempts to present a comprehensive examination of divorce for a time period when a significant part of Europe was under the control of the Ottoman Empire and, as a DOI: 10.4324/9781003334552-1

2  Andrea Griesebner and Evdoxios Doxiadis consequence, Islamic courts were common throughout south-eastern Europe. The chapters cover a wide religious spectrum, from Islam to Judaism to various Christian denominations, and they span a broad geographical and historical panorama, from the British Isles to the Ottoman Empire, from the 1600s to the 1930s. They reveal the deep complexity of divorce and the associated regulation of its consequences, especially in areas and times where and when multiple legal traditions and religions intersected. All chapters are based on empirical research and share a praxeological approach to divorce. The historical sources used are located in ecclesiastical as well as secular archives in Athens, Bilbao, Istanbul, Venice, Trento, Paris, Prague, and Vienna, and are written in many languages. Archives generally preserve more documents from wealthy and politically influential individuals and thus always introduce a bias. Although the right to enter into marriage, as well as the right to dissolve it, was regulated very differently across Europe, divorce was not limited to the privileged classes. Documents created in connection with marital conflicts and divorces therefore often contain information about couples from all social classes who were able to marry. While Christian marriage law granted both sexes the right to seek divorce regardless of social status, in Jewish and Islamic law this right tended to be a male privilege. Depending on the sources used and the historical approach pursued – from microhistory to quantitative analysis – the chapters in this volume shed light on all strata of society, from the upper class (Kesselring/Stretton, Chatelain and Malherbe) to the middle classes (Nere Intxaustegi Jauregi, Iris Fleßenkämper, and Ellinor Forster) and also to the lowest of all classes (Andrea Griesebner and Susanne Hehenberger, Jessica Reich and Zuzana Pavelková Čevelová, Birgit Dober, Gamze Yavuzer, Evdoxios Doxiadis, and Ninja Bumann). Predominantly handwritten archival documents are used to analyze the arguments and strategies put forward to enforce or prevent a divorce. They also serve as a basis for asking about the legal and economic consequences of divorces, a question that has rarely been asked. The contributions break new ground in that they link the legal question of the possibility of divorce with the question of what social and, above all, economic arrangements were associated with divorce. While previous research has primarily emphasized differences between religions or denominations, this question shifts the level of analysis of the gender order and thus of marital property and inheritance arrangements that did not always run along religious lines. 1.1 The Divorce of Marriage A fundamental difference between the various religions and their denominational manifestations concerns the question of whether marriage was regarded as a contract made by individuals of different sexes, or if marriage also constituted a spiritual bond. In the first case, the divorcees were free to remarry, although women usually had to wait for a specified period of time to rule out

Introduction  3 pregnancies from the previous marriage. In the second case, divorce dissolved only the obligations associated with marriage, but not the bond of marriage itself, which continued to exist. While this form of divorce was referred to in legal texts as a divorce from bed and board, in practice, it was usually simply called divorce – divortium (Latin), divorce (French), divorcio (Italian and Spanish), or Scheidung (German). The spiritual marriage bond could be dissolved only by an annulment, which declared the marriage null and void, or by the death of one of the spouses. Remarriage while the spiritual marriage bond was still intact was considered not only a sin, but also constituted the crimes of adultery and bigamy (Siebenhüner 2006, Griesebner and Lanzinger 2021). In regard to its spiritual foundation of marriage, Christianity or, to be more precise, some Christian denominations differ from the other religions in this volume. Both Jewish and Islamic law do not perceive the marriage bond in this fashion. They view marriage primarily as a legal contract that, like all contracts, can be dissolved, whereby men can do so much more easily than women. While Islamic and Jewish divorce has significant social and economic ramifications, the principle of a complete severance of the marriage bond is not called into question. Instead, the fundamental question was one of gender disparity, since Muslim men could essentially divorce their wives at will (as long as they were willing to bear the ensuing financial obligations), while in most cases Muslim women needed to secure their husband’s consent and Jewish women needed a divorce letter (“get”) from their husbands. Yet, as this volume shows, we should not view this question as having a clear dichotomy between Christian and non-Christian religions. Many Christian denominations also allowed the complete dissolution of the marriage bond, and in some cases Christian divorce practices were apparently heavily influenced by those practiced by other faiths. Divorce practices were not static, but rather dynamic, as were the consequences of divorce in social and economic terms. Thus, divorce appears in different forms, conditional and unconditional, contested and uncontested; and individuals frequently exploited differing jurisdictions, practices, and systems of law to achieve their end goals. The latter is especially true in regions with legal pluralism, where, as will become clear in some chapters, interactions and exchanges also occurred between the various confessional groups. The Roman Catholic Church defines marriage as a holy union and considers it one of its seven sacraments. The Anglican Church does not see marriage as a sacrament, but still holds to the idea of a spiritual marriage bond. In both cases, the term divorce (from bed and board) was used to signify the end of the marriage and the obligations entered into with it, while the spiritual marriage bond remained intact. In contrast, Orthodox Christian denominations, while also recognizing the spiritual marriage bond, still permitted remarriage during the lifetime of the divorced spouse, while some Protestant denominations gave this right only to the spouse who was not considered to be at fault for the breakdown of the marriage.

4  Andrea Griesebner and Evdoxios Doxiadis Whether Christian spouses had to turn to ecclesiastical or secular courts for a divorce varied regionally and over time. In the German hereditary lands of the Habsburg Monarchy, Spain, and the territories encompassing what is now modern Italy, the Roman Catholic Church exercised sole marriage jurisdiction up to the 18th century. In Catholic France, on the other hand, secular courts increasingly assumed marriage jurisdiction from the 16th century onward. Likewise, the enabling or disabling of civil marriage depended on the balance of power between the state and the religious powers. The introduction of civil marriage by revolutionary France in 1792, which was also adopted by territories allied with or occupied by France, is often seen as a dramatic break with the past. However, as several contributions in this volume show, the situation was much more complex. While some German territories retained civil marriage following the monarchical restoration in France, it was abolished in France in 1816 and was not reintroduced until 1884. In the northern Italian territories religious control over marriage had also been largely restored upon the restoration of the Bourbon monarchy in 1815. The Kingdom of Italy instituted civil marriage once more in 1866, but it took another 100 years, specifically until the 1970 reform of the Italian family law, before civilly divorced couples no longer remained bound by the spiritual marriage bond and the remarriage option no longer required the death of the divorced spouse. Similarly, the Kingdom of Spain introduced civil marriage in 1889, but did not allow divorced couples to enter into a new civil marriage during the lifetime of the divorced spouse until the establishment of the Republic in 1932. Four years later, civil marriage was once again abolished and not reintroduced until the family law reforms of 1981. In the German hereditary lands of the Habsburg Monarchy, the Josephinian Marriage Patent of 1783 transferred marriage jurisdiction to state courts, but staterecognized marriages could still be performed only by representatives of the Catholic Church or one of the tolerated faiths. Catholic marriages continued to be bound by the spiritual marriage bond, and for both spouses, remarriage during the lifetime of the divorced spouse was still considered both a sin and a crime. In England and Wales civil marriage was introduced in 1836, but only the Matrimonial Causes Act of 1857 introduced the possibility to request a judicial divorce instead of a divorce from bed and board. At the end of the 19th century, civil marriage was introduced in the Second German Empire (1876) and in 1894 in the territories of the Habsburg Monarchy subject to the Hungarian Crown (Transleithania). However, civil marriage is not a precondition for divorce with the possibility of remarriage. In Greece, for example, this has been possible since it gained independence in 1830, even though civil marriage was not introduced until 1982. Depending on the region under consideration and national historio-­ graphical research traditions, the contributors could build on existing research or had to break new ground. The possibilities for divorce of Protestant married couples, for example, have already been researched from the 1970s and 1980s onwards, especially in the context of Reformation historiography (for

Introduction  5 research overviews, see Lutz 2006 and Westphal et al. 2011). The divorce proceedings carried out by Catholic consistories came into the focus of historians comparatively late (Beck 1992, Borello 2003, Seidel and Diego 2006, Griesebner and Tschannett 2011, Brée and Brunet 2020, Avignon et al. 2021, and Griesebner 2022). There is also important research on the uncontested and contested civil court divorces that were possible in France between 1792 and 1816 (Bellavitis 2003, Desan 2004, Bertran de Balanda 2017) and more recently with a predominantly legal perspective (Tetaert et al. 2021). In other regions, the 19th-century Catholic divorce practices have hardly been researched yet. For the German hereditary lands of the Habsburg Monarchy, empirical access is made difficult, primarily by the fact that after 1783 thousands of local courts, rather than just a few ecclesiastical courts, decided on divorces (Forster 2008, 2010, Tschannett 2015, Griesebner et al. 2021). The areas under Ottoman rule divorce have been explored in the Middle Eastern context by scholars like Leslie Peirce, Judith Tucker, and Amira Sonbol, while the use of Islamic courts by non-Muslims, particularly women, has been recognized since the work of Ronald Jennings and researched since Sophia Laiou and many others, though not using a comparative approach period, like Leslie Peirce, Judith Tucker, and Amira Sonbol (Jennings 1978, 1993, Peirce 1998, 2003, Sonbol 1996, Tucker 1998, and Laiou 2007). However, the European provinces of the Ottoman Empire and the role of non-Islamic courts and law in particular until recently remained quite understudied. 1.2 Regulation of the Divorce Consequences Another issue the book deals with is the regulation of the consequences connected with divorce, be it a divorce from bed and board or a divorce with the right to remarry. While Jewish, Islamic, and Christian Orthodox marriage law contained provisions regarding the material effects of divorce, neither Catholic nor Anglican marriage law had regulations in this regard. Depending on the region and time period, the question as to whether ecclesiastical or secular courts would decide upon the material and social consequences of divorce was regulated differently throughout Europe. Thus, up until the middle of the 18th century, in the German hereditary lands of the Habsburg Monarchy it was the ecclesiastical courts that decided on the consequences of a divorce if one of the spouses expressly submitted the case to the Consistory. It was not until a royal decree from 1753 that the ecclesiastical courts were deprived of the right to rule on “worldly matters” in the event of limited separation or divorce from bed and board. Even if the spouses had agreed in advance on a certain amount of maintenance, the decision, and thus also the enforcement in the event of default, was incumbent upon the secular authorities from this point in time forward. Until the civil codes of the late 18th and 19th centuries, therefore, what mattered most was whether a marriage contract had been made and what the bride and groom had agreed upon in that marriage contract. That is why

6  Andrea Griesebner and Evdoxios Doxiadis for the analysis of the divorce consequences it is so important to consider customary law, which differed not only from one territory to another, but also from one specific region to another. As some contributions indicate, in areas where customary law and civil law diverged to a substantial degree, married couples continued to adhere to the customary law of their region in their marriage contracts. This applied both to the marital property regime and to inheritance provisions which were often also part of the marriage contract. In recent years very important research has been done and published on the issue of women’s property rights. This research emphasizes that the economic position of women varied greatly depending on the prevailing matrimonial property regime, the inheritance laws, and the marriage contract which had been agreed upon. The 2019 anthology edited by Anna Bellavitis and Beatrice Zucca Micheletto made clear that the contrast long drawn by European family and legal historians between the legal systems of Northern and Southern Europe “tends to oversimplify complex dynamics and processes” (Bellavitis and Zucca 2019, 1). The contributions of that volume have already impressively illustrated the importance of local norms and regional circumstances. Marriage regimes with separation of property contrasted with those that favored one of the various forms of community of property. This volume also clarifies that the concept of coverture, which subsumed the wife’s legal personality under that of the husband and placed all her immovable property under his control during the marriage, was limited to England. In contrast to its high profile, especially in English-language research, coverture was practiced neither in Scotland nor in Ireland (Simonton 2019), and even in England, Tim Stretten and Krista Kesselring recently emphasized the possibility of circumventing the legal requirement of coverture in marriage contracts (Kesselring and Stretton 2022). Margareth Lanzinger, Gunda Barth-Scalmani, Ellinor Forster, and Gertrude Langer-Ostrawsky pointed out the crucial importance of marriage contracts in a comparative study (Lanzinger et al. 2010). They examined 18th- and 19th-century marriage contracts from different social strata from four territories in the German hereditary lands of the Habsburg Monarchy which had different prevailing marital property regimes. They showed that brides and grooms often made agreements that were adapted to their individual situations and could contain elements from different marital property regimes. Not as a description of practice, but as an analytical tool for comparison, matrimonial property law can be differentiated in the dotal system influenced by Roman law with separation of property and the community of property system influenced by Germanic customary law. The dotal system provided that daughters received a dowry as an early paternal inheritance, and that thereafter they were not entitled to any further paternal inheritance. The dowry they brought into the marriage remained their property, but during the marriage the husband was given the usufruct of the dowry and the power to dispose of earned income. As Angelina Arru,

Introduction  7 for example, pointed out, the husband’s control over the dowry was associated with the widespread exclusion of wives from independent entrepreneurial activity. In the event of the wife’s death, the husband had to return the dowry or the value of the dowry to the wife’s family or, if there were children, transfer it to the children entitled to inherit. If the husband died first, the dowry or its value was returned to the wife. As a rule, the dowry was mortgaged to the husband’s property as security, although this was often done informally. Thus, as Angelina Arru also argued, the dotal system created a credit relationship between spouses or between families of origin. However, the mortgaging of the real estate at the same time limited the circulation of the husband’s property (Arru 2011). In the event of a divorce of the marriage, whether from bed and board or with the option of remarriage, the wife was entitled to the return of her dowry. In extraordinary circumstances, a wife could seek and assume direct control of her property while the marriage endured. In the likewise typically constructed community of property regime, the premarital assets of the bride and groom were merged into one common good which belonged to both spouses in equal shares, which neither spouse could dispose of without the consent of the other. Purchase and sale agreements therefore always had to be signed by both spouses. The marriage contracts recorded which premarital property had been brought into the marriage as the “marriage-portion” on the part of the bride and as the “countermarriage-portion” on the part of the groom. These assets had a different legal status than the rest of the common property, for example in the case of bankruptcy. Regardless of gender, upon the death of a spouse, one half of the joint property went to the estate of the deceased spouse and the other half became the sole property of the surviving spouse. The “pure” estate assets were divided between the surviving spouse and any legitimate children, again, regardless of gender. A closer look at marital contracts, divorce settlements, wills, and probate proceedings reveals that the property situation of most married couples was much more complicated than the ideal-typical differentiation between the regime of separation of property and that of community of property can capture. An often-overlooked reason for this is that the models are based on marriages in which the bride and groom were not only young, but also marrying for the first time. As some contributions make clear, however, patchwork families are not a phenomenon of the 20th century. Due to epidemics, wars, and the high death rate of women in childbirth, to name just a few factors, second and third marriages were more common than researchers had long assumed. The respective inheritance laws in force and the inheritance agreements made in the marriage contracts played an essential role in determining whether and what kind of assets were there for the women and men to dispose of, at least theoretically. Regions where all children, regardless of sex, received equal shares of maternal and paternal inheritance contrasted with regions where the eldest or youngest son was privileged.

8  Andrea Griesebner and Evdoxios Doxiadis Many of the couples whose divorce proceedings are examined in this volume were not married for the first time but rather had been widowed or even previously divorced. Some of them had extensive possessions – not only movables and real estate, but also business licenses, some of which came from their parents, while others came from deceased husbands or wives. From a praxeological perspective, it also becomes clear that brides and grooms had to make, and did make, arrangements for the financial security of children from previous marriages, which must also have been a concern for the legal guardians of the children and the community as well. As some contributions demonstrate, marriage portions and countermarriage portions were not always included in the marital community of property. In addition to the paraphernalia, which remained the sole property of the bride or groom, some decided to determine both marriage portions “on survival”. This decision had consequences, above all in terms of inheritance rights, since in the event of the death of one spouse both marriage portions automatically became the sole property of the surviving spouse and thus did not have to be shared with the children or kin entitled to inherit. Some marriage contracts also excluded further inheritances from the community of property, thus making them the sole property of the inheriting spouse. Widowed women as well as widowed men therefore often had assets consisting of their maternal and paternal inheritance, of the deceased spouse’s marriage portion or counter-marriage portion as well as of the assets earned during the marriage. Therefore, as the marriage contracts show and the divorce settlements suggest, it was not uncommon for the bride to have brought a house, farm, craft, trade, or trade license into the new marriage. While in some parts of Europe common law provided for one of the different variants of community of property, in other parts the separation of property prevailed. The question of what agency individuals had with regard to their property during marriage and following its dissolution is complicated and is therefore a question that is either explicitly or implicitly addressed in many of the chapters in this volume. It is important to bear in mind that people from all social classes concluded marriage contracts in order to circumvent local and legal marriage regimes and inheritance rules. In addition to the agreements in the prenuptial agreements or marriage contracts, the circumstances of the divorce, in particular the question of which spouse was assigned the blame for the failure of the marriage, also had a decisive effect on the division of assets after the divorce. Even in Islamic law, which has very clear stipulations regarding the material obligations of spouses in cases of divorce, certain deviations were possible, especially in cases of divorces initiated by women, as Gamze Yavuzer shows in her chapter. 1.3 Making a Living Whether divorce was not only legally possible but also a viable option depended primarily on whether the spouse seeking divorce had a way to

Introduction  9 support himself or herself independently. As the contributions on the regions where both spouses could apply for divorce on equal terms make clear, it was, regardless of social class, predominantly wives of who initiated divorce proceedings, regardless of the periods studied and regardless of whether or not they were able to remarry during the divorced husband’s lifetime. Although in many cases the divorce files consulted contain little information about how the couple earned their living and how the consequences of divorce were regulated in practice, it can be assumed that the women who decided not to continue the marriage at least had means to lead a life independent of the husband. That does not necessarily mean that they had to be women of wealth, as Maria Ågren makes it clear in the Chapter 2 that work was an important part of everyday life for most wives. Andrea Griesebner and Susanne Hehenberger also point out, in Chapter 3, that after the divorce, the wife sometimes continued the trade or business previously operated jointly with the husband. What property rights women had vis-à-vis the divorced husband was, as already mentioned, regulated in both Jewish and Islamic law and, in some cases, were included proactively in marriage contracts. The marriage laws of most Christian denominations, which allowed only divorce from bed and board, did not contain any provisions in this regard. In cases where full divorce was possible, as in the Orthodox cases, general guidelines did stipulate the expected property allocations. To date, however, little research has been done to determine what provisions, if any, were included in local laws prior to the introduction of the civil law codifications. Scholarship on the work of married and unmarried early modern women has proliferated over the last two decades. Now we do know a little more about the work carried out by single, married, and widowed women, and how their marital status and also their social class impacted the kind of work considered suitable for them. In this respect the project entitled Gender and Work Research Projects led by Maria Ågren, with its extensive database, and the publications produced, including the contribution in this volume, are particularly noteworthy (Ågren 2017, 2020). However, we know much less about the subsequent lives of divorced spouses. The tracing of divorced spouses poses considerable difficulties in the sources, at least in those regions where divorce did not dissolve the marriage bond. Until the 20th century, divorced women and men often continued to be referred to as “married” in documents and are thus not visible in the sources as a separate category. The sources produced in the context of divorce proceedings usually offer insights into the marital economy only when it is part of the conflict narrative. Since in many regions different courts ruled on divorce and the settlement of divorce consequences, it is often impossible to find the sources of both proceedings. Depending on the region and the time period, couples also settled the divorce ramifications out of court. Therefore, in order to obtain information on the subsequent fate of divorced spouses, additional sources would have to be sought – most likely using microhistorical approaches.

10  Andrea Griesebner and Evdoxios Doxiadis 1.4 Well-Being Last but not least, the issue of divorce extends far beyond its religious and economic dimensions. Some contributions bring to light the complexity of decisions and attitudes in practice, where spouses as well as authorities always had to deal with feelings, financial challenges, and societal–moral issues simultaneously. All three dimensions must be considered to evaluate the risk–benefit ratio of a divorce claim. In other words, the general improvement in “well-being” that a petitioning spouse presumably hoped for from a divorce could prove unrealistic in practice. Some chapters will point out that short-term success in enforcing divorce could be associated with great financial and/or social hardship on the part of the wife and, on occasion, the husband as well. What did “winning a divorce case” really mean in the long-term? From the divorce suits filed by women it is clear that they hoped that living separately would provide a better life not only for themselves but also for their children and, in some cases, for other family members. However, their lawsuits were at the same time a disturbing and “dissenting” voice in societies that viewed marriage as an essential “stability factor” for the gender order, for families and communities, and a way to maintain order in society. Arbitration was therefore not simply to be conducted between rival individual welfare interests (of the plaintiff versus those of the opposing spouse, children, and other family members), as is the case today, but primarily between antagonistic views of what constituted a “good” or a “bad” marriage. This was particularly true for plaintiffs in societies that regarded women as legally immature, a concept dating at least back to Cicero (see Dixon 1984). To what extent could their claims be heard if it was not self-evident that they knew what was good for them? Divorce suits can therefore also be read as indications of what practices women were unwilling to tolerate in marriage. As such, they provide a valuable field of inquiry to observe how opposing definitions of “well-being” (religious and secular, individual and social, physical, psychological and spiritual, masculine and feminine) can coexist and compete, as well as how marriage was conceived by men and women in different societies. The documents produced in connection with the divorce hardly allow any conclusions to be drawn about how the divorce was evaluated socially or how divorced women and men were perceived by their environment. Conclusions can be drawn about the social assessment only in individual cases – for example, when a woman’s desire for divorce was described as “shameful”, as mentioned in the contribution by Marie Malherbe. While this question has been neglected in research for regions where remarriage was allowed only after the death of the divorced spouse, divorce in areas where remarriage was permitted and common, as in the case of Islamic or Jewish law, does not seem to have had negative connotations per se. To put it cautiously, the lack of research allows only for the supposition that the possibility of remarriage may have been an important factor in society’s perception of divorce.

Introduction  11 1.5 Organization of the Volume The first, cross-sectional chapter by Maria Ågren draws attention to the fact that the wives’ decision to divorce or consent to divorce was conditional on their being able to lead an economically independent life apart from their husbands. Ideological provisions on the duties of the husband to support his wife and family and the projection of the “male breadwinner model” into the past have long obscured that, in reality, almost all early modern and modern households were based on a “two-income model” with both spouses being expected to contribute to the common economy. If we include unpaid work for the good of the household then, according to the convincing argument made by Maria Ågren, no household conforms to the “male breadwinner model” until well into the 20th century. In order to understand what opportunities divorced women had to lead an economically independent life, it is therefore important to take into account how the couple made a living together and what experience and skills women already brought to the marriage or acquired during the marriage. After all, such skills would be a determining factor in the decision to seek a separation from their husbands. Ågren’s contribution points out difficulties, but also methodically shows new ways to make women’s different work activities visible in the sources. It also reminds us of the privileges and power that were associated with the status of “married”. Although the question of whether or not divorcing couples may remarry during the divorcing spouse’s lifetime did not have a significant impact on the regulation of divorce consequences, we have chosen to use this distinction as the basis for the division of the bond. One reason for this is that it allowed us to overcome the traditional division by religious affiliation, since certain Protestant and Orthodox denominations were grouped together alongside Jewish and Islamic practices, while the Anglican and Catholic faiths were combined into a separate section. Second, the possibility of remarriage during the lifetime of the divorced spouse likely had implications on the issue of social acceptance of divorce. Although the question of how men and women divorced from bed and board were perceived by their environment is a research desideratum, some chapters suggest a greater social acceptance of divorce in regions where remarriage was easiest. Part I of this book focuses on areas where the Roman Catholic or Anglican Church had authority over marriage and the term “divorce” was used for the indefinite right of the spouses to live separated from each other. Due to the doctrine that the spiritual marriage bond could be dissolved only by annulment or by the death of one spouse, the couple, although divorced, continued to be tied by the marriage bond. As long as the marriage bond was intact, remarriage was considered both a sin and a crime. The contributions cover a period from the mid-16th to the first half of the 20th century and examine court practice in selected regions of the Habsburg Monarchy (Andrea Griesebner and Susanne Hehenberger and Jessica Reich and Zuzana

12  Andrea Griesebner and Evdoxios Doxiadis Pavelková Čevelová), England (K.J. Kesselring and Tim Stretton), Spain (Nere Jone Intxaustegi Jauregi), France (Claire Chatelain), Venice (Marie Malherbe), and Austria (Birgit Dober). Part II deals with the possibility of “complete” divorce under Protestant, Christian Orthodox, Islamic, and Jewish marriage laws from the 17th to the end of the 19th century. The first contribution by Iris Fleßenkämper forms a bridge, so to speak, to the first part by showing that Protestant marriage laws often permitted an indefinite divorce and thus remarriage during the lifetime of the divorced partner only in the case of proven adultery of one spouse or malicious desertion. For all those spouses who could not prove any of the recognized grounds for divorce, Protestant marriage law likewise provided only for temporary separation from bed and board. The second part covers an even more diverse geographical area than the first, including the German County of Lippe (Iris Fleßenkämper), the Ottoman Empire (Gamze Yavuzer), Greece (Evdoxios Doxiadis), Bosnia and Herzegovina (Ninja Bumann), and Austria (Elinnor Forster). It brings to light the hitherto little-known fact that in areas with religious pluralism married couples could take advantage of different legal avenues; for example, Orthodox married couples could also turn to Sharia courts, which, unlike Orthodox courts, provided for the possibility of divorce by mutual consent (see Evdoxios Doxiadis and Ninja Bumann) or Jewish wives could seek divorces in secular courts to obtain a divorce from bed and board when separation was denied to them by their own courts (see Forster). It should be noted that this volume examines only cases where formal marriage had been contracted. It does not consider certain aspects of marriage and divorce that, while significant today, were an impossibility in the period the volume covers, for example same-sex marriage and its various legal ramifications. Nor does it take informal or semi-formal arrangements such as concubinage contracts into account, although these were common, or at least practiced in many parts of Europe, especially among the poorer segments of the population (Frost 2008, Armstrong-Partida 2017). Not only would such an examination broaden the scope to an unmanageable degree, but it would also add a complexity that was increasingly suppressed by secular and religious authorities starting from the 16th century onwards. 1.6 Conclusions The book’s contributors pursue an innovative approach by combining previously mainly separate fields of research – economic history, social history, history of the family, legal history, history of labor and work, history of divorce – into a comprehensive whole. Depending on the historically differing divorce possibilities and the density of the surviving sources, they illustrate that the documents open up a wide field of new perspectives in the context of marital conflict and divorce. They demonstrate how plaintiffs and defendants argued in court and what arguments judges accepted or rejected

Introduction  13 as divorce grounds. The certificates submitted and witnesses mentioned are used to reconstruct the relationship networks of the wives and the husbands. Based on divorce settlements and civil proceedings regulating the divorce consequences, they explore who received custody of children, how the joint property of the couple was divided, and how maintenance was regulated. They provide insights into the ways couples made a living and how divorced spouses intended to make a living in the future. Finally, they illustrate how the norms were negotiated in practice – before Christian consistories, before Rabbinic or Sharia courts, and also before secular courts. They also show how such practices were transformed over time, often under the influence of different and competing legal practices or changing social imperatives. Overall, the book shows how the various approaches to divorce, on the one hand, and the regulation of divorce consequences, on the other, differed and what they had in common between the early 17th and the early 20th centuries. Depending on gender and social status, civil law provisions create very different starting conditions for divorced spouses to reorganize themselves socially and economically after divorce. Through their examination of the longue durée, most contributors are also able to point out that these arrangements varied not only regionally but also over time. It becomes clear that the question of whether divorce was an option depended not only on religious rules, but also on the gender order, the prevailing marital property and inheritance regime, and the possibility of both genders to make their own living. And last but not least, they provide evidence that divorce – independent of denomination or religion – was not, as was long suspected, limited to married couples of the higher social strata, but was practiced in all levels of society, albeit it with a significant degree of regional variation. References Ågren, Maria. 2017. Making a Living, Making a Difference: Gender and Work in Early Modern European Society. Oxford: Oxford University Press. Ågren, Maria. 2020. “The Family Economy.” In A Cultural History of Marriage: Volume 4: In the Age of Enlightenment, Edward Behrend-Martinez (ed.), 75–86. London: Bloomsbury Academic. Armstrong-Partida, Michelle. 2017. “Concubinage, Clandestine Marriage, and Gender in the Visitation Records of Fourteenth-Century Catalonia.” Journal of the History of Sexuality, 26 (2), 207–238. Arru, Angiolina. 2011. “Die nicht bezahlte Mitgift. Ambivalenzen und Vorteile des Dotalsystems im ausgehenden 19. und beginnenden 20. Jahrhundert.” L'Homme. Zeitschrift für feministische Geschichtswissenschaft, 22 (1), 55–69. Avignon, Carole, Claire Chatelain, and Camille Noûs (eds.). 2021. “Divorcer? Les séparations matrimoniales en Europe: Antiquité, période moderne, Révolution.” Genre et Histoire, 28 (2). https://doi.org/10.4000/genrehistoire.6446 Beck, Rainer. 1992. “Frauen in Krise. Eheleben und Ehescheidung in der ländlichen Gesellschaft Bayerns während des Ancien Régime.” In Dynamik der Tradition, Richard van Dülmen (ed.), 137–212. Frankfurt am Main: Fischer.

14  Andrea Griesebner and Evdoxios Doxiadis Behrend-Martinez, Edward (ed.). 2020. A Cultural History of Marriage, vol. 4. In the Age of Enlightenment. London: Bloomsbury Academic. Bellavitis, Anna. 2003. “Der Code Civil in Frankreich.” L'Homme, Zeitschrift für feministische Geschichtswissenschaft, 14 (1), 83–89. Bellavitis, Anna, and Beatrice Zucca Micheletto (eds.). 2019. Gender, Law and Economic Well-Being in Europe from the Fifteenth to the Nineteenth Century: North Versus South? London and New York: Routledge. Bertran de Balanda, Flavien. 2017. “Louis de Bonald et la question du divorce, de la rédaction du Code civil à la loi du 8 mai 1816.” Histoire, Économie et Société, 36 (3), 72–86. Borello, Benedetta. 2003. “Ehe neu verhandeln. Trennung von Tisch und Bett im Rom des 17 Jahrhunderts.” L`Homme, Zeitschrift für feministische Geschichtswis­ senschaft, 14 (1), 11–34. Brée, Sandra and Guy Brunet (eds.). 2020. “Séparations et divorces. Désunions matriminiales dans les sociétés européennes, XVIIe – Xxe siècle.” Annales de Démographie Historique, 140 (2), 1–20. Database: Gender and Work. 2022. https://www.gaw.hist.uu.se/?languageId=1 Desan, Suzanne. 2004. The Family on Trial in Revolutionary France. California: University of California Press. Dixon, Susanne. 1984. “Infirmitas Sexus: Womanly Weakness in Roman Law.” Tijdschrift voor Rechtsgeschiedenis, 52 (4), 343–371. Eibach, Joachim. 2022. Fragile Familien. Ehe und häusliche Lebenswelt in der bürgerlichen Moderne. De Gruyter: Oldenbourg. Eibach, Joachim and Margareth Lanzinger (eds.). 2020. The Routledge History of the Domestic Sphere in Europe 16th to 19th Century. London and New York: Routledge. Ferraro, Joanne M. (ed.). 2020. A Cultural History of Marriage. 6 vols. London: Bloomsbury Academic. Forster, Ellinor. 2008. “Handlungsspielräume von Frauen und Männern im österreichischen Eherecht. Geschlechterverhältnisse im 19. Jahrhundert zwischen Rechtsnorm und Rechtspraxis.” PhD. diss., University of Innsbruck. Forster, Ellinor. 2010. “Legitime Wut. Zum Ausdruck männlicher Gefühle in Ehescheidungsprozessen des ländlichen Tirol und Vorarlberg im 19. Jahrhundert.” In Die Präsenz der Gefühle. Männlichkeit und Emotion in der Moderne, Nina Borutta and Nina Verheyen (eds.), 105–128. Bielefeld: transcript. Frost, Ginger Suzanne. 2008. Living in Sin: Cohabiting as Husband and Wife in Nineteenth-Century England. Manchester: Manchester University Press. Griesebner, Andrea (ed.). 2022. Web Portal. Marriages at Court 3.0. Proceedings from the 16th to the 19th Century. https://ehenvorgericht.univie.ac.at/?lang=en Griesebner, Andrea, and Margareth Lanzinger. 2021. “Logiken der Bigamie – frühneuzeitliche Perspektiven und Wahrnehmungen.” Werkstatt Geschichte, 84 (2): 13–30. Griesebner, Andrea, Isabella Planer, and Birgit Dober. 2021. “Einverständlich versus uneinverständlich. Scheidungsoptionen katholischer Ehepaare im Erzherzogtum Isabella Österreich unter der Enns (1783–1868).” Niederösterreich im 19. Jahrhundert, vol. 2 Gesellschaft und Gemeinschaft. Eine Regionalgeschichte der Moderne, Oliver Kühschelm, Willibald Rosner, Elisabeth Loinig and Stefan Eminger (eds.), 251–282. St. Pölten: NÖ Institut für Landeskunde. Griesebner, Andrea, and Georg Tschannett. 2011. “Ehestreitigkeiten vor dem Wiener Erzbischöflichen Konsistorium und dem Magistrat der Stadt Wien.” Geschichte und Region/Storia e regione, 20 (2), 40–72.

Introduction  15 Jennings, Ronald C. 1978. “Zimmis (Non-Muslims) in Early 17th Century Ottoman Judicial Records.” Journal of Economic and Social History of the Orient, 21 (3), 225–293. Jennings, Ronald C. 1993. “Divorce in the Ottoman Sharia Court of Cyprus.” Studia Islamica, 78, 155–167. Kesselring, K.J., and Tim Stretton. 2022. Marriage, Separation, and Divorce in England, 1500–1700. Oxford: Oxford University Press. Laiou, Sophia. 2007. “Christian Women in an Ottoman World.” In Women in the Ottoman Balkans, Amila Buturovic and Irvin Cemil Schick (eds.), 243–269, I.B. Tauris. Lanzinger, Margareth, Gunda Barth-Scalmani, Ellinor Forster, and Gertrude LangerOstrawsky. 2010. Aushandeln von Ehe. Heiratsverträge der Neuzeit im europäischen Vergleich. Cologne/Weimar/Vienna: Böhlau. Lutz, Alexandra. 2006. Ehepaare vor Gericht. Konflikte und Lebenswelten in der Frühen Neuzeit. Frankfurt am Main and New York: Campus. Peirce, Leslie. 1998. ““She Is Trouble … and I Will Divorce Her”: Orality, Honor and Representation in the Ottoman Court of Aintab.” In Women in the Medieval Islamic World, edited by Gavin R G Hambly. New York NY: St. Martin’s Press. Peirce, Leslie. 2003. Morality Tales: Law and Gender in the Ottoman Court of Aintab. California: University of California Press. Puschman, Paul (ed.). 2020. A Cultural History of Marriage in the Age of Empires, vol. 5. London: Bloomsbury Academic. Seidel Menchi, Silvana, and Quaglioni Diego (eds.). 2006. I tribunali del matrimonio (secoli XV–XVIII): I processi matrimoniali degli archivi ecclesiastici italiani. Bologna: il Mulino. Siebenhüner, Kim. 2006. Bigamie und Inquisition in Italien 1600–1750. Paderborn: Schöningh. Simonton, Deborah. 2019. “Community of Goods, Coverture and Capability in Britain: Scotland versus England.” In Gender, Law and Economic Well-Being in Europe from the Fifteenth to the Nineteenth Century: North Versus South?, Anna Bellavitis and Beatrice Zucca Micheletto (eds.), 31–46. London and New York: Routledge. Sonbol, Amira (ed.). 1996. Women, the Family, and Divorce Laws in Islamic History. Syracuse, NY: Syracuse University Press. Tetaert, Laurie, Corinne Gomez-Le Chevanton, Vincent Gourdon, and Isabelle Robin. 2021. “Les femmes et le divorce révolutionnaire: de la réception à la construction de la loi (1791–1796).” Genre et Histoire, 28 (2). https://doi.org/10.4000/genrehistoire.6763 Tschannett, Georg. 2015. “Zerrissene Ehen. Scheidungen von Tisch und Bett in Wien (1783–1850).” PhD diss., University of Vienna. Tucker, Judith E. 1998. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. California: University of California Press. Tucker, Judith E. 2008. Women, Family, and Gender in Islamic Law. California: Cambridge University Press. Westphal, Siegrid, Schmidt-Voges Inken, and Baumann Anette. 2011. Venus und Vulcanus, Ehen und ihre Konflikte in der Frühen Neuzeit. Oldenbourg: De Gruyter.

2 Women and Work Maria Ågren

When a marriage comes to an end, a paper trail is often produced that sheds some light on how the spouses made a living together in the preceding years. If it ends because of death, a probate inventory is set up. While such inventories are often less informative in modern societies, early modern and nineteenth-century ones often provide insights into how couples supported themselves, for example through long lists of tools and raw materials. Probate inventories and inheritance documents can also include information about contributions of property made in the past to the common estate by one of the spouses. For instance, when Swedish Nils Persson died in 1782, his inventory revealed that he had been able to buy out his siblings, making him the sole owner of the family farm, only because his wife Anna Andersdotter contributed her inherited money to their common household (Ågren 2009, 110–115). If marriage ends through separation or divorce, court documents can also provide usefully concrete information about spousal life, for instance about thwarted expectations with respect to work performance. For instance, when Swedish Erich Hammarlind accepted his wife’s request for divorce in 1824, the court proceeding divulged not only that he was a drinker who had some form of epilepsy but also that he had often failed to contribute to the household’s economy. Witnesses testified, and Eric agreed, that his wife had, at least on occasion, “earned their bread” and cared for her husband when he was ill.1 Even when there is no paper trail to speak of, what happens after the marriage ends can shed retrospective light on the marital partnership and how the spouses cooperated to make a living. For instance, there is agreement among many historians that when widows continued their deceased husbands’ trades, this must mean that they had learnt and/or taken an active part in the trade during the marriage, otherwise they would not have been able to carry on alone (Ogilvie 2003, 155, 232–236; Schmidt 2014). Not only did widows continue their husbands’ trades, but they also developed and changed their businesses in ways that indicate experience earned earlier in life (Lindström 2022). DOI: 10.4324/9781003334552-2

Women and Work  17 To understand what happened after the end of married life, we need to know what happened during married life, not least what kinds of contributions the husband and wife had made to the household. It is beyond doubt that across time and in the vast majority of households, both spouses worked and were expected to work – worked in the sense that they cooperated in various ways to secure the survival of household members. The general pattern has not been for one spouse to support the other. Eric Hammarlind was never expected to carry the burden of support alone; the problem was that repeatedly he was not able to contribute at all. Therefore, the much-debated “male breadwinner model” that posits husbands as sole supporters of their families is unlikely to capture the realities of married life in the past, regardless of how we define “work”. If we include unpaid work for the good of the household in what we mean by “work”, then no household conforms to this model. If we acknowledge only paid efforts as “work”, then for some (wealthy) social strata in certain periods and places the model might fit, but this will seldom be the case (Janssens 1997; Sommestad 1997; van Nederveen Meerkerk and Schmidt 2012). Arguably, the term “two-supporter model” captures better the importance of women’s and men’s contributions to their partnership. The specific character of the two-supporter model can vary depending on access to land, local demand for male and female labor, income-earning opportunities outside the labor market, and the organization of care work in society (Erickson 2008; Zucca Micheletto 2015; Ling et al. 2017, 81–88). Therefore, we need empirical investigations, not least into married women’s work, which tends to be particularly invisible in historical sources (Ogilvie 2003, 141). This will in turn explain what separation and divorce meant for men and women in the past. Part I of this chapter discusses married women’s work, both in the longer term and with special reference to an area west of Stockholm in central Sweden in the period from 1720 to 1880. An important finding is that married women and men had relatively similar repertoires of work, and that both genders carried out managerial work. Such work involved deciding on other people’s time-use and required – and conferred – authority. While men had better access to positions of authority in general, there were clearly some such positions for married women too in the past. Part II takes a closer look at the contemporary terminology used to talk about adult women and shows that towards the end of the nineteenth century, the connection between women and authority became more tenuous. This chapter is based on information extracted from Swedish sources that were subsequently analyzed and stored in the publicly accessible database GaW created by historians at Uppsala University, Sweden.2 The data consists of observations of work activities made in historical sources, primarily court records (62 percent) but also accounts, ego-documents, petitions, and registers. The court records are mainly from non-specialized first instance courts: two rural district courts and two urban district courts. In addition, there are

18  Maria Ågren some cases from a specialized urban court (the excise court). The nonspecialized character of most of these courts means that they handled a wide variety of case types: crime, litigation, and purely administrative matters. In principle, any type of work could turn up in the court records. An “observation” takes the form of a verb phrase that describes a work activity + the performer of the activity (a man or a woman or, in rare cases, a person whose gender is unknown). As a rule, each observation also includes information about when and where the activity took place. An activity does not have to be paid to be included. The whole dataset consists of nearly 19,000 observations; however, this chapter is based on a selection of 11,024 observations that describe the work of those whom Amy Froide has called the “ever-married”, i.e., wives and widows, husbands and widowers. The area comprises the city of Västerås and the adjacent rural parishes that together formed the judicial districts of Snevringe and Tuhundra (in total 13 parishes). The area includes fertile plains in the south and wooded areas further north, where iron was produced. With a cathedral and several schools, Västerås was a center of state and ecclesiastical administration as well as a hub of commerce. Industrialization did not take off until around 1880, after the end of the period of investigation (Lindström et al. 2020, 27–45). 2.1 The Work Repertoires of Ever-Married Women Table 2.1 describes the activity patterns of women and men who were either currently or previously married; being previously married usually meant being widowed. The activity pattern describes the repertoire of work practices that a person belonging to the group in question had: what types of work ever-married women and ever-married men typically did. If used with great care, the repertoire of practices can be seen as an approximation of time-use: how much time such a person would typically devote to various forms of work. Notice that the lack of gender-balanced data – only c. 20 percent women – does not matter when the repertoires of practices are in focus (Ågren 2017a, 18; Whittle and Hailwood 2020). As expected, Table 2.1 shows both differences and similarities. For instance, ever-married men were observed doing administrative work, crafts, and construction work much more often than ever-married women. By contrast, ever-married women were observed more often than ever-married men in activities to do with trade or food and accommodation. Women were somewhat more active in care work, credit transactions, and in other specified work (which included domestic work) and men somewhat more in transport. However, as shown in a previous study of the period 1550–1799, there were also significant similarities (Ågren 2017b, 208–212). Apart from military work, ever-married women and men did in fact turn up in all categories of work, and in agriculture and forestry, managerial work, and trade in real estate, the differences between the genders were small. Ever-married women’s

Women and Work  19 Table 2.1  Work Activity Patterns of Ever-Married Women and Men, Grouped by Category of Work (Västerås, Snevringe, Tuhundra (Sweden), 1720–1880)

Administration and justice Agriculture and forestry Care Crafts and construction Credit Food and accommodation Hunting and fishing Managerial work Military activities Teaching Theft and misappropriation Trade Trade in real estate Transport Unspecified work Other specified work Total % Total no.

Women Ever-Married (%)

Men Ever-Married (%)

5.7 9.6 6.3 3.7 6.3 12.7 0.1 7.2 0 0.7 2.4 25.6 4.0 5.7 2.8 7.3 100 1,935

16.7 11.8 2.2 15.0 3.7 4.3 0.7 6.5 0.3 3.1 2.3 15.6 2.9 8.9 2.7 3.4 100 9,089

Source: The GaW2 dataset. Selection criteria: Known gender and marital status; only ever-married; all types of sources.

participation in managerial work is particularly noteworthy. Here we find activities like hiring and firing staff, paying wages, and giving orders – forms of work that came with being responsible for a household (small or large). Such work took up roughly as large a share of women’s as of men’s activity patterns, suggesting that, in practice, the husband and wife shared the role of household head. In the study of the period 1550–1799, the same result was found: women carried out managerial work, albeit almost exclusively ever-married women (Jansson, Fiebranz and Östman 2017, 140–146). Sheilagh Ogilvie’s study of early modern Württemberg shows that ever-married women had a wider activity pattern than unmarried women, that married women in particular carried out managerial work, and that married men “benefited if their wives were able to work freely” (Ogilvie 2003, 161, 173, 204–205). Ariadne Schmidt has shown that this was true for early modern Dutch society too (Schmidt 2014, 309–313). Clearly, this was a common pattern. Judging by these results, married life did not mean that women lost touch with the realities of work. Instead, married women carried out a wide range of activities that provided them with skills and experience that would, in turn, become useful if they had to fend for themselves as widows or ­divorcees later on (on divorces, see Taussi Sjöberg 1988; Lennartsson 1999; Melby et al. 2006, 91–124).

20  Maria Ågren Interpreting the numbers of Table 2.1 in detail requires familiarity with the sources, with the principles according to which the observations have been categorized, and with the society in question. Let me take two examples relevant to women’s work. According to Table 2.1, administration and justice was three times more dominant in ever-married men’s activity pattern than in that of ever-married women. Is this an accurate reflection of reality? Probably yes. The category “administration and justice” includes both professionalized administrative work in the service of the state or the municipality and everyday administrative tasks carried out to protect the interests of one’s household. Ever-married men carried out both professionalized and everyday administration, while ever-married women carried out only the latter. It seems reasonable that these circumstances account for the gender difference and that the numbers therefore reflect reality. If unmarried women had been included in the table, the gender difference would have been larger, as they only very rarely carried out any administrative work (Ling et al. 2017, 90; Ågren, Ling et al., forthcoming). Such work required access to authority that, for women, came with being married and of full age. Ever-married women did not do as much administrative work as ever-married men, but what they did testifies to their authority. For instance, wives were observed paying customs fees for grain on behalf of their household, represented their husband at court, delivered petitions to the town authorities, sued others at court, and were held responsible for not having done their part of community work (shoveling snow).3 Likewise, widows were observed when they set up contracts and wills, requested payment, asked to be exempt from the duty of paying customs, and were held responsible for not having done their part of community work (repairing roads).4 The demands on households from the state and surrounding society made it necessary for adult women to be able to speak on behalf of their household, and prepared them for situations in which they were left on their own. Table 2.1 suggests that work in crafts and construction was four times more dominant in ever-married men’s activity patterns than in those of ever-married women. Is this an accurate reflection of reality? Probably not. The category “crafts and construction” includes production of textiles, a form of work in which women throughout Europe were engaged in the early modern period (Hunt 2010, 186–194). Sweden was no exception. Topographic descriptions of the region where data were collected mention women’s work in various textile crafts, and the same is true of ego-documents. In the Swedish court records, however, such work is underreported. Previous research has also pointed to the low visibility of spinning in early modern sources (Ogilvie 2003, 216, 296–298). Textile work was not completely absent: married women in and around Västerås were observed knitting stockings, preparing flax, spinning, bleaching, and producing handkerchiefs.5 Widows show up knitting stockings, sewing clothing, making slippers and shoes, and spinning.6 Unmarried women were active in spinning. Women’s work in other forms of craft and construction was also

Women and Work  21 mentioned. A register of wages shows that when the deanery house in Västerås needed repairing, two married women prepared the mortar and two widows assisted in other ways.7 On the whole, however, women’s work in craft and construction rarely shows up in the sources and this is particularly true of married women. There are several reasons why women’s production of textiles is relatively invisible in court records. Textiles produced for personal use were rarely of interest to courts and surface only incidentally in witness statements. For instance, Catharina Munck testified that after she had observed what the accused party was doing, she went back into her house and continued spinning.8 If Catharina had not been summoned to court, we would not have known what she did that day. Likewise, the production of textiles for the market was rarely of interest to courts unless it caused dispute. Disputes did of course erupt. For instance, the crofter Daniel Lundberg sued his temporary employer for payment for various occasional services, including the stockings his wife had knitted.9 If no dispute arose, however, textiles produced for the market would be sold without the producer leaving any traces in the sources. Here, it is noteworthy that ever-married women were very prominent in trade (Table 2.1). What they sold was often textile products, and it is likely that at least some of these were homemade. Trading activities can therefore be indirect indicators of textile production, but it is difficult to draw any firm conclusions about quantities. If we compare married women’s low visibility in textile production with unmarried women’s visibility, a third reason appears, namely the role coercion played in parts of the early modern labor market. In the eighteenth century, unmarried people could be forced to go into service unless they had a legitimate reason not to do so or if they were wealthy. Heads of households could even go to court to force young people to work for them (Lindström et al. 2017). Court records from the mid-eighteenth century show how owners of manufactories made use of this possibility. In Västerås, for instance, the owner of the wool spinning manufactory requested that the court investigate whether the unmarried “daughters” in the city had legal reasons not to work for him as spinners. His request resulted in a detailed report of who spun, who ought to spin, and who had legitimate reasons not to spin. The report makes clear how many unmarried women had to combine gainful employment as spinners with care responsibilities. In several cases, the court decided that the woman in question should spin wool for the factory but could do so from home so that she could also take care of her elderly mother. In a few cases, the woman ordered to spin was a young widow.10 Reports like this provide rich information about the organization of textile work, albeit primarily for unmarried women. The coercive rules did not apply to currently married people and, consequently, whether or not a married woman was actively engaged in textile production was seldom of interest to the courts. In conclusion, the court records are not ideal for gauging the quantitative importance of textile production. Production for personal use turns up only

22  Maria Ågren incidentally, production for the market appears mainly as a result of litigation or indirectly as trading activities. If coerced production of textiles does turn up, it is more by chance as a consequence of investigations and waves of enforcement. In addition, how the guild system worked affects the visibility of work in crafts. In places where guilds jealously policed their monopoly rights, it is more likely that perceived infringements of these rights were brought to the courts’ attention. In contrast, where guilds adopted a more relaxed and permissive attitude to production that touched their field, courts were less preoccupied with these matters (Vainio-Korhonen 2000). It is unsurprising that ever-married women did more work than men in the fields of food and accommodation, care, and tasks conventionally described as domestic work, such as cleaning, washing, handling fire, fetching water, and making beds. These are tasks traditionally associated with women. But before we jump to conclusions about the gender division of work, the results must be put into perspective. First, we have to take the numbers with a grain of salt. For instance, in view of how common tasks like handling fire and fetching water must have been in everyday life, they are underreported in the sources and only show when they caused a specific problem. Thus, work to do with fire turns up more often in urban than in rural cases, but this was only because fires were monitored more keenly in urban areas. Second, even if ever-married women did more domestic work than men, and probably more than the numbers suggest (fetching water!), such work was still a relatively small share of their total activity pattern. Their participation in many other forms of work, like agriculture, trade, and transport, means that they could not have been confined to staying in their homes and carrying out domestic chores. Third, even if ever-married women did more of these types of work, ever-married men also provided food and accommodation, cared for the young and the ill, and cleaned. The only form of domestic work that no man was ever observed doing was making beds, and this was also true for the period from 1550 to 1799. Fourth, it would be wrong to assume that these types of work were always or predominantly for own use. In fact, what we see in the sources suggests that the provision of food and accommodation and services like cleaning and washing was often done for pay. Rather than suggesting that ever-married women were “homemakers”, the results indicate that there was a demand for ever-married women’s services, a demand that allowed them to contribute to the household economy (Ågren, WærnCarlsson et al., forthcoming; cf. Humphries and Sarasúa 2012). For women who were widowed or divorced, demand for their services could make a significant difference. Because of their position in the household, ever-married women could delegate domestic work and care work to unmarried women, who did these types of duties in their roles as servants. For instance, unmarried women often did laundry. In addition, ever-married people could use the labor of unmarried people to carry out various forms of errands: fetch things, look for people, search for lost objects.11 Without such a supply of labor, ever-married

Women and Work  23 women would probably have had to devote more of their time to care work and domestic work. The social availability of cheap subordinate labor made it possible to uphold a gender division of work that was in certain respects, more balanced than often assumed. The availability of cheap subordinate labor was also of fundamental importance to the status that came with being married. 2.2 The Status as Wife As already shown, coercion played an important role in eighteenth-century working life but did not affect everyone in the same way. While married women and men could not be coerced into service in either households or factory-like institutions, unmarried people could. Clearly, being married protected the former group against being forced into unattractive labor contracts. That courts had to investigate how unmarried women supported themselves and subsequently order some of them to line up for factory work strongly suggests that such work would not have been their first choice; however, as unmarried and without means of their own they were not at liberty to choose. Therefore, it is fair to say that marriage brought benefits for both women and men and being married was a privilege of sorts. The activity patterns of ever-married women and men were not identical but show similarities on some important points. Not least, married women and men deployed the labor of other people and exercised power. The comparative advantage of married people as compared to unmarried people did not disappear in the nineteenth century, but some subtle changes occurred that affected married women in particular. As legal restrictions on trade were mitigated and finally abolished, it became easier for broader groups in society to support themselves through self-employment. The verb data from the period from 1840 to 1880 show that unmarried women and men in and around Västerås were then more active in trade than before. In the 1860s, the property rights of unmarried women were strengthened while those of married women seem to have been undermined. With growing social differentiation and capitalism, increasing numbers of married couples had little or no land at their disposal. More men supported themselves as laborers than as farmers. “Labor” tended to be identified with and defined as male wage work (Göransson 1993; Ågren, Ling et al. forthcoming). It is against this backdrop that changes in married women’s status should be understood. In the early modern period, the term used to speak of a married woman had a meaning that was broader and partly different from that of today. In Swedish, the word hustru was used to talk about ever-married women, i.e., those who were or had been married. It was never used when talking about unmarried women. The word was an indicator of marital status, just as it is in modern Swedish, but it was imprecise, as it referred to both currently and previously married women. Moreover, and in contrast to modern usage, the term not only referred to marital status but also implied that the woman in

24  Maria Ågren question had certain important qualities: that she was an adult, was trustworthy, experienced, and respectable, and that she was capable of taking on various forms of responsibility. In other words, hustru also corresponded to what we today would call “a woman of full age”. Men could be referred to as husbonde (head of the household), but this term was by far not as widely used for men as hustru was for women (Jansson 2021, 429–430). Mediaeval and early modern sources give many examples of the following type of expression: “Hustru Karin Andersdotter, Bengt Olsson’s hustru” (wife Karin Andersdotter, the wife of Bengt Olsson). Why was Karin described as hustru twice? Rather than being a meaningless repetition of information, a phrase of this type captures that hustru simultaneously meant adult, respectable, experienced, and capable (the first instance), and married (the second instance). In the same way, a phrase like “wife Karin, the widow of Bengt” becomes contradictory if we read wife as currently married but comprehensible if we read it as adult, respectable, experienced, and capable. In many early modern languages, equivalents of hustru were used as formal titles indicating that marriage and active contribution to the household’s economy went hand in hand (Wiesner 1998; Abreu-Ferreira 2002; Erickson 2014; Pihl and Ågren 2014; Jansson 2021). Consequently, it would be misleading to claim that whenever an early modern woman was described as hustru, she was automatically defined as nothing more than an appendage to her husband. In some situations, hustru was even used as an occupational title (e.g., fataburshustru, mjölkhustru, bodhustru)12 (Pihl and Ågren 2014, 178). It also functioned as a generic term for an adult person of the female sex. Table 2.2 is based on a close analysis of 285 instances of hustru from the periods from 1720–1759 and 1840–1881. It shows that in the nineteenth century there was a tendency to use hustru primarily to signal marital status and less to indicate adulthood, capability, and trustworthiness. Table 2.2 shows that the broad meaning of hustru was still alive in the eighteenth and nineteenth centuries. It is very clear in cases where hustru was used on its own with neither the woman’s nor her husband’s names being mentioned. In 1731, the merchant Petter Lundgren informed the court in Västerås that because his maidservant had escaped, he had been forced to temporarily hire “a wife” to carry out the tasks the servant was supposed to have done. Likewise, Bengt Holm told the excise court in Västerås in 1759, that his wife had purchased straw from a hustru she had encountered in the countryside. As this hustru had smuggled liquor into town, Bengt Holm obviously wanted to dissociate himself and his wife from her by describing her as an anonymous stranger. The point is that in these two cases and others, hustru functioned as a generic term for an adult person of the female sex. Today, one would instead say, “I met a woman in the countryside” and “I had to hire a woman to do these tasks”.13 This usage could be found in the period from 1720 to 1759, but there are no examples from the later period. In both periods there were examples of women being referred to as hustru with their own names only, without their husbands being explicitly

Women and Work  25 Table 2.2  Evidence of the Use of hustru according to Five Types Type of phrase

1720–1759

1840–1881

Hustru + woman’s name, husband is not mentioned Woman described as hustru and widow Women described as hustru only, no names Sum, broad meaning Hustru + woman’s name, husband is also mentioned Husband’s name in genitive + hustru a Her name mentioned

37

14

35

1

12

0

84 (44%) 8

15 (16%) 2

98

77

a 47

a 53

b 51

b 24

106 (56%) 190 (100%)

79 (84%) 94 (100%)

b Her name not mentioned Sum, narrow meaning Total

Source: GaW2 dataset. Duplicates have been excluded, i.e., if one and the same woman appeared several times in a case, she was counted only once.

mentioned. In 1731, hustru Margareta Nilsdotter was summoned as a witness in a theft case. It turned out that she supported herself by working in a baker’s shop. In 1742, hustru Brita Mört was summoned to give evidence in a dispute between a shoemaker and a pewterer. She evidently supported herself by renting out rooms. In 1865, hustru Johanna Jonsson was summoned to court to give testimony of an assault she had witnessed while working in a potato field. In 1879, the witness Hedda Sofia Elfving was described as a hustru and a charwoman. In all four cases, the use of hustru indicated that Margareta, Brita, Johanna, and Hedda Sofia were regarded as respectable adult women who worked to support themselves and who could serve as witnesses.14 However, the character of Johanna’s and Hedvig Sofia’s work makes it unlikely that in the period from 1840 to 1881 hustru in itself signaled status.15 Over time, the broad usage declined from 44 percent of all observations in the first period to 16 percent in the second period. It became less common for widows to be described according to the format “wife Karin, the widow of Bengt”, and the use of hustru by itself, without any names, disappeared. At the same time, there was a tendency to use the format of husband’s name in the genitive form followed by “his wife”. Hustru was increasingly used to signal marital status only. Therefore, one could claim that married women were increasingly presented as appendages to their husbands, especially in cases where the woman’s own name was left out. However, it is worth noticing that it was more

26  Maria Ågren common to mention the woman’s full name together with that of her husband than to leave hers out, and this usage did not decline over time. The practice of women changing their surnames upon marriage was introduced only gradually and became a legal requirement as late as 1920. For instance, the wife of an organ-blower was presented as “organ-blower Sjögren’s wife, Christina Margareta Jonsdotter”, not just “organ-blower Sjögren’s wife”.16 In 100 cases out of 175, the wife’s name was explicitly stated after the standard phrase husband’s name in genitive + hustru (Table 2.2). It is true that some women appeared in the sources with the title fru (Mrs.) plus a surname that was usually her husband’s. Sometimes, these women also sported a female version of the husband’s occupational title, as in Mrs. mayoress Jernstedt.17 Fru signaled status and was associated with the middle class, but compared to hustru, fru was an uncommon title for a married woman. Thus, over time and in this source material, there was a tendency to use the word hustru in a semantically narrower sense and with a stronger focus on the aspect of marital status. The broad meaning that resembled the modern word “woman” tended to be used less frequently. However, this tendency does not prove that married women were entirely eclipsed by their spouses. Moreover, the fact that a married woman was described in relation to her husband does not necessarily mean that she lacked agency or that her actions went unnoticed. The wife of konsistorievaktmästare (warden of the consistory) Söderberg was never mentioned by name, but the court records do tell us that she ran their shop on her own, observed that a piece of clothing had gone missing, discovered it hidden under the suspect’s jacket, and then tried to catch him.18 The semantic shifts do not prove that married women’s scope of action had changed. Whether or not this shift had any implications for divorced women should be subject to more research. The Swedish material suggests that in the course of the nineteenth century, being married no longer conferred authority to women per se. Still, this did not mean that Sweden had become more similar to England, where married women not only assumed their husbands’ surnames but where “the symbolic [sic] of the man’s headship of the household [was] the surname” (O’Donovan 1979). Legal and cultural circumstances explain the difference between the countries. While the fiction of coverture reduced the English wife to a legally non-existing person and a mere dependent of her husband, Swedish law had accorded women the right to inherit and own not only movable assets but also real estate since the Middle Ages. During marriage, the two spouses’ inherited property was kept separate (even if often administered as a unit), but any property the couple acquired during marriage was considered to be their common property.19 It was a marital property regime based on two principles: separation and community of property. While subject to change over time, Swedish early modern law continuously acknowledged the need to protect married women’s inherited property against possible abuse by their husbands (Ågren 2009). The system was radically different from the English one, where, because of coverture, there was an expectation for the husband to maintain his wife.

Women and Work  27 I would argue that the absence of coverture explains why this expectation was not as pronounced in Swedish society and why the wife’s name continued to be mentioned in sources (O'Donovan 1979, 141–45; Pihl 2012, 197–200). Property rules and arrangements affected gendered expectations not only in these two countries but in all countries. For instance, Italian culture presents a third alternative. Like in England, Italian men had more property rights than women, but unlike England, an Italian man’s duty to maintain others primarily concerned his aging parents, not his spouse (Groppi 2006, 54–55). 2.3 Conclusions Women took the initiative to demand divorce more often than men (see the introduction to this book). This step presupposed that they saw themselves in a position to lead a life which was economically independent of their husbands. This was especially true for divorced members of the Roman Catholic and Anglican churches, who did not have the opportunity to remarry during their husband’s lifetime, but also applied to all women who wanted a divorce. They must have reckoned that they would be able to support themselves. It is reasonable to assume that this is because during married life they had contributed economically to their households and acquired experience and skills. Consequently, in spite of ideological notions about the husband’s duty to support his wife and family, almost all households must have been based on a two-supporter model according to which both spouses were expected to contribute to the common economy. In early modern society, the two-supporter model presupposed that both spouses could take on a wide variety of tasks, not least because they had to have access to authority to administer and govern their households. While there were significant continuities from as far back as the sixteenth century, there were also slight shifts in the period from 1720 to 1880. Married women’s broad repertoire of work and capacities was no longer automatically associated with their title hustru. Gradually, this title turned into an indicator of marital status only. However, the realities of working life did not change dramatically. The repertoires of work practices were not exactly the same for ever-married women and ever-married men, yet there were many similarities. Not least, it is important that, with the exception of military work, both women and men were observed in all types of work. They carried out agricultural tasks, engaged in caring for others, did craft and construction work, were involved in credit and trade transactions, provided food and accommodation, hunted and fished, taught other people, and transported goods. Not least, they deployed the labor of others and administered their own households and lives. Archival Sources Database: Gender and Work. 2022. https://www.gaw.hist.uu.se/?languageId=1

28  Maria Ågren Notes 1 Gender and Work database (GaW), case 23654 (1824). 2 https://www.gaw.hist.uu.se/ 3 Cases 18109 (1720), 21866 (1723), 22116 (1757), 21962 (1771), 20253 (1771). 4 Cases 21454 (1723), 20674 (1726), 22313 (1800), 22631 (1820), 19015 (1822). 5 Cases 21859 (1723), 22167 (1741), 22235 (1742), 22926 (1757), 22960 (1757), 23280 (1771), 22671 (1791), 18049 (1859). 6 Cases 21533 (1723), 20845 (1732), 21170 (1739), 22167 (1741), 22235 (1742), 22608 (1878). 7 Cases 17110 (1733), 17176 (1733). 8 Case 21859 (1723). 9 Case 18049 (1859). 10 Cases 22167 (1741), 22235 (1742). Similar cases have been found in other Swedish towns, for instance in Örebro. 11 These types of verb phrases are also included in “Other specified work”. 12 Fataburshustru means a woman who is in charge of a storeroom where clothing and other valuables are kept. In the sixteenth century, mjölkhustru meant a woman working in a dairy, whereas in the eighteenth century it meant a woman who delivers milk to households. Bodhustru means a woman who works in a shop. 13 Cases 22127 (1759), 20722 (1731). 14 In Brita Mört’s case, the shoemaker protested against her being used as a witness. However, the reason was not that she acted on her own despite being married or that she was disreputable. The reason was that he thought she had an interest in the case. 15 Cases 20721 (1731), 22252 (1742), 17431 (1865), 23204 (1879). 16 Cases 23347 (1871), 17534 (1865). 17 Case 21535 (1723). 18 Case 14932 (1851). 19 The system was not gender equal, as husbands could claim two thirds of the common property and wives only one third.

References Abreu-Ferreira, Darlene. 2002. “Work and Identity in Early Modern Portugal: What Did Gender Have to Do with It?” Journal of Social History 35:4, 859–887. Ågren, Maria. 2009. Domestic Secrets. Women and Property in Sweden, 1600–1857. Chapel Hill: University of North Carolina Press. Ågren, Maria. 2017a. “Introduction: Making a Living, Making a Difference.” In Making a Living, Making a Difference: Gender and Work in Early Modern European Society, Maria Ågren (ed.). Oxford: Oxford University Press, 1–23. Ågren, Maria. 2017b. “Conclusion.” In Making a Living, Making a Difference: Gender and Work in Early Modern European Society, Maria Ågren (ed.). Oxford: Oxford University Press, 204–220. Ågren, Maria, Sofia Ling and Linnea Henningsson, forthcoming. “Marriage and Work: Continuity and Subtle Change.” Ågren, Maria, Carl Mikael Wærn-Carlsson, Karin Hassan Jansson and Örjan Kardell, forthcoming. “The Domestic Sphere as a Place for Work.” Erickson, Amy L. 2008. “Married Women’s Occupations in Eighteenth-Century London.” Continuity and Change 23:2, 267–307. Erickson, Amy L. 2014. “Mistresses and marriage: Or, a Short History of the Mrs.” History Workshop Journal, 78:1, 39–57.

Women and Work  29 Göransson, Anita. 1993. “Gender and Property Rights: Capital, Kin, and Owner Influence in Nineteenth- and Twentieth-Century Sweden.” Business History 35:2, 11–32. Groppi, Angela. 2006. “Wohlfahrt vor dem Wohlfahrtsstaat: Altersfürsorge im päpstlichen Rom (16. –19. Jahrhundert).” L’Homme. Zeitschrift für Feministische Geschichteswissenschaft 17:1, 37–58. Humphries, Jane and Carmen Sarasúa. 2012. “Off the Record: Reconstructing Women’s Labor Force Participation in the European Past.” Feminist Economics 18:4, 39–67. Hunt, Margaret R. 2010. Women in Eighteenth-Century Europe. London and New York: Pearson. Janssens, Angélique. 1997. “The Rise and Decline of the Male Breadwinner Family? An Overview of the Debate.” International Review of Social History 42:Suppl. 5, 1–23. Jansson, Karin Hassan. 2021. “Kvinnfolk, karlar och könskategorier: ord och mening i det tidigmoderna Sverige.” Historisk tidskrift 141:3, 409–442. Jansson, Karin Hassan, Rosemarie Fiebranz and Ann-Catrin Östman. 2017. “Constitutive Tasks: Performances of Hierarchy and Identity.” In Making a Living, Making a Difference: Gender and Work in Early Modern European Society, Maria Ågren (ed.). Oxford: Oxford University Press, 127–158. Lennartsson, Malin. 1999. I Säng och Säte: Relationer mellan kvinnor och män i 1600-talets Småland. Lund: Lund University Press. Lindström, Dag. 2022. “Minding Her Own Business: Artisan and Merchant Widows in Eighteenth-century Sweden.” In To Take Us Lands Away. Essays in Honour of Margaret R. Hunt, Astrid Wendel-Hansen, Katarina Nordström and Francisca Hoyer (eds.). Studia Historica Upsaliensia 274. Uppsala: Department of History, Uppsala University. Lindström, Jonas, Karin Hassan Jansson, Rosemarie Fiebranz, Benny Jacobsson and Maria Ågren. 2017. “Mistress or maid: The Structure of Women’s Work in Sweden, 1550–1800.” Continuity and Change 32:2, 225–252. Lindström, Jonas, Örjan Kardell and Marie Ulväng. 2020. “Platsen, tiden, människorna.” In Fantastiska verb: Hur man fångar uppgifter om kön och arbeite, Västmanland 1720–1880, Jonas Lindström (ed.). Opuscula Historica Upsaliensia 58. Uppsala: Department of History, Uppsala University. Ling, Sofia, Karin Hassan Jansson, Marie Lennersand, Christopher Pihl and Maria Ågren. 2017. “Marriage and Work: Intertwined Sources of Agency and Authority.” In Making a Living, Making a Difference: Gender and Work in Early Modern European Society, Maria Ågren (ed.). Oxford: Oxford University Press, 80–102. Melby, Kari et al. 2006. Inte ett Ord om Kärlek: Äktenskap och politik i Norden ca 1850–1930. Göteborg, Stockholm: Makadam Förlag. O’Donovan, Katherine. 1979. “The Male Appendage – Legal Definitions of Women.” In Fit Work for Women, Sandra Burman (ed.). London: Croom Helm, 134–152. Ogilvie, Sheilagh C. 2003. A Bitter Living: Women, Markets, and Social Capital in Early Modern Germany. Oxford: Oxford University Press. Pihl, Christopher. 2012. Arbete: Skillnadsskapande och försörjning i 1500-talets Sverige. Studia Historica Upsaliensia 246. Pihl, Christopher and Maria Ågren. 2014. ”Vad var en hustru?: Ett begreppshistoriskt bidrag till genushistorien.” Historisk tidskrift, 134:2, 170–190.

30  Maria Ågren Schmidt, Ariadne. 2014. “The Profits of Unpaid Work. ‘Assisting Labour’ of Women in the Early Modern Urban Dutch Economy.” History of the Family 19:3, 301–322. Sommestad, Lena. 1997. “Welfare State Attitudes to the Male Breadwinner System: The United States and Sweden in Comparative Perspective.” International Review of Social History 42, 153–174. Taussi Sjöberg, Marja. 1988. Skiljas: trolovning, äktenskap och skilsmässa i Norrland på 1800-talet. Stockholm: Författarförlaget. Vainio-Korhonen, Kirsi. 2000. “Handicrafts as Professions and Sources of Income in late Eighteenth- and Early Nineteenth-century Turku (Åbo): A Gender Viewpoint to Economic History.” Scandinavian Economic History Review XLVIII:1, 40–63. van Nederveen Meerkerk, Elise and Ariadne Schmidt. 2012. “Reconsidering the ‘First Male-Breadwinner Economy’: Women’s Labor Force Participation in the Netherlands, 1600–1900.” Feminist Economics 118:4, 69–96. Whittle, Jane and Mark Hailwood. 2020. “The Gender Division of Labour in Early Modern England.” The Economic History Review 73:1, 3–32. Wiesner, Merry E. 1998. “Spinning Out Capital: Women’s Work in Preindustrial Europe 1350–1750.” In Becoming Visible: Women in European History, Renate Bridenthal, Susan Mosher Stuard and Merry E. Wiesner (eds.), Boston, MA: Houghton Mifflin. Zucca Micheletto, Beatrice. 2015. “Husbands, Masculinity, Male Work and Household Economy in Eighteenth-Century Italy: The Case of Turin.” Gender and History 27:3, 752–772.

Part I

Divorce from Bed and Board

3 Separated Beds – Interwoven Property Separation and Divorce in the Habsburg Monarchy between the mid-16th and the mid-19th Centuries Andrea Griesebner and Susanne Hehenberger This chapter deals with marriage jurisdiction in the German hereditary lands of the Habsburg Monarchy between the mid-16th and mid-19th centuries. The year 1783 represents a break, when the Josephinian Marriage Patent withdrew jurisdiction from the Roman Catholic Church. Although it defined marriage as a “civil contract”, in order to be recognized by the state, marriages still had to be performed by officials of the Catholic Church, the Christian denominations tolerated since 1781, or Judaism tolerated since 1782. Until the dissolution of the Habsburg Monarchy in 1918, in the German hereditary lands, Catholic marriages were considered to be bound by a marriage bond that could be undone only by death or by annulment. Remarriage during the lifetime of the spouse was not only a sin but constituted the criminal offence of “double marriage” or bigamy (Griesebner and Lanzinger 2021). However, temporary separation or indefinite divorce from bed and board was possible throughout the study period. In the first section, we focus on the period of ecclesiastical jurisdiction. We reconstruct the reasons that legitimized a temporary separation or an indefinite divorce from bed and board according to canonical marriage law. For the analysis of court practice, we concentrate our focus on the Archduchy of Austria under the Enns, which today essentially comprises the Austrian provinces of Vienna and Lower Austria. Most of the parishes in what is now Lower Austria belonged to the Roman Catholic Diocese of Passau, which had established a sub-officialat to administer the parishes in the archduchy. The ecclesiastical court, the so-called Passau Consistory, was located in the capital and royal residence city of Vienna. Married couples living in what is now the province of Vienna and the surrounding area were under the jurisdiction of the Roman Catholic (Arch)Diocese of Vienna, whose ecclesiastical court was also located in Vienna. Based on the example of the two consistories, we are interested in how wives and husbands justified their legal proceedings, what interests they pursued, and what judgments the consistory councils made. As we will show, the ecclesiastical courts not only decided whether and for how long the spouses were allowed to live apart, but they also regulated temporary maintenance and custody of the children for the duration of proceedings, which often carried on for years. The secular DOI: 10.4324/9781003334552-4

34  Andrea Griesebner and Susanne Hehenberger consequences of separation or divorce – from custody to the division of property – were usually decided by hundreds of local courts unless the spouses specifically requested these decisions at the consistory. In the second section, we take a look at secular marriage jurisdiction, which began in the German hereditary lands on 1 November 1783, and ask questions about the continuities and discontinuities with canonical marriage law. For praxeological analysis, we once again concentrate our focus on the Archduchy of Austria under the Enns, where we investigate seven of the approximately 600 competent local courts. During the long period under investigation, not only the modalities in the access to divorce changed, but also the marital and inheritance laws, and as we will argue, these changes have been equally important for the question of whether separation or divorce was a realistic option in practice. Our observations are based on basic research conducted in three research projects under the direction of Andrea Griesebner.1 The marriage proceedings of the two Roman Catholic consistories were collected by the authors with the assistance of various collaborators over the course of several years.2 For both consistories we examined four time periods between the mid-17th century and 1783. For the Passau consistory, where dense sources begin as early as the middle of the 16th century, we have also sifted through the minute books of the years from 1558 to 1592. The reading of hundreds of thick tomes brought to light slightly more than 3,250 matrimonial cases. For the period of secular jurisdiction, the project team explored the marriage jurisdiction overseen by the Vienna magistrate for five periods between 1783 and 1850. These approximately 700 divorce cases are supplemented by another 100 divorce cases from three small towns, a market, as well as a noble and an ecclesiastical dominion in present-day Lower Austria. We have collected further biographical information, such as baptism, marriage, and death data, mainly via the Genteam database, the church records on Matricula Online, which have been successively released since 2015, and Anno, the digital reading room for historical journals of the Austrian National Library.3 For some couples, we have already succeeded in supplementing the sources with contextual sources such as marriage and transfer contracts and probate proceedings.4 To manage and analyze this amount of data, we have developed two relational and interlinked databases, one containing core information from the proceedings, used to create individual case records, and one with prosopographical data, used to create individual person records. 3.1 Ecclesiastical Jurisdiction On 22 April 1561, the verdict was issued in the divorce proceedings (in causa divortii) which Magdalena Habermairin had brought against her husband Bernhard Habermair. After lengthy evidence proceedings in which writs were exchanged and witnesses heard, the Passau consistory ruled that the couple be separated “because of the husband’s violence and adultery” and that “the

Separated Beds – Interwoven Property  35 husband must return the wife’s marriage-portion (‘dos’) and everything that rightfully belongs to her”. And it sentenced both spouses “to abstinence for the rest of their lives”.5 In our sources, the Habermair*in couple is the earliest example of a divorce from bed and board in our sources. Unlike today, where the term “divorce” is semantically closely related to civil marriage and the possibility of remarriage, the term divortium was used for the dissolution of both the marriage bond and also the marriage union. Willibald M. Plöchl traces the legal distinction between divorce of the marriage bond (divortium sive separatio quoad vinculum aut foedus) and divorce of the marriage union (divortium sive separatio quoad torum et mutuam servitutem) to Petrus Lombardus (c. 1100–1160). While divorce of the marriage bond allowed remarriage, divorce of the marriage union only allowed the spouses to live separately (Plöchl 1962, 331–334). The sentencing of the Habermair*in couple to sexual abstinence for the rest of their lives makes it clear that although the marriage was dissolved upon divorce, the marriage bond remained intact. That divorce did not undo the bond is explicitly stated in the judgment in the divorce case of Ursula Schiermprantin against Clemens Marcholdt, citizen and schoolmaster of the city of Korneuburg. Also in this case, the divorce petition was filed by the wife, witnesses were heard, and documents were exchanged. On 30 March 1582, the Passau consistory ruled: The plaintiff is divorced and separated from her husband for the reasons set forth in the record, regarding bed, mutual service, marital obedience, and cohabitation, we divorce and separate them; but we do not separate them from the marriage bond, which is indissoluble. We oblige both parties to abstinence under penalty of adultery until they are reconciled.6 The idea of reconciliation formulated in the judgment meant that spouses divorced from bed and board under church law did not have to apply for “reunification” in the event of a resumption of the marriage, as secular marriage law later prescribed. Wives and husbands turned to the church courts with different concerns. They used them to negotiate the terms of marital cohabitation or to oblige their spouses who left without authorization to resume marital cohabitation. They demanded a divorce of the marriage bond, also called annulment, a temporary separation or an indefinite divorce from bed and board. Especially in the 16th century, they also asked for permission to remarry or at least to tolerate the new life partner without having proof of the death of the other spouse (Weißensteiner 2015, 38–50, Griesebner 2020). Parallel to these “main” proceedings, it was predominantly the wives who demanded a separate residence, provisional maintenance, and/or custody during the proceedings. If the spouses had already obtained a “toleration”, as the right to live

36  Andrea Griesebner and Susanne Hehenberger separately from the spouse for a certain period of time was often called in the sources, they applied for its extension or sued for the resumption of marital cohabitation. Men and women alike either requested enforcement of judgments or appealed against them. A few also used the consistories to settle the consequences of separation or divorce. In the time periods studied between 1558 and 1783, we identified a total of 1,760 “main proceedings” and almost 1,500 “additional” and “subsequent proceedings”. With slightly more than 1,000 proceedings, separation and divorce suits account for three-fifths of the main proceedings. From a gender perspective, it is noteworthy that 85 percent of these suits were filed by wives. To file a suit a written complaint was required, which not only had to be substantiated in terms of content, but also had to be signed by a lawyer admitted by the consistory. The complaint was delivered to the defendant together with the summons to an oral hearing. He or she could either accept the date for the hearing or submit a writ of “defense”, to which the plaintiff spouse responded with a “replication” and the defendant spouse with a “duplicate”. After the exchange of the four main writs, the spouses and their lawyers, or sometimes the lawyers alone, met at the hearing at the consistory. Analogous to the written procedure, the parties made two, or occasionally three, statements each: the “petition”, or plaintiff’s statement of complaint; the “exception” in which the defendant presented their counter-arguments; the “conclusion”, whereby the plaintiff could establish which points of the complaint had been supported by attestations or admitted by the opposing party; and the “counter conclusion” that gave the defendant the last word. The task of the consistory members was to try to reconcile the couple and encourage them to “live together peacefully”. If one of the spouses still refused reconciliation, the proceedings ended either with a judgment or, as in the divorce proceedings mentioned at the beginning, with the possibility of a further procedural step in which the plaintiff and often also the defendant spouse were granted the right to present evidence in support of the allegations made. After the conclusion of the evidence proceedings, which often dragged on for many years, the files were compiled and handed over to a consistorial council which would draft the verdict. Sometimes the votes of the consistory councilors were not unanimous. In the event of a tie, the opinion of the Chairmen (Offizial) was decisive. The written verdict was delivered to both parties. It became final and enforceable 14 days after its delivery, unless one of the spouses filed an appeal (Griesebner 2016). 3.2 Separation and Divorce Grounds In addition to carnal and spiritual adultery, impotence, and “apostasy” from the Christian faith, as already addressed in the Decretum Gratiani (c. 1140), Pope Gregory IX’s decrees (1234) discuss physical abuse, insurmountable aversion, illness, war-related absence, and conviction of a crime as possible grounds for separation or divorce from bed and board (Riedel Spangenberger

Separated Beds – Interwoven Property  37 1978). In contrast, the canons on the Sacrament of Matrimony formulated at the Council of Trent on 11 November 1563 do not mention any grounds for separation or divorce (edited by Wohlmuth 2002). Canon 8 only affirms that separation from bed and board for a definite or indefinite period is possible for “many reasons”. The vague guidelines of canon law opened up a wide margin of discretion for the canonists and consistory councils and leeway for the spouses and their attorneys. All social classes, including the members of the nobility, the military, and the university, which otherwise had their own jurisdiction, were subject to the consistories. The consistorial records of the 16th and 17th centuries in particular often contain only the names of the spouses. In a few cases, at least the couple’s place of residence is also mentioned. Thus, in the case of the Habermair couple mentioned above, we learn that they lived in Henzig, a small village in the archduchy, while in the case of Clemens Marcholdt, the husband of Katharina Schiermprantin, it is noted that he was a schoolmaster in the town of Korneuburg. Unfortunately, in both cases the location information does not help us since the church records in the places mentioned do not begin until the 17th century. However, for about half of the 1,400 early modern married couples, we have succeeded in gaining a rough insight into the couple’s livelihood. Half of them practiced a craft or trade, usually jointly. Another 13 percent of husbands worked in the judiciary and administration, and another 5 percent served in the military. In some of these cases we know that the wives managed the farm, in the other cases the profession of the wife is not mentioned. Other groups who are represented include servants of the royal court in a wide variety of social positions, married couples who lived off the rental income from their estate, and couples who eked out a living as day laborers, some of them after losing their farm or their craft or trade due to over-indebtedness. The fact that only a few farmers come into view via the occupation specification could be due to the fact that only occupations that were either exclusively or additionally practiced in agriculture were noted. On the whole, it should be borne in mind that marriage was associated with privileges (see Maria Ågren’s chapter) and that people of the lower classes were not always given permission to marry (see Ehmer 2006, 59–62). The accusations presented were as individual as the couples. On a very general level, the mutual accusations can be assigned to the following topic areas: physical violence, verbal violence, sexuality, sexual violence, marital economy, living together in patchwork families, religion, emotions, and physical and mental illness. Councilors also often gave their reasons for decreeing temporary separations or divorces. For example, in a decree dated 15 March 1652, requested by Jakob Sartor, a citizen of the small town of Traismauer, the Passau consistory issued a divorce: “for the reasons mentioned and examined, but especially because of the adultery committed and confessed by Euphrosina, but also because of the quarrels, violence, and danger of even greater scandal, and because of the irreconcilable hatred (…)”.7

38  Andrea Griesebner and Susanne Hehenberger Emotions, such as the cited “irreconcilable hatred”, are repeatedly used as arguments in both early modern and 19th century divorce proceedings (see Beck 1997, Forster 2010). As mentioned above, slightly more than 1,000 main proceedings sought a separation or divorce. As Table 3.1 shows, 155 were filed by men and 847 by women. In 83 percent of these proceedings (830 cases), a verdict was handed down. In 27 percent of the judgments, the plaintiff spouse was granted a temporary separation, usually for only one year. Only 5.9 percent of plaintiffs (49 cases) obtained an unlimited divorce from bed and board. Generally, it is striking that while men were significantly less likely (15.5 percent) to file for separation or divorce, they were more successful in court. Let’s take another look at those 830 separation and divorce proceedings of which a verdict is known. While only 4.8 percent, or 34, proceedings filed by women ended in divorce, the figure for husbands was 12 percent, or 15 cases. In addition to these 49 couples, another 13 couples were divorced. How so? Some plaintiffs who had actually asked for something else received divorces. On 14 December 1665, after proceedings lasting at least four years, the Viennese consistory granted Anna Maria Herbertin an indefinite divorce from her husband, the military man Johann Christoph Herbert. Instead of the annulment of the marriage that she had requested, the councilors decided “after deliberation and consultation that an annulment will not take place”, but that “for reasons of insurmountable dislike, enmity, and obvious danger to life, a separation from bed and board shall be granted as long as they do not reconcile”.8 One other wife sued for annulment of the marriage, one wife petitioned for resumption of cohabitation after the time of tolerance had expired, and one husband attempted to negotiate the terms of marital cohabitation. Another five women and four men demanded marital cohabitation with a spouse living apart. In other words, in 11 (18 percent) of the cases, the defendant spouse – in six cases the wife, in five cases the husband – had

Table 3.1  Verdict in Divorce or Separation Proceedings (1558–1783) Verdict in Divorce or Separation Proceedings (1558–1783)

Plaintiff Women Plaintiff Men

Proceedings

Peaceful cohabitation Unlimited Divorce Separation until a prescribed condition is met Separation > 1 Year Separation (Date of access: 08-17-2022). Hardwick, Julie. 2009. Family Business. Litigation and the Political Economies of Daily Life in Early Modern France. Oxford: Oxford University Press. Huxley, Selma. 1982. “Unos apuntes sobre el papel comercial de la mujer vasca en el siglo XVI.” Zainak. Cuadernos de Antropología-Etnográfica 1: 159–166. Intxaustegi Jauregi, Nere Jone. 2022a. “Conventos: refugio de mujeres divorciadas tras el Concilio de Trento.” Avisos de Viena 4: 8–13. Intxaustegi Jauregi, Nere Jone. 2022b. “Basque Public Notaries in Early Modern Age: Communication, Translation and Interpreting.” In Communication, Translation, and Community in the Middle Ages and Early Modern Period: New SocioEconomic Perspectives, Albrecht Classen (ed.), 379–392. Berlin & Boston, MA: Walter de Gruyter. Lamikiz, Xabier. 2008. “Basque Ship Captains as Mariners and Traders in the Eighteenth Century.” International Journal of Maritime History 2: 81–110. Lehfeldt, Elizabeth A. 2005. Religious Women in Golden Age Spain: the Permeable Cloister. New York: Routledge. Lorenzo Pinar, Francisco Javier. 1996. “La mujer y el tribunal diocesano en Zamora durante el siglo XVI: divorcios y nulidades matrimoniales.” Studia Zamorensia 3: 77–88. Macías Domínguez, Alonso Manuel, and María Luisa Candau Chacón. 2016. “Matrimonios y conflictos: abandono, divorcio y nulidad eclesiástica en la Audiencia moderna (Arzobispado de Sevilla, siglo XVIII).” Revista complutense de historia de América 42: 119–146.

Divorce in Early Modern Bilbao  83 Madariaga Orbea, Juan. 2014a. “La mediación lingüística entre la población vasca y las instituciones, 1600–1840.” In El euskera en las altas instituciones de gobierno a través de la historia: jornadas internacionales, Ador Lerga Álvaro and Andrés Urrutia (eds.), 86–142. Pamplona: Pamiela. Madariaga Orbea, Juan. 2014b. Sociedad y lengua vasca en los siglos XVII y XVIII. Bilbao: Euskaltzaindia. Maric, Marinko, and Rina Kralj-Brassard. 2017. “Traditional Marriage and the Role of Witnesses in the Parish of Ravno in the First Half of the Nineteenth Century.” Dubrovnik Annals 21: 74–95. Miles, María F. 2005. “The Value of a Woman: A Comparison of the Laws and the Traditions of Divorce in Medieval Europe and Modern America.” UCLA Women’s Law Journal 15: 139–169. Morgado, Arturo. 1995. “El divorcio en el Cádiz del siglo XVIII.” Trocadero: Revista de historia moderna y contemporánea 6–7: 125–138. Oliveri Korta, Oihane. 2010. Mujer, casa y estamento en la Gipuzkoa del siglo XVI. Donostia: Diputación Foral de Gipuzkoa. Pellegrin, Nicole. 1994. “Las costureras de la historia: mujeres y trabajo en el Antiguo Régimen en Francia. Un balance historiográfico.” Arenal 1 (1): 25–38. Pérez, Martín Antonio (ed.). 2015. Fuero Real de Alfonso X el Sabio. Leyes Históricas de España, Boletín Oficial del Estado. Madrid: Agencia Estatal Boletín Oficial Del Estado. Poska, Allyson M. 2005. Women and Authority in Early Modern Spain. The Peasants of Galicia. Oxford: Oxford University Press. Priotti, Jean Philippe. 2005. Bilbao y sus mercaderes en el siglo XVI. Génesis de un crecimiento. Bilbao: Diputación Foral de Bilbao. Rey Castelao, Ofelia. 2003. “Los extranjeros en la cornisa cantábrica durante la Edad Moderna.” In Los extranjeros en la España moderna, María Begoña Villar García and Pilar Pezzi Cristóbal (eds.), 23–58. Madrid: Ministerio de Ciencia e Innovación. Rodríguez Ortiz, Victoria. 2007. “La disolución del vínculo conyugal y otras formas de separación entre los cónyuges en la historia del Derecho castellano.” Anuario de Historia del Derecho Español 77: 615–706. Sperling, Jutta. 2004. “Marriage at the Time of the Council of Trent: Clandestine Marriages, Kinship Prohibitions, and Dowry Exchange in European Comparison.” Journal of Early Modern History 8 (1/2): 67–108. Stone, Lawrence. 1993. Broken Lives. Separation and Divorce in England, 1660– 1857. Oxford: Oxford University Press. Warner, Lyndan. 2018. Stepfamilies in Europe, 1400-1800. New York: Routledge. Wiesner-Hanks, Merry E. 2013. Early Modern Europe, 1450-1789. Cambridge: Cambridge University Press.

6 Judicial Separation and Its Material Effects in France during the 16th and 17th Centuries Claire Chatelain

This chapter deals with the material issues involved in the separation of couples belonging to the urban elites in the French Old Regime context. At a time when there was neither a welfare state nor banking activity for individuals, the exchange of goods agreed upon at marriage was essential both to renew the patrimony and in attempts to guarantee social reproduction (Giesey, 1977; Haddad, 2018). From this point of view, how was it possible to interrupt these matrimonial exchanges and for what economic purposes? In the first part, I will analyze the transfer of goods at marriage according to the Paris custom (private law of the Paris area and the Ile de France). This is followed by an analysis of the various procedures for interrupting marital life and their legal consequences. In the second part, I will examine the concrete implementation of judicial decisions concerning the matrimonial agreements of separated spouses. This allows me to clarify the issues raised by the actors of judicial separation. The collective strategies defended in this way may involve individual costs for husbands and wives. 6.1 Forms of Marriage Exchanges and the Judicial Interruption or Transformation of These Exchanges In order to understand how goods and properties were exchanged between spouses in early modern and modern France, the rules governing matrimonial customs have to be presented. These must be taken into account to underline the material stakes of couples’ separations. During the early modern period, under the regime of the custom of Paris (whose jurisdiction was vast), the wife provided a dowry, composed of the advances on the estate made by her father and mother, of which a variable part was invested in the community property. The rest of the dowry was her own property. The community of property and her property was legally administered by the husband. In exchange for the dowry, he promised a dower, in the form of an annuity secured on half of the husband’s real estate (customary dower) or on an annuity of lesser proportion (prefixed dower). The ratio of the dower to the dowry varied from one quarter to one half. In the case of the remarriage of a widowed husband, his dower was reserved for DOI: 10.4324/9781003334552-7

Judicial Separation and Its Material Effects in France  85 the children of the first marriage (dower to the children). The husband was obliged to return the dowry, enriched with his share of the earnings of the community of goods to the family of the wife if she died before him and without children. From the second half of the 17th century onwards, marriage contracts often granted the husband a sum of money, so-called marriage expenses, that he would deduct from the amount of the dowry to be returned. If there was a child involved, in cases of remarriage he could choose to continue the community of goods or appoint a tutor and curator to his children (who could be himself). In case of widowhood, and before the inventory of the movable property, spouses were entitled, in a proportion fixed by the marriage contract, to a share of certain unvalued movable property, as a precipitate. The community of property, which was the norm by custom, existed automatically and did not specifically require a marriage contract, even if one was generally made. Such property consisted of movable and new immovable property. The latter became personal assets in the next generation through inheritance. For instance, in the 16th century, if one of the spouses bought judge’s offices, seigneurial land, or pensions (rental properties), these were considered to be immovables, or conquêts to be shared between the heirs, with a small advantage being given to the eldest heirs. During the 17th century, such goods tended to remain to be seen as the husband’s own property to be inherited by male representatives of the lineage, contributing to creating a sort of lineage nobility (Descimon, 2006). They constituted some ­patrimonial assets for the most fortunate urban categories, such as the officiers de police et de justice or de finances who were involved in the monarchical State building (Hanley, 1989). During the 16th century, two thirds of the dowry of the wife were placed in the community of goods, while the remaining third was kept by her as propres but was managed by her husband. Economic collaboration between spouses was important and benefitted all direct descendants, since the Parisian custom law provided for equal shares to every child, female or male, with the exception of those who had taken religious vows. Until 1630 the eldest son had only a slight benefit as birthright, with an exception in the case of titled noble land which was seen as his birthright. Due to the high cost of these offices and the debts associated with them after the Edict of Paulet (1604), which granted the right to transfer offices as hereditary property to the next generation, in the course of the 17th century only a third of the dowry was brought into the community of property. The other two thirds stayed with the woman as her own assets (Chatelain, 2008). The increasing price of judge’s offices resulting from the above-mentioned edict also led to an increase in the nominal price of the dowry compared to the beginning of the 17th century. In high society indeed, wives’ dowries were actually used by their husbands to buy their offices, the acquisition of which required a lot of money. This is why a similar movement of nominal inflation of dowries has been noted by historians (Descimon, 1990).

86  Claire Chatelain Such indebtedness contributed to the material reasons for the separations of couples among the urban elites, as we will see. But the higher prices of offices were not the only way to get into debt: lesser rural nobility, financiers who engaged in risky financial transactions, merchants, and last but not least artisans could also fall into debt (Hardwick, 2009). Such situations of imbalance could lead to a demand for separation in order to preserve the female dowry (Seidel Menchi and Diego, 2000; La Rocca, 2009; Bedreag, 2021; Carbone, 2021). Gwenaël Murphy, who studied the province of Poitou, tried to go further and provide numbers: He randomly sampled 66 years between 1650 and 1750 and found 286 requests for separation of property, accounting for 2% of all requests and affairs. So, by projection, he could extrapolate about 4,500 requests for separation between the mid-16th century and the French Revolution. The rural population ­showed an increase in requesting separation requests during the 18th century and the urban population tended to be stable (Murphy, 2019, pp. 48–49). The simplest way was to ask for a separation of property. Some spouses also requested a legal separation of bed and property or even an annulment of the marriage, with very different legal outcomes (Avignon et al., 2022). In case of debt and bankruptcy, the dowry was inalienable and could then be preserved, in order to protect the whole patrimony of the lineage of the wife. If the community of property was dissolved, the wife could take back the property she brought into the marriage and avoid a risk of bankruptcy caused by the husband’s business. But how was a community of property dissolved and how was a separation of bed and property achieved? 6.2 Various Ways to Leave One’s Husband or Wife One could think about the Paul Simon song: “Fifty ways to leave your lover”, yet during the French Old Regime, there were only four ways to end a marriage or its civil effects. First of all, it is necessary to evoke the historical process that led in France to the partial secularization of the possibility of divorce from bed and board but not for the annulment of the marriage, which remained within the competence of ecclesiastical justice. Throughout the kingdom, until the 15th century, the Catholic ecclesiastical courts could pronounce judgements about “bed and property”, which allowed married couples the dissolution of the conjugal cohabitation (but not sexual obligation unless obtaining separation of “body and property”) and the community of property. Since the end of the Middle Ages (14th–15th century), in Paris only secular courts could separate the communities of property (Lefebvre-Teillard, 1996); and only the wife could ask for it, essentially when her husband was bankrupt. In this way, women could get their dowries and a part of the community of goods, in order to avoid their confiscation by the creditors. This temporary arrangement was to allow the husband to re-establish his business (Croq, 2009). Near the northern border of the French kingdom, in Cambrai or Beauvais, the ecclesiastical courts could allow the temporary separation of

Judicial Separation and Its Material Effects in France  87 married couples (from bed and goods or only from goods, depending on the case) for three years, so that they could reconcile again (14th–16th c) (LefèvreTeillard, 1973; Lottin, 1975; Vleeschouwers-Van Melkebeek, 2000; Donahue, 2007; Croq, 2009; Lapôtre, 2013; Beaulande-Barraud and Charageat, 2014). The Kings Courts in the 14th century, especially the sovereign courts of appeal, the Parlement de Paris, could deal with these kinds of matters, not in a sacramental way, but regarding the civil issue (Lefèvre-Teillard, 1973; Olivier-Martin, 1909). It is by looking at this civil model that the French “Gallican” jurists, rediscovering Roman law in the light of the king’s independence from the Pope, talk about divorce in an emic sense. This divorce of residence and property was not temporary, but rather permanent. Both spouses could ask for it. But during the reign of Louis XIV, it was predominantly wives who asked to be divorced. Many reasons could be given for initiating this sort of judicial action: violence of the husband, adultery of wife or husband, the embezzlement of assets. The legal reasons given by the wife or husband for requesting separation have varied over time (Chatelain et al., 2021). In order to undo the sacrament of marriage or the marriage bond (alliance), proceedings requesting the annulment of a marriage had to be initiated and this, as mentioned above, could be asked for only at the ecclesiastical courts. However, since the 14th century such cases could also be heard in Parliament through the so-called “as abused” procedure of secular and Gallic inspiration. But in France, to obtain separation of property, almost everyone had to ask the secular court. Another fast-track procedure made it possible to avoid court costs and turn only to the administrative authority. During the reign of Louis XIV, a lettre de cachet, which made it possible to send a husband or wife to jail or an asylum, could be requested, but only by means of an administrative procedure and not a judicial one, since the police lieutenant determined such imprisonment (Farge and Foucault, 1982; Savornin, 2002). How did one choose between these different judicial possibilities? Various research studies show that the use of these proceedings depended on social rank and gender (Francini, 1994; Piant, 2006; Regina, 2009; Murphy, 2019). The means selected by the judicial parts were neither equivalent nor had the same judicial issues but depended on gender standards. For instance, if a man committed adultery, it could lead to him achieving his divorce in civil proceedings; however, the wife’s adultery was tried in criminal court. The latter often led the wife concerned to be locked in a monastery and to be deprived of her dowry, her part of the community of property, and even the dower which had been promised by the husband. Female adultery was a serious crime, an open door to the “mixing of races” as the famous writer Montaigne put it. Judicial justifications for marital separation from bed and board tended very often to be public in civil proceedings. This was related to the fact that the reasons were embedded in plausible fictional narratives by plaintiffs. The provisions of the law structured this form of writing (Maza, 1997; Ther,

88  Claire Chatelain 2017; Cazals and Géoget, 2018; Chatelain, 2019). But the rules of the game were twofold. For the divorce petition itself, Roman law was involved. For the enforcement of the material effects of the court decision, customary law was used in a much more corporate sense than Roman law. 6.3 The Effects of Separation on the Community of Property and the Dowry Let us now analyze the effects of separation on the community of property. Indeed, judicial separations had civil effects and transformed matrimonial agreements, especially regarding the community of property. For the separation of property pronounced by the judges, a temporary or a final dissolution of the community of property was determined. In the case of the indebtedness of the husband, this procedure was equivalent to bankruptcy and the wives were allowed to take their dowries back (Hardwick, 1998; Croq, 2009). In the case of annulment, the community of property was dissolved as well and then shared. In front of the secular jurisdiction (Parlement), individual arrangements were possible between actors, depending on and manifesting their social power (Chatelain, 2019). For indefinite separation from bed and board and property, the dissolution of the community of property and the repossession of her property by the wife had to be decided according to the outcome of the trial between husband and wife. If the wife was found guilty of adultery, she could lose her dowry and her share of the community of property. If not, the effective division of community of property could give rise to individual arrangements, especially if children were involved. Indeed, these negotiations took place during the family assembly (a specific court presided over by the civil lieutenant of Paris) which decided, according to the custom of Paris, how to establish transactions concerning the restitution of the dowry. This jurisdiction proceeded primarily in the interest of the children, as descendants of the lineage. The children were to be emancipated by the same court, in order to benefit from the succession of their separated parents in the future. In the case of the lettre de cachet procedure, it was decided by the administrative authority to place the person under guardianship, as well as their property under curatorship. Separation from bed and board canceled the civil effects of the marriage, but only in part. The reading of notarial acts makes it possible to realize how much the restitution of the dowry to the wife could be part of complex strategies for the preservation of patrimonial property among elites. 6.4 The Case of the Separation: Pommereu v. Bernard In the case of the indefinite separation from bed and board of a senior magistrate and his wife that I studied (Pommereu v. Bernard, 1704–1709), the community of property was dissolved and then divided. The wife took back

Judicial Separation and Its Material Effects in France  89 her own property. The return of her own goods was guaranteed by relatives of the husband through his very expensive office of Master of Requests. More specifically, two powerful relatives, an uncle who was the military governor of the city of Douai and a cousin by marriage, who was king’s attorney of the Chamber of Accounts, gave their guarantee that she would one day recover the amount of her mortgages.1 In practice the dissolution of the community of property was a long process. It began during the proceedings for separation of goods and board, thanks to changes in the procedure of the Parlement de Paris under Louis XIV. The case was decided in favor of the wife. Madame de Pommereu, who had petitioned for separation, received permission from the judge to receive an advance on the value of her dowry. According to the provisions, the wife was thus to get the equivalent of 20% of the value of her dowry in successive payments throughout the trial. The husband’s creditors therefore had to pay these sums to the wife as a priority. This was an effective legal way of recovering claims on her dowry.2 At the end of the trial, the husband, who lost, was sentenced by the court to pay the legal costs. He had lost the public trial, but in an apparently contradictory way. The family assembly decided that he would keep the equivalent of 55% of the community of property and he got custody of the children. The purpose of the family assembly was above all to protect the interests of the couple’s descendants, and thus, the endowments for the office of the spouse and its “sale” were secured for the eldest son (1712). This was one of the strategic goals of the proceedings.3 However, according to the custom of Paris, the wife had to request authorization from her spouse in order to proceed with the sale. Yet by separating the spouses to the legal benefit of the wife, the husband still received a reward for his administration of the property of the house. During the first half of the 17th century, the husband received one third of the community property prior to its division or sometimes his wife did so as a usufruct if her father was involved in her husband’s business. This part of the community of property was equivalent to one third of the immovables in the community (conquêts)4 (Viret, 2010). These kinds of strategies could be organized thanks to the separation proceedings and could be implemented in anticipation of possible separation in order to protect the inheritance of the descendants by establishing two distinct lines of claims for the assets composing the patrimony. These customary provisions still had a corporate effect in order to protect the inheritance by establishing two distinct lines of claim for the assets composing the patrimony. Thus, we can speak of a divergent patrimonial transmission system (Goody, 1973). The writer and jurist Furetière (second half of the 17th century) incorporated such ideas when he wrote ironically that the marriage contract of one of his novel heroines should contain a divorce clause.5 Starting from the second third of the 17th century, in a trend that was reinforced in the 1720s, many couples of the very high nobility and many couples of the highest nobility agreed on the separation of martial property in their marriage contracts (Dewald, 1996). Thus, in order

90  Claire Chatelain to understand this process, we may ask what sort of actors could be interested in “divorce”? 6.5 The Actors in the Marital Dispute and the Internal and External Context of Their Lineage I have studied 25 cases of divorces from bed and goods that took place in secular and civil courts between the second half of the 16th century and the first third of the 18th century. Using a micro-historical method, the objective was to cross different sorts of sources (judicial documents, notarial archives and written, and/or printed judicial plaidoyers) to create “hard contexts” in order to describe the judicial treatment of these affairs in progress and to understand the strategies of each spouse and their kin, as well as those of the judges and professional members of the court. In these cases, we can find some “sociological trends” that involved several social categories. These cases involved impoverished members of the lower nobility during the 16th century as well as heirs or heiresses of finance who tried to manage the burden of complicated successions. They included the great officers of the magistracy, impacted because of the indebtedness created by the cost of offices under the reign of Louis XIV (1661–1715), as well as the urban “bourgeoisie”, such as small craftsmen and shopkeepers. In comparison, during the Regency period of Louis XIV (1643–1661), many requests for separation of goods took place at the Châtelet de Paris, resulting in the rental of apartments by many separated women belonging to the Parisian nobility. We can already emphasize two important stakes in separation. As already mentioned above, there was a matter of protecting the transmission of real estate to direct heirs from creditors through inheritance planning. Among the 25 cases of separation, only 5 occurred in childless couples. But a significant number of cases occurred when a succession in the lineage was commencing and as the children were about to be established. For instance, at the end of the 16th century, Philippe de Danneval wanted to be separated from her husband who was accused of stealing the maternal inheritance of their daughter who was of marriageable age. After 20 years of living together, the Pommereus separated when their two eldest sons were about to be established and the husband forced his wife to make donations from her own property to two of their three sons. In 1686, at the birth of their fourth child, Michel Ferrand, one of the presidents of the Parliament of Paris, wanted to separate from his wife Anne de Bellinzany. This case involved the birth of a daughter whose legal paternity was denied by Ferrand, but who one day became the only heir of the lineage, thanks to the efforts of her separated mother to hide and educate her.6 We can see that almost all cases of separation anticipated a difficult succession, in environments where people had immovable property to pass on but were often burdened with financial debts. Notarial archives help recreate situations that have almost been hidden by court pleas (plaidoyers). Under

Judicial Separation and Its Material Effects in France  91 such circumstances, thanks to the separate lines of ownership allowed by separation, the female dowry could be protected from creditors. The effects of succession are often seen in these cases. The trial of Philippe de Danneval began just after the death of her parents. Between 1642 and 1651, and prior to the case of Denise de Bordeaux v. François de Pommereu (1652), Denise had signed protests, jointly with her husband on three occasions, against the loans made by her father Guillaume de Bordeaux, a great financier of Cardinal de Mazarin. He had just bought back his very expensive office of intendant of finance and had thus accumulated a lot of debt. A year later, Denise’s husband asked for séparation de biens et de domicile (“separation of property and divorce from bed and board”).7 In 1702, following his disgrace a year earlier, their grandson Jean-Baptiste organized the estate of his dying father, with the latter’s assistance, to make a privileged male heir against the provisions of the custom. Two years later, his wife petitioned for a separation in the name of equality of treatment between her three sons.8 The second cousin of Jean-Baptiste de Pommereu, Jacques Ribier, divorced his wife while she was settling the affairs of the estate of her sister and father, and in the process, she opposed her husband on the matter of the transmission of the latter’s office to their son. Later, around 1740, Marie-Madeleine Lemaître asked for a separation because her husband, Lefèvre d’Eaubonne, the greatnephew of Pommereu, had been infuriated by her conciliatory attitude in the division of her inherited estate with her sister.9 This context of unequal and contested transmission due to the circumvention of customary provisions was thus conducive to the requests for separations. In regard to the decision to divorce, the political context must also be taken into account. A trial had to be started at the right time. The end of a civil war and the return of the king at the end of 16th century were opportune times to try to create a public affair, with the help of the publication of judicial pleas. Philippe de Danneval, a woman who negotiated a separation against the wishes of her husband Eustache Davost, chose to act at the end of the Wars of Religion. François de Pommereu, Jean-Baptiste’s grandfather, waited for the return of the king to Paris after the Fronde in 1651 to bring his legal action. Jean-Baptiste’s wife tried to separate at the very moment of her husband’s disgrace in 1701, at a time when Contrôleur General of Finances Pontchartrain had left his duties in 1699 to become chancellor of France, a prestigious office but of little effective power. The new contrôleur general of finances was Michel Chamillard, a relative of Mme. de Pommereu’s by lineage. 6.6 The Actors’ Strategies in Trial Settlements and Social Situations The cases from the 16th century are complex and surprising. Historical analysis must account for this complexity by trying to describe the objective constraints that the actors were trying to resolve, with the help of subjective discourses. In the Poncher v. Bohier case (1542–1563) Antoine Bohier, who had made an inter vivos donation between him and his wife, annulled it on

92  Claire Chatelain the grounds that his wife had converted to the Protestant religion and had fled. However, he did not ask for an official separation, but for a separation from bed and board. He then donated a third of his own immovable property (conquêts) to Pierre Séguier, a powerful magistrate. The separated and then widowed Anne Poncher sued Séguier to recover the property to which she had rights. As a compromise, she gave the large sum of 1400 Lt to Séguier (Richet, 1991: Hamon, 1999).10 In the case of Danneval v. Davot, Philippe de Danneval, wife of Eustache Davost, reproached her husband for having sold maternal inheritance (land and seigniorial rights) and having converted it into common property for his benefit (avantages indirects), which was punishable by law. Moreover, Davost embezzled the money promised as a dowry to his daughter and incurred debts in his wife’s name. But notarial records show that the husband had “naturally” administered these goods for his wife. Archives also show that the wife’s father sold several plots of land and rights to a local lord and that this landlord and Philippe de Danneval were also engaged in legal disputes. The Dannevals were therefore in debt and had lost property and seignorial rights. By having the lawsuit moved from Mayenne to Normandy, Philippe de Danneval’s husband obtained a third of the real estate from the community of goods. The wife appealed to keep her mortgage on these properties, while custom forbade her to sell them without her husband’s permission.11 This action was carried at the cost of a legal contortion. Sébastien Rouillard, the famous lawyer of Philippe de Danneval, asserted that to punish her husband it was necessary either to disinherit their daughter or to emancipate her so that she could have access to her inheritance. Unfortunately, we do not know the outcome of this appeal to the Parliament of Paris. Nevertheless, we can acknowledge the important point that there were two structural logics at work in a public civil trial concerning an unlimited separation from bed and board. First, that of the legal means under Roman law and, second, that of the final material arrangement under Parisian custom. And from the point of view of the actors’ strategy, this arrangement was not just a compromise but a social solution in times of crisis. In these social categories, the judicial arrangement was a part of a patrimonial strategy using the dissolution of the community of property and the re-establishment of the wife’s mortgage as a means of bypassing the creditors of the husband. For instance, in the case Pommereu v. Bordeaux, the adultery of the wife is proven by the sources. However, the husband applied for separation without much emphasis in his legal arguments on this adultery. Far from being criminally sanctioned for this, his wife Denise de Bordeaux received all her dowry assets, and she was even able to successfully negotiate their increase, with a promise to compromise. In this case, there was no punishment, but there was a real separation of the lines of male and female property.12 In the case of Pommereu v. Bernard, the sale of the husband’s office of maître des requêtes is announced to compensate the wife’s dowry assets, under the guarantee of the husband’s parents. This means that they commit

Judicial Separation and Its Material Effects in France  93 the value of this office to the financial market by borrowing funds in order to pay the heavy burdens required by the transmission of this office to the heir of the lineage. In this way, in 1712, the father sold his office to his eldest son, Michel Gervais Robert, who received gifts from his grandparents to buy that office. In 1723, this son got married and his separated mother was absent on the day of his wedding, which meant that she did not give her consent to the marriage or to the sale of the office. So she retained her rights on this office against the creditors of Jean-Baptiste de Pommereu. According to the marriage contract, the bride of the son would leave her husband the sum of 75,000 Lt as a dowry, which would compensate her mother-in-law.13 The separation thus allowed the devolution of the office from the father to the son, protecting him thanks to the mother’s dowry mortgage. The current receivables were thus consolidated and carried over to the next generation. 6.7 Conclusions To conclude, we must underline how this system of dowry protection was used to protect the spouse’s own property during the second half of the 17th century. The wife’s inalienable dowry allowed access to the secondary market of the annuity issued on the public debt account, and at the same time served as a guarantee for these annuity purchases. In such a highly speculative context, the couple’s separation proceedings served to consolidate the lineage patrimony, by maintaining the claim authorized by the dowry, which was exchanged from alliance to alliance (for such elements of debate, see for instance Crowston, 2011 and Bellavitis and Zucca Micheletto, 2018). This confirms that, in these dominant social categories, the dissolution of the community of property was equivalent to establishing a divergent devolution of patrimonial rights (Goody, 1973). This is the reason why we can say that the outcome of separations was cognatic, according to the kinship system, which was successively reinterpreted by actors in different ways, in order to protect their social assets. And it is therefore necessary to think of the material effects of the separation of couples as a particular moment in the exchanges established by the alliance – a limited stage. Archival Sources Bibliothèque Nationale de France, Cabinet des manuscrits, CGM (Catalogue Général des Manuscrits) online, Dossiers Bleus, no. 532; coll. Morel de Thoisy, 190. Bibliothèque Nationale de France, Factums online, BnF, Gallica Sébastien Rouillard, Le divorce pour Philippe de Danneval, dame de la L., appelante, contre E. Davot son mari, intimé, sl, 1602. Archives Nationales, Minutier Central (notaries archives), liasses VIII-90; XX-368, 479; XXIII-456; LXXXVIII-346, 386, 482; CXII-340. Archives Nationales, série X1a 5693 (Parlement)

94  Claire Chatelain Archives Nationales, série Y (Châtelet), appointements, 8662, insinuations (enregistrer acts) 1275, 15049. Archives Départementales de la Sarthe (online), E 113; 116. Notes 1 Archives Nationales [hereafter AN], MC LXXXVIII-386 19/09/1709, Family Assembly de Pommereu. 2 Bibliothèque Nationale de France [hereafter BNF], Cabinet des manuscrits, DB [Dossiers Bleus] 532, Pommereu: factums. 3 AN, MC LXXXVIII-346, Bosch.,13/12/1712, Sold by J.B. to M.G.R de Pommereu. 4 For instance, Sébastien Rouillard, Le divorce pour Philippe de Danneval, dame de la L., appelante, contre E. Davot son mari, intimé, sl, 1602. Bibliothèque nationale de France, Online: BnF, Gallica https://gallica.bnf.fr/. 5 Antoine Furetière, Roman Bourgeois, “Histoire de Charroselles, de Collantine et de Belastre”, Paris [1666], J. Vialetay, 1968, p. 285. 6 AN, MC/ET/ XX-368, 29.03.1686, transaction Ferrand/Bellinzani; XXIII/456, 04.09.1723, ID M. Ferrand. 7 AN, MC CXII/340, 09.12.1661, ID Paris François de Pommereu. Y/275, f°184, Boscheron 8 AN, Y/275, f°184, Boscheron, 23/011702: D. M.M. Bernard M. G. R. de Pommereu, Laguille & Regnault, Châlons, 18.01.1702, copy of donation (original disappeared); Boscheron, 23/01/1702, A.P; Ibid., f°208 and follow, Boscheron, 30+31.01.1702, Laguille et Regnault, Châlons, 27/01/1702, D. M.M. Bernard J.A. de Pommereu; Ibid., f°300 and follow. Boscheron, 05.04.1702, insinué 02.05.1702, D. A.R. de Pommereu A. Lesné to J.A. de Pommereu. A.P. 9 BNF, Cabinet des manuscrits, coll. Morel de Thoisy, 190, f° 451, Jacques II Ribier, Mémoire de conclusion; ibid., f° 455: Jacques II Ribier, mémoire adressé à un parent & allié; AN, Y/15049, 30.06.1745, plainte de MM. Le Maître contre André Le Fèvre d’Eaubonne. 10 AN, MC VIII 90 f° 446 v°, 4 II 1563. 11 S. Rouillard, Le divorce pour Philippe de Danneval …, op. cit.; Archives Départementales de la Sarthe, E 113; 116. 12 BnF, 4 Fm 35511 (7), Avertissement pour A.R. de Pommereu, unknown date (1663?), Gédéon Tallemant des Réaux, Historiettes, éd. A. Adam, Pléiade, Gallimard, 1961, t. 2, pp. 312-313; MC CXII/340, 09.12.1661, ID de François de Pommereu (Paris). 13 AN, MC LXXXVIII-386- 19.09.1709, A. P. de Pommereu; LXXXVIII-482, 25,26+27.02.1723, M. G. R. de Pommereu’s respectful summonses to his mother; XX-479, 01.03.1723, Marriage Contract M. G. R. de Pommereu et C. Oursin, fille de Jean Oursin.

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96  Claire Chatelain Hardwick, Julie. 1998. “Seeking Separations: Gender, Marriages, and Household Economies in Early Modern France.” French Historical Studies 21:1, 157–180. Hardwick, Julie. 2009. Family Business. Litigation and the Political Economies of Daily Life in Early Modern France. Oxford: Oxford University Press. Hanley, Sarah. 1989. “Engendering the State: Family Formation and State Building in Early Modern France.” French Historical Studies 16:1, 4–27. La Rocca, Chiara. 2009. Tra moglie e marito. Matrimoni e separazioni a Livorno nel Settecento, Bologna: Il Mulino. Lapôtre, Raphaëlle. 2013. Le mariage devant le juge, droit matrimonial et pratique dans le Beauvaisis (XVIIe-XVIIIe siècles), thesis for the diploma of archivist palaeographer, Ecole nationale des Chartes, Paris. Lefebvre-Teillard, Anne. 1996. Introduction historique au droit des personnes et de la famille. Paris: PUF. Lefèvre-Teillard, Anne. 1973. Les officialités à la veille du concile de Trente. Paris: LGDJ. Lottin, Alain. 1975. La désunion des couples sous l’Ancien Régime. L’exemple du Nord. Lille: PUL. Maza, Sara. 1997. Vies privées, affaires publiques. Les causes célèbres de la France pré-révolutionnaire. Paris: Sarah. Murphy, Gwénael. 2019. “Mauvais ménages.” In Histoire des désordres conjugaux en France. XVIIe-XVIIIe siècles. Paris: L’Harmattan. Olivier-Martin, François. 1909. L’Assemblée de Vincennes et ses conséquences. Étude sur les conflits de juridiction entre la juridiction laïque et la juridiction ecclésiastique au XIVe siècle. Paris: A. Picard et fils. Piant, Hervé. 2006. Une justice ordinaire. Justice civile et criminelle dans la prévôté royale de Vaucouleurs sous l'ancien régime. Rennes: Presses Universitaires de Rennes. Regina, Christophe. 2009. “L'intrusion de la Justice au sein du foyer. La violence conjugale jugée devant la Sénéchaussée de Marseille au siècle des Lumières.” Annales de démographie historique 118:2, 53–75. Richet, Denis. 1991. De la Réforme à la Révolution. Etudes sur la France modern. Paris: Aubier, p. 184. Savornin, Marie-Noëlle. 2002. Les lettres de cachet pour affaires de famille à Paris au XVIIIe siècle, unpublished thesis, supervisor. d’A. Burguière, EHESS, copy FMSH, Paris. Seidel Menchi, Silvana and Diego, Quaglioni. 2000. Coniugi nemici. La separazione in Italia del XVI al XVIII secolo. Bologne: Il Molino. Ther, Géraldine. 2017. Jeux de rôles et de pouvoirs – La représentation des femmes dans les factums (1770–1789). Dijon: EUD. Viret, Jérôme Luther. 2010. “Les femmes et la circulation du patrimoine dans la noblesse L’exemple de la seigneurie de Torchamp en Normandie (XVe-XVIIIe siècles).” In Caroline Le Mao (éd.), Les élites et la terre. Du XVIe siècle aux années 1930. Paris: Armand Colin, pp. 213–222. Vleeschouwers-Van Melkebeek, Monique. 2000. “Self-divorce in Fifteenth-century Flanders: the Consistory Court Account of the diocese of Tournai.” Revue d’histoire du droit 68, 83–98.

7 Interwoven Ecclesiastical and Civil Divorce Trials A Venetian Case Study (1785) Marie Malherbe

In the case of Venice, historians have long noticed that even if they remained rare throughout the time of the Most Serene Republic, the number of what was then labeled “divorzii” significantly increased in the last 25 years of the 18th century (Cozzi 1981). From 1783 onwards, a yearly list of divorzi cases appears in the archives of the State’s highest organ: the all-mighty and most feared Council of Ten. This list provides a quantitative analysis of the phenomenon (on average 25 divorzi cases per year, for a population of 140,000 inhabitants). But it also gives a qualitative idea of its perception by the Venetian rulers as a most important matter of State: Indeed, the Council of Ten demanded to be informed of every application for divorzio. But what did the Venetians really mean by divorzio? As elsewhere in Italy, allowing spouses to interfere in any way against the prescriptions of holy matrimony was a Church decision. Indeed, ecclesiastical cases debating the possibility of either annulatio (declaring the sacrament null and void and giving the husband and wife the right to remarry) or divortium (granting the spouses only the possibility to cease cohabitation) can be found in the archives of the Venice Patriarchate. In the Venice Republic, a divorzio referred to a Church divortium, namely an ecclesiastical judgment granting a divorce from bed and board. As in the case of the Roman Curia and other Italian episcopal archives, such sources have proved their relevance in kinship history, anthropology, gender studies, and social sciences in general (Seidel-Menchi and Quaglioni 2000, 2001, 2004, 2007). Yet they leave a crucial question unanswered: What happened on the practical and financial front once a divorzio (divorce from bed and board) was canonically granted? In other terms, what sort of separation of property followed a divorce from bed and board? The aristocratic Republic of Venice offers a stimulating case study to analyze how ecclesiastical and civil stakes were intertwined. Among divorce claimants, patricians tend to be over-represented. Their cases are particularly revealing: In the ruling group indeed, any matrimonial alliance sealed not only decisive patrimonial settlements but also decisive political strategies. As such, marriages within the elite were celebrated with great solemnity, creating each time a major event in the city. Correspondingly, undoing such a DOI: 10.4324/9781003334552-8

98  Marie Malherbe bond could be perceived only as a matter of State of the same magnitude, since it jeopardized the alliance between two families and thus the sensitive political balance the entire Venetian governance was based on. Nevertheless, no civil law was ever passed on the issue till the last 15 years of the Republic (1782–1797). The growing involvement of the Venetian State in divorce cases in the 1780s was first pointed out and studied by Gaetano Cozzi (Cozzi 1981). In what he called only “notes” on a then emerging topic, he actually presented with remarkable accuracy not only the making of the three decrees voted on in 1782, 1785, and 1788, but also the intense debate behind these, with its opposing sides: the various protagonists willing to preserve the Church’s prerogative (curialists) and those who were tempted to transfer the matter to State authority (jurisdictionalists). In the late 18th century, the latter opinion was deeply influenced by reported experiences from abroad and is also referred to by the Italians as “giuseppinismo’”(Josephinism), referring to the contemporary model of Austrian Emperor Joseph II, who withdrew marriage jurisdiction from the Catholic Church in 1783 (Griesebner 2020, Griesebner and Hehenberger, this volume). Cozzi unveiled the subtle arguments of the various men who, either called for expertise or out of their own initiative, advocated for their vision of what a divorzio process should look like. Yet tangible traces of civil trials regulating the material aspects following ecclesiastically granted separation or divorce from bed and board have so far remained unexplored. A recent investigation of Venetian stampe in civil justice (printed judicial briefs produced by one of the parts presenting all the documents arguing in their favor) has confirmed the difficulty to find such sources about the subsequent financial dispute produced by a husband or a wife against their newly divorced spouse (Malherbe 2019). A reluctance of the litigating families to leave printed traces on such socially shameful and financially intimate topics can most likely be added to the relative rarity of divorce cases (Gianesini 2003, Cowan 2011). 7.1 Exceptional Sources However, the systematic review of findings from the Municipal Archives of Udine has revealed a single exception: the 130-page stampa produced by Sebastiano Mocenigo in response to his wife Marianna Valmarana, after she obtained a divorzio ex molestiae cohabitationis (annoyance of cohabitation) from the Venice curia patriarcale in 1785 after 18 years of marriage and six children.1 This rare source is all the more precious as it contains a particularly broad variety of documents: marriage contract, bills, accounts, movables deposits, alimony transfers, letters, claims, and witnesses’ interrogations. This heterogeneous mix offers a multifaceted panorama, unveiling not only many actors who sound very tangible, but also a fierce and well-documented financial dispute. Moreover, I had the chance to find the file containing the ecclesiastical trial in the Venetian patriarchate’s archives.2 This complementary

Interwoven Ecclesiastical and Civil Divorce Trials  99 source helps supplement our overall understanding of the whole story. Yet what makes the crossing of information between the two sources (ecclesiastical and civil) particularly interesting for my purpose is that it enables one to identify what was carefully selected or censored by the husband’s lawyer from the ecclesiastical process to favor his client on the financial front. How could that be? Valmarana v. Mocenigo offers an exceptionally well-documented case to answer this question and deepen our understanding of Venetian “divorzii”, for several reasons. Firstly, its legal and economic context: This 1785 case takes place exactly during the above-mentioned tense and intense legislative debate on divorce issues in the late Republic, more precisely between two of the three State decrees regulating separation processes on the non-ecclesiastical front. The 1780s also correspond to a very critical point in the dramatically worsening economic crisis that hit Venice throughout the 18th century. This tense economic context only exacerbates the financial dispute – or explains its very existence – and makes the stakes more visible. Secondly, its legal density: This 130-page factum presents civil proceedings regulating the divorce’s financial consequences and the complexity of Venetian civil justice on this sensitive matter. The fact that the judicial brief produced for the civil court also includes some extracts from the antecedent ecclesiastical proceedings shows that if civil and religious authorities were somewhat “rival” on the matter, they were also deeply intertwined. Thirdly, its protagonists in a social and gender perspective: The spouses belonged to the middle-upper patriciate. Their story and its financial dimension in particular unveil several breaking points in the aristocratic family-and-government system at the end of the Republic. It also reveals a case of “legal literacy” (Korpiola 2019) that appears to be significantly gender-related. Produced by the husband, the storytelling of the stampa reflects a male strategy, while the responses reveal the claimant wife’s moves. The result is a gendered-differentiated use of legal proceedings, echoing gendered legal assets that could apply to other divorce cases. 7.2 A Complex Family and Financial Context: Aristocratic Discipline and Breaking Points The marriage concluded in 1767 between Marianna Valmarana (aged 21) and Sebastiano Mocenigo (aged 37) bound two families of similar status (patrician) yet unequal prestige and wealth. The Mocenigos had been one of the Republic’s most successful and prolific case nuove. However, Sebastiano’s branch was not as prosperous as the ones which had given doges and first rank statesmen to the Republic.3 Yet the prestige of the name certainly redounded on the entire house (Raines 2006). At the time of the wedding, they had already given seven doges to the Republic, and the current doge was a Mocenigo. The Valmaranas had a very different background. They were nobles of the Terraferma originating from Vicenza, who were aggregated to

100  Marie Malherbe the Venetian patriciate in 1658, as the tremendous cost of the Cretan War induced the Great Council to vote – after stormy debates – that non-patrician families could be aggregated to the patriciate in exchange for 100,000 ducats. This means the Valmaranas had been able to pay this very large sum to acquire the patrician status. A hundred years after their aggregation, their marrying Marianna to Sebastiano Mocenigo only confirms their integration strategy, which consisted of creating alliances with prestigious yet probably impoverished old patrician families. According to the marriage contract signed in 1767, she brought a dowry of 30,000 ducats; an eloquent illustration of a long-term inflationary dowry market that the 1648 aggregation of new patrician families only exacerbated (Bellavitis 2011). The marriage agreement can be seen as a typical financial-political contract binding old and new patriciate families, in a context of economic challenges. Indeed, it has eight (male) signatories: four for each contracting side, including the fathers and uncles of the spouses. This eloquently confirms the fact that the alliance involved and bound all the males of both families. The Mocenigos enhanced their monetary capital; the Valmaranas their prestige and political capital. In 18 years, Marianna gave birth to two boys and four girls, and no adultery was reported on either side. What went wrong? Behind the appearance of a win-win contract lies a dramatic upper-class contempt to which our sources very explicitly refer.4 In the process indeed, Sebastiano Mocenigo is accused of slandering his wife’s origin and making references to her “inferior” family. Interestingly, the expression of his contempt is reported to have burst out beyond limits after his own father’s death.5 This reveals a contrario the importance of his father in having the couple stick together – not surprising in a culture of notoriously strict family discipline (Raines 2006). Indeed, even if the famous “patrician discipline” is reported to have been altered on some matrimonial issues in the second half of the 18th century (De Biase 1982, Plebani 2011), many counter-examples show that a majority of patricians continued to stick to the “fathers’ law” and behavioral codes, especially in the upper patriciate (Raines 2006, Malherbe 2020). The careful reading of the sources gives us the feeling that this couple’s unhappy story was mostly about social frustration degenerating into personal contempt. In the context of the economic crisis suddenly altering a multi-secular exclusive endogamic alliance system, we find both protagonists in a tremendous tension between the standard of living that they think they deserve and reality. On both sides, this tension results in disobedience to their father’s agreement – and the breaking of the deepest unspoken rules of their social group: He crosses the line by displaying ungentlemanly behavior; she crosses the line by introducing a divorce claim. A major difference is that his disobedience could be kept secret for years within the strict domestic sphere, while hers, involving Church and civil justice, appears disruptive on a family and social scale. Breaking an alliance after 18 years and six children means breaking their fathers’ and uncles’ contract – a contract the bride was never

Interwoven Ecclesiastical and Civil Divorce Trials  101 invited to sign. Here one should note that in spite of the gravity of the insulting verbal and physical violence she had increasingly endured, Marianna was far from taking for granted that her father would ever forgive her – to the point that she went to her father only when accompanied by her brother who advocated for her.6 There was indeed a lot to lose for the 38-year-old wife and mother. Both personally and socially, there was the risk of having to live with an indelible social stigma as an isolated outcast despised by both families. What about the legal and financial stakes of her move? 7.3 A Particularly (In)tense Legal Context: Jurisdictionalism v. Curialism For centuries, divorzii had been rare enough in Venice as not to justify formal legislation about their financial consequences. All that existed was a 1374 decision of the Great Council: “If a woman not staying with her husband complains about him and claims alimony, we’ll do her justice if she sounds of good faith to the majority of us”.7 But this was no more than a framework – and possibly originally thought for non-patricians. Granting the authorization to no longer live under the same roof remained a church decision. The children were seen as belonging to the father’s casa, and therefore stayed with the father – all the more if patricians. Legally speaking, since the marriage was still valid, the wife remained under her husband’s authority. As for the financial part, an agreement was to be found case by case. In the second half of the 18th century, the number of claims for divorzii increased noticeably, even to the point that in 1781, the Venetian rulers decided to intervene on the matter. Interestingly, it was not debated in the Great Council, but taken up by the most powerful – and most feared – Council of Ten. This was the highest police and criminal court in Venice, competent for urgent matters of State and therefore granted extended powers (including that of acting in secrecy). This attribution alone says a lot about the gravity of the issue in the eyes of the Venetian patricians. The competence of the Council of Ten was explicitly to insure “the quiet and security of the State” as well as “the discipline of the patriciate and the clergy”. Indeed, the issue of divorzii appeared as a threat on all three fronts. As a rapidly growing phenomenon bringing disorder in an established “patrician system” inextricably binding family strategies and state power, separations could directly undermine the very foundation of the aristocratic state. The news coming from abroad, and in particular from Paris, in those years can only have increased the fear of a dangerous trend directly threatening “public and private peace” – which was all one thing in the patrician representation of the world (Raines 2006). The issue justified the intervention of the Council of Ten, as there was a manifest lack of “discipline of the patriciate”, all the more in a context of growing disobedience to the “fathers’ law”, of “corruttela de’costumi” (loose morals) or “suismo” (individualism), as the contemporaries called it, reason enough to complain about the attitude of some young patricians of that very

102  Marie Malherbe generation (Plebani 2011). Usually, the Venetian norm left a certain margin of maneuver to the families, relying on supposed “patrician discipline” to guarantee order in the families’ government and therefore also in that of the State’s. In the case of deficient family discipline, the absence of clear Venetian law on the matter certainly appeared to be threatening for the stability of the aristocracy. Last but not least, it had to do with “the discipline of the clergy”: Ecclesiastical courts were considered far too tolerant in granting annulment or divorce from bed and board. Since most plaintiffs were women, the fault was ascribed to them (and their “extravagant passion for freedom”) and their “complicit” clergy. For all these reasons, no less than the Council of Ten was to deal with the concern of divorzii. In 5 years, the Council of Ten ordered four legal consultations to specialists – canonists and jureconsulti (legal consultants) on the topic. By the early 1780s, the terms of the debate were conditioned by the extreme antagonism between jurisdictionalists and curialists. The latter refused State control in the matter and wanted to keep the full ecclesiastical margin of maneuver to evaluate the existence of legal grounds justifying separation or divorce from bed and board case by case. The jurisdictionalists tendentially wished to secure the husbands’ authority against the Church. The very patriciate was split between the two trends (Cozzi 1981). The jurisdictionalists came up with four main ideas: Before being submitted to the curia patriarcale, any divorzio claim was first to be submitted to the Council of Ten to be checked in regard to eligibility; ecclesiastical solicitors were to be put under state control; once separation from bed and board was granted, separated women were to be controlled; and depending on the grounds on which the separation was granted (adultery, crime), criminal courts were to be involved. Based on extremely detailed and well-argued legal consultations, the Council of Ten voted on three successive decrees, going step by step further towards jurisdictionalism: in 1782, 1785, and 1788. Marianna’s divorzio claim in September 1785 took place in a moment of maximum legal tension. The first decree was valid, since the second (even stricter against women claimants) that shortly replaced it had just been suspended on the Patriarch of Venice’s demand, while a third round of forensic examinations was in progress. Did Marianna seize this window of opportunity? We have reasons to believe the very unique timing of her claim didn’t occur by chance – all the more since a certain conservative interpretation of canon law didn’t consider insults and limited maltreatment to be a sufficient reason for an unlimited divorce from bed and board. The 38-year-old patrician lady was well-informed and most probably very well-advised. Among the Chiefs of the Council of Ten in the late 1780s was a certain Prospero Valmarana (her uncle, who was among the signatories of her marriage contract). This means the successful uncle had been occupying very high positions in the state government – if not already in the very Council of Ten – for some time when his niece launched her legal action.

Interwoven Ecclesiastical and Civil Divorce Trials  103 7.4 The Separation Procedure According to the 1782 Decree: Proceedings and Gender Starting from the very day that she made her divorzio claim she was formally settled in a convent, as custom commanded, as her own brother asked, and as the 1782 decree explicitly confirmed. As that same 1782 decree stipulated, she went through a traditional ecclesiastical process yet was also supervised by the Council of Ten (which controlled, for instance, the wife’s establishment in the convent on the first day of the proceedings, and her release after the ecclesiastical sentence). But she also went through a civil trial concerning material points which started during the Church proceedings since tensions about the cost of her everyday life and the return of her garments from her husband’s house emerged as soon as she was placed in the convent. There were therefore two concomitant trials: the ecclesiastical trial, which lasted for three months, and the civil trial, (run in this case by the Avogaria di Comun, in charge of looking after the patriciate’s interests), which continued afterward for at least another four months. Each trial (the ecclesiastical one examining the spiritual aspect as well as the civil one dealing with the material aspects) had its own procedures, actors, logic, and stakes. The sources show that the litigating spouses knew how to make the best out of each proceeding. The two complementary – and somewhat rival – trials offer an interesting comparative ground in a perspective of legal anthropology, especially in terms of gender. The case of Marianna and Sebastiano suggests the lines of what could be a gendered approach to legal strategies and empowerment in a case of divorce. This is what I will examine now, focusing first on the wife’s claim and initiative (chiefly echoed by the Church trial), then on the husband’s strategy (better echoed in the civil proceedings). 7.5 The Wife’s Strategy: Voice, Virtue, and Wardrobe In the ecclesiastical court where the proceedings started, Marianna’s claim could be proven only by publica vox et fama. Thus, the Church’s enquiry is based on a list of alleged facts written by the claimant’s lawyer, to be checked by the cross-examination of the suggested witnesses. The full transcript of all 18 oral accounts could be found in the Archivio patriarcale, while Marianna’s actions in civil court can be traced in her husband’s stampa. The comparison between the two complementary sources enables the reconstruction of at least three facets of the process from the claimant wife’s side, in its social, anthropological, and legal dimensions. What strikes one’s attention first is the decisive importance of the claimant’s social network in a judicial system in which the truth was believed to emerge from the “public voice”. In Marianna’s case, what appears is a rich circle embracing a broad spectrum from the top to the bottom of the Venetian social scale (six patrician friends and relatives, two cittadini – the medical

104  Marie Malherbe doctor and the children’s preceptor – and 10 servants). We should remain careful though and keep in mind that this circle only mirrors a selected – and biased – part of her acquaintances, for legal purposes. The sex ratio (6 women and 12 men) is typically ill-representative since male witnesses were considered more reliable than female ones (Bellavitis 2012). The domestic nature of the enquiry causes the servants to be over-represented; the four patrician acquaintances from other families were certainly added to the list to confer “noble” weight to the accounts of the servitù. These 18 witnesses represent a part of her acquaintances which is yet biased by what one might call “judiciary credibility” in terms of gender and social status. From the witnesses’ accounts, supposed to echo the famous “public voice”, a deeply anthropological dimension emerges. The protagonists’ answers as well as the very wording of the questions clearly express what was implicitly expected from a wife – or a husband – in the patriciate and in general. In Venice as elsewhere, most claimants for divorzio were women; in that case it appears that the very first challenge was to neutralize the prejudice against women willing to leave the marital home out of “loose morality” and a so-called “extravagant passion for freedom”.8 Indeed the lawyers who worded the questions, as well as the witnesses who echoed them and developed their answers, never ceased to insist on her being “calm”, “quiet”, “docile”, “reserved”, “resigned to husband’s will”, “permanently caring about her children and family”. Interestingly, the coachman added that she has “always come back home at the agreed time”.9 This suggests a contrario how deeply anchored the prejudice could be in the (male) judges’ minds that a woman petitioning for divorce from bed and board from her husband would just be “hysterical“ (therefore the over insistence on her being quiet and obedient) and/or debauched (therefore the insistence on her being a docile wife and caring mother to be found at home at the agreed time). The legal dimension here is particularly telling. Success could not be taken for granted. According to our sources, Sebastiano’s maltreatment of his wife was sometimes of a subtle kind that was difficult to prove, and having already endured this husband for 18 years was paradoxically likely to weigh against separation. This border-line situation made the “public voice” all the more crucial, not only for the ecclesiastical decision proper. It also impacted the financial arrangement that would follow. The idea indeed was still that of the old 1374 law, as lawyer Marco Ferro summed up a mere four years before our proceedings in his comprehensive Venetian legal dictionary: “After divorce, the husband owes congruent alimony, if the divorce was not the wife’s fault (adultery) and if she lives honestly” (Ferro 1781, “Marito”, 245). Thanks to an appropriate selection of witnesses and choice of words in the submitted questionnaire, Marianna clearly won the battle of the publica vox. This had two legal consequences. The first and more visible consequence is the canonic one: Three months after the submission of her claim, the curia patriarcale validated her claim and declared the divorce from bed and board granted. Yet a second consequence followed, less immediate but just as

Interwoven Ecclesiastical and Civil Divorce Trials  105 crucial: On the financial front she stepped into the civil proceedings in a legal situation that should secure her full right to alimony. The delicate point though remained to know the amount. Throughout the three-month ecclesiastical proceedings, Marianna informed her husband about the costs of her everyday life at the convent and asked him to submit five long lists of her garments.10 One simple reason for this repeated claim for her garments could be the seasonal change from September to December, which meant she needed summer, fall, and winter clothes. My feeling though is that those claims were likely led by an intuition or far-sighted strategy foreseeing that Sebastiano would be more cooperative in the very first phase of the proceedings, as the case was still going through the ecclesiastical examination and close supervision of the Council of Ten. Sebastiano was quite helpful and did hand over the (many) required garments and objects. During that highly controlled and decisive phase it was indeed in his interest to behave as a good husband to discredit his wife’s accusations. Besides, the supervision of the ecclesiastical proceedings by the highest Council of Ten certainly motivated him to respect the rules (the cost of the wife’s stay in the convent during the proceedings was charged to the husband by law). His attitude changed completely after he lost the ecclesiastical proceedings and separation from bed and board was granted. 7.6 The Husband’s Defense: Paper, Proceedings, and Progeniture In contrast to his wife, 55-year-old bad-tempered Sebastiano Mocenigo had a lot to lose from the witnesses’ accounts. Described by all of them as “angry”, “irascible”, “hotheaded”, “barbarous”, “bitter”, “making scenes for insignificant details”, prone to “inappropriate outbursts”, “beating [servants] for no reason”, “laughing at anything”, publica vox approval and Church empathy didn’t quite belong to his legal assets. These reports sound so much in favor of his wife that one may be surprised to find them in the factum he produced for the judges of the civil court. A closer look reveals he recorded only some excerpts – which was not even lawful since each document reported in a stampa had to fully conform to the original (Gianesini 2003, Malherbe 2019). Yet even the little he selected did not advocate at all in his favor. Why did he document those interrogatory pages at all, at the cost of 11 extra pages and the risk of presenting his cause with a not-quite-lawful stampa? Would it just be to limit the taint on his reputation? The comparison between his stampa and the original records of the church archives enables one to trace his edits. It turns out that this careful selection was aimed at protecting him from the worse in terms of fault and therefore legal obligations. The accounts against his bad temper were not denied but filtered in order to point the focus on two crucial points: that his bad temper didn’t make him a scandalous rule breaker (he stays within the rules of Christianity and the nobility according to all the selected witnesses, and according to the doctor he “calms down quickly”); and that he was not guilty

106  Marie Malherbe of the physical ill-treatment of his wife. Indeed, in his factum Sebastiano reported only the account from the doctor which claimed that Marianna had been in need of medical care because she had some “melancholic obsession” (which suggests it was not because of injuries). This point is crucial indeed because otherwise her proving she was physically mistreated would legally enable her to ask for a separate estate: “If a husband ill-treats his wife for no reason, or exceeds the limits of a moderate correction, which matters more or less depending on the status, the wife can ask for a legal divorzio and for a separate estate” (Ferro 1781, “Marito”, II, 244). As contemporary lawyer Marco Ferro subtly underlines, the threshold of tolerable physical reprimand by the husband depended on the wife’s social status. This only confirms that to Sebastiano Mocenigo, Marianna Valmarana seems to have been worth little more than a servant; yet socially speaking, she belonged to the patriciate and proven ill-treatment could only grant her more financial rights. Presenting a carefully selected set of accounts from the ecclesiastical examination to be reported in the factum was probably his lawyer’s idea – or was validated by his lawyer, who knew the legal pitfalls to be avoided. It was borderline in terms of honesty yet apparently worth taking the risk. Did they assume the civil judges would be unlikely to care too much about the documents produced during the ecclesiastical trial – and/or bother to double-check them? Sebastiano and his lawyer subtly left a good deal of accounts against him, as if they had nothing to hide. At first sight this makes the whole report sound fair and faithful. Yet a closer look reveals they produced a very biased counter-narrative expurgated of all that could seriously question his staying within the borders of a “patricianly correct” behavior. Here is how they technically cut and softened the narrative in his favor. Eight witnesses out of ten were silenced – as if they had never existed: four female servants, three male servants, and the children’s preceptor. All of them clearly confirmed that Sebastiano regularly insulted and shouted at his wife with phrases “that were indecent and not appropriate to their noble character”.11 Their boatman and a female servant even dared to report the terms of several of his vulgar sentences.12 Some targeted her personally, others her family in general, and interestingly some applied to her dowry.13 The boatman added that Sebastiano was violent even to his closest kin and had expelled his own mother and brother to live out of his casa, which was strikingly contrary to the patrician kinship-and-housing system, in which the brothers lived together in their father’s casa – with their widowed mother as long as she didn’t remarry. Both servants reported that he threw objects at his wife or became so violent that someone had to intervene to protect her. Even in the ten reported accounts, the most disturbing questions of the questionnaire are simply left out, such as the episode when he urged her to take back her dowry and leave his casa, or when he cynically gave her a public announcement about a man who killed his wife as a present, an episode that seems to have deeply shocked the entire household.

Interwoven Ecclesiastical and Civil Divorce Trials  107 What appears to be the case is that he and his lawyer believed that if the “voices” were all against him, then the written account definitely had to be his asset. The creation of a stampa with his lawyer enabled them to counter the publica vox with alternative storytelling, made of partial information complemented with written records he alone possessed. The extent to which this undeniably peculiar man disliked the idea of his wife being divorced remains uncertain. What is sure is that his main goal once divorced was to keep the dowry and give her as little alimony as possible. On this financial front, producing a stampa enabled him to publish 30 pages of accurate accountancy and financial paperwork. The idea was to present his finances as being worse than what Marianna – and the judges – assumed they were, in order to reduce the due alimony. At the same time, he needed to prove that the alleged impoverishment was not his fault for he had been dealing well with the family resources, and most importantly with his wife’s dowry. Poor dealing with the wife’s dowry was not only considered to be eligible grounds for separation from bed and board but would also pave the way towards her getting back the full use of her dowry (Bellavitis 2011). The challenge was therefore to position his estate situation within a framework that consisted of showing that he did profitably invest his wife’s dowry but lost money for other reasons. This explains why he produced the accounts related to the profitable dowry investments which he had made and the comprehensive accountancy of his impoverished estate. In the context of the increasingly accelerating economic crisis of 18th century Venice, known to have devastated patrician estates, especially in the second half of the century, his accountancy is plausible (Pezzolo 2021).14 What is sure is that in the stampa the alleged impoverishment is pointedly dramatized by four Mount of Piety deposit coupons, indicating that he was in urgent need of money. All four being as late as February 1786, they could also be a somewhat theatrical measure for the purpose of the cause.15 Moreover, to counterbalance the importance of the dowry, he produced the comprehensive bill of all he had spent for his wife’s garments in 18 years. Interestingly, he ended up with a total of 2,000 ducats, which was exactly the sum she had received in garments upon her wedding (her dowry amounted to 30,000 ducats, 2,000 of which were given to her in movables).16 Behind this matching amount might lay the idea of “reciprocity” inherent to every marriage agreement (Bellavitis 2010). In Venice, there was no such thing as a counter-dowry; yet the bills he produced make it sound as if he had fully given his unspoken yet symbolically expected corresponding part – or at least that this specific moveable part of the dowry was no longer to be taken into account in the amount of her claimed alimony. All these accurate accounts and detailed figures came from his own accountancy and/or the family archives which he had at hand, and she hadn’t. A gender gulf opposing (his) written and (her) oral legal assets appears. Just as she won the battle of the public voice, he seems most likely to have won the battle of the written-record-based alimony dispute. Indeed, if the final civil court sentence couldn’t be found, the judicial

108  Marie Malherbe developments trackable by the factum suggest the negotiation was definitely moving towards his offer (alimony of 100 ducats instead of the 150 she had asked for). Could Marianna have been able to compete on that front? In February 1786, two months after she won the ecclesiastical trial, she discovered the existence of her husband’s printed judicial brief – since those were to be communicated to the counterpart at least eight days before the related judgment took place (Gianesini 2003). In a subsequent letter to the judge, she (or her solicitor) couldn’t help writing: “He pretends he can’t pay the due alimony yet freely spends on a voluminous print”. The costs were actually incomparable since Marianna was asking for a monthly 150 ducat alimony, while a 130page stampa cost around 24 ducats (Malherbe 2021, 381). The comparison was purely rhetorical. Yet the ironical tone probably betrays the shock this secret weapon of Sebastiano’s had caused to his wife and her solicitor, who certainly understood they were not playing on the same level. Sebastiano knew she didn’t have access to any accurate account of his business affairs. He took advantage of his superior assets on this ground, daring her and her lawyer to produce their own accounts if they wanted to contradict his – knowing perfectly well that it would be impossible for them to do so. This was not only cruel provocation: It was also the most efficient strategy to do exactly what he wanted: to waste time. Asking his wife to produce financial documents she apparently knew nothing about enabled Sebastiano to put her under new stress, during which he was assured to waste (which was to say “gain”) some more weeks. The delay strategy was indeed the best way to postpone the start date of whatever alimony was to be paid as much as possible – just as in some cases of contested illegitimate fatherhood (Malherbe 2020, 630–633). Every excuse was used to waste time: Sebastiano and his advisers show a very good command of all the possible tricks offered by the most sophisticated Venetian forensic proceedings and of every possible crafty legal maneuver. The financial dispute was fierce. The couple’s letters to each other, as well as the official claims they alternately filed to the civil court against each other, reveal a negotiation process that sounds like a trial of strength. Marianna didn’t give up. She demanded her alimony to be indexed not on the (impoverished or not impoverished) situation of his estate, but on her 30,000-ducat dowry. He replied with the excuse that he alone was in charge of the 6 children. Venetian records have long proven that women could be in charge of businesses and personally run property and sometimes considerable estates (Schiavon 2014). Marianna seems to have been uncomfortable on the accountancy ground. Her legal moves suggest she didn’t even try to venture on that front and fought for the only riches she really knew: her garments. She remembered every item, every present, every piece of cloth, and described them with impressive detail.17 He became more and more reluctant to give everything back and returned only what he wanted to return. She desperately asked for the missing pieces, recalling in particular those that were presents from her family. Over the course of seven months, she produced an

Interwoven Ecclesiastical and Civil Divorce Trials  109 impressive number of very accurate garment lists. While he proved he wouldn’t be able to pay more than a monthly 100 ducats (she asked for 150) and she understood she was losing the alimony battle, she kept fighting till the end in order to at least be sure that she had her own possessions returned to her: her own remaining dresses. Even there, he answered that “they have been adapted to your daughters”.18 7.7 Conclusions The Valmarana v. Mocenigo “divorzio” shows the multifaceted dimensions of a divorce and consequent separation of property case in the Venetian patriciate. The story of this couple echoes the history of an entire ruling class under growing pressure in the last decades of the Republic. The very coherence of the “patrician system” had been destabilized by the unprecedented economic crisis of the late 18th century; the upper patriciate in particular found itself more and more dramatically divided by a series of inner separation lines which this story only confirms: old v. new patricians (Hunecke 1995, Raines 2006), discipline v. disobedience to the “fathers’ law” (Cozzi 2000), curialism v. jurisdictionalism (Cozzi 1981). It takes place in a strategic momentum of sudden intense legislative debate and activity. Behind the apparently merely legal-political opposition between jurisdictionalists (wishing more state control on the matter in general) and curialists (in favor of exclusive church competence) lies a deeper socialanthropological antagonism opposing a group of conservative and politically active patricians (willing to secure family alliances against individual – mostly female – whims) to various protagonists (clergymen and laymen) seeing the church court as an irreplaceable safeguard against domestic abuses. The deeper key question is to what extent can matrimonial suffering be required of (patrician) married women in the name of state order and social peace? In other words, to what extent can a (patrician) woman’s well-being be sacrificed for family strategies?19 Marianna Valmarana’s legal action has to be understood as deeply interwoven in that very tense context. It was launched in September 1785, less than a month after a new decree (voted on July 27, on a stricter jurisdictionalist line) was narrowly suspended (in August) thanks to a caution letter written by Giovanelli, the Patriarch of Venice, to the Council of Ten. Marianna and her advisers manifestly seized this window of opportunity before the situation could get worse or impossible. But there is more: Reciprocally, I think it very likely that this story impacted further decrees. Firstly, as recalled earlier, her uncle Prospero Valmarana was among the members of the Council of Ten in 1788, when the third and last decree was passed. Secondly, the forensic examinations prior to the 1788 decree and/or the decree itself came up with new points which none of the previous decrees had considered. The two experts commissioned by the Council of Ten suggested for instance that the cases should be debated with maximum secrecy

110  Marie Malherbe and among other measures without stampe (Cozzi 1981, 351). The mention of this detail suggests that at least one previous case was remembered to have lacked discretion because of the existence of a stampa. As for the very decree, it contains a whole new casuistic about what should be done with divorced women in terms of accommodation, interestingly contemplating differentiated possibilities depending on the status (Cozzi 1981, 356). Such details make it difficult not to think of the Valmarana v. Mocenigo case as a possible precedent with a direct bearing on subsequent measures. This example also reveals how intertwined ecclesiastical and civil proceedings were, since the alleged reasons to obtain – or avoid – a divorce sentence (carried out by the ecclesiastical court) could also impact the subsequent civil trial regarding the financial agreements. In this specific case, an ecclesiastical trial that seems to have been relatively easy to win for the claimant was followed by a fierce financial dispute. Both trials reveal gender-related strategies. The claiming wife mastered and won the ecclesiastical part based on “public voice”, social know-how, and probably some efficient networking (the possibility that she also benefitted from ecclesiastical support on her mother’s side, the Priuli family being historically bound to the Roman curia, should not be excluded). It is hard to quantify what part of her success was due to political and family support and what part to her own skills. In any case her legal action was daring, required courage and risk taking, and would have been unthinkable could she not count on her impeccable behavior for 18 years. At first sight, obtaining the divorce she asked for in her circumstances looks like a sign of noticeable women’s empowerment. Yet who really won in the end? Marianna obtained the right to stop living under the same roof as her husband whose very name had ended up causing her anxiety. Yet even once divorced, she stayed under his legal authority, and he kept her dowry. She got a 100-ducat alimony (4% of her 30,000-ducat dowry per year), instead of the 150 she had asked for (which would have been 6% of her dowry). The evaluation of the lifestyle it granted her would depend on whether she went back to her father’s casa to live (her father was still alive) or had to pay for everything on her own (accommodation and servants) – information we do not have. Yet what is sure is that she had to renounce living with her children, who were then of boarding school age. We can assume this was the main reason why she had endured her husband for 18 years – and other women in comparable situations probably all their lives. In spite of her being granted a divorce of bed and board and to some extent a separation of property, can Marianna Valmarana’s story be interpreted as a success story? Compared to many unrecorded women in similar situations having had to endure hell till the end of their lives, it can be labeled a success. Yet what comes out of the ecclesiastical trial is a very unhappily married woman who patiently endured humiliating vexation and ill-treatment for 18 years. What comes out of the civil process is a divorced woman in a financial situation that can be interpreted in several ways. On the one hand, she seems to have secured a comfortable 100 ducat monthly alimony – a sum

Interwoven Ecclesiastical and Civil Divorce Trials  111 many Venetians would have liked to get in a year. On the other hand, she wouldn’t be given back her large dowry, which would stay in her husband’s hands, a husband who perfectly knows how to confuse her with subtle accounting maneuvers. In the context of a dramatically worsening economic crisis having already ruined dozens of patrician families, Marianna Valmarana sounds like a woman who can’t secure her property as much as she would wish to and is reduced to repeatedly asking for her clothing. Her anxious listing of the garments she remembers from her married life in endless pages in order to get them back from a cynical husband betrays what can be seen as an interesting swansong of patrician female fashion in the last decades of the Republic. It can also be seen as the desperate cry of a woman who feels “naked”: left without a home, without her children, without a clear and commonly acknowledged status and respectability. The symbol is not overinterpreted: Clothing issues were precisely one of the very telling mirrors of the growing confusion within Venetian society in the late 18th century (Plebani 2008). 39-year-old Marianna’s obsession with her garments as her only remaining riches, if not as her only remaining identity, invites one to nuance the appreciation of her “success”. It tells something about her self-perception, as a woman who cannot remarry yet widely rejects the perspective of living the rest of her life in a religious uniform. It therefore asks the key question of the overall “value” of a woman once separated (Bellavitis and Martinat 2022). It suggests that whatever the apparent success of a separation claim, something like a social taint was associated with the divorziata, or separated woman. As other studies on separated people have shown (Fleßenkämper, this volume), this case study confirms the importance of trying to keep an eye, archives permitting, on the mid- or long-term situation in order to evaluate the financial and non-financial consequences of any kind of “de-marriage” on women even after the judicial success of a cause. Archival Sources Biblioteca Civile Vincenzo Joppi di Udine, stampe ad lites. Archivio patriarcale di Venezia, Sezione antica, filciae causarum. Notes 1 Biblioteca Civile Vincenzo Joppi di Udine (hereafter BCU), stampe ad lites, no. 442. I would like to thank Dr. Gianesini for his help in accessing this source. 2 Archivio patriarcale di Venezia (hereafter APV), Sezione antica (hereafter SA), filciae causarum (hereafter fc], 155. 3 ASV, Genealogie Barbaro, casato Mocenigo. The doges came from the Mocenigo branches living in the San Stae and San Samuele palaces by the Grand Canal; Sebastiano belonged to the branch living in the parish Angelo Raffaele. 4 APV, SA, fc, b.155, estesa, capo 5. Interrogated on this point, the family medical doctor (an extremely cautious and “politically correct’ witness) says Sebastiano Mocenigo was “disgustato” (literally ‘disgusted’) by the Valmarana family, and expresses his “disgusto” several times.

112  Marie Malherbe 5 APV, SA, fc, b.155, estesa, capo 1. The coincidence of the dramatic worsening of insults and mistreatments with his father’s death is the very first point out of sixteen points to be mentioned by the claimant wife. 6 APV, AS, fc, b.155, account of Lunardo and Benetto Valmarana. On the lasting regulating authority of fathers over their married daughters in the Venetian patriciate, interesting similarities are to be found with the already studied case of 19th-century Greece (Doxiadis 2020). 7 ASV, Maggior Consiglio, 1374. 8 The phrase was used by one of the jurisdictionalists who was asked for expertise in the 1780s, probably made particularly suspicious by the libertine context of the late 18th century Venice (Cozzi 1981). 9 BCU, Stampe ad lites, no. 442, 65. 10 On 19 September, 28 September, 4 October, 14 and 20 December. 11 APV, SA, fc, b.155, witnesses no. 11 (Giovanni Pezzotti) and no. 17 (Rosa). The court clerk recorded only the first letter of the vulgar words. 12 A female servant describes those phrases as “sporche” (dirty), ibid. witness no. 14 (Luisa Monis). 13 “con la sua dote di m…”, ibid., witness no. 11 (boatman Giovanni Pezzotti). 14 I thank here Luciano Pezzolo for his precious help in deciphering Sebastiano Mocenigo’s estate accountancy and evaluating its credibility in the late 18th Venetian context. 15 BCU, Stampe ad lites, no. 442, 111–112. Indeed, by that date, the financial dispute had already been raging for five months. 16 Ibid., 5. 17 Feminine attention to objects was studied in the case of Rome (Ago 2006). 18 BCU, stampe ad lites, no. 442, 101. 19 As contemporary lawyer Marco Ferro wrote, the limit of tolerable ill-treatment by a husband varied depending on the wife’s status. The dialectics between women’s matrimonial well-being and state order is definitely more tangible in the patrician case, since family alliances have not only economic stakes, as in any social group, but also highly political ones. Yet, as it often was in Venice, even when a law was designed primarily for patricians, it ended up applying to other social groups.

References Ago, Renata. 2006. Il gusto delle cose. Una storia degli oggetti nella Roma del Seicento. Roma: Donzelli. Bellavitis, Anna. 2011. “Mitgift in Venedig zwischen Mittelalter und Frühen Neuzeit.” L´Homme. Zeitschrift für feministische Geschichtswissenschaft, 22, 23–37. Bellavitis, Anna. 2012. “Dare credito, fiducia, responsabilità alle donne (Venezia, secolo XVI).” In Dare credito alle donne Presenze femminili nell’economia tra medioevo ed età moderna, Giovanna Petti Balbi and Paola Guglielmotti (eds.), 259–267. Asti: Centro Studi Renato Bordone sui Lombardi, sul credito e sulla banca. Bellavitis, Anna and Monica Martinat (eds.). 2022. (In)égalité, (In)justice. La valeur des femmes, Genesis, 2. Cowan, Alexander. 2011. “Seeing is Believing: Urban Gossip and the Balcony in Early Modern Venice.” Gender & History, 23, 721–738. Cozzi, Gaetano. 1981. “Note e documenti sulla questione del ‘divorzio’ a Venezia (1782–1788).” Annali dell’Istituto storico italo-germanico di Trento, VII, 275–360. Cozzi, Gaetano. 2000. “Padri, figli e matrimoni clandestini (metà secolo XVI- metà secolo 18).” In La società veneta e il suo diritto, saggi su questioni matrimoniali,

Interwoven Ecclesiastical and Civil Divorce Trials  113 giustizia penale, politica del diritto, sopravvivenza del diritto veneto nell’Ottocento, Gaetano Cozzi (ed.), 19–64. Venice: Fondazione Giorgio Cini, Marsilio. De Biase, Luca. 1982. “Vincoli nuziali ed extra-matrimoniali nel patriziato veneziano in epoca goldoniana: i sentimenti, gli interessi.” Studi trentini di scienze storiche, rivista della società per gli studi trentini, 61:4, 319–330. Doxiadis, Evdoxios. 2020. “Fathers and Married Daughters in Nineteenth-century Greece.” In Open Kinship? Social and Legal Practices from Gender Perspectives (1450–1900), Margareth Lanzinger and Benedetta Borello (eds.), Quaderni Sorici, no. 165, 2021–3, 791–808. Bologna: Il Mulino. Ferro, Marco. 1781 (vol. I)–1981 (vol. II). Dizionario del diritto commne e veneto. Venice: Andrea Santini. Gianesini, Raffaele. 2003. Le Stampe ad Lites della Biblioteca Civica Vincenzo Joppi di Udine. Florence: Leo S. Olschki. Griesebner, Andrea. 2020. “Marriage jurisdiction in the Habsburg monarchy: Transition from ecclesiastical to secular courts and gender-related implications.” In Séparations et divorces. Désunions matrimoniales dans les sociétés européennes, XVIIe-XXe siècle, Sandra Brée and Guy Brunet (eds.), Annales de démographie historique 2020/2, no. 140, 21–51. Paris: Belin. Hunecke, Volker. 1995. Der venezianische Adel am Ende der Republik 1646–1797. Demographie, Familie, Haushalt. Tübingen: Max Niemeyr. Korpiola, Mia (ed.). 2019. Legal Literacy in Premodern European Societies. London: Palgrave MacMillan. Malherbe, Marie. 2019. “Les factums imprimés à venise en justice civile et leurs enjeux politiques, de la République à l’ère napoléonienne (1718–1815).” In Plaidoyers judiciaires: étude, objet, action, edited by Claire Châtelain and Ines Gomez, Revue d’histoire des facultés de droit et de la culture juridique, no. 39, 115–133. Abbeville: F. Paillart. Malherbe, Marie. 2020. “Le jeu de la pourpre et du bâtard. Les enfants illégitimes de patriciens face à l’aristocratie vénitienne à travers cinq procès en justice civile au dernier siècle de la République (1694–1780).” PhD. diss., University of Rouen – University of Padua. Malherbe, Marie. 2021. “Naissance et essor d’une ‘micro-édition’ spécialisée au 18e siècle: les stampe dal foro de la République de Venise.” Histoire et Civilisation du Livre, XVII, 367–385. Pezzolo, Luciano. 2021. “Essere e diventare ricchi.” In Popolazioni e società delle Venezie, Irene Barbiera, Gianpiero Dalla Zuanna, and Andrea Zannini (eds.), 345– 364. Rome: Viella. Plebani, Tiziana. 2008. “La sociabilità nobiliare veneziana nel secondo Settecento e i problemi dell’abigliamento.” In Sociabilità aristocratica in età moderna, Roberto Bizzocchi and Arturo Pacini (eds.), 87–104. Pise: Plus. Plebani, Tiziana. 2011. “Matrimoni segreti a Venezia tra XVII e 18 secolo: il pericoloso suismo.” In La justice des familles. Autour de la transmission des biens, des savoirs et des pouvoirs (Europe, Nouveau Monde, XIIe-XIXe siècles) Anna Bellavitis and Isabelle Chabot (eds.), 69–89. Rome: École française de Rome. Raines, Dorit. 2006. L’invention du mythe aristocratique. L’image de soi du patriciat vénitien au temps de la Sérénissime. Venice: Istituto Veneto di Scienze, Lettere ed Arti. Schiavon, Alessandra (ed.). 2014. I meriti delle donne. Profili di arte e storia al feminile dai documenti dell’Archivio di Stato di Venezia (XV°-18° s.), exhibition catalog. Trieste: Edizioni Universitarie di Trieste.

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8 Divorce during the Concordat at the Marriage Courts of Prague and Trent (1857–1868) Zuzana Pavelková Čevelová and Jessica Reich

This chapter deals with various marital conflicts and divorces from bed and board using examples from the sources of two Roman Catholic matrimonial courts situated in the Archdiocese of Prague in Bohemia1 and the Diocese of Trent in Trentino2 in the 1850s and 1860s. Both territories were part of the Habsburg monarchy until its dissolution in 1918 and were therefore subject to the Concordat concluded with the Holy See in 1855. The aim of the chapter is to analyze the work of these matrimonial courts and to investigate not only the similarities but also the differences in court practice. Although they were bound by the same statutory provisions, the judges had the latitude of interpretation, which was used differently by the two courts. The comparatively good source material from these two marriage courts makes it possible to compare the court practice. After a brief overview of the legislation, we will present some case studies. We will provide some quantitative data and show examples of typical marital disputes and the reasons for their origin. In the conclusion, we summarize the similarities and differences to be found in the methods of dealing with marital conflicts in Prague and Trent.3 8.1 The Concordat and Marriage Regulations On 18 August 1855, Emperor Franz Joseph and Pope Pius IX signed the Concordat: a decisive moment that redefined relations between the two institutions. The Austrian empire abandoned its religious policy based on 18th-century Josephinism and recognized and restored the prerogatives of the Holy See it had been deprived of in the previous century. Among the matters that returned to ecclesiastical jurisdiction, a prominent place was reserved for marriage. In fact, Article 10 of the Concordat provided that matrimonial affairs were to be made “according to the regulations of the holy canon laws and, namely, in accordance with the orders of the Council of Trent” (GB 1855, 641–642). The prescriptions stipulated in Article 10, however, did not come into force with the rest of the Concordat in November 1855. It took another year, namely until 8 October 1856, until the promulgation of the Imperial Patent and of the two annexes – “Law on the Marriage of Catholics in the Austrian Empire” (LCEA) and “Order for the Ecclesiastical DOI: 10.4324/9781003334552-9

116  Zuzana Pavelková Čevelová and Jessica Reich Courts of the Austrian Empire” (OEA) – reorganized marriage jurisdiction throughout the Habsburg Empire, with the sole exception of Hungary and its annexed territories (Gabba 1859, 7). The first article of the Patent stipulated that the ecclesiastical matrimonial courts and the aforementioned regulations would come into force on 1 January 1857. The implementation required the establishment of matrimonial courts in every diocese or the renewal of jurisdiction of the former diocesan courts, which, for example, were active in Bohemia until 1783 and in Trent until 1803, the year in which the Episcopal Principality of Trent was officially dissolved and secularized by the Habsburgs. In the diocese of Trent, the court was established by the Bishop Giovanni Nepomuceno de Tschiderer, who was the Bishop of Trent from 1834 to 1860, and in the diocese of Prague by Friedrich Cardinal von Schwarzenberg, Archbishop of Prague from 1850 to 1885. With the transfer of jurisdiction in matrimonial matters back to the Catholic Church and canon law, the ABGB (General Civil Law Code) of 1811 and its rules for the divorce from bed and board were no longer valid. Both ecclesiastical and civil law considered a Catholic marriage to be an indissoluble union. The spouses could apply for a divorce from bed and board but were forbidden to dissolve the conjugal union on their own (§ 93 ABGB, § 41 LCEA). However, the ABGB, in the wake of the Josephinian Marriage Patent (1783), provided two options for Catholic couples: the uncontested and the contested divorce from bed and board. The uncontested option was denied in the 1856 Patent with only one exception, if one of the spouses joined a religious order or became a member of the clergy (§ 206 OEA). However, divorce could still be granted at the request of one spouse provided that he or she could present legitimate reasons. In contrast to the secular courts, the marriage courts could now again limit the duration of the separation in terms of time.4 The second appendix outlined the legitimate reasons. An unlimited divorce from bed and board was to be granted only in the case of adultery. However, if adultery was committed because it was ordered by the other spouse, if both parties were guilty of this sin, or if the innocent party expressly or tacitly expressed their approval for this behavior, this right was forfeited (§ 207 OEA). The abandonment of the Christian faith; the risk of being induced by the spouse to commit apostasy, crimes, or vices; danger to life and health; mistreatment or persecution which threatened the health or the life of the spouse; severe and long-lasting mortification; the presence of a contagious physical illness; malicious abandonment; and damage to property or honor qualified for only a temporary separation from bed and board (§§ 207–210 OEA). These reasons were already to be found in a similar form in the ABGB, which listed the following reasons as legitimate for a contested divorce from bed and board: adultery; crime; malicious abandonment; disorderly conduct causing damage to the spouse’s property or the good morals of the family; dangerous deceit; serious mistreatment; sensitive afflictions repeated over

Divorce during the Concordat  117 time (i.e., obvious psychological and moral damage occurring over a long and notable time) and contagious bodily defects (§ 109). This does not come as a surprise since the divorce law of the ABGB is strongly influenced by canon law. As in the ABGB, spouses had the right to apply for their own separate domicile during the proceedings (§ 107 ABGB, § 60 LCEA). The importance attributed to the parish priest in divorce proceedings was also shared. Both laws required spouses to contact the local priest before filing for divorce. He had to confirm that three attempts at reconciliation had been made but had failed (§§ 104–107 ABGB, §§ 211, 213 OEA). The fact that one had to turn to one’s parish priest even in the context of civil marriage jurisdiction shows the acceptance of a centuries-old Catholic practice in civil marriage law that assigns the clergy a crucial role in conflict management. The second appendix stipulated that the first step for the person seeking a divorce or separation from bed and board was to contact his or her parish priest. The new ecclesiastical administration of matrimonial matters provided for greater involvement of local clergy in matrimonial matters. In the diocese of Trent, it resumed a condition that had already started to emerge at the end of the 18th century (Sighel 1992–1993, 22–27, 35–37). It can be assumed that a need for practicality dominated: assigning some procedural steps to the priest would have eliminated the problem of geographic distance between the location of the ecclesiastical court and the parties’ residence in an area with difficult environmental conditions.5 The possibility of turning to one’s own priest, or at most to the clerical dean of the area, thus allowed people easier access to the judicial process. The first applications were actually received in both ecclesiastical marriage courts in the first days of 1857. It is therefore clear that this new legal situation was known to the people in every parish. It is assumed that the diocese itself issued circulars which the individual priests read in the church on Sunday. This could explain the significant number of spouses’ requests to discuss their dispute already in the early months of 1857. Requests came from all over the diocese. Differences between urban and rural areas were not significant. The spouses’ social background and financial situation also do not appear to have been important either. Most petitioners were from the lower middle class; proceedings involving aristocrats or wealthy families were in the minority. We attribute this to the possibility of not only obtaining amnesty of court fees but also starting the proceedings with one’s own priest: two factors that resulted in social and regional origin not being a discriminatory factor in terms of access to matrimonial courts. Both in Bohemia and Trentino, the priests were the authority in matters of faith, and at the same time they were public servants. The indispensable role of the parish priest is practically the same in both dioceses: in divorce proceedings, the judicial tasks entrusted to the local clergy were numerous, starting with the three summons, continuing with the registration of the plaintiff’s claim; the collection of the defendant’s response and the depositions of witnesses; the transmission of the documents to the court; the communication of

118  Zuzana Pavelková Čevelová and Jessica Reich a personal opinion on the matter; the description of the reputation and conduct of the parties involved in the dispute; and the provision of any certificates of poverty. The presence of the clergy in the matrimonial proceedings, however, was not limited or exclusive to the bureaucratic formalities, although this appears from the documentation as the most evident aspect of their work. They played a fundamental role, especially in the work of mediation that they were able to promote behind the scenes. The parish priests were often the first institutional figures to learn, often through the sacrament of confession, of the difficulties that arose in local families. They were, therefore, the privileged interlocutors of people, especially for women (Prosperi 1996, 522). They must be considered as the real leaders of the proceedings both inside and outside the courtroom. In order to prepare for divorce proceedings, the spouse seeking divorce had to visit the local priest, who had to invite the couple to make three attempts at reconciliation, the second and third attempts following with 8-day intervals. As usual, the marriage court could not initiate proceedings ex officio. The judicial proceedings could still be initiated only at the request of one of the spouses. When the three attempts at reconciliation were unsuccessful (which was quite often the case), the priest sent a divorce application to the court, either directly or through the clerical dean’s office and the divorce proceedings would start. In any case, spouses who lodged their complaints with the local priest also had to appear at the ecclesiastical court of marriage. Their statement was recorded by a clerk in the court office. With the initiation of divorce proceedings, the spouses had the possibility to request a separate domicile and provisional maintenance. If the marriage court decided in favor of the request, it was required to inform the secular court of its decision. The secular court, in turn, decided upon the conditions and the amount of provisional maintenance to be paid. The proceedings consisted of two phases: the first, the informative process, in which the parties were heard in order to clarify the facts of the case; and the second, the evidence proceedings, in which the testimony of witnesses played an important role. After the conclusion of the evidence proceedings, the final decision was made based on a fundamental document: the “presentation”. The judge, who had followed the events in the trial in question, prepared a summary of the circumstances elicited and the transcripts collected. His presentation was thus “a kind of narrative” of the highlights of the trial, concluded by his opinion and a proposed verdict, which was justified with the quotation of legal norms. This then had to be voted on. If there was no majority among the members of the marriage forum, the judgment had to be adjusted. In the case of the marriage court of Trent, in most situations, the opinion of the judge who drafted the presentation became a verdict by majority or unanimous vote. Unfortunately, the documents did not mention the names of those who opposed or opted for alternatives, so it is not possible to discern any discussions or the opinions of each judge. The same applies to the marriage court of Prague.

Divorce during the Concordat  119 8.2 Data from the Archival Collections of Trent and Prague Between 1857 and 1868, the Diocese of Trent was part of the County of Tyrol. It comprised 35 deaneries, of which 25 were predominantly Italianspeaking and 10 were predominantly German-speaking. Much larger and more populous was the territory of the Archdiocese of Prague: in the second half of the 19th century, the Prague archdiocese encompassed a great part of Bohemia. In Bohemia there were other dioceses: České Budějovice (Budweis), Litoměřice (Leitmeritz), and Hradec Králové (Königgrätz) (Kryštůfek 1898, 196–198). In the second half of the 19th century, German and Czech were spoken in Bohemia, both languages intertwined. Both in the case of Trent and Prague, the ecclesiastical court records used the languages according to the language spoken by the applicants. While in the Prague court the judgments are often drafted in both languages, in Trent they were written either in Italian or in German. In the case of Trent, the documents drawn up by or for the marriage court are still stored in the collection “Ecclesiastical Marriage Court” (1857–1907), while the Prague court trials are located in an archival collection kept in the National Archives in Prague, which is part of an extensive collection of archival sources on the history of the Prague Archbishopric from the Middle Ages to the recent past. In the Czech Republic, church history sources are, with a few exceptions, mainly kept in the state archives. In Bohemia and Trent three identical types of disputes can be identified: proceedings for divorce from bed and board; disputes between the fiancées (sponsalia proceedings) and applications for the annulment of the marriage. In the preserved sources of the Prague marriage court there are also some cases concerning disputes over non-fulfillment of obligations arising from the conclusion of the marriage (maintenance of the wife and children, etc.), mostly connected with an unauthorized separation of the husband (Pavelková Čevelová 2015a, 2015b). However, cases in which an impedimentum criminis is suspected are found only in the sources of the Trent marriage court. These proceedings are about brides and grooms who wished to get married and encountered the following obstacles: sexual practices (adultery) or promise of marriage while the former spouse was still alive or the killing of the deceased spouse. In the Prague Marriage Court, we find some documents, mainly from appeal proceedings, where these legal issues are discussed with the Viennese Marriage Court (Laurin 1863, 1:33–46). Considering the different cases in quantitative terms, in the Italianspeaking deaneries the sponsalia procedures predominate. In the period between 1857 and 1868, there were a total of 310 sponsalia cases, followed in second place by divorce cases with 167 proceedings, in third place, with seven disputes, by proceedings for the annulment of marriage and finally three cases of presumed impedimentum criminis.6 This trend is not peculiar to the 19th century but comes from a tendency already found in the early modern period in the Diocese of Trent: the studies carried out on the documentation of the other archival collections, containing the matrimonial

120  Zuzana Pavelková Čevelová and Jessica Reich proceedings from 1632 to 1802, confirm this circumstance, albeit more marked (Ciappelli 2006, 87–89; Faoro 2006, 208–209). The divorce proceedings of the marriage courts of Trent and Prague are mainly based on the grounds mentioned in the aforementioned second annex: Adultery, abuse, endangerment of life and health, and injury to property and honor. Other grounds which are to be found are malicious abandonment (in the case of Prague this request was typically given by men) and contagious physical illness. We have yet to find a case in either court in which abandonment of the Christian faith was listed as the grounds for separation. It should be noted that in the majority of the divorce cases, women acted as the initiators of the claim. In the diocese of Trent there are 108 separation disputes initiated by wives, compared with 59 initiated by husbands. Although the difference between the sexes is less clear than in other studies, it fits into the trend that historiography has now established (Di Simplicio 1994, 325; Ferraro 1995, 497; Seymour 2006, 67; La Rocca 2009, 251; Forster 2010, 114; Griesebner 2016; Borgione 2017, 91). In the Archdiocese of Prague we note this tendency too, although not all cases of divorce proceedings in the period from 1857–1867 have been analyzed yet. In 21 cases from the first half of the year 1857, we can see that most of the lawsuits were filed by women (14 cases), while six lawsuits were submitted by men. In one case, the priest filed a suit on his initiative.7 Out of 167 divorce proceedings in the Italian part of the Diocese of Trent, 59 were suddenly interrupted, mainly already during the investigative proceedings. Twenty-nine proceedings were terminated after reconciliation of the parties. Of the cases decided by judgment, the court ruled in favor of the couple’s reunification in 25 cases because there was insufficient evidence to support separation or divorce. In 46 cases the court approved a separation: in 38 cases it limited the separation to a certain period of time, and in eight cases it divorced the couple from bed and board.8 In the years 1856–1867, the ecclesiastical marriage court in Prague dealt with 1,064 divorce proceedings, of which only half were cases of first instance. Furthermore, only about 270 cases were completed and ended with a verdict. Only about 180 married couples achieved a divorce or a separation from bed and board. Specifically, 159 couples were separated from bed and board for only a limited time. Only 20 couples were divorced (Borový 1863, 222–223). For the marriage courts in Vienna and St. Pölten, first results are available for the months of October to December 1867. They show a similar picture, both in terms of the gender of the plaintiff spouse and the outcome of the divorce proceedings. In the last three months of its jurisdiction 42 women and 18 men filed for divorce from bed and board. In eight cases the outcome is not known, in three cases the complaint was dismissed by the court, in five cases the couple withdrew the dispute and in other 12 cases the counselors ordered the couple to live together peacefully. Only 32 cases ended with a separation verdict, of which only five couples were divorced from bed and board (Griesebner 2016).

Divorce during the Concordat  121 Unfortunately, we know very little about the settlement of separation and divorce consequences since the Concordat had left the regulation of these consequences to the secular courts. This meant that the ecclesiastical marriage court ruled only on the validity or duration of the marriage but did not have the competence to decide on other matters of the marriage, such as the custody of children or the separation of the property. The only exception was if both parties agreed that the ecclesiastical courts could decide on disputes of property arising from the declaration of separation, divorce, or annulment (§ 64 LCEA, § 244 OEA). However, from the divorce trials from the marriage courts of Trent and Prague it appears that none of the couples concerned made use of this option.9 Decisions on civil law effects were still subject to the ABGB and were decided in accordance with the previously issued ecclesiastical judgment. The judgment of the marriage court had to make clear who was to blame for the separation or divorce (§ 61 OEA), since, depending on the fault, different civil consequences would arise. The fault could be assigned only to the husband, only to the wife or to both spouses, and in the latter case the share of the fault also had to be specified. Moreover, if it appeared from the court documents that the father or mother was unfit to care for the children because of “moral defects”, the judges were to make a note of this in the judgment (§ 238 OEA). The trial concerning Amalia Marzadro is one of the few Trentino cases in which this issue is involved: in the temporary separation judgment the woman also obtained custody of the children, as husband Basilio Maffei was deemed unable to provide for the upbringing of the offspring.10 Elisabeth Sticha petitioned the Prague marriage court for divorce from bed and board from her husband Johann Stich, an alcoholic. The court specifically asked: “Why exactly was the husband identified as incapable of raising children?” The temporary separation judgment finally determined explicitly to place the children in the care of their mother.11 If one of the spouses wanted a separate domicile during the proceedings, the cooperation of both authorities was required: on the grounds that they feared cohabitation, wives could apply to the church court for a temporary interruption of cohabitation. Once it was confirmed that the danger existed, she had to go to the civil court so that her husband had to pay for her apartment and maintenance during this time. There are several trials stored in the archival fund in Trent in which wives asked for an “interim separation”, as evidenced by the case of Rachele Zeni, who obtained it. The ecclesiastical court ascertained that her husband Pietro Moreletti was addicted to alcohol “as well as too notorious the exaltation of his mind that could also be qualified for a fixation or rather jealous madness against his poor wife”.12 In the Prague archdiocese too, in some cases, requests for approval of separate housing are made during ongoing court proceedings. Wife Barbora Nechvatal filed a lawsuit for divorce from bed and board due to mental and physical abuse by her husband Josef Nechvatal, who was not labeled an alcoholic, but did not show any interest in his wife, although paradoxically he gave her money

122  Zuzana Pavelková Čevelová and Jessica Reich to live on. Barbora applied for “independent living”, not because of an imminent threat, but probably driven by the assumption that the marriage would be divorced anyway.13 Except for the above cases, the court judgments from Trent and Prague contain no other information on civil consequences.14 8.3 Case Studies in Prague and Trent When examining individual matrimonial cases before the matrimonial courts in Prague and Trent, many similarities can be found. The arguments for filing for divorce also illustrate the different ideas about what was expected from a marriage. We can mention here once again the case of Barbora and Josef Nechvatal from the Archdiocese of Prague. When Barbora Nechvatal filed for divorce from bed and board, she was 38 years old, married for 11 years, and her marriage had remained childless.15 Her husband Josef Nechvatal made his living as a door-to-door salesman in Prague. In attempts at reconciliation with the local priest, Joseph had admitted to repeated infidelities, although he denied having an ongoing extramarital affair. The couple had reconciled three times before the priest. When the priest reminded the couple of the marital duties, which also included having sex with each other, the talk was so demanding for Barbora, that she begged him to stop. Four months later she finally filed for divorce, which the pastor supported with the argument that he assumed that the husband would leave Barbora sooner or later anyway. At the court Barbora cited violence and her husband’s lack of interest in living together as reasons for the divorce. According to her, the husband came home late, did not care about her, and was actually not interested in her life at all. There were quarrels and violence between the couple, which neither of them denied. Even during a closer interview in court, Josef did not actually deny anything that his wife said. It even turned out that Josef had persuaded Barbora to file for divorce, although she probably did not want it herself. She said in court that she wished everything had remained as it had been at the beginning of their marriage (i.e., without conflicts). The marriage court did not see sufficient grounds for divorce and dismissed the divorce petition. The “presentation” of Judge Giuseppe Planer of the Marriage Court in Trent shows that the marriage courts did have some leeway. Elisabetta Paris accused her husband Bortolo Torresani of mistreatment and threats, but these were not proven and therefore there were insufficient reasons to grant separation. For the judge, however, there were signs of antipathy and constant quarrels between the couple, which made it impossible for them to live together without danger to body and soul and without public scandal. Formally, however, antipathy and quarrels did not constitute a valid reason for granting separation, since “they do not appear in Article 208 as legitimate causes”. Judge Planer pointed out that according to great canonists, such as Tomás Sánchez (1550–1610), the causes listed in the legislation for granting separation were not to be considered exhaustive, but rather illustrative. Citing canon law, Planer proposed a ruling that provided for “temporary

Divorce during the Concordat  123 separation under Article 208 because of danger to body and soul ob insuperabilem antipathiam et continuas rissas”. His proposed sentence met with the approval of his colleagues.16 Although a variety of reasons usually come together, lawsuits that can prove violence by the husband seem to have been the most successful at the marriage court in Prague. The marriage of Barbora and Vaclav Kindl, for example, was divorced due to the violence by the husband, which began very soon after the wedding and was aimed not only at Barbora, but also at her child from her first marriage, who was not even two years old. In this case, the court upheld the divorce unequivocally without setting a precise time limit for the resumption of cohabitation.17 The Trent Marriage Court was also faced with numerous claims of spousal violence. Examination of the documents reveals that the judges assessed the violence according to the standard parameters of canon law (severity, frequency, and provocation). It thus appears that the judges, adhering to the legislation, were still disinclined to grant separations for violence except in cases where it was repeated and heinous. However, judges have not always followed the law, as there are court cases that prove otherwise (Reich 2021, 276–320). In the trial between Maria De Marchi and Giuseppe Stefani, the judges ruled that they could not grant a separation to the woman. In fact, the violence suffered by the woman had not been proven. But, despite this, the judges allowed Maria to live temporarily separated from her husband, since there was a wellfounded fear that Giuseppe, in the case of renewed cohabitation, would indeed mistreat her with real danger of death. Again, the judges used their discretion to protect the woman’s life.18 From an overall point of view, the Prague matrimonial court seems to have been rather conservative and hesitant to find reasons for granting a separation or a perpetual divorce and favored ordering the couple to resume cohabitation. It seems that the marriage court in Trent took greater account of the specific situation of the spouses. 8.4 1868: The End of the Ecclesiastical Marriage Courts of Trent and Prague? Having focused on the divorce process, the last element we need to consider is the duration of the courts’ activity. Historiography is unanimous in recognizing that “the beginning of the implementation of the Concordat coincided with the beginning of its slow, but irreversible crisis” (Zanotti 1986, 132). The Concordat was challenged from the outset by liberal ideas within the Habsburg Monarchy. It was also challenged by the “December Constitution” in 1867 and later by the “May Laws” in 1868. With the first of the “May Laws”, the Catholic Church definitively lost all prerogatives in matrimonial matters, which from that moment on were reassigned to the secular authorities and to the ABGB of 1811. However, in the dioceses of Trent and Prague the matrimonial court continued its activity of judging matrimonial cases. This situation did not change even after July 1870, when Emperor Franz Joseph declared the Concordat itself null and void, and after May 1874,

124  Zuzana Pavelková Čevelová and Jessica Reich when a law was enacted to “regulate the external relations of law of the Catholic Church”: with the first article the abrogation of the Concordat was confirmed (1874, 101–111). The situation was contradictory and confusing in both dioceses. What prompted people to continue to turn to the ecclesiastical court, whose rulings on the matter had lost legal value? An answer to this is provided by the documents in which the applicants refer to moral and, above all, religious “matters of conscience”. It can therefore be assumed that particularly pious and religious people continued to turn to the ecclesiastical church court. The choice of which court to turn to was at the discretion of the individual: if the party wished to obtain a civil response, he or she had to turn to the secular court, while, if the party wanted to get a moral response, the ecclesiastical court was responsible. Since the civil court records of this period have not been researched, we can only assume that the spouses usually initially filed for divorce in the civil courts and only after that also requested a religious divorce (although the opposite case cannot be ruled out). This was the case with Anna Eccher, who in March 1880 asked the ecclesiastical matrimonial court of Trent for separation from her husband Pietro Moser. In the woman’s request for divorce, it was specified that she filed against her husband and obtained a divorce from bed and board by judgment of the secular Court of Trento of 31 January 31 1879, No. 257. Now the appointed Anna, wife of Pietro Moser, would like to put herself in order also with regard to the conscience and therefore […] implores from this reverend court the sentence of divorce. The divorce was later pronounced also by the marriage court of Trent.19 Despite the continuity of the activity of the ecclesiastical court of Trent, the number of cases within the archival material of the “Ecclesiastical Marriage Court”, which record the last trial in 1907, has decreased quantitatively. While until 1868 the average number of court cases per year was around 44–60, in the following years there is a gradual decline, which involved all social classes. In less than a decade the number of cases initiated by the ecclesiastical authority had decreased further to only a few per year.20 The Prague matrimonial court also continued its activity, which is recorded until 1917.21 Despite the change in jurisdiction, the local Catholic population legitimized the maintenance of the judicial institution, albeit to a lesser extent than in the years of the Concordat. 8.5 Conclusions This first comparison of the ecclesiastical matrimonial courts in Prague and Trent makes it clear, that in both dioceses the new ecclesiastical matrimonial courts started at the same time. The knowledge of priests, deans, and the population was approximately at a similar level. Both ecclesiastical marriage courts began accepting applications immediately after their establishment.

Divorce during the Concordat  125 All this speaks for a uniform type of bureaucratic administration in the Habsburg monarchy. The multifaceted role of Catholic priests in the whole process must not go unnoticed. Priests played a fundamental role in Bohemia and in Trentino not only on a bureaucratic level, but above all on a social and moral level (see their views on disputes). The data collected show that the Czech and Italian archival funds show only a few differences in the types of cases. What they have in common is the high presence of women as plaintiffs. In the judgments there seems to be a similar tendency to divorce marriages very rarely and usually to grant couples only temporary separations. Although the research on the marriage procedures of the Prague consistory is only at the beginning in comparison with Trent, it can be cautiously formulated that the Prague court acted more restrictively than the court in Trent. The latter placed more emphasis on the individual case and the judges used their discretionary powers much more frequently than the judges of the Prague marriage court. Finally, both ecclesiastical courts continued to exist, but in a limited form for particularly devout and faithful Catholics. Research into divorce proceedings in the Concordat period shows interesting strategies for arranging cohabitation and enforcing the rights that result from the institute of marriage. Cohabitation means true fulfillment of marital rights and obligations, not just simply living together. It also turns out that divorce from bed and board remained possible, even though the ecclesiastical courts did not usually divorce the marriages, but only allowed the plaintiffs to separate for a limited period. It also shows that not only married couples living in cities, but also those living in rural areas filed for divorce. For an in-depth analysis of marriage jurisdiction in the Concordat period, it would be necessary, on the one hand, to examine the legal practice of the various ecclesiastical marriage courts even more closely and, on the other hand, to make a comparison with the practice of the secular marriage courts before and after that period. Archival Sources Archivio Diocesano Tridentino (Diocesan Archive of Trent), Tribunale Ecclesiastico Matrimoniale Archivio Diocesano Tridentino (Diocesan Archive of Trent), Normali od ordini governiali Národní archiv Praha (National Archive Prague), Archiv pražského arcibiskupství, část APA II, Církevní manželský soud, cart.: 3024, 3025, 3026 and 3027. Notes 1 The territory is the westernmost and largest historical region of the Czech Republic as it is today. 2 The territory largely corresponds to the current Autonomous Province of Trent, part of the Trentino-Alto Adige/Südtirol (South Tyrol) region, located in the northeast of Italy.

126  Zuzana Pavelková Čevelová and Jessica Reich 3 Paragraphs 3 and 5 are written by Zuzana Pavelková Čevelová (supported by the research project GA 22-31932S Humiliated in Court: Divorces and Matrimonial Conflicts in the Czech Lands (1783–1918); paragraphs 2 and 4 are written by Jessica Reich. 4 The terminological distinction between “divorce” and “separation” is not verified for the Trentino context. The Italian translation of the 1856 Imperial Patent and its two annexes use the term “separation”, which is distinguished into permanent and temporary separation. The judges of the Marriage Court of Trent used both terms synonymously. In the dioceses of Prague, Vienna, and St. Pölten, on the other hand, the term separation is used for temporary separations and divorce for permanent separations. In Bohemia (Prague), the distinction between divorce and separation is made even slightly more complicated because the Czech and German languages are used simultaneously. What kind of divorce it is (and for how long it is to last) is usually clearly explained in an additional sentence. 5 Diocesan Archive of Trent, [hereafter ADT], Normali od ordini governiali [hereafter NOG], b. 1850–1875, fasc. 927, p. 5. 6 ADT, Tribunale Ecclesiastico Matrimoniale [hereafter TEM], bb. 1–17. 7 National Archive Prague, [hereafter NAP], Archiv pražského arcibiskupství, část APA II, Církevní manželský soud, kart. [hereafter APA II], 3025, 3026. 8 ADT, TEM, bb. 1–17. 9 For the Prague Marriage Court, the cases from 1857 and partially from 1858 were considered. NA, APA II., 3024. 10 ADT, TEM, b. 16, fasc. 80, cc. 31–32. 11 NAP, APA II., 3027, 4: Sticha Elisabeth/Johann. 12 ADT, TEM, b. 16, fasc. 187, cc. 48–49. 13 However, the application for divorce was rejected and, on appeal, the judgment of the first instance was upheld. NAP, APA II., 3027, 5: Nechvatal Barbora/Josef. 14 A survey of these aspects for the Trentino context is currently impossible, given the absence of reliable accompanying tools for consulting these sources at the State Archive. Unlike Trent, a comparison with sources in the state archives is possible in the case of Prague, but the number of historical sources is very large, and it is a question of targeted research in the future. 15 NAP, APA II, 3024. 16 ADT, TEM, b. 4, fasc. 77, cc. 76–78. 17 NAP, APA II, 3025: 18 Kindl Vaclav/Barbora 18 ADT, TEM, b. 2, fasc. 66. 19 ADT, TEM, b. 19, fasc. 1878–1880, sottofasc. 18. 20 ADT, TEM, bb. 1–19. 21 The oldest parts of the matrimonalia are from the 15th century, the largest amount of archival material dates back to the 18th century. NAP, APA I-III.

References Anon. 1874. Bollettino delle leggi dell’Impero pei Regni e Paesi rappresentati nel Consiglio dell’Impero. Vienna: dall’Imp. e Reg. Tipografia di Corte e di Stato. Borgione, Andrea. 2017. “Separazione coniugale e maltrattamenti domestici a Torino (1838–1889).” In La violenza contro le donne nella storia, Simona Feci and Laura Schettini (eds.), 87–105. Roma: Viella. Borový, Klement. 1863. “Manželský soud v Praze.” Časopis katolického duchovenstva 3, 222–223. Ciappelli, Giovanni. 2006. “I processi matrimoniali: quadro di raccordo dei risultati della schedatura (Venezia, Verona, Napoli, Feltre e Trento, 1420–1803).” In I tribunali

Divorce during the Concordat  127 del matrimonio (secoli XV-XVIII), Silvana Seidel Menchi and Diego Quaglioni (eds.), 67–100. Bologna: il Mulino. Di Simplicio, Oscar. 1994. Peccato penitenza perdono, Siena 1575–1800. La formazione della coscienza nell’Italia moderna. Milano: Franco Angeli. Faoro, Luca. 2006. “Il ricorso alla carcerazione nei processi matrimoniali di Trento (secoli XVII-XVIII).” In I tribunali del matrimonio (secoli XV-XVIII), Silvana Seidel Menchi and Diego Quaglioni (eds.), 189–209. Bologna: il Mulino. Ferraro, Joanne. 1995. “The Power to Decide: Battered Wives in Early Modern Venice.” Renaissance Quarterly 48:3, 492–512. Forster, Ellinor. 2010. “Legitime Wut. Zum Ausdruck männlicher Gefühle in Ehescheidungsprozessen des ländlichen Tirol und Vorarlberg im 19. Jahrhundert.” In Die Präsenz der Gefühle. Männlichkeit und Emotion in der Moderne, Manuel Borutta and Nina Verheyen (eds.), 105–128. Bielefeld: Transcript. Gabba, Carlo Francesco. 1859. Annotazioni alle nuove leggi sul matrimonio dei cattolici vigenti nell’Impero austriaco raccolte dai migliori autori. Milano: Bolchesi. GB. 1855. Reichs-Gesetz-Blatt für das Kaiserthum Oesterreich. https://alex.onb. ac.at/cgi-content/alex?apm=0&aid=rgb&datum=1855 Griesebner, Andrea. 2016. Main Proceedings « Start » «Matrimonial Proceedings » Ecclesiastical Jurisdiction (1857–1868). In Web portal. Marriage at Court 3.0, 2022, http://ehenvorgericht.univie.ac.at/?page_id=10423&lang=en [Date of access: 2022-08-08] Kryštůfek, František Xaver, 1898. “Dějiny církve katolické ve státech Rakouskouherských s obzvláštním zřetelem k zemím Koruny české.” La Rocca, Chiara. 2009. Tra moglie e marito. Matrimoni e separazioni a Livorno nel Settecento. Bologna: il Mulino. Laurin, Franz.1863. Impedimentum criminis. Časopis katolického duchovenstva 1:33–46, 2, 104–132. Pavelková Čevelová, Zuzana, 2015a. “Každodennost manželství v 19. století v Čechách pohledem soudních akt a příruček pro katolické kněze.” České Budějovice: Veduta. Pardubice: Univerzita Pardubice. Pavelková Čevelová, Zuzana, 2015b. “Ehestreitigkeiten vor dem erzbischöflichen Gericht in Prag in den 60. Jahren des 19. Jahrhunderts.” Frühneuzeit-Info 26, 131–141. Prosperi, Adriano. 1996. Tribunali della coscienza. Inquisitori, confessori, mistici. Torino: Einaudi. Reich, Jessica. 2021. “Il Tribunale ecclesiastico matrimoniale di Trento (1857–1868): procedure di giustizia e pratiche sociali nel Trentino asburgico.” PhD. diss., University of Trento. Seymour, Mark. 2006. Debating Divorce in Italy: Marriage and the Making of Modern Italians, 1860–1974. New York: Palgrave Macmillan. Sighel, Giuliana. 1992–1993. “Promesse matrimoniali disattese ed istanze di separazione. Trenta cause matrimoniali dell’Archivio Arcivescovile di Trento (1632–1647).” Thesis, University of Trento. Zanotti, Andrea. 1986. Il Concordato austriaco del 1855. Milano: Giuffrè.

9 Material Matters Dissolution of Economic Ties in the Context of Divorces in Rural Lower Austria in the 1920s and 1930s Birgit Dober In the 19th century, love is an orderly fellow, correct like a notary in possession of annuities from the state. He goes out into the world or sells something in a shop. Politics keeps him busy; he is doing business from nine in the morning to six in the evening. He devotes his nights to the practice of his vice, with a mistress whom he provides for or with a legitimate spouse who provides for him. (Zola (1893) 2012, 7)

To introduce an article on economic issues related to divorce in rural Lower Austria in the early 20th century with an aperçu on the constitution of love in urban France in the 19th century may seem strange at first. And yet Zola’s ironic sketch evokes central ideas and ambivalences of the bourgeois marriage model that underlies the legal framework of the divorce disputes discussed here. Based on the proceedings of five couples whose marital life was legally shaped by a community of property, I focus on the use of economic arguments to make a divorce case. My emphasis lies on practices that were considered grounds for divorce under the Austrian General Civil Code (ABGB) of 1811 in the case where a “substantial part of the plaintiff spouse’s property was at risk” (§ 109). Allegations such as physical violence, sensitive insults, and infidelity, which are discussed in more detail in other chapters of this volume, are frequently brought forward in the approximately 3,000 cases I have researched in total. Since they are not central to what I am trying to show here, I will not discuss these arguments further below. The ABGB (1811) foresaw the separation of property as the marital property regime by default. Therefore, the premarital property situation remained unaffected by marriage. While this form of property organization was already enshrined in customary law in the western parts of the Habsburg Monarchy, a continuing tradition of modifying the legal property regime by concluding marriage contracts can be observed in the eastern parts of the Monarchy right up to the 20th century (cf. Langer-Ostrawsky and Lanzinger 2005, 1). The conclusion of marriage contracts (Ehepakten)1 was used to unite the present and future property of the married couple in a community of property. Even though these contracts usually provide clues as to the origin of the DOI: 10.4324/9781003334552-10

Material Matters  129 contributed property, movable and immovable, they record a static picture of pre-marital ownership. A second asset-related snapshot is provided by the outcome of divorce proceedings, in which the couple readjusts their economic circumstances. Insights into the dynamic aspects of joint economic activity, on the other hand, can be gained from divorce proceedings, in which strategic arguments are used and the work performed is just as much the subject of heated arguments as is the handling of joint property, which was unequally distributed before marriage in the overwhelming majority of cases. The question arises here as to what extent unequal material starting points are reflected in intra-marital power relations. Even though the General Civil Law Code from 1811 (ABGB) leaves no doubt that the husband has to support the wife, Zola, in contrast, lays the more accurate track. As the divorce cases analyzed here show, the dividing line between providing for and being provided for is not always drawn by gender, but far more often by the social status of the conflicting parties. Using the example of five divorcing couples who based their marital union on a community of property in rural Lower Austria in the 1920s and 1930s, the following section will explore the question of the economic implications of this decision.2 Until well into the 20th century, brides and grooms opted for the community of property that was traditional in the area under study, which formed the Archduchy of Austria under the Enns until the dissolution of the Habsburg Empire in 1918 (Langer-Ostrawsky 2010, 38). Using the contractual property agreements and subsequent legal disputes, I will illuminate various aspects of joint economic activity from the standpoint of its failure. The General Civil Law Code from 1811 shared its asymmetrical conception of the relationship between the spouses with other European codification works that were created at approximately the same time. By assigning the position of head of the family to the husband, it was clearly established who had to make the orders in the common household and who had to obey them or enforce them against children and servants. A unilaterally designed property-based maintenance obligation bound the husband to provide financially for the wife and their joint children. The adoption of the husband’s surname as well as his social status and the obligation of succession of residence for the woman completed the hierarchically conceived gender relationship within the institution of marriage (§§ 91, 92). These personal rights restrictions were continued in property law, but they were not accompanied by a comparably rigid curtailment of the wife’s administrative options, as was the case, for example, in the French Civil Code from 1804 (cf. Halpérin 2000, 123; Bandhauer-Schöffmann 2006, 111). The General Civil Law Code only formulated “presumptions” about the economic organization of the marital household (§§ 1237, 1238). The agreement that “in case of doubt” it was to be assumed that “the income came from the man” reinforced the notion of a “male sole breadwinner” already applied in the maintenance obligation. Even if premarital property rights

130  Birgit Dober were in principle unaffected by marriage, the legislator assumed that the wife tacitly left the administration of her property to her husband as her legal representative, should she not have explicitly objected to this of her own accord. According to the Austrian legal scholar Ursula Floßmann, these “legal rules of doubt” would suggest a “bashful community of property” or a “presumed administrative community” in terms of content. Consequently, she speaks of the applicable legal property regime of the division of property in Austria only from 1978 (Floßmann 2008, 95), when § 1238 (“assumed community of administration”) was repealed in the course of comprehensive marriage (property) law reforms. Although this legal presumption put the wife at a disadvantage in asserting her sometimes different economic interests insofar as she first had to take official action to do so, it nevertheless gave her the opportunity to independently manage her own financial affairs. The Grabler divorce case illustrates how this scope for action could be used in practice. 9.1 Juliane and Josef Grabler (1919–1935) Juliane and Josef Grabler3 had their marriage divorced by the Krems District Court in 1935. On 21 April 1919, 16 years earlier, they had married in the parish of Vitis. As a look at the parish registers reveals, on the same day Juliane’s sister married her future husband’s brother. While the parish register referred to Maria as “a house owner’s widow”, her bridegroom Heinrich was recorded as a “future house owner”. These personal designations used in the marriage entry suggest that the two of them might have agreed upon a community of property. Just like her sister Maria, Juliane also brought real estate that she had acquired with her own money into the marriage. However, Juliane is listed in the parish register as a maid in Vienna, Spittelbreitengasse No. 9, which is the address of the house that her widowed sister brought into her second marriage with Heinrich Grabler. Prior to the marriage, Juliane and Joseph concluded a marriage contract at the notary’s office in Schrems, which is enclosed with their divorce file. Juliane brought an agricultural property, consisting of a small house and two fields, into the marriage. Josef was entered in the land register as co-owner. As a master tailor, he brought a sewing machine and 800 kronen into the marriage. If one would convert this sum from 1916 into their worth today, this would amount to a sum of approximately 1,354€.4 In the event of death, the bride and groom appointed each other as sole heirs in the frequently chosen form of promising each other three-quarters of the estate and authorizing each other to dispose of the remaining quarter by will. The legal share for their future children who were primarily entitled to inherit by law or in the absence of children for blood relatives of the respective deceased spouse was to be reduced, as they stated, to the compulsory share.5 If Juliane’s statements are to be believed, this relationship between business and subsistence farming was harmonious for 15 years. Josef’s industriousness and her additional income from sewing works provided a

Material Matters  131 “comfortable living”. It was only in their last years of cohabitation that their marriage increasingly slid into crisis.6 When Josef filed for divorce in January 1935, he, or rather his lawyer, tried to pin various incidents on the quarrelsomeness and intolerance of the defendant’s wife. “Repeated sensitive insults”, mutual insinuations, and more or less subtle threats, had already been the subject of hearings before the competent district court in the run-up to their divorce proceedings. In his divorce petition, Josef stated that his wife did not want him to visit his relatives, especially his mother, who had been seriously ill in 1934. In her defense, Juliane put her husband’s account in a very different light and linked it to the accusation of the plaintiff’s “inefficiency”. Even after his mother’s death, Josef supposedly often visited his relatives during the day and neglected his tailoring craft. The resulting reduced income was not without its effects on their overall household income. An indication that more serious economic difficulties could also be behind the disputes is provided by the fact that Juliane had already obtained an order from the district court that denounced the husband’s administration of her assets. This order dates from 1934, even before he filed his lawsuit. Juliane Grabler – or rather her lawyer, who must always be considered as an intermediary actor – obviously deemed it necessary to contradict the husband’s administrative authority conferred by the legislator. Since the corresponding document has not survived in the divorce file, her detailed argumentation cannot be reconstructed here. However, the reference to the district court proceedings suggests that in practice wives resisted their legal tutelage in order to put a stop to economic actions by the husband that were contrary to their own interests. If one follows the allegations about unilaterally assumed charges or burdens to or unauthorized sales of joint property in other divorce proceedings, the impression is strengthened that the ideas of successful marital economic management determined the notions of mutual agreements far more than a legally established model of domestic decision-making power, which buys without giving the possibility of voting. In the divorce proceedings, in which 26 witnesses and one expert were questioned, economic motives play a decisive role. Juliane responded to Josef’s divorce suit with a counterclaim in which, in addition to divorce by fault of her husband, she also demanded provisional maintenance and the annulment of the marriage contract. Shortly thereafter she requested that the claim be extended to include the reassignment of half of her property in Vitis, which had been registered as Joseph’s in the land register since the marriage. She also requested the cancellation of the reciprocal mortgage loans on both halves of the property. In this way, we learn that the husband had burdened the joint property with debts totaling 3,000 schillings in January 1935. The right to negotiate the latter in court was granted to Juliane only after going through appeal proceedings. The Court of Appeal did not accept the argumentation of the court of the first instance, which had argued that claims under the law of obligations that are not rooted in the law of property unnecessarily complicate the divorce proceedings. Rather, it took the position that

132  Birgit Dober the wife had brought the properties into the marriage unencumbered and that it was in her interest to have them returned unencumbered. The question of liability for her husband’s debts was therefore to be clarified in court in the course of the marital dispute. Entering into a community of property was associated with the risk that debts incurred by the other party would become shared debts. In this specific case, however, the husband did not encumber his half of the common property until after he had left the marital household. One half of the 3000 schillings covered the fees for his lawyer in the divorce proceedings he himself had initiated. The legal representative had already laid out money for him and had refrained from charging him until this point in time considering his client’s current financial difficulties. The other half referred to a promissory note (Schuldschein) issued to his brother Heinrich. Without further need for argumentation, the wife pointed out that her husband’s actions served neither a common nor her own interests. How the court would have ruled remains uncertain, as the couple eventually settled after having exhausted the succession of appeals. Josef Grabler agreed to the restoration of the premarital property situation. Thereby, he committed to returning his wife’s property debt-free within five years. Limited to this transition period, a maintenance obligation towards his wife in the amount of 20 schillings per month was fixed. He brought little to the marriage and left with even less. Apparently, he moved to Vienna where he died in 1958. Juliane kept her property and stayed in Vitis until she died in 1980. While in the Grabler case it was the husband’s contact with his relatives which caused problems, complex, composite family relationships also formed the background for the conflict history of the next two case studies. 9.2 Marie and Johann Himmelbauer (1887–1922) The 42-year-old widower Johann Himmelbauer and the unmarried 27-yearold Marie Stober were married in January 1887 in Windisch Baumgarten, a village located in north-eastern Lower Austria. Johann brought in three small children and real estate from his first marriage, which was secured in terms of property law by marriage and inheritance. His wife, who had died in May 1886, had acquired ownership of these properties via a previous marriage and subsequent inheritance. The new couple agreed on a special community of property “inter vivos and upon death”.7 Although Johann and Marie’s marriage produced five children and lasted 35 years, from the point of view of the plaintiff’s wife, its first cracks appeared already after three years. Johann attributed this to his meningitis and his wife’s associated fear that upon his death, fields to the extent of six yokes, which he had reserved for himself in their marriage contract as “sole property” (Sondergut), could fall to the children from the first marriage. The following shows how in this patchwork family constellation the interests of Johann’s children from his first marriage, whom he called “his” children, were constantly played off against the interests of the children from his

Material Matters  133 second marriage, to whom he referred as “her” children, and how personal conflicts were fought out on a grievously mortifying material level. In the special community of property agreed in 1887, Johann contributed real estate – a house, a cellar, a press house, vineyards, and arable land – worth a total of 6,280 gulden as well as movable property worth 2,148 gulden. Marie’s contribution amounted to 2,000 gulden. In the event of death, the bridal couple agreed that the surviving spouse should take over the estate of the community of property. Johann’s children from his first marriage were the only eligible heirs of their father, while the future offspring from the current marital union with Marie were entitled to their respective quota of half of the pure assets left behind by both parents. If there were no more children alive, the surviving spouse was obliged to pay “the next legal heirs one-third of the pure joint property to be assessed according to an inventory estimate”. In the divorce proceedings, Johann claimed that Marie had contributed “only” 2,000 gulden, Marie countered that she had later contributed another three yokes of farmland. The spouses’ dispute primarily concerned the special property that Johann had reserved for himself in the marriage contract. In her response to the complaint, Marie dismissed the allegations against her on this point as nonsense. She referred to the agreements made in the marriage contract. In the event of Johann’s death, the legal succession would apply, benefiting his descendants from both marriages equally. While Johann claimed that he had finally sold the disputed fields for the sake of peace, Marie referred to a notarial addendum to the marriage contract from 1905. At her instigation, Johann had thus brought three more parcels of land and therewith part of his “special property” into the community of property. Shortly afterward, as Marie explained, he had given a field from his remaining sole possession to his daughter Theresia from his first marriage. Furthermore, he had arbitrarily sold a field that Maria had received from her father and had brought into the community at a later date. He divided the earnings from this sale among his three children from his first marriage. Maria’s description of her husband’s approach explains why she pushed so persistently for his special property to be incorporated into the community of property. However, it remains unclear how her husband was able to sell a field that was half-owned by her without her consent and why Marie had not taken any legal action against this. Marie felt personally offended not only by the preferential treatment of the stepchildren, whom – contrary to Johann’s claims – she had never treated worse than her own. She also confidently countered her husband’s insinuation that she had been a burden to “his” economy by comparing her work performance with his. In doing so, she emphasized the fact that she had taken care of their large agricultural property for the past 16 years without the aid of servants or other staff. In this context, she used business management arguments to refute Johann’s allegations that she had thwarted the sale of a pig and a bull and had chased his potential business partner from the farm. She explained that extending the rearing time would have resulted in a better

134  Birgit Dober price, which in turn would have benefited the common economy. Her detailed counterclaim portrayed Marie as a woman with agency and also with knowledge. Even though her material contribution at the beginning of the marriage might seem comparably small, she was clearly “more than just a caretaker” (Aston 2019, 244). Marie drew the picture of her opponent as a 77-year-old man who was influenced by his children from his first marriage and was addicted to alcohol and had long since retired from work in the business. The example of this couple suggests that the line between the party that took action and the party that lost out in the disputes did not always necessarily have to be drawn along gender. In other matters, Marie apparently didn’t manage to assert herself. Her husband rejected her request, expressed several times, to buy a separate house for the couple and to hand over the farm to Rupert, the second youngest son from their marriage. As stated in her counterclaim, Johann never took any action in this regard. A handwritten note, undated and enclosed with the files, testifies to Maria’s intention to have her husband incapacitated. The divorce proceedings were suspended in February 1923 at the request of both parties. At that point in time, the husband no longer lived in the marital household but rather lodged with one of his sons from the first marriage in Ebersdorf. Although the divorce dossier provides no indication of a possible reopening of the case, a land register entry records a change in ownership in favor of Marie Himmelbauer. On the basis of a dissolution agreement concluded in mid-June 1923, the title to Johann’s half was transferred to Marie. Approximately two months later, Marie transferred property rights to her son Rupert in a transfer agreement. When Rupert married in March of the following year, his future wife Theresia was also entered in the land register on the basis of marriage contracts with a transfer agreement.8 If one disregards Marie’s unfulfilled wish to live with her husband in a separate house, which she perhaps expressed far more out of tactical calculation than actual interest, the outcome of the dispute was highly favorable from Marie’s point of view. Johann Hoffman died in 1935 in the house of Theresia, his daughter from his first marriage, who was married and lived in Windisch Baumgarten. Neither he nor any of his children from the earlier marriage ever occupied or managed the property that Susanne, his first wife and mother of the children from his first marriage, who had died in 1886, had originally brought into the marriage. Even though the living conditions of the next couple were much more modest in comparison to the relatively wealthy circumstances of the Himmelbauers, the oppositional constellation between the stepchildren and the new spouse was also repeated here, albeit with reversed roles. 9.3 Barbara and Karl Fischer (1911–1920) The widowed Barbara brought the agricultural property and four children from her first marriage into this new matrimonial union with Karl Fischer. Her first husband, a master shoemaker, had committed suicide three years

Material Matters  135 earlier. With 2,000 gulden in cash, the future husband Karl capitalized on the indebted business in 1911. In accordance with common practice, their marriage contract included inheritance agreements and the right to dispose of each share in a will. As the bride and groom opted for a general community of property that was effective during their lifetime, the husband was entered into the land register of his wife’s real estate and thus he took over half of the inheritance claims of the children from the first marriage. Josef, who was 13 years younger, had worked for Barbara as a shoemaker’s assistant before the wedding. As he explained, Barbara had urged him several times to marry her and had persuaded him to have an illegitimate relationship. At least this part of the defendant’s account can be considered certain because the only daughter from this 11-year marriage was born only four months after the wedding. Before the wife filed for divorce in 1920,9 she had, like Juliane Grabler, already unsuccessfully tried to obtain a termination of her husband’s asset management before the Korneuburg Regional Court in the same year. The court ruled that the divorce should be granted on the grounds of the husband’s fault. It recognized sufficient grounds for divorce in the “repeated serious insults” to the plaintiff’s “honor and dignity as a woman” and above all in the husband’s misappropriation of assets, which the wife was able to prove on the basis of witness statements in the evidence proceedings. Karl’s strategy of accusing Barbara of adulterous activity in his absence during the war, however, was unsuccessful due to a lack of evidence. His attempts to portray himself as a victim as a result of several operations, for example, the amputation of his right foot and his neurasthenia (weak nerves) apparently made little impression on the court. Although the judge considered his descriptions of physical attacks carried out by the stepchildren to be plausible, especially since they were known to the court, he rejected his claim that Barbara had approved of this abuse or had even instigated it herself. The court considered the fact that the defendant had secretly removed large sums of cash from the house in order to deposit it with his brother in Vienna to be particularly serious. Karl´s argument that he had to secure “his” savings from the access of the wife and her children from the first marriage has been rejected with the statement that he “would not be authorized to speak of ‘his’ savings with regard to the existing community of property”. Under the circumstances, the judge even showed understanding for the woman’s blocking of food. He stated that Karl had “by no means the appearance of an underfed or poorly nourished man”, but rather “appeared strong and well-fed”. For the judge, this was an indication that Karl had been given access to a sufficient amount of food. In the appeal against the divorce verdict, the defendant’s lawyer made eloquent efforts to make the court aware of the situation of the war returnees. However, neither the appeal nor the revision was granted. In July 1922, after the divorce verdict, Barbara filed a lawsuit regarding the dissolution of their marriage contract.10 The opposing lawyer, who peppered his pleadings

136  Birgit Dober with numerous quotations from legal commentaries, referred to the serious economic consequences that the annulment would have for Karl. Karl’s lawyer tried to oppose the dissolution of the marriage contract, arguing that the request to dissolve a contractual partnership should not be made at an inopportune moment and to the disadvantage of the other partner. He explained in detail the inflation-related depreciation of the 2,000 kronen that his client had brought into the marriage in 1911. Karl’s appeal reads as follows: I have to turn over half of the entire business to (my wife), i.e., apart from the buildings, more than 7 ½ yokes of arable land, together worth an estimated 80 million kronen, together with the livestock and equipment used in agriculture (to the plaintiff) and be content with the amount of 2,000 kronen, which today is equivalent to the value of 1 egg or barely ¼ kg of flour. Furthermore, Karl’s lawyer let the court know that “the masterminds of the divorce proceedings, as well as the present lawsuit (…), were solely the adult children (who) used the mother as a battering ram”. However, the lawyer later had to correct the assertion made in the statement of defense that the 2,000 kronen contributed by Karl were used to cover debts in order to avert an impending foreclosure auction. The sum was “invested in the business and in return for the payment, he was registered as a co-owner in the land register”. At a later stage, the threat of foreclosure of the property was averted through the use of joint funds, as Karl also recalled. Barbara never denied her now ex-husband’s commercial diligence and a reduction in debts, as well as the joint purchase of a three-yoke field during the marriage. This indicates that Karl had made his contribution to the consolidation of the business. The property proceedings finally ended with a court settlement in which the marriage contract was canceled, and the husband agreed to be removed from the land register. A parcel of arable land was given to the daughter “as a partial payment in advance as a marriage portion”, whereby Barbara retained the right of usufruct until her marriage. In return, Barbara waived all claims to maintenance for herself and their currently 11-year-old daughter. The jointly acquired farmland became Karl’s sole property, as did the operating materials. The fact that he was awarded the equipment in the shoemaker’s workshop was probably not without significance for him, as the tools formed an important basis for being able to earn an income (cf. Lanzinger 2020, 265–266). Karl agreed to leave the house within eight days after being allocated a suitable flat. Barbara agreed to hand over another 50 kg of grain, 50 kg of oats, and 200 kg of potatoes. The court thus considered the property claims of the two parties to be fully settled. At the end of March 1941, Barbara Fischer died in Gross Russbach, at the address where her daughter from her marriage to Karl, now married herself, lived. In the absence

Material Matters  137 of probate assets, no probate hearing was held. The probate file states that her second, divorced husband had no inheritance rights after her death. On this occasion, we learn that he had remarried during her lifetime.11 With the introduction of civil marriage in June 1938, divorced Catholic couples in Austria could enter a civil marriage without restriction (cf. Harmat 1999). While in the case of unmarried couples the parents of the future spouses usually appear as transferors of property, in the Himmelbauer and Fischer cases the new spouses took the place of their deceased predecessors in terms of property. The need for labor and/or capital may have played a decisive role for the widowed spouses to enter into a new marital union. For their future spouses, the chosen community of property regime brought about a significant improvement in their economic starting conditions. The Himmelbauer case also illustrates to what extent real estate ownership could change hands through the remarriage of the widowed spouse. In view of the weak legal protection of the surviving spouse under inheritance law, community of property and mutual inheritance agreements also constituted an effective instrument to avoid leaving the spouse unprovided for in the event that the other spouse should die first. While the Grablers reduced their potential children’s inheritance to a compulsory share from the very beginning, thus maximizing their mutual benefits, the Fischer case shows that inheritance arrangements in complex families were individually adapted to circumstances. In this case, the inheritance was extremely unfavorable for the husband, who was at a disadvantage compared to the legitimate children and stepchildren. The meager protection of the surviving spouse compared to the descendants and ascendants of the deceased explains the efforts to improve the legal situation through marriage contracts, which also integrated inheritance arrangements. It was not until the partial amendments to the Austrian Civil Code from 1914 that the inheritance-law position of spouses was gradually improved. For the most part, the community of property enabled the widowed spouse to continue running the household and business and to satisfy the legal claims of the other heirs in monetary terms. In 1934, a total of 72% of the legal transactions carried out by the Zistersdorf notary12 were related to marriages. Slightly more than half of its business was the writing of “marriage contracts”, most of which included property transfer agreements from parents to their children and children-inlaw. In rarer cases, these two procedures could also be recorded in two different notarial documents that referred to one another. Based on the calculated transfer price, such generational transfer agreements provide some indication of a valuation of the property and the married couple’s initial financial position. In the rarest of cases, the total amount was paid in cash. After settling future inheritance claims and designated endowment components, residual claims were often covered by a combination of cash and special rights for the transferor. Such agreements also indicate the expected degree of involvement of the parents or parents-in-law in the economic management of the future married couple. In addition to conflicts with stepchildren, the physical

138  Birgit Dober proximity of the previous generation created tensions in which economic dissent was often articulated. In just under half of the notarized transfer agreements, children and their future spouses appeared as transferees. As a rule, both the bride and groom were registered in the land registered as co-owners. The decision not to include the transfer of property in the marriage contract was not without consequences in the case of divorce, as the Gassner couple’s legal dispute illustrates. 9.4 Katharina and Adolf Gassner (1914–1919) On 5 February 1919, Katharina Gassner was granted a divorce on the grounds of the husband’s fault, as he had not appeared at the hearing. For good reason, Adolf Gassner, albeit unsuccessfully, contested this judgment in the absence at the court of appeal.13 A divorce resulting from the fault of the opposing party strengthened the legal position of the innocent spouse with regard to the division of property. The question of fault was linked not only to the patriarchal logic of the Austrian Civil Law Code’s one-sided concept of the right to maintenance, which women had to claim, and men had to comply with. If the bride and groom had concluded a marriage contract, only the innocently divorced party had the right to decide on its dissolution or continuation. Since the annulment of these agreements not only entailed the restoration of the premarital property but could also affect inheritance agreements it was always at the discretion of the spouses or the lawyers to choose an outcome that was advantageous for him or her. Just like the above-mentioned Barbara Fischer, Katharina Gassner also took advantage of the leeway her position as an innocently divorced spouse provided her with and sued for the dissolution of the marriage contract. In this particular case, however, the contractual situation turned out to be far less favorable for her. Katharina and Adolf Gassner got married in the 15th district of Vienna in 1914. Katharina Meisner, the bride’s mother who had the same first name as her daughter, concluded a transfer contract with her daughter and her future husband in the amount of 8,600 kronen. 2,000 kronen were deducted from the purchase price as a marriage portion chargeable to the daughter’s inheritance, which corresponds to a 23% reduction in the purchase sum.14 Since the preceding divorce petition is not enclosed with the file, we do not learn how Katharina argued for the divorce. At the proceedings dealing with the dissolution of the marriage contract, her lawyer argued that the transfer agreement ought to be considered like a marriage contract. After all, the legal force of the agreements would have been tied to the marriage. The husband’s legal representative countered that a notary was obliged to record the will of the contracting parties. If the bride and groom had intended to conclude a marriage contract, the notarial act would have been called a marriage contract and not a transfer agreement. In her petition, Katharina further stated

Material Matters  139 that a higher transfer payment of 11,000 kronen had been agreed upon orally. The purchase price, which was still far too low compared to the actual value of the property, should have been paid with her 2,000 kronen marriage portion, the 8,000 kronen promised by her future husband, and another 1,000 kronen from the earnings of the business she had taken over. Katharina cited her father-in-law and her mother as witnesses. At the request of the husband, the court demanded documents from the tax authorities to check whether the property had been correctly assessed at the time. Unfortunately, references to the outcome of the proceedings are also missing here. Similar cases show that the practice of lowering the property values to save fees and unofficially transferring the remainder of the verbally agreed purchase price was widespread. However, who or what had ultimately tipped the scales in favor of transferring the property – in this case to the disadvantage of the wife – only by means of a transfer agreement and not also by concluding marriage contract, remains open. Since neither the wife nor the husband appeared to be living at the address of the joint marital residence after 1938, it is to be assumed that the property had been sold and the proceeds from it divided. As the Gassner case shows, the conclusion of a marriage contract offered a certain degree of protection for the property interests of the innocently divorced spouse, even though – as the Grabler case illustrates – the agreement upon a community of property was associated with the risk of liability for debts. In his legal column published in the journal of the “Lower Austrian Farmers’ Union”, Der Bauernbündler, federal prosecutor Georg Bauer refers to a similar case, in terms of the outcome. Following a fault-based divorce sentence in favor of one of his clients, he successfully petitioned to dissolve a marriage contract. However, since the husband’s entry as a co-owner of the wife’s real estate had obviously been affected prior to the conclusion of the marriage contract, this part of their former sole ownership could no longer be fully restored by the cancellation of the marriage contract.15 The Wimmer divorce case brings together some of the characteristics that were previously mentioned in connection with customary transfers of property. 9.5 Theresia and Martin Wimmer (1934–1937) With the accession of the father of the future wife Theresia Schuster, a marriage and inheritance contract was drawn up in April 1934.16 The bride’s parents contributed a marriage capital of 10,000 schillings to the agreed community of property; with regard to the groom’s contribution, it was stipulated that his mother would transfer the ownership of her house to the bridal couple. This house transfer was subsequently made in a separate notarial deed, which is entitled transfer agreement.17 The house and agricultural property transferred from the husband’s mother to the bridal couple were valued at a purchase price of 12,000 schillings. It was settled with the cash amount of 8,000 schillings due on the wedding day; the remaining 4,000

140  Birgit Dober schillings were offset by the bridal couple taking over half of an outstanding loan claim. The cash sum of 10,000 schillings which was contributed by Theresia Schuster likely provided the capital for the takeover. In the transfer agreement, the mother had reserved rights for herself, which was not unusual. The “food and care arrangements” which she negotiated, contain detailed provisions on the nutrition, work, and care services to which the future couple commits. The claims were also secured in the land title register. However, there is a seemingly noteworthy passage that stipulates that the divorced daughter of the transferor and thus the sister or sister-inlaw of the transferees shall succeed to the rights of the mother in the event of her death. However, the divorced sister, Theresia Hartl, was entitled to these benefits only as long as she continued to live in the village. Whether or not she was employed had no effect whatsoever on her existing entitlements. These benefits expired completely if the beneficiary entered into a marriage-like cohabitation. In the event of her remarriage, the further couple agreed to settle her claims with a one-time payment of 3,000 shillings. Theresia likely returned to her parent’s home after the divorce of her marriage in 1931.18 At the time of her son’s marriage, her mother obviously felt compelled to ensure the long-term maintenance of her daughter. This obligation on the part of the brother and the future sister-in-law to financially support the divorced Theresia on a permanent basis without any agreed-upon service in return is likely to have led to considerable tension in the family structure even before the payment of a pension was due. In 1937 Theresia, the brother’s wife, filed for divorce because her husband had unexpectedly been arrested for a crime under § 134 of the Criminal Code (murder). Her rather brief petition contains no references to conflicts between her husband, his sister, and her mother.19 Clues regarding the macabre circumstances surrounding the husband’s murder of his sister in 1935 can be found in the media coverage, which displayed a keen interest in the background of the crime and also provided further information about the family’s property situation. We learn that after her husband’s death, her mother continued to manage the two farms she had previously farmed with her husband, and she intended to divide them among her two children. There is no reliable information about the time of the daughter’s return to her mother’s household, but her stay there was apparently marked by intense arguments with her brother.20 The relationship between mother and daughter, which was not exactly uncomplicated considering the food and care arrangements set out in the brother’s marriage contract, also seems to have gradually deteriorated over the course of the cohabitation. If the printed press is to be believed, the maternal and fraternal aggression towards Theresia was primarily based on economic concerns. Physical assaults against the “superfluous eater” were medically documented.21 The reconstruction of the exact course of events, which is secondary in this context, was based on the investigation and the confession of the accused husband. In 1937, the mother’s testimony could no longer be used to clarify the circumstances of the crime. Her involvement in

Material Matters  141 the commission and cover-up of Theresa’s murder, which remained undiscovered for over two years despite circulating rumors, could no longer be clarified, as she took her own life shortly after her daughter’s murder. It is certain that Theresia, according to her own statement, did not want to live with a murderer. Since the couple very quickly agreed on a divorce by mutual consent, the divorce dossier does not contain any details about the couple’s married life, nor does it provide any information about the wife’s degree of involvement in the conflict dramaturgy involving her family-in-law. The divorce settlement of 11 November 1937 marks a clear cut with which every property-related connection between the former spouses ended. The marriage contract was canceled, and the marriage portion contributed by the wife was returned in the form of shares in her husband’s real estate. In addition to a waiver of inheritance rights, there was also a complete settlement of any maintenance claims by means of real estate. The two-year-old daughter from this marriage received ownership of the marital home with the associated land to satisfy her maintenance claims. The criminal case against the husband ended with a death sentence in 1938, and the wife was granted, at her request, the right to reassume her maiden name. In the parish registers of their last joint residence, there is no indication that she remarried in that parish. 9.6 Conclusions The fact that the five selected couples had agreed upon a community of property is interesting insofar as the idea of shared work, shared ownership, and shared decision-making associated with this form of property organization contradicts the patriarchal logic of the ABGB. However, it remains unclear whether the husband’s administrative presumption applies within the community of property. On the one hand, lawyers revoke this presumption on behalf of the plaintiff wife, on the other hand, court decisions refer to the requirement of mutual consent in the disposition of property without any reference to gender. Regardless of this, the case studies have clearly shown that even in the 1920s and 1930s property in the form of real estate also circulated through marriage. The legally enshrined obligation for a woman to follow the man to his place of residence seems a little out of touch with reality when it comes to rural Lower Austria. Here the unhoused, landless spouse followed the housed, land-owning spouse. A total of 59 marriage contracts that I collected and evaluated in connection with divorce petitions from the 1920s and 1930s indicate that, in practice, real estate was brought into the marriage almost as often by women as by men. Only in a few cases was the extent of premarital possessions distributed more or less evenly. A reading of the divorce files suggests that the conclusion of a community of property only formally removes the hierarchizing moment inherent in asymmetrical premarital property distributions. The

142  Birgit Dober married couple may have been contractually equal in their property rights within the marriage, but the sense of entitlement and the notion of the contributing party to have a greater “moral” right to the properties clearly emerged in the court disputes. Nevertheless, the legal form of the community of property had real effects, as the Fischer case shows. As soon as a married couple subjected all their present and future property to a general community of property, neither of the spouses could dispose of the property arbitrarily. The environment in which the marital life and economic community was located colored the disputes in a specific way. Patchwork family constellations created the potential for conflict as soon as inheritance interests came into play. As the lines of argument pursued by Marie Himmelbauer and Karl Fischer show, stepchildren were often accused by the opposing party of being the driving force behind the divorce proceedings. Depending on the premarital distribution of property, the dissolution of marriage contracts could certainly increase the expected inheritance of the children from previous marriages. However, horizontal or vertical relationships to the family of origin also intervened in existing marriages, as the Grabler and Wimmer cases have shown. The selected cases show similarities, but also differences in intra-marital dynamics as well as in contextual factors affecting married couples. In most divorce cases, premarital property relations were restored to the detriment of the spouse who traded intangible resources, such as qualifications and labor, for joint ownership. Provided that the previously wealthier spouse had not set any grounds for divorce, he or she, was clearly in a better position regardless of sex. Unlike men, innocently divorced women were entitled to maintenance according to the ABGB 1811 which – when compared to real estate – proved to be a rather unreliable source of income. With regard to the Early Modern period, Maria Ågren draws the conclusion that “women did not get married to be supported by their husbands. They got married to be able to better support themselves. The same was true for men: marriage improved their chances of supporting themselves too” (Ågren 2018, 237). Summarizing the case studies presented here, one might get the impression that the years between 1920 and 1930 do not differ much from her observations. Archival Sources Niederösterreichisches Landesarchiv, Bestand 06.01.02.02 Gerichtsarchive – Gerichtsprovenienz: KG Korneuburg Cg Zivilrechtsklagen; KG Krems Cg Zivilrechtsklagen (Provincial Archives of Lower Austria, Entry 06.01.02.02 Court Archives – Court Provenance: Cadastral Municipality Korneuburg Cg Civil Lawsuits; Cadastral Municipality Krems Cg Civil Lawsuits) Niederösterreichisches Landesarchiv, Bestand 06.05 Notariatsarchive, KG Korneuburg (Provincial Archives of Lower Austria, Entry 06.05 Notarial Archives, Cadastral Municipality Korneuburg)

Material Matters  143 Notes 1 The legal term is “prenuptial agreements” (Ehepakte). Since marriage had been referred to as a civil contract since the Josephinian Marriage Patent of 1783, a new term had to be found for the contracts that the bride and groom concluded before marriage. Even in the 20th century, the corresponding documents are referred to – without distinction as to content – as “marriage contracts” or “prenuptial agreements”. To emphasize the historical continuity of these arrangements, I use the term “marriage contract”. 2 The case studies used come from a sample of approximately 2,500 files from Lower Austrian divorce records from the period under investigation. The survey I conducted was made possible thanks to the generous support of the Austrian Academy of Science (ÖAW) within the framework of a DocTeam grant. 3 In order to protect the identity of the people involved; I use pseudonyms. 4 Currencies change a lot in the study period. In the following, I will mention gulden, kronen, and schillings. Based on the consumer price index, the Austrian National Bank provides a historical currency calculator. Despite the imprecision of such calculations, I use them in the following to facilitate orientation concerning the different currencies and currency fluctuations of this period. https://www. eurologisch.at/docroot/waehrungsrechner/#/ 5 Niederösterreichisches Landesarchiv (hereafter NÖLA), Kreisgericht (hereafter KG), Krems, Cg files, 1935, K. 21, Cg 135/35. 6 NÖLA, KG Krems, Cg files, 1935, K. 21, Cg 135/35. 7 NÖLA, KG Korneuburg, Cg files, 1922, K. 8, Cg Ia 372/22. 8 NÖLA, Grundbuch (Land title register) Windisch Baumgarten I, 1–50, EZ 38. 9 NÖLA, KG Korneuburg, Cg files, 1920–1921, K. 5, Cg Ia 263/20. 10 NÖLA, KG Korneuburg, Cg files, 1922, K. 8, Cg Ia 305/22. 11 NÖLA, BG Korneuburg, A 1940, 1941, K. 37 (11–330, 7–325), Verlassenschaft (Probate Proceedings) Z. A 117/41. 12 NÖLA, Notariatsarchiv Korneuburg, Posch – Zistersdorf, 1933–1935, K. 566 (7.901–8.212), Z. 8.035 – 8.171. At this time, Zistersdorf was one of 12 notarial offices within the Korneuburg court district. 13 NÖLA, KG Korneuburg, Cg files, 1910–1918, K. 3, Cg I 171/18. 14 NÖLA, KG Korneuburg, Cg files, 1920, K. 5, Cg Ia 290/20. 15 Dr. Georg Bauer, Von den Ehepakten, in Der Bauernbündler, 17 March 1928, p. 3. 16 NÖLA, Notariatsarchiv Korneuburg, Stix, 1933–1935, K. 620 (1.051–1.300), Notariatsakt Z. 1.145. 17 NÖLA, Notariatsarchiv Korneuburg, Stix, 1933–1935, K. 620 (1.051–1.300), Notariatsakt Z. 1.146. 18 In the marriage registries, however, the judicial divorce is recorded without a date. 19 NÖLA, KG Korneuburg, Cg files, 1937, K. 17, 3 Cg 838/37. 20 Der Wiener Tag, 09.06.1937, p. 5. 21 Illustrierte Kronenzeitung, 19.05.1938, p. 11.

References Ågren, Maria. 2018. “The Complexities of Work. Analyzing Men’s and Women’s Work in the Early Modern World with the Verb-Oriented Method.” In What is Work?: Gender at the Crossroads of Home, Family, and Business from the Early Modern Era to the Present, Raffaella Sarti, Anna Bellavitis, and Manuela Martini (eds.), 226–242. New York and Oxford: Berghahn.

144  Birgit Dober Aston, Jennifer. 2019. “More than Just a Caretaker: Women’s Role in the Intergenerational Transfer of Real and Personal Property in Nineteenth-Century Urban England, 1840–1900.” In Women and the Land, 1500–1900, Briony McDonagh, Jennifer Aston, and Amanda L Capern (eds.), 244–266. Woodbridge: Boydell & Brewer. Bandhauer-Schöffmann, Irene. 2006. “Businesswomen in Austria.” In Women, Business, and Finance in Nineteenth-Century Europe: Rethinking Separate Spheres, Robert Beachy, Béatrice Craig, and Alastair Owens (eds.), 110–125. Oxford: Berg. Bauer, Georg. 1928. “Von den Ehepakten.” Der Bauernbündler, 17 March, 3. Floßmann, Ursula. 2008. Österreichische Privatrechtsgeschichte. Sechste, updated edition. Vienna: Springer-Verlag/Vienna. Halpérin, Jean-Louis. 2000. “Husbands, Wives, and Judges in Nineteenth Century France.” In Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain, France, Germany and the United States, Willibald Steinmetz (ed.), 123–136. Oxford: Oxford University Press. Harmat, Ulrike. 1999. Ehe auf Widerruf?: Der Konflikt um das Eherecht in Österreich 1918–1938. Frankfurt am Main: Klostermann. Langer-Ostrawsky, Gertrude. 2010. “Vom Verheiraten der Güter. Bäuerliche und kleinbäuerliche Heiratsverträge im Erzherzogtum Österreich unter der Enns.” In Aushandeln von Ehe. Heiratsverträge der Neuzeit im europäischen Vergleich, Margareth Lanzinger, Gunda Barth-Scalmani, Ellinor Forster, and Gertrude LangerOstrawsky (eds.), 26–119. Cologne, Weimar, and Vienna: Böhlau. Langer-Ostrawsky, Gertrude, and Margareth Lanzinger. 2005. “More Favored – Less Favored? Women and Men in Different Marital Property Right Systems: A Comparative Study of Marital Property Rights in the Habsburg Empire during the 18th Century.” Fund og Forskning, 44, 1–10. Lanzinger, Margareth. 2020. “Movable Goods and Immovable Property. Interrelated Perspectives.” In Gender, Law and Material Culture: Immobile Property and Mobile Goods in Early Modern Europe, Annette Caroline Cremer (ed.), 265–284. London: Routledge. Zola, Émile (1893). 2012. Comment on se marie. Étonnants classiques – Étonnantiss!mes. e-book: Flammarion.

Part II

Divorce with Dissolution of the Marriage

10 Enduring Animosity Negotiating Post-Separation Conflicts in the German County of Lippe (17th and 18th Centuries) Iris Fleßenkämper Research on the early modern period has dealt with marital conflicts and petitions for divorce in a wide range of ways over the past 35 years. Initial studies focused not surprisingly on the effects of the Reformation and the Reformed church on contemporary marriage law, which, unlike the tradition of canon law, now also allowed for divorce with the possibility of remarriage (see for example, Safley 1984, Roper 1989, Kingdon 1995, and Harrington 1995). While numerous studies carried out in subsequent years have been mainly concerned with how the Protestant marriage reforms were actually put into practice by local rulers (see for example, Schilling 1993, Sibeth 1994, Hull 1997, Dinges 1998, and Frassek 2005), work with a social-historical focus has concentrated primarily on the various motives and causes of marital conflicts that exceeded the legally permitted grounds for divorce (namely, adultery, and malicious desertion). In addition to the phenomenon of domestic or paternal violence, such work has identified economic hardship and the threat of falling into poverty in particular as a stress factor and cause of marital crises (see for example, Sabean 1990, Lutz 2006, and Hardwick 1998). Finally, the turn to gender history has also brought to the fore the question of how the causes of marital conflicts were linked to a shift in gender roles in marriage: Several studies have been able to show, for instance, that economic challenges led to a change in the traditional distribution of work and roles, especially in households comprising tradespeople, which in turn gave rise to new conflicts between the spouses (see particularly the works of Habermas 1992, Beck 1992, Möhle 1993, and Möhle 1997). Using the example of the craftsmen in Göttingen, for instance, Möhle was able to show that with the growing service sector in the 18th century, the traditional working relationships in the common household and the guild memberships of men were increasingly replaced by changing wage labor and unemployment. Women had to find other ways of earning money outside the house (Möhle 1997, 115–118). Continuing on from this, numerous microhistorical studies have also looked at the local, social, judicial, and extrajudicial scope that women in particular had (and that they knew how to use) in order to reconfigure the power relations in the marriage or to dissolve the relationship altogether (see for example Schmidt 1998, Nolde 2003, and Fleßenkämper 2015). DOI: 10.4324/9781003334552-12

148  Iris Fleßenkämper Most research on marital conflicts, however, stops at the final decision made by the marriage court responsible. Until now very few studies have dealt with the social and economic consequences of separation or divorce in the early modern period, and those that have, have done so for the most part in a very rudimentary way (Möhle 1997, 189–191, Westphal 2008). For the relevant historiographical research on ancien régime Germany, the lack of interest in the repercussions of divorce and separation may be due to the fact that, while in the course of confessionalization the principalities adopted new formal requirements for betrothal and marriage, they ultimately did not enact any laws regarding the regulation of post-separation and post-divorce conflicts. I would like to start my chapter at this “blank space of the after” – that is, to deal with the conflicts that took place after the court had ordered a separation and not with the causes of contemporary conflicts and how these conflicts played out during marriage. Usually, neither a temporary separation nor a full divorce of the marriage puts an end to the conflict between the spouses. Rather, the court decision brought about new conflicts, for instance, ones which had to do with the allocation of custody of the joint children, the exclusion of the couple concerned from the fellowship of the Holy Communion, and above all, with the dissolution of the joint marital property. For members of the property-owning classes in early modern towns and rural areas, disputes over material claims held great potential for escalation, especially since the shared real estate of a married couple often not only united “living space and workplace”, but was also the basis of economic income, social networking, and, as a matter of inheritance, the life insurance for future generations. In urban societies, house ownership or, more accurately, the ownership of a fireplace provided access to political and legal privileges. In addition, property was an important source of social representation (Schmidt-Voges 2015; Derix and Lanzinger 2017, 1–2) Which is to say: a house is always more than just a house. (…) Houses are visible expressions of social status, professionalization, and social position, and in this sense embody a representative resource – both in individual resumés as well as for the standing of families in an intergenerational sense. (Lanzinger and Maegraith 2017, 15) By looking at a concrete case that was dealt with before the marriage court of the Protestant County of Lippe (Westphalia) – the so-called consistory (Consistorium) in Detmold – I will highlight the central issues of conflict that increased in intensity after the separation ordered by the court, my focus here being on members of the professional groups and property owners in the town of Salzuflen. I will also pursue the question of why and with what social repercussions the Lippe marriage court opted, even in cases of irreconcilability, for a temporary divorce from bed-and-board, and not for a full divorce.

Enduring Animosity  149 10.1 Legal Contexts Although spouses in Lippe had already had the option of petitioning for a separation or a full divorce at the sovereign marriage court since the beginning of the Reformation, it was not until the end of the 18th century that the Lippe government issued any laws regulating the social consequences of divorce. The earliest Lutheran Church ordinance of 1538 long remained the only decree that even mentioned a full divorce as a legitimate measure in cases of adultery and malicious desertion (see Wolgast 2015, 331); no subsequent church or police ordinance issued by the Lippe government addressed the possible grounds for divorce or its actual repercussions with regard to property, status, and custody rights. The same applied to divorce from bedand-board, that is to marital separation. The fact that divorce law lacked formalization suggests that the Lippe authorities, like other Protestant governments after the Reformation (see for example Westphal 2011, 197, Buchholz 2008, and Möhle 1997), had no particular interest in hearing divorce petitions, let alone in dissolving marriages. This is also suggested by the relatively few divorce cases that were filed and then admitted by the marriage court, in comparison to other petitions, especially those which had to do with betrothal conflicts: Compared to betrothal suits, which accounted for the largest proportion of about 1,960 cases heard by the marriage court in the 17th and 18th centuries, representing around 87 percent, the percentage of full divorce suits in the same period was only around six. Similarly, separation suits (divorce from bed-and-board) and matrimonial dispute cases brought before the consistory accounted for only 7 percent.1 The state laws and court records thus indicate that both legislators and judges wanted to avoid protracted conflicts over rights of inheritance in the families involved and were mainly interested, primarily for economic reasons, in preserving the marriage or, more specifically, the family household. For example, the bailiff of the Lippe district of Varenholz opined in 1695 that the “dreadful state of affairs” (i.e., the dispute) between the married couple Anna Catharina Rehm and Engelke Meyer would “destroy” their entire property, although the farm was the “best in the parish of Lüdinghausen”. He therefore asked the marriage court to “settle this matter as appropriate” and to bring these spouses back into “good understanding” and “harmony”.2 The rules of procedure adopted by the marriage court required that, before the hearing began, an attempt be made to convince “the conflicting parties … to continue their marital union in order to prevent all kinds of bitterness, … expenses and damage” (Wolgast 2015, 471): The marriage commissioners who conducted the trial were obliged to talk personally to the parties at the first court hearing, to persuade them to “put what had happened behind them”, to strive for reconciliation with each other, and to behave like “Christian spouses” in the future.3 For example, in Salzuflen in the case of Maria Hunecke against her husband Anton Krudup on 24 July 1719, the marriage commissioners “strongly encouraged” both parties “to behave

150  Iris Fleßenkämper towards each other like Christian spouses and to let the past be forgotten”.4 If they were successful with the reconciliation, the partners had to “vow”5 to maintain domestic peace, and the consistory could reserve the right to punish the parties if they continued their dispute and violated their agreement. Hearings were therefore focused on the court’s efforts to maintain the marital relationship. In the Consistory Ordinance, the Lippe state government explicitly called on the court commissioners to stand up for the preservation of marriage “in honor of the marital state” (dem ehestande zu ehren), and “by no means” contra matrimonium (Wolgast 2015, 471). In cases where the consistory started proceedings, careful consideration of the pros and cons led to the pronouncement of separation only on the assumption that it would prevent an even more “dreadful state of affairs”. It is therefore not surprising that the court commissioners refused to grant a long-term separation or full divorce even in cases of severe physical abuse, although several Protestant legal scholars, among them Basilius Monner (1500–1566), had already called for marital cruelty (saevitia) and risk to life (insidiae vitae) to be recognized as legitimate grounds for divorce (Dieterich 1970, 146–147). Even if the judges granted only a temporary separation, the decision necessarily had ramifications in terms of the rights of property. The temporary dissolution of the marital duty to share bed and board also dissolved, at least for a certain period of time, the community of property that they had agreed upon when they married. Although the government long kept its legal silence on this issue, two decrees from 1752 and 1786 suggest that the general notion of joint property (communio bonorum) in Lippe dated back to a “time-honored” tradition and “custom” that was widespread among all subjects (with the exception of the knights) “without distinction of rank or office” (GS. 1781, 43, GS., 1789, 162–163). The ordinance of 1786 further points out that the community of property as a “customary law” had also been preserved for so long because it helped to avoid “distrust and self-interest among spouses” (GS., 1789, 162). Thus, if the spouses had not agreed in writing on a different matrimonial property law implying a different model of distribution when they became engaged, their respective goods became joint property that both partners were equally entitled to be in command of. Besides the problem of primary custody, the main question after a separation was therefore what the spouses should do with their joint property and how it should be divided. An important legal basis for the marriage court in regard to this issue was provided by the gesamteuropäisches Gemeinrecht (pan-European common law) (Wieacker 1967, 82), which contained relevant principles of Roman dotal law. Following the 24th book of the Digesta in the Corpus Iuris Civilis, as well as the 5th book of the Codex Justinianus, the common law (ius commune) prescribed, for example, that the wife, if found guilty, must transfer her dowry rights to her husband after a full divorce. The marriage gift, as well as the gift or counterclaim of the bridegroom, already had the function in Roman law of providing economic security for

Enduring Animosity  151 the wife in the case of widowhood or divorce through no fault of her own. If the couple had children, the husband was not allowed to sell the property that the wife had brought to the marriage (land, for example), but could continue to use it and derive income from its use (ususfructus). In Roman law, ususfructus meant the power to use and to draw “fruit” from another person’s possession while preserving its substance (Rüfner 2016, 1932). If, on the other hand, the husband was at fault, then he had to return to his wife her dowry and the gift that he had transferred to her on marriage (donatio propter nuptias) and that was originally intended to provide for the widow in accordance with her rank (Brauneder 2012, 912–913). The guilty partner also lost the custody of the children, while at the same time having to pay alimony depending on his or her assets and income (see Möhle 1997, 238, in reference to the legal scholar Fürstenthal 1827). That the Lippe authorities closely followed the tradition of common law in regulating the repercussions of a full divorce in the 18th century is suggested not only by legal practice but also by a late decree from 1786, which imposed quite similar property penalties on the guilty partner. However, if the female partner was found innocent, she “could choose whether she wanted to reclaim her dowry, a quarter of her husband’s property and property otherwise acquired during the marriage or share equally with the husband the entire joint property, after deduction of debts” (GS, 1789, 197).6 Since the consequences in terms of property and custody rights depended essentially on the question of which spouse was more responsible for the failure of the marriage, the question of guilt was fought over fiercely in court. In addition, the specific form of the separation of property and the amount of alimony to be paid were among those points of contention that the spouses were able to negotiate for years after the separation or divorce verdict. I will now use a concrete example to explore these and other areas of conflict. 10.2 Post-separation Conflicts in the Mirror of Legal Practice: The Case of Anna Dorothea Küster v. Johann Adolf Wippermann (1705–1706) At the end of 1704, after 15 years of marriage, Anna Dorothea Küster, daughter of Blomberg’s mayor, and sister of the well-known philologist Ludolf Küster mentioned in Alexander Pope’s satire Dunciad, petitioned the consistory to be allowed to separate from her husband, the Salzuflen merchant and pharmacist Johann Adolf Wippermann, because of excessive domestic violence. His “malice”, she complained, had grown increasingly in recent years; he had beaten her “more and more”, cursed her, insulted her, slandered her, and “mercilessly maltreated” their children. On the previous day, her husband physically abused her and their children so cruelly that “the blood dripped onto their shoes”.7 Not only had he denied her access to their joint property while not even paying for the costs of the birth of their children; he had also tried to take her life by preparing a poisonous potion from the pharmacy. To escape this “murderous hell” (mordthelle) and danger to

152  Iris Fleßenkämper her life, she was “forced” to separate from him.8 She also asked the court to order her husband to pay maintenance and to award her custody, especially since she could not leave her children with such a violent and “volatile father”.9 After several attempts at reconciliation and numerous hearings, the consistory ordered a separation from bed-and-board on 22 June 1705 “to prevent a more dreadful state of affairs” – for half a year, “for the time being”.10 However, as Anna refused to reconcile and reunite with her husband, the separation lasted much longer than had originally been decided. The judgment therefore did not settle the dispute, especially since the question of maintenance during the divorce from bed-and-board and also the right of primary custody of the children had not yet been clarified. 10.3 Custody of the Children In order to decide on who had custody of the children in the case of a divorce from bed-and-board or of a full divorce, the consistory first had to clarify the question of who was “most to blame”11 for the rift, which, in turn, required as independent an assessment as possible of the behavior of both spouses, and especially of their “moral conduct” (leben und wandel) during the joint relationship. In order to gain a more accurate picture of the couple’s relationship, the consistory therefore requested the local presbytery, as well as the mayor and council of the town of Salzuflen, to take a position on this question and to submit a written report to the court commissioners. The assessments of the local officials could very well differ on the question of guilt: In the present example, after several interviews the presbytery attributed “the greater share of the blame” for the marital dispute to Johann, arguing that the neighbors had testified that they had had to rescue his wife “at various times from his hands”, and that a surgeon had confirmed that two of her ribs had been broken when her husband had beaten her up.12 The mayor and the council, on the other hand, were far more reserved in their judgment, declaring that who was more to blame could “not really be found out, but we do not find either to be blameless”.13 After all, the council had learned that “all the dreadful state of affairs” in the marriage could also be attributed to Anna’s behavior, since she had sold grain and straw without her husband’s knowledge and had let the house “go to wrack and ruin”.14 Johann Wippermann, who explicitly wanted custody of his “dear children”, so that he could take them to church and school regularly, attempted to incriminate his wife with further accusations in a letter of his own to the Consistory Court: He claimed that she led a dissolute life, got drunk on beer and brandy every day, and took “chest potions, chest cures, syrup, also things other than potions”, and used elixirs from the pharmacy, and other household utensils without his consent.15 She had thus “deprived him of his goods, his health, and his honor”,16 and should be placed under arrest or expelled from the town. However, Wippermann’s narratives of guilt were unsuccessful, the court ruled in a second decision that the children should remain with the wife “for

Enduring Animosity  153 the  time being”.17 The court commissioners thus gave more weight to the assessment of the presbytery than to that of the magistrate, which presumably also had to do with the fact that General Superintendent Johann Weingärtner, one of two court commissioners who acted as both process leaders and judges, had himself presided as pastor over the presbytery in Salzuflen from 1680 to 1692 (Butterweck 1926, 268). Since the Consistory Court did not give reasons for its judgment, we can only speculate about further motives on the part of the decision-makers. Most likely, however, they shared the presbytery’s assessment that Anna would not have sold any common property if her husband had provided for her “in line with her needs”.18 In order to ensure that Anna was provided for and that she received financial support for the children during the separation, the consistory, following the tradition of common law, therefore ordered that Anna either receive the rights of use half of the joint property or be given back her remaining marriage gift.19 10.4 Maintenance and Property In a separate decree, the court commissioners first instructed the town’s syndicus, Eberhard Vogel, to draw up an “inventarium” of the couple’s joint property so that they could better assess the couple’s economic situation and more accurately quantify the value of the remaining dowry.20 The couple’s marriage contract, dated 12 April 1689, proves that, in accordance with the legal customs of the region, Anna had brought into the marriage her entire inheritance (i.e., the inheritance from her deceased husband and the inheritance which she is to receive from her father), and that she had thus established with Johann a communio bonorum, a community of property.21 Fifteen years after their wedding, the town’s legal adviser had a very complex task to perform with the inventory of the joint property: In order to provide a proper assessment of the real value of the property, he first had to record the debts that Johann and Anna had incurred together. He also needed to assess the value of Anna’s promised parental inheritance, since the marriage contract mentions that her father, Ludolf Küster, was in the process of conducting a lawsuit against some “creditors” at the count’s court of chancery. Ludolf was therefore not able to say exactly what he could “leave” to his daughter.22 At the same time, Vogel had to forecast what expenses would be incurred in the future in terms of supporting the children (education, clothing, etc.). Above all, however, the joint property included not only numerous movable goods, which had to be listed individually, but also, and primarily, immovable goods such as a house and land, as well as other inheritances which were outside the town area. Vogel thus complained about the couple’s “desperate” and “confused” property situation, which made a comprehensive compilation almost impossible. In order to be able to complete the inventory, he therefore depended on the active support of the spouses, which, however, was not without conflict: For example, Anna accused her

154  Iris Fleßenkämper husband of having embezzled specific goods and of having understated the active debts, while Johann accused Anna of having already disposed of furniture and other movable goods without his consent. Although in his investigations Vogel actually did discover some goods that were not included in Johann’s “specification”, he came to the overall conclusion that the joint property was “very small” due to the debts which had been incurred and that Johann would be able to “support himself through his profession” as a pharmacist if the goods were divided, but would have difficulty supporting the children as well as providing for their “education (and) clothing”.23 Since Anna made it clear that she would like to claim half of the grain harvest, the Consistory Court decided on the basis of its inquiries that Johann would have to give his wife half of all agricultural yields (grain fruits) in the future, as well as half of the available wood. Furthermore, it obliged Johann to pay an additional sum of money, which was to be used for the care and education of the children. Anna was also to keep her property in Blomberg, as well as all objects she had “with her” (bei sich). The town council was to see that Johann fulfilled the conditions. Anna thus received more than she was actually entitled to according to the common law applicable, and also more than Vogel had recommended as a result of his investigations. To safeguard the interests of the children, the consistory also explicitly instructed the spouses not to “dispose” (vereußern) of their properties without an “appropriate reason” (gnugsahme uhrsache) approved by the town authorities.24 This instruction was in keeping with the spirit of the times, especially since the prospect of an unencumbered inheritance necessarily also increased a child’s prospect of a lucrative match in marriage, which in turn could be accompanied by the prospect of an increase in property. 10.5 Life after Separation The ruling of divorce from bed and board had different effects on the spouses. Although – or precisely because – the authorities were interested in preserving the joint property, the court’s decision gradually ushered in Johann’s economic and professional decline. About a year after the final decision, he complained to the consistory that the court’s conditions and the legal costs had left him with nothing but “the empty house” and a few other goods that he was not allowed to sell. He also complained that Anna was disposing of his furniture and asked the court to forbid his wife from selling any goods on pain of a “severe penalty”.25 In addition, his pharmacy – the first ever in Salzuflen – could apparently not keep up with the competing pharmacies in neighboring Herford and Lemgo, and he was increasingly losing his livelihood and slipping into poverty (Geschichtliche Abteilung 1909, 214). Similarly, other husbands complained to the consistory after it had decreed a divorce from bed and board that they could no longer live “outside (the) marriage”, that their previously accumulated resources had decreased

Enduring Animosity  155 dramatically, and that they were facing “certain ruin” without the possibility of remarriage. In a case from 1689, for example, Jodokus Dreckmeyer feared that all his property would be lost and forfeited after he separated from his wife.26 However, the court apparently did not pursue his plea. This also applied to members of the urban upper classes, who drew their wealth, social capital, and self-image from their common properties (Schmidt-Funke 2017, 40). By accusing their wives of adultery, some therefore asked in a second petition for a full divorce in order to restore their property to a sound “condition” (zustande) through another marriage.27 However, without valid proof of adultery or desertion the court commissioners did not usually grant a full divorce. As a wife who had been declared innocent, Anna had achieved a legal victory that initially gave her and her children economic security, but she also had to face several disadvantages. After the divorce from bed and board, the church criticized her for not wanting to be reconciled with her spouse and live in a marital union. Although the local preacher Adolph Plessmann “reminded” her several times after the separation period had expired that she should restore domestic peace with her husband, she refused to do so, saying that she had “escaped hell once” and “could not plunge into it again”.28 The presbytery then decided to exclude Anna from Holy Communion for an extended period of time because of her “spiteful ill-will towards her husband”.29 The consistory left it to the presbytery to decide whether Anna should be denied access to communion. According to the Church Ordinance of 1684, her readmission depended not only on her confession of repentance, but equally on proof from relatives, neighbors, and not least the preacher himself, that her behavior had improved (GS, 1779, 545, 547). For Anna, resuming the marriage was still out of the question, but she did make it clear to the preacher that she no longer felt any “hatred” (Haß) towards her husband. The impossibility of entering into a new marriage could also have other consequences for wives. In December 1709, more than four years after the separation, the pastor Adolph Plessmann reported to the consistory that Anna had committed adultery and secretly given birth to twins.30 She had taken the children in a basket beyond the borders of the state to Herford and left them there in an inn to be cared for. During her interrogation by the Herford town council, she testified that she had been “pursued” by a young merchant for three years before falling into this “misfortune and disgrace”.31 Although the Lippe government demanded drastic penalties for adultery, Anna could no longer be prosecuted for her “offense”. Because she had concealed her pregnancy and had not had a midwife to help her during the birth, she died shortly after her testimony. Thus, if women engaged in sexual activity after separating from their husbands, they ran the risk not only of becoming pregnant, making their adultery visible and punishable, but also of ultimately losing their status and property benefits as an innocent party during the separation.

156  Iris Fleßenkämper 10.6 Conclusions Usually, a decree of divorce from bed and board in the early modern period did not end marital conflicts, but often entailed months, if not years, of negotiations, especially in the case of wealthy married couples, regarding the allocation of custody of the joint children, the amount of alimony to be paid, and above all the division of joint property. The marriage court attempted to limit the social and economic damage primarily by ordering a temporary divorce from bed and board, which presupposed the option of reconciliation and resumption of the community of property. The relevant files of the Lippe consistory, however, show that the couples concerned only very rarely found their way back together again after a decree of divorce from bed and board had been pronounced, so that in many of the cases examined the limited separation became permanent. This led in turn to conflicts that could have been cushioned by a full divorce with the possibility of remarriage, at least for the innocent party: Not only did the permanent division of property bring both parties (the guilty party in particular) to the brink of economic ruin, there was also the danger of adultery and pregnancy out of wedlock, which could cause new maintenance problems and also entailed criminal consequences. The experience of conflict that permanent separations brought may have prompted the Lippe authorities to finally allow divorce with the right to remarry also on the grounds of persistent hostility. In its decree of 1786, the government explicitly mentions the possibility of a full divorce in the case of “irreconcilable hatred” and other reasons (“etc.”) for the first time, while granting a “permanent divorce from bed and board” primarily to the (few) “Catholics” in the state. This assumption is also supported by the fact that the number of petitions and lawsuits for full divorce filed with the consistory in the 19th century more than doubled compared to the 18th century. A divorce from bed and board could very well mean the end of an unhappy or even life-threatening relationship for the petitioning party, while at the same time, it usually resulted in serious economic losses. A full divorce, however, not only opened up new possibilities for the innocent partner particularly in regard to his or her maintenance and the preservation or even increase of property; it also reduced the risk of secret births and offspring conceived out of wedlock – a risk for which Anna Küster had paid with her life. Archival Sources Akten des Geistlichen Gerichts der Grafschaft Lippe (Records of the Consistory Court of the County of Lippe), Landesarchiv NordrheinWestfalen, Abteilung Ostwestfalen-Lippe (LAV NRW OWL), MSS L85. Consistoralia Salzuflen: Matrimonalia (Records of the Consistory Court of the County of Lippe, relating to matrimonial matters of the town of Salzuflen), Landesarchiv Nordrhein-Westfalen, Abteilung OstwestfalenLippe (LAV NRW OWL), MSS L 71, no. 147.

Enduring Animosity  157 Notes 1 The number of cases and the categorization of the content of the lawsuits go back to the corresponding finding aid L 85 in the State Archives of East WestphaliaLippe (hereafter LA NRW OWL). 2 Anna Catharina Rehm of Henstorf and Engelke Meyer of Rahfeld, marital dispute (1695). Records of the Consistory Court, LA NRW OWL, MS L 85, (hereafter MS L 85), no. 1520. File no. 4, Report of the bailiff of Varenholz, 25 September 1695. The couple had achieved reconciliation before the court. 3 Maria Hunecke in Salzuflen against her husband Anton Krudup, marital dispute (1719) in MS L 85, no. 7. Court Minutes of 24 July 1719. 4 Ibid. 5 Ibid. 6 Translated by author. 7 Anna Dorothea Küster of Blomberg v. Johann Adolf Wippermann of Salzuflen, marital dispute (1705–1706) in MS L 85, no. 2037. Statement of claim submitted by Anna Küster, 1704. 8 MS L 85, no. 2037, Anna Küster’s articles of complaint, 1704, art. 13. 9 Ibid., Anna Küster’s articles of complaint, 1704, art. 15. 10 MS L 85, no. 2037. File no. 22, Decree of the Consistory Court, 22 June 1705. 11 Ibid. 12 Ibid., Report submitted by the Pastor Anton Plessmann, 23 March 1705. 13 Ibid., Report of the Town Council of Salzuflen, 6 July 1705. 14 Ibid. 15 Ibid., Johann Wippermann’s plea of 6 July 1706. 16 Ibid. 17 Ibid., Decree of the Consistory Court, 9 July 1705. 18 Ibid., Report submitted by the Pastor Anton Plessmann, 23 March 1705: nach nothurft. 19 Ibid., Decree of the Consistory Court, 9 July 1705. 20 Ibid., Decree of the Consistory Court, 14 July 1705. 21 See Ibid., Marriage contract between Johann Wippermann and Anna Küster, dated 12 April 1689. 22 Ibid. 23 Ibid., Report submitted by the Salzuflen syndicus Eberhard Vogel, 30 July 1705. 24 Ibid., Decree of the Consistory Court, 3 August 1705. 25 Ibid., Johann Wippermann’s plea (June 1706). 26 For example, Jodokus Dreckmeyer v. Anna Margaretha Benseler, divorce (1682–83) in MS L 85, no. 44. Plea of Jodokus Dreckmeyer to the consistory, 30 May 1689. 27 Ibid. 28 Report of the preacher Plessmann to the consistory, 30 June 1707, in Records of the Consistory Court of the County of Lippe, relating to matrimonial matters of the town of Salzuflen, LAV NRW OWL, MS. L 71, no. 147, (hereafter MS L 71, no. 147), f. 16–17r. 29 MS L 85, no. 2037, Decree of the Consistory Court, 2 August 1706. 30 Report submitted by the preacher Plessmann to the consistory, 9 December 1709, in MS. L 71, no. 147, ff. 18–19r. 31 Ibid.

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158  Iris Fleßenkämper Studien zur historischen Kulturforschung, vol. IV, Richard van Dülmen (ed.), 137– 213. Frankfurt a. M.: Fischer. Brauneder, Wilhelm. 2012. “Heiratsabgabensystem.” In Handwörterbuch der deutschen Rechtsgeschichte (HRG), vol. 2, Albrecht Cordes et al. (eds.), 912–914. Berlin: Erich Schmidt Verlag. Buchholz, Stephan. 2008. “Ehe.” In Handwörterbuch der deutschen Rechtsgeschichte (HRG), vol. 1, Albrecht Cordes et al. (eds.), 1192–1213. Berlin: Erich Schmidt Verlag. Butterweck, Wilhelm. 1926. Die Geschichte der Lippischen Landeskirche. Schötmar: Fritz Dröge. Derix, Simone and Margareth Lanzinger. 2017. “Housing Capital: Interdisciplinary Perspectives on a Multifaceted Resource.” European History Yearbook 18, 1–13. Dieterich, Hartwig. 1970. Das protestantische Eherecht in Deutschland bis zur Mitte des 17. Jahrhunderts. Munich: Claudius. Dinges, Martin. 1998. Hausväter, Priester, Kastraten. Zur Konstruktion von Männlichkeit in Spätmittelalter und Früher Neuzeit. Göttingen: Vandenhoeck & Ruprecht. Fleßenkämper, Iris. 2015. “Taming Husbands: Women’s Use of Protestant Moral Codes in post-Reformation Separation Cases in the German County of Lippe.” Reformation & Renaissance Review 17:2, 142–154. http://dx.doi.org/10.1179/146 2245915Z.00000000076. Frassek, Ralf. 2005. Eherecht und Ehegerichtsbarkeit in der Reformationszeit. Der Aufbau neuer Rechtsstrukturen im sächsischen Raum unter besonderer Berücksichtigung der Wirkungsgeschichte des Wittenberger Konsistoriums. Tübingen: Mohr Siebeck. Fürstenthal, Johann August Ludwig. 1827. Real-Encyclopädie des gesammten in Deutschland geltenden gemeinen Rechts oder Handwörterbuch des römischen und deutschen Privat-, des Staats-, Völker-, Kirchen-, Lehn-, Criminal- und ProceßRechts, vol. 3. Berlin: Rücker. Geschichtliche Abteilung des Naturwissenschaftlichen Vereins für das Fürstentum Lippe. 1909. “Sitzungsberichte: Sitzung vom 2. Dezember 1908.” In Mitteilungen aus der lippischen Geschichte und Landeskunde 7. Detmold: Meyersche Hofbuchdruckerei, 212–222. GS. 1779. “Lippische Kirchen=Ordnung von 1684.” In Landesverordnungen der Graffschaft Lippe, vol. 1. Lemgo: Meyer, 498–684. GS. 1781. “Verordnung wegen der Gemeinschaft der Güter unter Eheleuten, von 1752.” In Landesverordnungen der Graffschaft Lippe, vol. 2. Lemgo: Meyer, 43. GS. 1789. “Verordnung wegen der Güter Gemeinschaft unter Eheleuten, von 1786.” In Landesverordnungen der Graffschaft Lippe, vol. 3. Lemgo: Meyer, 162–199. Habermas, Rebekka. 1992. “Frauen und Männer im Kampf um Leib, Ökonomie und Recht. Zur Beziehung der Geschlechter im Frankfurt der Frühen Neuzeit.” In Dynamik der Tradition. Studien zur historischen Kulturforschung, vol. IV, Richard van Dülmen (ed.), 109–136. Frankfurt a. M.: Fischer. Hardwick, Julie. 1998. “Seeking Separations: Gender, Marriages, and Household Economies in Early Modern France.” French Historical Studies 21:1, 157–180. https://doi.org/10.2307/286931. Harrington, Joel F. 1995. Reordering Marriage and Society in Reformation Germany. Cambridge: Cambridge University Press.

Enduring Animosity  159 Hull, Isabel V. 1997. Sexuality, State, and Civil Society in Germany, 1700–1815. London: Cornell University Press. Kingdon, Robert M. 1995. Adultery and Divorce in Calvin’s Geneva. Cambridge: Harvard University Press. Lanzinger, Margareth, and Janine Maegraith. 2017. “Houses and the Range of Wealth in Early Modern Gender- and Intergenerational Relationships.” European History Yearbook 18, 14–34. Lutz, Alexandra. 2006. Ehepaare vor Gericht. Konflikte und Lebenswelten in der Frühen Neuzeit. Frankfurt a. M.: Campus. Möhle, Sylvia. 1993. “Ehen in der Krise. Zur Bedeutung der Eigentumsrechte und der Arbeit von Frauen in Ehekonflikten (Göttingen 1740–1840).” In Familie und Familienlosigkeit. Fallstudien aus Niedersachsen und Bremen vom 15. bis ins 20, Jürgen Schlumbohm Jahrhundert (ed.), 39–50. Hannover: Hahn. Möhle, Sylvia. 1997. Ehekonflikte und sozialer Wandel, Göttingen 1740–1840. Frankfurt a. M. and New York: Campus. Nolde, Dorothea. 2003. Gattenmord. Macht und Gewalt in der frühneuzeitlichen Ehe. Cologne: Böhlau. Roper, Lyndal. 1989. The Holy Household: Women and Morals in Reformation Augsburg. Oxford: Clarendon Press. Rüfner, Thomas. 2016. “Nießbrauch.” In Handwörterbuch der deutschen Rechtsgeschichte (HRG), vol. 3, Albrecht Cordes et al. (eds.), 1932–1934. Berlin: Erich Schmidt Verlag. Sabean, David Warren. 1990. Property, Production and Family in Neckarhausen, 1700–1870. Cambridge: Cambridge University Press. Safley, Thomas Max. 1984. Let no Man put asunder. The Control of Marriage in the German Southwest. A Comparative Study 1550–1600. Kirksville, MI: The Sixteenth Century Journal, Northeast Missouri State University. Schilling, Heinz. 1993. “Frühneuzeitliche Formierung und Disziplinierung von Ehe, Familie und Erziehung im Spiegel calvinistischer Kirchenratsprotokolle.” In Glaube und Eid. Treueformeln, Glaubensbekenntnisse und Sozialdisziplinierung zwischen Mittelalter und Neuzeit, Paolo Prodi (ed.), 199–235. Munich: De Gruyter. Schmidt, Heinrich R. 1998. “Hausväter vor Gericht. Der Patriarchalismus als zweischneidiges Schwert.” In Hausväter, Priester, Kastraten. Zur Konstruktion von Männlichkeit in Spätmittelalter und Früher Neuzeit, Martin Dinges (ed.), 213–236. Göttingen: Vandenhoeck & Ruprecht. Schmidt-Funke, Julia. 2017. “Haushaben: Houses as Resources in Early Modern Frankfurt.” European History Yearbook 18, 35–55. Schmidt-Voges, Inken. 2015. “Einführung: Interaktion und soziale Umwelt.” In Das Haus in der Geschichte Europas. Ein Handbuch, Joachim Eibach and Inken Schmidt-Voges (eds.), 411–416. Berlin/Boston: De Gruyter. Sibeth, Uwe. 1994. Eherecht und Staatsbildung. Ehegesetzgebung und Eherechtsprechung in der Landgrafschaft Hessen (-Kassel) in der frühen Neuzeit. Darmstadt: Hessische Historische Kommission. Westphal, Siegrid. 2008. Ehen vor Gericht – Scheidungen und ihre Folgen am Reichskammergericht. Wetzlar: Gesellschaft für Reichskammergerichtsforschung. Westphal, Siegrid. 2011. “Die Auflösung ehelicher Beziehungen in der Frühen Neuzeit.” In Venus und Vulcanus. Ehen und ihre Konflikte in der Frühen Neuzeit, Siegrid Westphal, Inken Schmidt-Voges, and Annette Baumann (eds.), 163–235. Munich: Oldenbourg.

160  Iris Fleßenkämper Wieacker, Franz. 1967. Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung, 2nd rev. ed. Göttingen: Vandenhoeck & Ruprecht. Wolgast, Eike (ed.) 2015. Die evangelischen Kirchenordnungen des 16. Jahrhunderts. Einundzwanzigster Band: Nordrhein-Westfalen I. Tübingen: Mohr Siebeck.

11 The Indistinct Line between Marriage and Divorce The Ambiguous Nature of Marital Status in the 17th-Century Ottoman Empire* Gamze Yavuzer This chapter examines pre-modern Ottoman marriage and divorce practices and how they were organized in a world where people heavily depended on orality. In so doing, it aims to understand the relationship between law and orality and their interwoven structure. Historians have rightly emphasized the sophisticated bureaucratic structure of the Ottoman Empire based on the sheer volume of written documents produced in various state institutions, including the Sharia courts. Admittedly, with its more than ten thousand ledgers (Bayındır 1986, 27), the Sharia court registers are a remarkable example of the record-keeping capacity of the Ottoman state. Nevertheless, this vast volume of record-keeping hides the fundamental role played by orality in legal agreements and negotiations. As a matter of fact, as Nicolas Vatin has noted, the written contract registered in court in many cases mainly served to support and supplement the oral one (Vatin 1995, 151). Inheritance partitioning or loan agreements, for instance, were primarily concluded orally and brought to court only when a dispute arose between the parties that necessitated judicial intervention. Marriage and divorce in the Ottoman context were also primarily oral acts. The Ottoman state considered them private arrangements between spouses and did not require official registration until family law reforms were introduced in 1917. This chapter focuses on the complicated consequences of this orality and demonstrates how in some cases it turned the marital status into an ambiguous position. Cases in which men and women disagreed as to whether they were still married or divorced and sought judicial intervention to settle a dispute over it were not infrequent. In addition, because Ottoman subjects did not have to register their divorces officially, even when spouses admitted that their marriage had ended, they disagreed as to the type of divorce they had consented to. These kinds of disputes were basically resolved through witness testimony in the absence of official documentation. Below, I examine some divorce-related cases between spouses or ex-spouses which became quite complicated due to the possibility of contracting marriage in *  For their valuable comments on this chapter, I would like to thank Madeline C. Zilfi and Nicolas Vatin. DOI: 10.4324/9781003334552-13

162  Gamze Yavuzer the absence of marrying parties, heavy dependence on witness testimony, and/or absence of marriage contracts or divorce records. I argue that the prevalence of orality created an obscure atmosphere, whereby both Muslim men and women took advantage of its consequences and attempted to manipulate legal cases in their favor, regardless of whether or not they were successful in their endeavor, as was the case for other segments of the population of the empire like the Orthodox Christians (see Yavuzer 2022, 110–133). 11.1 Married or Divorced?: Marriage in absentia In March 1675, Mehmed bin Abdullah went to the Bab court in Istanbul to complain about Abdünnebi, the muezzin (the official who calls the faithful to prayer) of the mosque of the Kefeli neighborhood. Mehmed accused the muezzin of giving permission to a certain Hasan to marry off Mehmed’s wife Fatima to Ahmed bin Mustafa. It appears that the muezzin had pretended that Fatima was a divorced woman and received a few akçes from Ahmed in return for granting Hasan the right to arrange Fatima’s marriage to Ahmed. We infer from the register that the marriage between the two was indeed contracted, yet what made Mehmed appeal to the deputy judge was not its annulment. He did not make a complaint about Ahmed, the false husband, nor about Hasan, the mediator. As a matter of fact, as will be explained below, the marriage between Ahmed and Fatima was legally void, since Hasan had not been appointed by Fatima herself, which made him an “unauthorized agent”. As Imber points out, “if the agent is unauthorized, the contract becomes valid only when the person on whose behalf it was made gives his/her consent” (1993, 77; see also The Hedaya 1957, 42). Rather, Mehmed’s concern was merely to make an allegation against the muezzin. In so doing, he seems to have aspired to bring the muezzin into public disrepute and even make him lose his position in the neighborhood mosque. Mehmed not only stated how the muezzin resorted to trickery by giving his wife into marriage to another man but also how such a treacherous man did not merit his position. According to Mehmed’s statement, the muezzin Abdünnebi did not carry out his duty of reciting the adhan (the call to ritual prayer) during prayer times or his other responsibilities as a muezzin. Furthermore, besides constantly causing mischief himself, Abdünnebi had opened up a coffeehouse in the neighborhood, which caused many Muslims in the community to frequent the place and made them too lazy to perform the five-time prayer. Mehmed asked the deputy judge to hear the testimony of some community members from the Kefeli neighborhood about the muezzin’s behavior. When the deputy judge did so and heard testimony from six male neighborhood residents, all confirmed Mehmed’s statement.1 Like many other cases in the Sharia court registers, this case is also registered without acknowledging the deputy judge’s verdict about the muezzin. Nevertheless, in another record, we find out that two years later, in February 1677, Abdünnebi went to the Istanbul court and sued Mehmed b. Çavuş, the new muezzin of the Kefeli

The Indistinct Line between Marriage and Divorce  163 mosque, for displacing him unjustifiably. Apparently, Mehmed’s action in the Bab court had achieved its goal, and Abdünnebi had lost his position in the mosque. From the entry in the registers of the Istanbul court, we understand that the deceit of marrying Fatima off to Ahmed had actually happened ten years before Mehmed brought the case to the Bab court. Ultimately, by bringing up the former charges against Abdünnebi, presenting the official document of his appointment, and with the testimony of almost 20 neighborhood residents, the new muezzin was able to vindicate himself from the accusations of holding Abdünnebi’s office illegally.2 The case of the muezzin is quite interesting in several respects. Although it is not the main focus here, one can find echoes of a contemporary discussion about coffeehouses and neighborhood morality. Upon the propagation of coffeehouses in the 16th century, the ulema (Muslim scholars trained in Islam and Islamic law), especially, considered them vicious places that made their clients neglect religious obligations (Hattox 1985, 29–45; Imber 1997, 94; Saraçgil 1999). It would be interesting to know if the six witnesses from the Kefeli neighborhood were going to the coffeehouse of the muezzin in 1675 when coffeehouses were already quite widespread in the capital and were part and parcel of social life. Nevertheless, like Mehmed, they seem to have considered opening up a coffeehouse to be serious misconduct, maybe because it was unexpected from a religious functionary. What makes this case striking in our context, however, is the curious matter of the muezzin who was able to deceive Ahmed about Fatima being widowed, which can partly be explained by looking at the connections between the litigants. We are only informed that Mehmed and the muezzin were from the same neighborhood. Ahmed’s residence, however, is not recorded. It was quite usual that residents of the same neighborhood were usually informed about certain key moments of one another’s life, such as marriage, divorce, birth, or death. Therefore, Ahmed seems to have been an outsider to the residents of the Kefeli neighborhood, so much so that he did not know that Fatima was, in fact, married and probably did not know anyone from the neighborhood who could warn him about that. As for Hasan, it is noted that he resided in the medrese (educational institution for Islamic religious instruction) of Fethiye, which was situated within the courtyard of the Fethiye mosque in the walled city, in close proximity to the Kefeli neighborhood. Although there is no way of knowing whether Hasan knew Fatima, one would expect him to have some sort of acquaintance with her. It seems in the register as though it was the muezzin who reached out to Ahmed and offered him the opportunity to marry Fatima. It would be interesting to know whether Ahmed had seen Fatima before agreeing to this arrangement. The register raises as many questions as it answers with regard to Mehmed’s reaction to the false marriage and how they resolved the matter. The central question that deserves some consideration here is, how a woman who was already married could be given in marriage to another man, most probably without her knowledge.

164  Gamze Yavuzer In the pre-modern Ottoman context, marriage was substantially an oral act, notwithstanding the fact that marriage contracts are found in some provinces. Fundamentally, would-be spouses could marry without the presence of any civil or religious official or the requirement of registration (Aydın 1982, 1; Esposito and DeLong-Bas 2001, 16). The only obligation that the Hanafi jurists imposed was the presence of two male or one male and two female witnesses to the marriage. The requirement of two female witnesses as opposed to one male witness to the marriage reflects the general attitude of Islamic law with regard to the legal weight of witness testimony by men and women. In addition, the existence of the bridegroom and bride was not obligatory; their proxies (or guardians of minors) could represent the parties in absentia (Esposito and DeLong-Bas 2001, 16; Ali 2008, 17). Judging from various fatwas and sultanic orders, it seems that the state allowed marriage contracts to be concluded only upon the issuance of a marriage permit (izinname) from the local judge (Elbirlik 2013, 38–40). This license would indicate that there were no legal impediments to a couple’s nuptial arrangement. The state issued sporadic regulations concerning marriage permits, which forbade local imams from contracting marriages of those who did not have the license and similarly forbade judges from trying their matrimonial cases (Aydın 1982, 6–9; Behar 2004; 541; Elbirlik 2013, 38–40). Nevertheless, despite the existence of some izinname documents in some random registers from different parts of the Empire, their number is quite limited (see also Elbirlik 2013, 38). İzinnames were also not registered in the Bab court registers from the second half of the 17th century, which suggests that the regulation might not have been strictly followed in practice, unless such documents were recorded in separate ledgers. Even though local imams and judges appear to be the usual agents in contracting marriages, muezzins do not seem to have served a role in making marital agreements. Nevertheless, we can assume that, as religious functionaries, muezzins were treated with respect and earned people’s trust, which might explain how Ahmed could fall into Abdünnebi’s trap. The fact that Ahmed was an outsider, the lack of documentation on Fatima’s existing marriage, and the possibility of contracting a marriage with her in her absence, easily explain the social and legal atmosphere that formed a basis for his deception. From this perspective, Ahmed’s case does not seem to be altogether exceptional. Indeed, Abdünnebi was not the only individual who attempted to take advantage of pre-modern marriages’ ambiguous, unofficial, and oral nature. A similar intricate case came to light when a certain Hüseyin went to the Bab court in 1670 and demanded that the deputy judge admonish his “lawful” wife, Hatice, to enter into a conjugal relationship (ezvac muamelesi) with him, which she had been avoiding. Sometime before, Hüseyin had married Hatice through her proxy, Mehmed’s mediator, and the two men had agreed upon 7000 akçes of mehr-i müeccel (deferred dower transferred from

The Indistinct Line between Marriage and Divorce  165 husband to wife upon his death or divorcing her). When the deputy judge asked Hatice about the reasons for her avoidance, she declared that she had appointed Mehmed to marry her to another Hüseyin, who was a servant in the Old Palace, not to the plaintiff Hüseyin. Therefore, Mehmed had arranged her marriage to Hüseyin improperly (fuzûlen). When she heard about the marriage, she took the opportunity to decide whether or not to accept it, and eventually refused the arrangement (muhayyere olmamış idim). Upon her statement, the deputy judge demanded evidence from Hüseyin either as to Hatice’s appointment of Mehmed as a proxy to arrange her marriage to himself or to the effect that she had approved the marriage to Hüseyin after having heard about it. However, Hüseyin was unable to provide proof. According to Islamic law, in the absence of any written or oral evidence, the Muslim judge would offer the defendant the option to take an oath as to the veracity of his/her statement. The defendant’s decision to take an oath or not to accept the opportunity would be a clear indicator of whether or not the plaintiff had a valid claim (Bayındır 1986, 8–9; Erünsal 2019, 10–11). Deciding a case solely based on oath-taking is also the clearest reflection of the pre-modern oral culture in the legal system in general. When Hatice was offered this opportunity to take an oath that she was telling the truth, she accepted it and the deputy judge forbade Hüseyin from causing further dispute on this issue.3 Hatice’s choice to appoint a proxy (vekîl) for her marriage arrangement was a common practice among both women and men and not just for marriage arrangements (see Jennings 1975, 147–169). As mentioned above, for a marriage contract to be valid, the marrying parties did not have to be present; they could both be represented by their proxies. Like men, a woman who was the age of legal majority could marry herself off to someone of her choice without the representation of an agent or permission of her parents as long as the groom was “suitable”. If she preferred to be represented by a proxy, it could be a woman or a man, but it had to be a sane person (Bilmen 1967– 1969, 58). It was imperative for a proxy to follow the instructions of his/her principal (müvekkil). For example, if a woman appoints a proxy to make a nuptial agreement on a certain amount of mehr and the proxy assents to a lower amount, the woman had the right to repudiate the contract. Moreover, the marriage would be suspended if the proxy marries off his/her principal to a person who was not the designated one (Bilmen 1967–1969, 59), as in the above case of Hatice. In that case, Mehmed was an unauthorized proxy, and the marriage he contracted was not binding. Knowing that, Hatice seems not to have taken any action with regard to this invalid marriage, but the complainant, Hüseyin, might have been unaware that their marriage was, in fact, void. From the record, Mehmed’s act does not appear to be a mistake of confusing two men with the same name. What Mehmed did was described as an unlawful act, not as a misunderstanding. It is hard to know whether Mehmed had a personal interest in this arrangement, as in the case of Abdünnebi, who had gained a financial favor. Even if the complainant

166  Gamze Yavuzer Hüseyin found out about the “intrigue” before their appearance in the Bab court and had an out-of-court dispute on the issue with Hatice and Mehmed, apparently, he believed that the marriage contract he entered into was valid and he was determined to “demand justice” to make Hatice have a spousal relationship with him. The fact that proxies could contract marriages in the absence of the marrying parties seems to have created complications in various ways. In The Hedaya, one of the most authoritative texts of Hanafi jurisprudence from the 12th century, the consequences of marrying someone off without his/her knowledge are discussed in detail (The Hedaya 1957, 42–43; see also Çatalcalı Ali Efendi 2014, 47–49). That is to say, what Mehmed did may not have been an uncommon occurrence in the sense that the possibility of such incidents had been foreseen by religious scholars or facing such problems had led them to offer legal clarifications. Therefore, Fatima and Hatice were possibly among many other women who were married off to someone without their knowledge. In theory, however, once reaching the age of legal majority, the bride-to-be’s consent to marriage is sought to ensure the legality of the marriage such that the marriage contract could be suspended until she gives her approval to it (The Hedaya 1957, 25–26). Although a girl in her majority is permitted to marry someone of her own choice, if the bridegroom is not socially “equal” to her or she agrees to a lower amount than her “proper mehr”, her male guardian has the power to annul the marriage (Mülteka 1968, 359). Before legal majority, however, a minor girl could be married off to someone by her legal guardian without obtaining her authorization. Like other legal schools, Hanafi law grants the minor girl “the option of puberty” (hiyâr-i buluğ), according to which she enjoys the right to repudiate her marriage immediately after she reaches puberty, unless, per Hanafi law, her legal guardian was her father or her grandfather (Esposito and DeLong-Bas 2001, 16; Tucker 2008, 124–128). Whether women were informed about the details of these rules and knew how to react in cases of “improper” arrangements is hard to find out. 11.2 Ambiguity of the Marital Status: Use of Witnesses, Absence of Marriage Contracts One might expect the public to be somewhat knowledgeable about the formal and customary ways of undertaking such a widespread occurrence as a matrimonial arrangement. Yet, that might not always be the case. Another “victim” was Şerîfe Raziye Hatun bt. Es-Seyyid Hasan Ağa, who resided in the Zeyrek neighborhood within the walled city, was apparently a woman of higher status, as her titles “şerîfe” and “hatun” suggest. Sometime around February 1670, she desired to go to Edirne and, before departing, she went to Nuh Bey b. Hüseyin Paşa’s house to pick up a letter from him to be delivered to his two brothers who also resided in Edirne. When Raziye arrived at Nuh’s house with her child, Nuh sent off the carriage, which had brought the

The Indistinct Line between Marriage and Divorce  167 two, and detained them in his house. Nuh tried to convince Raziye, who was probably a divorced woman, all night long to marry him. When Raziye told him that marriage without witnesses would be void, Nuh assured her that witnesses were not required and they would be legally married, she stated in court. Raziye surrendered eventually. The two agreed on five hundred guruş of mehr and consummated the marriage the same day, and Raziye became pregnant thereafter. She appealed to the Bab court in October 1670, eight months after that night in Nuh’s house. In the court, she stated that Nuh was not providing her with the maintenance (nafaka) she was entitled to receive as his rightful wife. The judge, however, disagreed and held that there was no need to hear the plea of Nuh; Raziye had no right to demand maintenance since her marriage without witnesses was unequivocally void.4 If we take Raziye’s statement for granted, Nuh seems to have manipulated her, probably to have sexual intercourse. Whether Nuh disappeared immediately after that night in his house, or they spent some time as a married couple is not recorded. In addition, knowing that her marriage was void, she might have attempted to portray herself as a victim so as to convince the deputy judge to make Nuh financially support her. The fact that she was indeed not legally married implies that she had committed fornication (zina), but at least in this case, she does not seem to have been charged with such a crime. Indeed, even prostitutes in 18th-century Istanbul were not accused of zina. The tendency of the Sharia courts was to order the banishment of prostitutes from their neighborhoods upon neighbors’ complaints (Başaran 2014, 197–200). It is hard to know the extent to which people in the late 17th century were knowledgeable about the obligation of witnesses when contracting a marriage. Was it Raziye’s ignorance that caused her to be fooled by Nuh, or was it a reflection of a vague and ambiguous legal environment created by heavy dependence on orality regarding matrimonial matters? The deputy judge of the Bab court seems to have required only the existence of witnesses who could vouch for the validity of their marriage. A fatwa by İbn Kemal also indicates that marriage by proxies is valid as long as witnesses were present (İbn Kemal 2011, 65). Other types of legal action, such as obtaining a marriage permit or delegating an imam to contract the marriage, seem to have served a secondary role at the very most. There are indeed several cases in the Bab court registers in which one of the spouses denied being married to the litigant who claimed to be their spouse. These cases were resolved by merely relying on witness testimony. As mentioned above, the principal reason for the occurrence of such intricacies was the fact that registering marriage contracts in court was not an obligation. There are only a few examples of marriage records in the Bab court registers from the late 17th century. As a matter of fact, many individuals probably avoided recording their marriage in court in order to avoid paying the registration fee (for marriage fees see Uzunçarşılı 1984, 84–85). While there is no evidence of systematic registration of marriages in Istanbul

168  Gamze Yavuzer prior to the 19th century, Behar’s study has shown that there are examples of neighborhood headmen (muhtâr) or imams who kept records of nuptials as well as births and deaths in the late 19th century. The marriage records of the Kasap İlyas neighborhood, kept by its headman between 1864 and 1906, contain 679 entries (Behar 2004, 541–542). Whether there were such notebooks belonging to neighborhood imams or separate ledgers kept by the Istanbul courts prior to the 19th century has not yet come to light. Studies by various scholars, however, have demonstrated that keeping records of marriage contracts was a localized practice. Marriage contracts are found sporadically in certain parts of the Empire, such as some Arab provinces, some towns in the Balkans, Crete, and Trabzon (Abdal-Rehim 1996; Kolovos 2008; Gara 2010; Mamaş 2019). The record-keeping practices show considerable variance even in locations that are in relatively close proximity to one another or share a similar cultural structure. According to Eleni Gara, while marriage records are found for Mostar in the early 17th century, in some other towns in the Balkans, such as Sofia and Karaferye, registering marriages does not seem to have been a prevalent practice (Gara 2010, 118). Furthermore, Amira El-Azhary Sonbol also notes that although registering marriage contracts was a pre-Islamic practice in Egypt, regional variations are observed with regard to the content of the records in different towns of the province. Such diversity emerged mainly due to the socioeconomic differences of the towns; contracts in tribal towns tended to be short and straightforward, whereas in larger urban centers such as Alexandria, they were more detailed with some stipulations embedded in them in many cases (Sonbol 2008, 100–101). Likewise, Gara also indicates that registering marriage contracts in the Sharia courts was an urban practice (Gara 2010, 118–119). The absence of such documents in many places, however, made it difficult to determine one’s marital status and created almost complete reliance on oral testimony of witnesses or oath-taking. 11.3 Ambiguity Due to Conditional Divorce Another factor that made marital status ambiguous was conditional divorce. In this type of divorce, women could enter into certain oral negotiations with their husbands, according to which the wife could be granted a divorce should the husband not keep the vow that he took on a particular issue. The content of the vow could vary a great deal; it could be anything, depending on the nature of the relationship between spouses. All that was required was the husband’s oral vow, formulated as “If I do this, we shall be divorced”. For instance, if he stated, “If I ever drink wine again, we shall be divorced” and then indeed drank it, the couple would be legally divorced. Because it was an oral vow, these arrangements could create some ambiguous circumstances in which spouses could disagree as to the existence or the content of the vow. Various muftis and chief muftis issued fatwas on conditional divorce, how it becomes legally effective, or circumstances that would render it void (Düzdağ 1983,

The Indistinct Line between Marriage and Divorce  169 44–45; Imber 1993, 39–73; İnanır 2011, 70–73; Çatalcalı Ali Efendi 2014, 127–144). Also, in the Bab court registers, there are examples of such negotiations. In 1671, for instance, Fatima bint el-Hac Halid, represented by her nephew, filed a lawsuit against her ex-husband Mehmed Çelebi ibn Kapıcı Hüseyin Bey, who was attempting to have a conjugal relationship with her. According to the statement of her proxy, while they were still married, Mehmed Çelebi had made a vow not to visit Salih Efendi, a relative of his. He had also stated that should he visit Salih Efendi, his wife Fatima would be divorced from him through “three divorces for one month, six divorces for two months, and nine divorces for three months”. Triple divorce (talâk-ı selâse) already means an irrevocable divorce and time specifications seem irrelevant to the standard phrase of talâk divorce, so here it seems that six talâk and nine talâk were uttered to emphasize the husband’s determination to keep his vow (for a fatwa on talâk more than three times, see Çatalcalı Ali Efendi 2014, 117). It was not recorded why Fatima demanded that her husband not visit Salih Efendi, but it must have been a serious matter to her, serious enough to be ready to end her marriage if he did so. It is also possible that Mehmed Çelebi took this vow on his own initiative, without his wife’s insisting. However, this possibility does not seem to be a strong one, as Fatima found out that Mehmed Çelebi visited Salih Efendi’s house six months prior to her appeal to the Bab court. The fact that he broke his vow effectively ended their marriage the moment he visited Salih Efendi, without any judicial act. Whether or not the divorce was Mehmed Çelebi’s deliberate intention when he made his vow or was drunk or under duress, does not change the consequence. As long as he said that she would be divorced, he could not change the outcome (Imber 1993, 59). The only solution for the couple, if they wished to continue their marriage, was to renew their marriage (tecdîd-i nikâh), but both parties would have to agree. Fatima, however, seems to have accepted the divorce and was determined to prevent Mehmed Çelebi’s assaults through legal means. In court, although he admitted that he had been to Salih Efendi’s house and had stayed there for a few nights, he denied the fact that he had entered into a conditional divorce with his wife on this issue. Upon his denial, Fatima presented witnesses who confirmed that he had indeed made the vow a year ago in their presence. The case, however, was recorded without the decision of the deputy judge.5 While conditional divorce might have enabled some women to make their husbands do or not do something that they wished, in many other cases, it might have worked to their disadvantage. It definitely made the marriage quite vulnerable and hard to rely on, as uttering a simple sentence could easily end it. Conditional divorce was also a factor that further contributed to the ambiguous nature of pre-modern marriages, as there were many elements that complicated their functioning. The format of the wording, for instance, had to be right: The divorce formula should be directed to the wife, and it had to use the imperative form. “Boş olasın”, for instance, is invalid. The correct format is “Boş ol!” (Imber 1993, 60–61). It can be observed in the court registers that sometimes the couple stayed in limbo as they could

170  Gamze Yavuzer not be sure if their marriage had ended or not due to the ambiguous oral vow that the husband had made. In 1684, for instance, Aişe bint Ramazan believed that she was divorced from her husband İbrahim Çelebi ibn Receb, but actually, it was decided in court that they were still married. Eighteen days before Aişe’s appeal to the Bab court, İbrahim Çelebi had made a vow that if he were indebted to somebody, his wife Aişe would be divorced from him. Based on his vow, Aişe went to the Bab court to demand the deputy judge admonish İbrahim Çelebi to pay the deferred portion of her mehr since she had found out that he owed 51 guruş to someone whose name does not appear in the register. While Aişe was confident that they were divorced, İbrahim Çelebi did not think so. In court, he accepted that he had made that vow but denied owing money to anyone, which meant that they were still married. Since Aişe could not prove her husband’s debt, İbrahim Çelebi was offered the option to take an oath that he was telling the truth. As he took the oath, the deputy judge admonished Aişe from causing further dispute on the issue. In addition, a marginal note was taken next to this entry in the ledger as “no need for renewal of marriage”.6 It seems that Aişe was so willing to end her marriage that she took action within a couple of weeks after İbrahim Çelebi took the vow. It is also possible that, genuinely believing that their marriage had ended, Aişe was worried about having an unlawful relationship with İbrahim Çelebi. It is most probable that the couple discussed the issue before going to court; Aişe claimed that they were divorced and demanded her mehr, but when İbrahim Çelebi refused her, she decided to sue him and resolve the matter in court. Nevertheless, knowing that İbrahim Çelebi was not going to accept the charges, Aişe should have known that she did not have a chance to win the case without any evidence of her husband’s debt. According to the documents Aişe lied in court to be divorced from her husband and receive her mehr. Yet, one might also think that not wanting to end his marriage, İbrahim Çelebi might have paid his debt before their appearance in court or convinced possible witnesses not to give a statement against him. Regardless of what actually went on between the two, it is not unreasonable to assume that after the decision of the deputy judge, Aişe was obliged to remain in an undesired marriage. 11.4 Ambiguity of the Divorce Type: Talâk or Hul’? There are multiple options for terminating a marriage in Islamic law, most of which do not require religious or judicial intervention. Nonetheless, many Muslim couples registered their divorces in the Sharia courts primarily with the concern of settling and recording their post-divorce financial arrangements. According to Islamic law, Muslim men enjoy a unilateral right to divorce their wives on any ground by uttering a simple divorce formula. In this type of divorce, which is broadly referred to as talâk, the husband pays his wife her deferred mehr, which the couple had agreed upon at the time of making their marriage contract. Muslim women, however, do not have the

The Indistinct Line between Marriage and Divorce  171 right to divorce their husbands through talâk. If they wish to initiate a divorce, they renounce part or all of their deferred mehr, sometimes with additional compensation. In this hul’/muhala divorce, women must receive their husbands’ approval for the divorce. The only type of divorce that grants the divorcing parties a legal annulment is fesih, which can become effective, according to the Hanafi school, only in cases of the husband’s impotence or apostasy of one of the spouses. Fesih is the only type of divorce that requires judicial intervention by the Muslim judge. Even when spouses agreed that they had been divorced, they could have a dispute about whether their marriage had been terminated through hul’ or through talâk. Given that the divorce had not been registered in court, even for its financial issues, it would not be hard to bring a false claim against the other party. Doing that would actually be appealing for a simple reason: Talâk and hul’ lead to different consequences in terms of mehr and iddet maintenance arrangements. While it is the wife who attains a financially favorable position in the former, it is the husband who benefits in the latter, since his mehr debt is waived in the hul’ divorce. In addition, in the hul’ divorce, the wife forfeits her right to three months of iddet maintenance following the divorce. I observed that both men and women attempted to take advantage of this prevailing ambiguous and obscure atmosphere and tried to change the situation in their favor. In one such case, in 1686, Rahime bint el-hac Murad filed a lawsuit against her husband, Hüseyin Çelebi ibn Abdullah. According to her statement, ten days before her appearance in the Bab court, Hüseyin had divorced her through talâk; yet he had paid neither her ten thousand akçes worth of delayed mehr nor her iddet maintenance, as was his duty. When the deputy judge asked Hüseyin about his debt, he denied Rahime’s accusations and stated that ten days before, they had actually divorced through hul’, not talâk, and therefore Rahime had forfeited her right to receive her deferred mehr. Although the burden of proof lies with the plaintiff according to Islamic law, the deputy judge of the Bab court somewhat surprisingly asked Hüseyin to provide evidence relating to the hul’ divorce. Hüseyin was able to present several witnesses, including the neighborhood imam, all of whom confirmed his statement, whereupon the deputy judge forbade Rahime from causing further dispute on the issue.7 It is curious that the deputy judge did not ask for evidence from Rahime, as expected, and instead asked it from Hüseyin. There is no way of knowing whether Rahime would have provided witnesses on her side had the deputy judge asked her to bring proof. Given that they had indeed divorced through hul’, we assume that Rahime regretted her hul’ decision and aspired to receive the delayed portion of her mehr. Just as with talâk, hul’ is also an irrevocable divorce and even if Hüseyin had fooled Rahime into it or had somehow forced her to agree to it, that would not have changed the result. In another even more complicated case, Güher bint Mehmed went to the Bab court in July 1671 and made a somewhat bizarre statement: Her former husband Ahmed Bey ibn Abdullah and she had agreed to end their marriage

172  Gamze Yavuzer through hul’ divorce, around December 1670. Yet, she continued, Ahmed Bey had already divorced her through irrevocable talâk three days prior to the hul’ divorce. Based on that talâk, she had appeared in the Bab court to demand that the deputy judge make Ahmed Bey pay her delayed mehr. Unfortunately, it is not registered whether Güher had provided a satisfactory explanation in court as to why they had gone through the hul’ divorce although they had already been divorced through talâk. Indeed, when asked, Ahmed Bey confirmed the hul’ divorce but denied that he had divorced her through talâk prior to that. Upon his denial, Güher was asked to provide evidence concerning the talâk divorce, which she was unable to do, whereupon the deputy judge forbade her from causing a dispute on the issue.8 What is interesting here is that it was Güher herself who confessed that they had agreed to the hul’ divorce. If her statement was accurate, why did they go through the hul’ divorce after already having been divorced? Did Ahmed Bey continue to have a spousal relationship with her after the talâk so that she had to offer a hul’ divorce to persuade him to finally end their marriage for a “price”? If so, during the seven months between their divorce and Güher’s appearance in the Bab court, someone might have urged her to demand her deferred mehr on account of the fact that the hul’ would be void if the couple were already divorced. Indeed, a fatwa of Çatalcalı Ali Efendi indicates that for that reason, if a woman is able to show evidence of the previous talâk divorce, she is entitled to receive her delayed mehr despite the later hul’ divorce (Çatalcalı Ali Efendi 2014, 158). On the other hand, if she had made a false statement, which is more plausible in the case of Güher since she could not support her claim, we might assume instead that she was trying to take advantage of the uncertainty that the oral arrangements between two people had created. If she had succeeded in her plan, instead of losing the delayed portion of her four thousand akçes mehr, she would have left the marriage with that sum, as well as receiving payment of her iddet maintenance. 11.5 Conclusions In entries related to family law, the use of witnesses, oath-taking, and amicable settlement were among the most widely followed legal procedures in the Sharia courts. In this respect, the legal procedures highly depended on orality with regard to arbitration, as well as adjudication. The pre-modern Ottoman world has often been described as being primarily oral, where social relations were primarily established based on oral contracts and commitments, not to mention the impact of low literacy rates (Ergene 2004, 477; Grehan 2004, 991–992). Students of the Sharia court registers observed that written evidence was distrusted, which sometimes led courts to insist on confirming the validity of the documents with witness testimony (Ergene 2004, 473; Ergene 2005, 99). Boğaç Ergene mentions the tendency to discredit written evidence as an evidentiary instrument, not only because it would alienate illiterate

The Indistinct Line between Marriage and Divorce  173 clients of the court but also because documents could not be interrogated, and therefore could not be trusted. He also shows that in Çankırı (northern Anatolia), in the 17th and 18th centuries, document use in the court registers was as low as 11% (Ergene 2004, 473). This could also be related to court fees charged on documents, which tended to restrict the use of documents to those people who had acquired basic literacy and were able to afford the fees (Ergene 2004, 483). Moreover, while accepting the prevalence of oral testimony, Peirce asserts that in the 16th-century Ayntab court registers there are quite a few cases in which documents, such as land titles or manumission certificates, were used and also given prominence (Peirce 2003, 102). As noted above, Islamic law requires that for a testimony to be considered acceptable it has to be an eyewitness account (Bayındır 1986, 145–146). The summaries of the court cases in the registers were formulated in such a way that most of the time it was underlined that the witnesses gave eyewitness testimony. The standard phrase of the witnesses goes as follows: “We witnessed this issue, and we also give our testimony on it” (biz bu hususa şahitleriz ve şahadet dahi ederiz). Nevertheless, in certain cases, such as birth, death, marriage, mehr, or divorce, hearsay evidence provided by witnesses could be accepted on account of the fact that only a small number of people could witness such occurrences, while this kind of information widely circulates within small communities (Bilmen 1967–1969, 141; Bayındır 1986, 147–148). Historians have pointed out that neighborhoods in the pre-modern Ottoman period were closed communities, where the inhabitants assumed a sense of collective identity and were held responsible for each other’s actions and wrongdoings (Ergenç 1984, 69–78; Abel-Tamdoğan 2002; Behar 2003, 4). Especially in a closed neighborhood setting, neighbors were well informed, even about one another’s “private” matters, such as who was involved in illicit sex, or who worked as a pimp (Yılmaz 2000, 97; Semerdjian 2003, 78). Thus, the court acknowledged that it was not unexpected for people to know basic information about their neighbors. Disputes over the marital status or post-divorce financial arrangements on mehr, therefore, were resolved mainly through witness testimony in the absence of documentation. That is to say, when resolving disputes over whether a couple had indeed divorced, the divorce type they followed, or how much mehr was promised by the husband at the time of making the marriage contract, the Muslim judge predominantly relied on oral testimony of witnesses. The legal system, in a way, depended very much on individual or collective memory. It seems that reliance on this memory and orality were integral components of the legal system but it did not work perfectly. In cases involving marital issues, lack of documentation created various obscurities in the pre-modern period. The availability of multiple divorce options through fesih, talâk, and hul’ turned divorce into a complicated matter. Marital status could also lead to knotty cases in which spouses argued about whether their marriage had been dissolved or not. The cases examined above indicate that people were aware of these “legal loopholes” and tried to manipulate the

174  Gamze Yavuzer legal procedures to their favor. At least some people seem to have understood the weight of witness testimony in the judge’s decision-making. Although it seems that legal procedures with a lack of documentation and prevalence of orality were open to manipulation, the cases above also suggest that married or divorcing couples were not discouraged from appealing to the Sharia courts; people kept seeking and trusting the judge’s intervention, or the documentation which he provided. Archival Sources Records of the İstanbul Bab Mahkemesi İBMŞS 12, H. 1081-1082/M. 1670-1671 İBMŞS 21, H. 1085-1086/M. 1674-1675 İBMŞS 45, H. 1096-1097/M. 1684-1685 Notes 1 İstanbul Bab Mahkemesi Şer’iyye Sicilleri [hereafter İBMŞS] 21 Numaralı Sicil, Varak [53-b]. 2 İstanbul Mahkemesi, 18 Numaralı Sicil, 130 [19b-1]. 3 İBMŞS, 12 Numaralı Sicil, Varak [7-b]. 4 İBMŞS, 11 Numaralı Sicil, 128 [19a-2]. 5 İBMŞS, 12 Numaralı Sicil, Varak [87-b]-[88-a]. 6 İBMŞS, 45 Numaralı Sicil, Varak [48-b]. 7 İBMŞS, 45 Numaralı Sicil, Varak [98-b]. 8 İBMŞS, 12 Numaralı Sicil, Varak [101-b].

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176  Gamze Yavuzer Mamaş, Gülsüm. 2019. “Şer’iyye Sicillerine Göre XII. Yüzyılın Son Çeyreğinde Trabzon’da Boşanma.” MA thesis, Karadeniz Teknik Üniversitesi. Marghīnānī, Alī ibn Abī Bakr. 1957. The Hedaya, or Guide: A Commentary on the Mussulman Laws. Translated by Charles Hamilton. Lahore: New Book Co. Peirce, Leslie. 2003. Morality Tales: Law and Gender in the Ottoman Court of Aintab. Berkeley: University of California Press. Saraçgil, Ayşe. 1999. “Kahvenin Istanbul’a Girişi: 16. ve 17. Yüzyıllar.” In Doğu’da Kahve ve Kahvehaneler, Hélène Desmet-Grégeon and François Georgeon (eds.). Istanbul: YKY. Semerdjian, Elyse. 2003. “Sinful Professions: Illegal Occupations of Women in Ottoman Aleppo, Syria.” Hawwa 1, no. 1: 60–85. Sonbol, Amira El-Azhary. 2008. “A History of Marriage Contracts in Egypt.” In The Islamic Marriage Contract: Case Studies in Islamic Family Law, Asifa Quraishi and Frank E. Vogel (eds.). Cambridge, MA: Islamic Legal Studies Program, Harvard Law School. Tucker, Judith. 2008. “Questions of Consent: Contracting a Marriage in Ottoman Syria and Palestine.” In The Islamic Marriage Contract: Case Studies in Islamic Family Law, Asifa Quraishi and Frank E. Vogel (eds.). Cambridge, MA: Islamic Legal Studies Program, Harvard Law School. Uzunçarşılı, İsmail Hakkı. 1984. Osmanlı Devletinin İlmiye Teşkilâtı. Ankara: Türk Tarih Kurumu Basımevi. Vatin, Nicolas. 1995. “Remarques sur L’oral et L’écrit dans L’administration Ottoman au XVIe Siècle.” Revue des Mondes Musulmans et de la Méditerranée 75, no. 1: 143–154. Yavuzer, Gamze. 2022. “Legal Plurality in Family Law: Muslim and Christian Families in Seventeenth-Century Istanbul.” PhD diss., University of Maryland, College Park. Yılmaz, Fikret. 2000. “XVI. Yüzyılda Osmanlı Toplumunda Mahremiyetin Sınırlarına Dair.” Toplum ve Bilim 83: 92–109.

12 The Influence of Islamic Law on Greek Orthodox Divorce under Ottoman Rule Evdoxios Doxiadis

Divorce was always an option under Greek Orthodox Christianity, from late antiquity onwards, but it was a fairly restrictive practice that certainly favored men. The conquest of the Byzantine Empire and the Balkans by the Ottomans in the 14th and 15th centuries, however, while not eliminating the ecclesiastical courts of the Orthodox Church, introduced Islamic courts which were open to non-Muslims in the region. This also introduced the option of much more flexible divorce practices under Islamic law. Orthodox Christians, men and women alike, were quick to exploit this opportunity as earlier scholars have definitively proven (see Jennings, 1978 and 1993; Gradeva, 1997). This paper will focus instead on the response of the Greek Orthodox Church to the challenge Islamic courts represented to its authority. I argue that the presence of Islamic law in the region led to much more flexible and permissive divorce practices and great acceptance of remarriage which persisted for a century after the expulsion of Ottoman rule in the region. The influence of competition from the Islamic courts becomes more evident when Greece is contrasted to the one part of the Orthodox world that remained outside Ottoman control, namely Russia, where divorce, while possible, remained highly restricted. The modern Greek state inherited this permissive divorce regime and maintained it throughout the 19th century, introducing new restrictions to divorce only in the early 20th century. The history of divorce in Greece and the Orthodox Christian world in general has proceeded along very different paths than other parts of Europe influenced by the Catholic Church’s restrictions on the dissolution of marriage. In the parts where Orthodox Christianity was dominant, divorce with the ability to remarry has always been possible, although its parameters varied significantly based upon the region and the period in question. This chapter will discuss one such period when Orthodox divorce practices were influenced by the presence of Islamic law, from the 14th to the 19th centuries following the conquest of the Byzantine Empire and the Balkan states by the Ottomans. By influence I do not mean solely legal concepts, but also, if not primarily, the responses of the Orthodox Church to the competition presented by Islamic courts which were willing to accommodate the Christian subjects of the Ottoman Empire. I should also note that in this discussion by “divorce” DOI: 10.4324/9781003334552-14

178  Evdoxios Doxiadis I mean the complete dissolution of the marriage and not a mere separation of bed and board. Such divorces offered the possibility of remarriage in many but not all cases, as the chapter discusses. 12.1 The Orthodox and Islamic Divorces Before I discuss the period in question, I want to point out very briefly some similarities and differences between Orthodox Christian and Islamic divorce practices to contextualize the subsequent discussion on the interactions between the two judicial systems during the Ottoman period. The most fundamental difference has to do with the understanding of marriage in Christianity and Islam. While in Orthodox Christianity marriage is a sacrament and thus its dissolution is problematic in theological terms, in Islam it is a contractual agreement and does not contain the same religious connotations regarding permanency found in Christian marriages (Tucker 1998, 38, 40, 42). As a contractual relationship, its dissolution is an easier matter, at least for the husband, who can end it at will as long as the stipulated obligations towards his spouse and children are respected. This difference, however, is tempered by the fact that Christian marriage, and in the Eastern Roman Empire in particular, had incorporated many of the principles of Roman marriage, which also saw marriage, in part, as a contractual arrangement. Marriage payments also fundamentally differed with Orthodox marriage mandating a dowry supplied by the parents of the bride and a marriage gift provided by the groom (though the latter was often absent in Ottoman times) while Islamic law mandated a dower (mehr) promised by the future husband. The Orthodox Church recognized the social need for divorce relatively early but had to couple that need with the basic principles of Christianity regarding marriage. Since marriage is a sacrament, a union blessed by God, the early Church recognized primarily an act of adultery by the wife as a cause for divorce. In such cases a man could divorce his wife and remarry while the wife, being responsible for the divorce, could not have another husband (Agapios and Nikodimos 1970, 761). The severity of the act is indicated by the fact that priests who did not divorce their adulterous wives were defrocked (Christophilopoulos 1957, 57). However, while the Orthodox Church allowed men whose wives had “prostituted” themselves to divorce, women could not divorce husbands who committed the same sinful acts (Agapios and Nikodimos 1970, 59, 391). Many Church Fathers objected to this apparent injustice towards women especially since adulterous women were also subjected to severe penalties according to Roman-Byzantine law including exile, amputation of the nose, or even execution, while men were not subject to the same penalties (Koukoules 1948, 197). Basil the Great talked of the injustice that wives could not divorce violent and immoral men and considered divorced men who remarried to be adulterers. He also thought that the causes that led women to leave their husbands should be examined

The Influence of Islamic Law on Greek Orthodox Divorce  179 and if found proper, these women should be forgiven. Gregory the Theologian rejected the idea of divorce as seen in the Apostolic Canons as unfair to women and suggested that both men and women could divorce in cases of adultery, but they should not be allowed to remarry (Agapios and Nikodimos 1970, 60, 596, 612). While the Church Fathers hardly had a common stance on this question, the Church gradually expanded the grounds for divorce, allowing women to initiate divorce proceedings against their husbands under certain circumstances and giving them the opportunity to remarry. However, with few exceptions, there had to be a culpable party. Culpability could be inadvertent as a result of a medical condition like insanity, impotency, or leprosy, or due to circumstances like enslavement. In practice, however, most divorce claims were due to reprehensible acts or crimes, such as conspiracy against the emperor, grave robbing, the practice of magic, or indeed adultery (Koukoules 1948, 199; Agapios and Nikodimos 1970, 263; Armenopoulos 1971, 271, 272, 274). Divorce was not possible due to abandonment (Agapios and Nikodimos 1970, 618; Laiou 1992b, 306), although, usually after the passage of five years, spouses were generally allowed to remarry. This entailed risks, however, since if the husband resurfaced, the wife could be found guilty of adultery and bigamy, and she had to return to her first husband.1 Divorces also often resulted in penalties for the party deemed culpable, including financial ones, such as the loss of the dowry or the marriage gift, loss of the ability to remarry, loss of the custody of children, and so on. Orthodox divorce had not been regulated solely by the Church, however. Unlike its Western counterpart, the Eastern Roman Empire had endured until the Ottoman conquest and thus Roman law continued to be practiced and developed. The Church had therefore had to accept the expanding Byzantine legislation regarding divorce included in the Codes Justinian, Heracletos, Leo III, Basil I, Leo VI, Alexius I, Manuel I, and Andronicus II, spanning a period from the 6th to the 13th centuries (Christophilopoulos 1957, 47). Following the Ottoman conquest the Church went to great lengths to stress the continuity of the Roman tradition in the Orthodox Church under the direction of the Ecumenical Patriarchate of Constantinople and thus, Orthodox Christian divorce displays a remarkable continuity from Byzantium through the Ottoman period, with frequent references in ecclesiastical courts to the laws of past Byzantine emperors as indeed was the case even with the first constitution of the Greek War of Independence of 1822 (Svolos 1998). During the Ottoman period, however, the Church laws did not remain static but evolved further primarily through various codes issued by mitropolites (archpriests) and bishops recording their most significant decisions (Christophilopoulos 1957, 63). Even in terms of practice, the Ottoman period hardly diverges from the Byzantine one, since as early as Constantine Christians had been allowed to take cases to their ecclesiastical rather than lay courts, and the jurisdiction of ecclesiastical courts had been progressively expanded from Justinian onwards until ecclesiastical courts dominated the judicial system by the end of the empire (Pantazopoulos 1967, 35–42).

180  Evdoxios Doxiadis Women and men certainly did not hesitate to use whatever courts were available to them in order to gain divorces, as researchers have shown with nearly all of the causes mentioned above. Judges generally granted most of the divorces that appeared before them, although divorces do not appear to have been common (Laiou 1992b, 302, 303). It is also clear from the documents that those who sat on such courts had some freedom to judge according to the circumstances. Thus, while it was technically illegal to grant a divorce for abandonment by the husband, judges could suggest to a bishop that one could try to reason with him to modify his behavior. If the husband refused, the bishop would then proceed to grant a divorce, based, apparently, on a loose interpretation of the divorce stipulation regarding maintaining a concubine (Laiou 1992b, 307). While Islamic marriage was not difficult to dissolve in principle, women had few grounds upon which they could initiate a divorce. The right of a woman to seek divorce was limited either in time, meaning that the option had to be exercised within or at a specified time period, or was related to her husband’s ability to divorce his wife, most commonly in the hul’ divorce. The Hanafi School, the favorite school of the Ottomans, also allowed wives to demand divorces for some additional reasons such as impotency, violations of conditions stipulated in the marriage contract, blasphemy, lack of piety, and so on, while Islamic judges could also expand upon such grounds if they thought it necessary, some even considering differences in social standing a valid cause for divorce under some circumstances (Schacht 1964, 161, 164; Hamilton 1982, 87, 109, 112; Abdal-Rehim 1996, 105; Ivanova 1996, 113; Imber 1997, 85; Tucker 1998, 44, 81). While in general in cases of divorce men had to pay their spouses their mehr as well as support (nafaqa), most divorces initiated by women were hul’ divorces, where a husband agreed to grant his wife a divorce, but retained part or the entire portion of her mehr. Such divorces were justified “whenever enmity takes place between husband and wife and they both see reason to apprehend that the ends of the marriage are not likely to be answered by a continuance of their union” (Hamilton 1982, 112). On rare occasions we encounter the “honor” divorce in Ottoman courts, which occurred in cases of adultery. In such circumstances a woman forfeited her mehr by court order. In the records husbands seeking such divorces often referred to the inadequacies of their wives, in rather euphemistic language: She is my wife. She doesn’t obey me; she has injured my honor. Let her forfeit the remainder of her dower and her waiting period support and her various household possessions, the quilt and mattress and whatever else; let her keep my small daughter as long as she doesn’t marry another and take care of her without requesting support from me; and I will divorce her. (Peirce 1998, 287)

The Influence of Islamic Law on Greek Orthodox Divorce  181 Ayşe is my wife; she is no good for me, she doesn’t obey me, she follows immoral ways, she is trouble. Let her forfeit her dower and her waiting period support and I will divorce her. (Peirce 1998, 287) These divorces dating from the mid-16th century were issued according to the kanunname stipulations, the law codes issued by the Ottoman Sultans from the late 15th century onwards. Researchers have pointed to customary practices as the origin for such divorces (Peirce 1998, 286), and the similarity with Orthodox divorce practices is striking, since under such circumstances the wife forfeited her dowry/mehr. A comparative look at the differences between Orthodox and Islamic divorces in Ottoman times must begin with the different understanding of marriage payments. Muslim husbands were supposed to provide their wives with the mehr, essentially a dower, which became her property on the occasion of the dissolution of the marriage through death or divorce. By contrast, Orthodox women brought wealth into the marriage as a dowry which remained her property and represented her share of the inheritance expected from her parents. Although the husband administered his wife’s dowry, women retained considerable rights over their dowries and could challenge their husband’s management and even remove their property from their husband’s stewardship (Laiou 1992a, 237). In both Orthodox and Islamic divorce practices the expectation was that each spouse would retain their property including any marriage payments. Thus, Muslim women left their marriages with the promised mehr, while Orthodox women left with their dowries. In addition, both religions recognized the need for some support for the wife and the children from the marriage, and thus had certain provisions for such support. However, the usual need for culpability in Orthodox marriage had significant property ramifications, in the case of the wife, usually the loss of her dowry. Furthermore, since many of the causes for divorce involved a criminal act (adultery, attempted murder, magic, sodomy, etc.) the culprit could also be subject to additional penalties from the state or the Church, including aphorism (temporary excommunication). One could argue that in hul’ divorces women were also financially disadvantaged but at least they were in a position to negotiate the financial loss which was usually limited to their mehr and not to other property they had accumulated through inheritance or other means, while frequently the entirety of Orthodox women’s property was composed of the dowry. Only in cases of adultery were women in Orthodox and Ottoman Islamic practices similarly burdened, especially under the provisions of the kanunname of Suleyman which imposed substantial penalties on the husband who did not divorce his unfaithful wife (Peirce 1998, 286).

182  Evdoxios Doxiadis If he [nevertheless] accepts [her] and he is rich, he shall pay 100 akce by way of fine [imposed] as a [consenting] cuckold (koftehor) – but it has been customary to collect 300 akce by way of fine [imposed] on a cuckold; if he is in average circumstances, he shall pay 50 akce; if he is poor, 40 or 30 akce. (Heyd 1973, 96) Overall, while for Islam the dissolution of marriage was repugnant and “the most detested of permitted things” as the Prophet described it, it did not usually involve legal culpability as was frequently the case in Orthodoxy (Zilfi 1997, 283). Like all contracts, it could be dissolved, provided the signatories fulfilled the required obligations. It was a solution to a dysfunctional marriage, or to problems of incompatibility (Tucker 1998, 79). In Orthodoxy, however, divorce was always a reprehensible act and tolerated only if circumstances made it preferable to the continuation of the marriage. In other words, one of the two parties must have done something serious enough to justify the dissolution of a marriage, with a greater burden, of course, on women. A final but very significant difference was that there were fewer restrictions on the remarriage of Muslims compared to the Orthodox Church. Remarriage in the Orthodox Church became increasingly difficult with an upper limit of three marriages for the same individual. As the 4th century Church Father Gregory of Nyssa stated, “the first marriage is law, the second dispensation, the third transgression, the fourth dishonor. This is a swinish life” (Levin 1989, 107). His contemporary Basil the Great stated in his Canon N’ (50) that third marriages were condemned, but “since they are better than fornication without marriage … the Church should look the other way” (Agapios and Nikodimos 1970, 618). Thus, whereas in Islam the ability to contract new marriages remained theoretically unimpaired, in Orthodoxy the divorced individual, assuming they could remarry in the first place, encountered increasing difficulties from the Church to enter into new marriages, until such a prospect became an impossibility. Despite their differences, Orthodox and Islamic marriage regulations often contain striking similarities even in the language used. For example, in Islamic law, a woman who left the house without the husband’s permission was disobedient and forfeited her maintenance which is not unlike the Byzantine stipulation that a husband had the right to divorce his wife if she went to a feast, the theater, a hunt or the hippodrome without his permission or if she spent a night outside their house, unless she did so in the house of her parents or was forced to do so because her husband expelled her from their home (Imber 1997, 84; Viscuso 1999, 274). Even where the two law systems diverged, they often did so in ways that are not too alien. Thus, although the stipulation that an unfounded accusation of adultery is grounds for divorce in Orthodoxy to the benefit of the accused wife, this does not seem to exist in Islamic law; however, there are some similarities with laan divorce, where if

The Influence of Islamic Law on Greek Orthodox Divorce  183 the husband retracted an earlier accusation, he was guilty of slander and liable for punishment (Hamilton 1982, 274). Thus, while very different in their approaches to marriage the two legal systems were not so far apart as to prevent a member of one religion from comprehending and navigating the system of the other, which would certainly make it easier for women to seek a divorce settlement in front of a kadi. 12.2 Orthodox Christians in Islamic Courts The establishment of kadi courts throughout the Ottoman world presented non-Muslims with an opportunity to circumvent some of the restrictions regarding their own religions, especially with regard to marriage and divorce. Clearly, Christians were aware of the Islamic rules on divorce and could build credible cases based upon the provisions of Islamic jurisprudence. The case of Niqula, son of Niqula, mentioned by Judith Tucker, is one example of a Christian attempting to use Islamic law’s expectation for the husband to support his wife in order to get a divorce by claiming he was too poor to meet his obligations, an argument that would have been immediately dismissed in an ecclesiastical court (Tucker 1998, 86). On occasion, the kadi courts might have been the only option available to women since some may have conducted Islamic rather than Christian marriages. Christians could have several reasons for concluding such marriages. For instance, if a Christian woman, or man, had already married three times, their only option for a new marriage was with the kadi since their own Church would refuse to sanctify a fourth union. Others could have sought the material benefits of an Islamic marriage that were unavailable in Christian marriages or marry at ages or degrees of affinity that precluded marriage in Orthodox Christianity. Christians marrying in front of a kadi chose to subject themselves to Islamic rather than ecclesiastical law, as the kadi would often inform them (Afifi 1996, 203). Men would have the benefit of quick and simple divorces practically at will, but would probably have to abandon expectations of a dowry and instead promise a mehr to their spouses. As a result, such marriages would probably be more attractive to wealthier men who did not need the property that wives could bring into the marriage. For women, the primary benefits were financial since they could expect to receive property in the form of mehr rather than provide it as a dowry. The prominent role of the financial benefits of Islamic marriages for Christians and especially Christian women can be further deduced from the stated objections of the Orthodox Church to such marriages. Prominent churchmen frequently denounced them as a form of covert prostitution. In 1736, Zachariah, the Mitropolite of Athens, was apparently convinced that the immense dowries given to some daughters left their younger siblings without dowries and thus forced them to seek Islamic marriages or “lawless nikah”, as he called it, which in his eyes was nothing but a sort of concubinage (Pantazopoulos 1967, 60).

184  Evdoxios Doxiadis Churchmen were even more concerned about another form of marriage conducted by the kadi called kepinion. Kepinion is encountered as a form of illegal cohabitation in the defrocking procedures against the clergyman Parthenius in 1646, and a few years later it appears in Western accounts as a Cretan form of time-limited marriage (Kourilas 1951, 346; Pantazopoulos 1967, 97). Kepinia are frequently encountered in Serbia, Moldavia, Constantinople, Crete, Macedonia, Thrace, Epirus, Roumeli, and Peloponnesus from the end of the 17th century up to the first decades of the 19th century, the last taking place in Macedonia in 1838 (Pantazopoulos 1967, 97). Such unions created a number of practical difficulties that churchmen had to address. The abbot of the Cretan monastery of Chrysopigi, for example, had to issue a decree regarding the rights of the offspring of such a union, who he deemed had the right of support and inheritance despite being products of “kepinio or free marriage”, a practice he vigorously condemned (Kourilas 1951, 342). The Church’s concerns were practical as well as theological. On the one hand, such marriages undermined the position and authority of the Church as the sole representative of Orthodox Christians in the Ottoman state, and on the other, they allowed members of their flock to live in what the Church regarded to be a sinful union. Some historians have equated kepinion with Islamic muta (Pantazopoulos 1967, 94), a marriage with specified time parameters, which would give credence to the Church’s denunciations that these marriages were specifically contracted for a short duration in order to avoid accusations of prostitution. I am not convinced by this association, since as far as I can tell kepinion is mentioned only in relation to Christians and seems confined to predominantly Christian areas in the Balkans. Furthermore, muta is a practice encountered in Shi’i Islam while Sunni jurisprudence prohibited it (Badareen 2016, 376). Besides, there was little need for such subterfuge since historians of the Ottoman world have shown that prostitution, though technically illegal, was not particularly prosecuted in the Ottoman Empire (see Semerdjian 2003 and 2008). Besides contracting marriages, and consequently divorces, in the kadi courts, Christian women could also seek divorce in Islamic courts even though their marriages had been conducted according to the rites of Orthodox Christianity. Kadis were, after all, agents of the Ottoman state and thus their pronouncements were valid even if they went against the tenets of the Orthodox Church, and kadis quite clearly had no compunctions about passing judgment on such matters. Christians who sought such judgment assumed that the Church would recognize the divorce the kadi issued even when it contradicted Church practice. The Orthodox Church, however, took divorces very seriously as the case of a man called George Aboudzis indicates. This man, soon after the capture of Constantinople by the Ottomans, sought to dissolve his marriage and even managed to enlist the support of the Sultan. The Church, however, refused to grant it and even the replacement of the

The Influence of Islamic Law on Greek Orthodox Divorce  185 Patriarch did not allow Aboudzis to achieve his goal before his conversion to Islam (Gedeon 1909, 131). However, the Church was not always so obstinate and did recognize some divorces issued by kadis with subsequent acts of its own, as Dionysus IV did in 1694 in the case of John and Lambrini from Karlovo, stating that …because John of Giovanni from Karlovo of the Philippoupoli district with his wife Lambrini … showed proof that he received royal judgement and had divorced her outside (the Church). Thus, since the mentioned couple cannot live together, we separated them ecclesiastically (i.e., divorced) as well … (Kourilas 1951, 348) It is unclear if such dispensations were exceptional, but there is good reasons to believe they were not, since there were few alternatives to the Church in the context of the Ottoman world. Such divorces, however, clearly infuriated the Church, which had many vehicles in its arsenal to subsequently penalize those who chose this course of action, from denying them another marriage to excommunicating them, which could sever a Christian from his or her entire community. More significantly for this discussion, the Church also tried to be proactive and attempted to affirm its authority in such matters with decrees from the Sultans as a 1754 berat issued for Patriarch Cyril V indicates. [The power] to conduct engagements and divorces, or pacify and bring compromises between two disputing Christians according to their will, [is] by berat restored [to] the Patriarch and the archpriests and bishops; and according to their religion to place them [the Christians] in oath, and aphorizontas (temporary excommunication) them from their churches [and when having done so they are] not to be interfered with and damaged against the old custom; and without knowledge and permission of the Patriarch, archpriests and their epitropoi (overseers), the priests below them [are forbidden] to contract in marriage the unforgiven; and since fourth marriage, divorces and the union of [those who divorced] with women is by their laws forbidden, they are not to be given permission for this and those that do not comply [are] to be punished. (Gedeon 1909, 59) Thus, the Sultan not only reaffirmed the position of the Orthodox Church and its jurisdiction over Christians, he also apparently recognized a Church regulation (the three-marriage limit) as being official for Christians. The same sentiments were expressed in an earlier berat issued by Ahmed I in 1604 for the bishop of Larissa Leontius, where Muslim functionaries were warned not to interfere in Christian affairs

186  Evdoxios Doxiadis In the unions and divorces of the reya no one else has the right to interfere apart from the Mitropoliti … In unions and divorces and judging, when two reya compromise among themselves voluntarily or through their archpriest or bishop, and as their aini [religion, religious beliefs] demand, if they wanted to be subject to a vow in church or by aphorism punished, the kadis and naips are not to be opposed, nor to interfere in these [matters] … Because it is not allowed to the illegally divorced to enter into churches, and when those die, the priests are not to be harassed and forced, neither by kadis, naips or zabitas or by other powerful [people] to receive them and bury them … When one of the reyas wants to perform an illegal marriage, even if he wants to go to another place, [he] is not to have permission nor is he to be accepted in another province. (Gedeon 1909, 64, 70–71) The above berat is remarkably similar to the one dealing especially with the issue of kepinion which was issued for Gregorius, the bishop of Novi Pasar over a century later in 1739. Because those also who are united contrary to their practice [that is, those who have married by kepinio] are barred to enter the Church, afterwards, in this state if they die, the judges and the naips and other officers should not pursue the priests telling them to bury them. (Pantazopoulos 1967, 99) In the same vein, a berat issued for Patriarch Dionysius IV in 1672 stated: … If it happens [that] a Christian woman … forsakes her husband, or a man his wife … no one except the Patriarch is to grant the divorce, or even to be concerned about this case. (Pantazopoulos 1967, 103) How well these berats were enforced is not clear, but they indicate that the Church frequently imposed some sort of penalties on those who sought to avoid its jurisdiction and sought the assistance of the Imperial government in enforcing its decisions. Yet, although a woman choosing to pursue divorce through an Islamic court was at the very least courting the displeasure of her priest or bishop, one of the most powerful individuals in the Christian community, many apparently did so, as the need for the constant reaffirmation of the authority of the Church over such matters in the berats indicates, and we can identify some possible reasons for this. It appears that in most cases the kadi considered Christian requests for divorce as hul’ divorces. This implied that there was an agreement between the spouses regarding the division of property which would allow them to avoid the penalties a Christian divorce may have entailed. More likely,

The Influence of Islamic Law on Greek Orthodox Divorce  187 however, Christians resorted to the kadi courts because they could not procure a divorce in their own courts in the first place. Although the Church recognized many grounds for divorce, there was no legal basis for the consensual dissolution of the marriage and thus people like Maryura of Egri Kapi, who sought a hul’ divorce in Istanbul for “not getting along” with her husband Mosko, had no options outside of the Islamic courts (Zilfi, 279). In addition, when we consider the grounds upon which an Orthodox divorce could be issued, it is probable that few individuals would be willing to be found at fault in order to receive a divorce, since such admissions could impact their social status, their ability to remarry, not to mention the potential penalties involved. 12.3 The Orthodox Church Reforms The Orthodox Church responded to the challenge presented by the kadi courts first by seeking the support of the Sultans as early as the 17th century as we saw (Kourilas 1951, 349), and by continuously denouncing those that committed sinful acts and illegal divorces as did other Christian churches in the empire like the Coptic Church (Afifi 1996, 206), but more significantly by reforming its own practices to address the causes that led Christians to the kadi courts in the first place. As early as 1609, Patriarch Neophytous II eased the rules on divorce, especially those regarding abandonment or long absences of husbands, by allowing women whose husbands had migrated and not returned for three years to seek a divorce (Kourilas 1951, 347). A real breakthrough, though, was achieved in the Ottoman provinces of Moldavia and Wallachia only in the 18th century. The provinces, or principalities, of Moldavia and Wallachia were governed with a unique arrangement under which they were ruled by Christian hospodars appointed by the Sultan. By the 18th century most were selected almost exclusively from the Phanariots, whose name refers to the Istanbul district of Phanar, where the Ecumenical Patriarchate has been located since the Ottoman conquest. The Phanariots were Greek or Hellenized Orthodox Christians who had risen to prominence primarily through their close association with the Ottoman government, although they were also involved in commercial enterprises. By the 18th century they essentially monopolized the positions of Grand Dragoman, and Dragoman of the Fleet, while they had also become intricately involved with the Orthodox Church, essentially controlling the appointments of Patriarchs and other high Church officials (see Philliou 2009, and 2011; Yalçinkaya and cel Mare, 2018; Valtinou, 1856). It was only natural for the Sultans to utilize this group as a source for the rulers of Moldavia and Wallachia when Russia forced the Ottomans to allow a great degree of autonomy to those provinces. The development of Phanariot courts in Jassy and Bucharest filled with Greek or Hellenized intellectuals, many of whom had close ties to the Orthodox Church, provided the opportunity to experiment with judicial

188  Evdoxios Doxiadis reforms in a more comprehensive form, an opportunity that had not been afforded to Christians since the Ottoman conquest of 1453. While legal manuals known as nomocanons had been developed in the closing centuries of the Byzantine Empire but also during the Ottoman period, as for instance that of Manouil Malaxos or Mattheos Vlastaris, those were for the most part collections of earlier Byzantine legislation (See Ginis, 1938; Troianos, 1986; Dyovouniotis, 1916). In contrast, in both Moldavia and Wallachia new, often innovative codes were promulgated in the second half of the 18th century. These codes not only drew on the Byzantine tradition but also incorporated elements from Western European codification efforts while also addressing the specific needs of Ottoman Christians. The first such surviving collection was produced by Michael Photeinopoulos for the hospodar of Wallachia Stephen Michael Rakovitza in 1765. Photinopoulos was a Greek from the island of Chios who spent much of his life in the Phanariot courts of Wallachia. The code he developed drew predominantly from Byzantine, or “royal” as he called it, jurisprudence, but also from a variety of other sources including ecclesiastical (canon) law, interpretations by various subsequent scholars as well as customary law (Photeinopoulos 1959, 17). What makes his law code significant for our purpose is the fact that Photinopoulos incorporated a division in his code between “fault” and “non-fault” divorces and addressed each of these as a separate category (Photeinopoulos 1959, 17). “Fault” divorces were essentially treated the same way as divorces had been during the Byzantine and Ottoman periods. In this class, which included adultery, serious crimes, and so on, the spouse deemed to have been responsible for the divorce was penalized through loss of property, the dowry in the case of women or the premarital gift (donatio propter nuptias; progamiaia dorea) in the case of men. To be more precise, if the husband was culpable not only did the wife retain her dowry and the premarital gift, but the husband could also be penalized with an additional sum of up to a third of the value of the premarital gift. Interestingly, this additional penalty was not necessarily awarded to the wife but was administered by the state on behalf of the children of the marriage. Only in the absence of children did the wife gain control of it (Photeinopoulos 1982, 76). In cases where the wife was at fault, the husband recovered his premarital gift, kept control of her dowry, and could even receive an additional third of the value of her dowry from any other property the wife may have had (Photeinopoulos 1982, 83). Even in this category, however, the code slightly diverged from earlier practice. For example, Photeinopoulos devoted significant attention to the children of the marriage, often an afterthought in earlier divorce legislation. In this code the custody of children was given to the blameless spouse, but Photeinopoulos also stipulated that husbands who were found to be at fault for the divorce also had to materially support their children even if they did not have their custody (Photeinopoulos 1982, 77). The code also clarified certain aspects of law, for example, by clearly stating that if “regular”

The Influence of Islamic Law on Greek Orthodox Divorce  189 crimes, beyond the rather unique crimes mentioned in Byzantine regulation, could be proved against a husband, the marriage was to be dissolved (Photeinopoulos 1982, 77). Surprisingly, and in a clear break with past practices, the code stated for the first time that a husband’s adultery was recognized as grounds for divorce, although the code is a bit vague with regard to the definition of adultery and it may have implied only the intercourse of the husband with another married woman, since the code specifically excluded intercourse with a prostitute from its definition of adultery (Photeinopoulos 1982, 84, 200).2 The code also penalized spousal violence although it did not make it grounds for divorce. In cases where “the husband beats his wife with hand or stick without reason justifying conflict, he hands over to her one third of his property but there is no divorce” (Photeinopoulos 1982, 69). The most innovative aspect of the Photeinopoulos work, however, is the idea of blameless divorce. Unlike “fault” divorces, in the case of blameless or “no-fault” divorces each spouse was supposed to leave the marriage “keeping their own (wealth)” and was able to remarry assuming this was not their third marriage (Photeinopoulos 1982, 99). Some of the grounds for such divorces existed in previous law codes, for example when a spouse joined a monastery, or was found to be impotent, or was declared insane, as long as the condition could be proven to have existed before the marriage, and so on. What distinguishes the Photeinopoulos code is that for the first time there was a clear stipulation that a blameless divorce could be issued simply if both spouses wanted it (Photeinopoulos 1982, 99). Since this divorce did not have a culprit, husband and wife separated with each keeping his or her property, the wife her dowry and the husband his marriage gift. This inclusion seems designed in many ways to eliminate some of the most obvious benefits of seeking divorce through the kadi courts, having a strong resemblance to the hul’ divorce. The Photeinopoulos code can thus be seen as an evolution of Byzantine jurisprudence through the experience and pressure of Ottoman Islamic law. The impact is discernible not only in matters of divorce but also in other parts of the code, as for example in the stipulation that a husband who did not divorce his adulterous wife was to be punished, essentially being branded as a pimp, in a language entirely reminiscent of the kanunname of Suleyman (Photeinopoulos 1959, 200). The Photeinopoulos code was not an isolated case. In 1780 another Wallachian hospodar, Alexander Ypsilantis, issued another code, which contains most of the elements found in Photeinopoulos. More specifically, the Ypsilantis code allowed divorces due to philonikia (conflict, arguing) and closely followed Photeinopoulos with respect to the allocation of properties or the general treatment of marriage and divorce (Zepos 1936, 94–101). It is important to note that these codes were produced in the part of the Ottoman world where Orthodox Christians could produce new legislation. Similarly, one should note the close association of Phanariots, and especially the upper levels of Phanariot society, with the Orthodox Ecumenical Patriarchate in

190  Evdoxios Doxiadis Istanbul which would imply that these codes had at the very least the tacit approval and support of the Church. Certainly there is no evidence that the Church ever objected to their stipulations on divorce or marriage. In fact, I would argue that they represent the reaction of the Church to the challenge of the kadi courts since these law codes, while incorporating divorce procedures similar to those one could find in kadi courts, also retained the greater protection of Orthodox women from an arbitrary divorce that an Islamic marriage could entail. With the incorporation of consensual divorce Orthodox women quite possibly enjoyed greater financial benefits in an Orthodox divorce than a hul’ divorce would allow, since they retained their entire dowry, not to mention the possibility of added wealth in a “fault” divorce in their favor. I should also note that the impact of these codes, or at least the principles encountered in them, were not limited to the provinces of Wallachia and Moldavia, since the same principles, including consensual divorces, are encountered in the divorce practices of post-independence Greece at the other end of the Balkan peninsula until the early 20th century, when divorce was once again made more difficult and consensual divorces were banned (Maridakis 1922, 83, 92, 166). 12.4 Conclusions Orthodox women could receive divorces even before the establishment of Islamic law in their areas, but their use of the kadi courts indicates that there was an element that made such courts more appealing to Orthodox women than their own ecclesiastical courts, at least in some cases. Orthodox women apparently turned to the kadi courts based on financial considerations or when an ecclesiastical divorce was not possible. The incorporation of consensual divorce in Orthodox practices and the possibility of no-fault divorce significantly reduced the reasons for women to choose to go to the kadi courts while at the same time making Orthodox divorce much easier to attain than it had ever previously been. While the frequency of Orthodox divorces before and after this change has not been well explored, it appears unlikely that divorce was particularly common before the 19th century. One study has shown that between 1662 and 1685 there were 93 Christian divorces at the Archbishopric of Constantinople, a rate of about four divorces per year (Kourilas 1951, 347). This is not markedly different from the divorce rate of the kadi courts, an Istanbul court dealing from 1742 to 1745 with 10 to 12 divorce cases, most of which involved Muslim women, although some non-Muslim women were also mentioned (Zilfi 1997, 275). Similarly, in the 20th century the provincial ecclesiastical court of Kozani dealt with 28 divorce cases between 1900 and 1908, a rate of just over 3 per year (DiafaKampouridou 2006, 382–384, 402–405). To better understand the influence of Islamic law and courts on Orthodox divorce in the Ottoman Empire we only have to turn our gaze to divorce practices in the one Orthodox country that was not conquered by the

The Influence of Islamic Law on Greek Orthodox Divorce  191 Ottoman Empire, namely Russia. While a certain variation between different Orthodox churches is to be expected as they are self-governing, the differences between divorce practices in Russia and those among the Orthodox in the Ottoman Empire are quite striking. While divorce theoretically remained a possibility in Russian Orthodoxy, its development followed almost the opposite path to the one described above. Instead of the easing of restrictions on divorce that I described, Russian divorce practices became increasingly more restrictive starting with Peter the Great (Stites 1978, 7; Engel, 12). Divorce was permitted only in cases of female adultery verified by witnesses, male impotence over a period of three years, five years of unexplained absence, or the deprivation of civil rights. Furthermore, the obstacles and cost of divorce proceedings were such as to make it nearly impossible even for upper-class women, and very difficult for men (Stites 1978, 7). Divorce practices were further tightened at the end of the 18th century and even the separation of spouses was forbidden (Engelstein 1992, 4; Engel 2004, 21). This tightening of divorce has been assigned to the increasing influence and control of the Russian Church over divorce, which emphasized the sacral nature of marriage and its indissolubility (Stites 1978, 7; Engel 2004, 21). Russian divorce remained a near impossibility for women throughout the 19th century, and few authors, Nikolay Chernyshevsky being a rare exception, argued for more permissive divorces. Even in the early 20th century, prior to the Russian Revolution, the only real path to divorce was adultery verified by eyewitnesses (Stites 1978, 18; Engelstein 1992, 32). This contrasts markedly with the situation among the Ottoman Orthodox described above, which in fact continued even after Ottoman rule ended. The establishment of the independent Greek state in 1829 maintained much of the status quo with regard to divorce as had evolved during the Ottoman period. This, however, was not done through the incorporation of such practices into a comprehensive civil code but rather through the delegation of such matters to the authority of the now autocephalous Greek Orthodox Church and through the acceptance of long-established custom as law in most civil matters. By all accounts, divorces in 19th-century Greece were easily obtainable but divorce practices came under increasing criticism in part due to their perceived effects on the welfare of women (Kyriakopoulos 1919, 6, 10, 17). As a result of such attacks divorce was restricted in the law of 1919, which was enacted with the support of some women’s organizations. This law, as I mentioned above, once again ended the practice of consensual divorces (See Triantafyllopoulos 1918 and 1924). This prohibition was retained in the Greek civil code of 1946 and was removed only with the extensive reform of family law in 1982. Arguably, however, Greek divorce and consensual divorce in particular had to wait for the more recent reforms of 2017 to surpass the ease with which it was achieved in the early 19th century.

192  Evdoxios Doxiadis Notes 1 The term adultery covers the entire spectrum of fornication. This type of adultery was less severe, but still, women had to do penance. An exception was granted to the wives of soldiers who had been told their husbands were dead. In such cases the wives were blameless, but they still had to return to their first husbands (Koukoules 1948, 201; Armenopoulos 1971, 271, 276) 2 Note that as a verb the term prostitute (to prostitute themselves) was sometimes used to indicate fornication rather than literal prostitution.

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13 The Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina (1878–1918) Ninja Bumann

The Austro-Hungarian occupation of the Ottoman province of Bosnia and Herzegovina in 1878 saw nearly half a million Muslims become subjects of the Habsburg Empire. Integrating them into the Danube Monarchy required the incorporation of extant Islamic institutions into the Habsburg administrative structures. These included Sharia courts that adjudicated according to the Hanafi Islamic legal school and were foreseen as continuing to rule in marriage and family affairs among Muslims. As such, divorce proceedings among Muslim couples continued to be held at Sharia courts according to Islamic law, even under the Habsburg administration. This chapter analyzes such divorce proceedings using Bosnian Sharia court files from the period of the Austro-Hungarian administration (1878–1918). These are, first and foremost, archival holdings of the Supreme Sharia court – an institution established by the Habsburg authorities as an appeal body in 1879.1 Sharia court records from Habsburg Bosnia have seen more widespread usage in recent years owing to their ability to provide insight into the lives of “ordinary” people (see Jahić 2015, 2017; Kasumović 2018; Younis 2015a, 2015b, 2018, 2022). More specifically, Hana Younis (2015b) has suggested that the repositioning of Sharia courts under Habsburg authority generated confusion regarding juridical competence in divorce settlements. Nevertheless, these studies have only faintly touched upon the intersection of divorce and property. Mainly aimed at highlighting the everyday life of women, such analyses have also not examined how legal cultures and normativity changed during Habsburg rule. Pursuant to that, this chapter aims to demonstrate that Islamic divorce proceedings in Habsburg Bosnia were in fact largely economic in nature, relating primarily to the negotiation of financial entitlements and other related awards and dispensations. Due to prevalent and perennial issues, such as absent husbands who failed to provide maintenance for their wives, or “disobedient” wives who abandoned their husbands, as well as the manner in which Sharia courts had been institutionalized within the Habsburg administration, Bosnian Muslims increasingly called for legal reform. They envisioned facilitating divorce for abandoned wives while simultaneously advocating an expansion of the Sharia courts’ competence to enforce their DOI: 10.4324/9781003334552-15

196  Ninja Bumann rulings. This should be understood within the context of problematic legal issues arising from divorces of the period, an unclear division of competences between different legal institutions, and shifting normativity. 13.1 Islamic Legal Architecture under Habsburg Rule Habsburg rule over Bosnia since 1878, characterized by some as “quasi-colonial” (see e.g., Ruthner 2018), did not overturn the then-existing Ottoman judicial system. Rather, imperial authorities set about incorporating the pre-existing ecclesiastical courts of the Catholic, Orthodox Christian, and Jewish communities, as well as the Sharia courts for the administration of family and marriage affairs. This was rooted in the provision of religious freedom granted to all Muslims in formerly Ottoman lands at the Congress of Berlin in 1878 as well as the special legal status of Bosnia. Until the Habsburg annexation in 1908, Bosnia remained a de jure part of the Ottoman Empire, albeit administered by Austria-Hungary. The proclamation of Habsburg Emperor Franz Joseph I, published on 28 July 1878, one day before imperial troops marched into Bosnia, sparking three months of armed resistance, assured its inhabitants that the existing legal system and laws would be upheld (GS 1880, 4). Nevertheless, the Austro-Hungarian administration sought to diminish the role of the highest religious authority for Bosnian Muslims in Istanbul, the Şeyhülislam, by establishing the so-called reis-ul-ulema as the head of the local Islamic community in 1882 (see e.g., Hesová 2021). Concurrently, they also set about closely integrating local Sharia courts into their imperial administration, raising several issues in the process. First, the Austro-Hungarian authorities wanted to modify the Islamic legal system to align it with their own standards of legality and rule of law. Pursuant to this, they established a Supreme Sharia court in Sarajevo in 1879, which served as an appeal body for the local, first-instance Sharia courts and therewith ushered in a two-tiered court system. It is important to note that between 1883 and 1913, three of the five deliberating judges of this court of appeals were non-Muslim. All the same, this move was highly novel, as Islamic law traditionally did not foresee any formal appeal body. Such institutions could, however, be found in other Islamic legal systems under European colonial rule in the late 19th century, such as those operating in Algeria or India. As such, the creation of the Supreme Sharia court in Sarajevo allowed the Habsburg administration to monitor the jurisdiction of local kadis (Sharia judges) who continued to rule according to the Hanafi legal tradition (Karčić 2005, 21–26; Bećić 2017a, 114–122). Second, Habsburg authorities clearly sought to curtail the jurisdiction of kadis. Therefore, the Provincial Government – the highest Habsburg administrative body within Bosnia itself – staffed civil courts with officials from other parts of Austria-Hungary shortly after the territory’s occupation. This move introduced a clear line of demarcation between judicial

Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina  197 staff at civil and Sharia courts. At the same time, it diminished the judicial role and influence of local kadis, who hitherto had often dispensed justice simultaneously at both civil and Sharia courts. Under the new conditions, kadis could from then on administer justice only at Sharia courts (Bećić 2017b, 66). Their influence further decreased with the clear delineation of Sharia court competences introduced by the Habsburg administration in 1883. Technically, the scope of Sharia courts had already been curtailed by the Ottoman Tanzimat reforms, which aimed at modernizing the empire and its administration through, among other things, the introduction of European legal norms. As a consequence, the Ottoman government established the so-called Nizamiye courts to administer all civil legal affairs, except those that fell under the competences of separate commercial, consular, Sharia, or ecclesiastical courts in Bosnia in 1865/66. Already then, competence in civil jurisdiction was, at least in theory, removed from the Bosnian Sharia courts, which were instead intended to be competent only for family, marriage, and inheritance matters among Muslims. However, in court practice, Muslims as well as non-Muslims went to Sharia courts to decide on family and other civil affairs before and during the first years of the Habsburg occupation of Bosnia. This was perceived, as the Habsburg official Eduard Eichler (Eichler 1889, 196) put it, as a “disorderly and provisional state of legal practice”. It therefore comes as little surprise that the Austro-Hungarian authorities intended to clearly regulate the scope and the competences of the Sharia courts, which they did in 1883 with the Regulation on the Order and the Scope of the Sharia Courts. This restricted the Sharia courts’ competences to family, marriage, and inheritance matters exclusively among the Muslim population, greatly undermining the hitherto common practice of forum shopping between different legal institutions (Bećić 2017a, 114–122; Bumann 2020, 174–179). Beyond that, the legal jurisdiction of these courts was significantly curtailed, with the Habsburg administration seeking to transform them into legal bodies possessing only “special jurisdiction” (Sondergerichtsbarkeit) for Muslims in the seemingly private realms of family and marriage matters (Eichler 1889, 242–250). Such a reorganization of the Islamic judiciary system was not new, and precedents could be found in colonial Algeria and Egypt, which served as examples for the Habsburg judicial reform in Bosnia (Cuno 2015; Bećić 2017b; Surkis 2019). Third, executing Sharia court rulings was a hotly contested issue. The 1883 Regulation on the Order and the Scope of the Sharia Courts generally stipulated that kadis could include an enforcement clause in their judgments, however, it would be executed by civil courts (GS 1883b). In practice, such clauses were usually envisioned for collecting financial claims or enforcing disciplinary sanctions. Nevertheless, as will be shown below, extracting payments related to marriage and divorce was often difficult. In addition, considerable confusion surrounded how Sharia court rulings should be carried out and by which body.

198  Ninja Bumann 13.2 Divorce as an Economic Claim Due to the integration of the Sharia court system into the newly-established Habsburg imperial administration, marriage and divorce among Muslims continued to be regulated according to Islamic law. As specified by Islamic norms, marriage is defined as a dissolvable contract. More specifically, a man can repudiate his wife at any time without supplying cause or court documentation. Women, on the other hand, have only limited options for initiating a divorce. The precise regulations and divorce options vary depending on the context, legal practice, specific legal school being adhered to (mezheb), the institutional setting, and local customs. The Hanafi school of law, which had traditionally been applied in Bosnia, was retained under Habsburg rule. Compared to other mezhebs, such as the Maliki, Hanbali, or Shafi’i, the Hanafi legal tradition included some rather unfavorable stipulations for married women. For example, under it, women were disadvantaged when collecting arrears of maintenance (nafaka) or if attempting to escape a marriage in the wake of abandonment or abuse by their husband (Tucker 2008, 84–132; Cuno 2015, 209). Broadly speaking, Islamic law foresees a dissolution of marriage as generally accompanied by the award or forfeiture of certain financial entitlements, even if the marriage was ended without the involvement of a kadi. In Habsburg Bosnia, one of the most common forms of divorce available to the husband at any time was, as mentioned above, repudiation – the so-called talak. Thereby, the repudiated wife was entitled to receive the mehr – akin to a dowry paid by the husband to the wife. The mehr is mandatory and specified when entering marriage, although it can be paid in installments after the marriage. In that case, it is referred to as the mehri mueddžel. In addition, a repudiated wife is entitled to receive maintenance or nafaka for the mandatory waiting period iddet, a time of abstention from all intercourse with a man, during which remarriage is also prohibited. Iddet is undertaken by both divorcees and widows and typically lasts three months (Tucker 2008, 86–92, 100–104). Another option was a hul’ or mutual divorce, typically initiated by the wife. In such cases, the woman would forfeit her claims to the mehr and nafaka which her (former) husband was required to provide (Tucker 2008, 95–100). In her study on law and gender in the 16th-century Ottoman court of Antaib, Leslie Peirce (2003, 231) describes the renunciation of marital property rights as the “price” paid by women for initiating a divorce and sometimes gaining custody of their children. Unilateral, wife-initiated divorces were also possible, albeit only after very specific conditions were met, such as apostasy from Islam, alcoholism, or male infertility. When these were deemed present, the (former) wife was entitled to receive both the mehr and nafaka during the iddet (Tucker 2008, 92–95). Studies on Ottoman kadi court registers, so-called sicil (sidžil), suggest that for several centuries and across multiple geographic locations, hul’ divorces were the most common means of legally dissolving a marriage (see,

Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina  199 e.g., Ivanova 1996; Kayhan Elbirlik 2013, 161; Peirce 2003, 231; Zilfi 1997, 271). Court involvement, both in Ottoman and Habsburg Bosnia, was not mandatory for such divorces. All the same, studies of Ottoman court registers have revealed that during certain periods and in specific regions couples intending to separate decided to register their mutual agreement before a kadi. Svetlana Ivanova (1996, 118–119) postulates in the case of 18th-century Rumelia that this was the result of court mediation frequently being required for hul’ divorces whereas Leyla Kayhan Elbirlik (2013, 163–164) notes that during the early 18th century, court registration was intended to bypass future troubles or disputes in the Ottoman Empire. For the case of Habsburg Bosnia, there is no reliable data on the frequency of hul’ divorces in relation to other types of marriage dissolution. This is because only fragmentary records from first-instance, district-level Sharia courts have survived, despite abundant, albeit incomplete, documentation from the Supreme Sharia court being available. The latter’s archival records reveal that mutual divorces were rarely disputed at this second-instance appeal body.2 Considering that a hul’ divorce required both spouses’ consent, this does not come as a surprise. However, archival records from the Mostar district Sharia court that include the registration of hul’ divorces demonstrate that such marriage dissolutions were practiced in Habsburg Bosnia. The hul’ divorce registered by Arif Hebib and his wife Čelebija at the Mostar district Sharia court on 28 May 1915 offers an excellent example of this. Čelebija was to give Arif the mehr and renounce her right to the nafaka for the iddet, as well as waive any (financial) demands, for which Arif consented to dissolving their marriage. An additional concession in Arif’s favor, that he should have custody of their four-year-old daughter Hatiđa, was also included.3 Owing to the institutionalized norms surrounding divorce, court proceedings were usually more concerned with financial entitlements – regardless of the plaintiff’s socioeconomic status. The dispute between Abida Tufekčić and her former husband, Zajko Zlotrg, provides a good illustration of this. In October 1896, Abida filed the following appeal at the Provincial Government in Sarajevo, which, in turn, forwarded it for further action to the Supreme Sharia court Four years have already passed since Zajko Zlotrg from Vitez left me. The kadi from Travnik ordered that I be paid as nićah [mehr] 833 groschen 13 para and as nafaka [maintenance] eight forints monthly. However, Zajko Zlotrg has not paid me anything until today, and now the Sharia court in Travnik is again saying that he does not have to pay anything. I therefore request that I be paid what I am entitled to according to the law.4 Prior to Abida filing her appeal, proceedings had already been held at the Travnik district Sharia court in 1894. It had ruled that Abida was to receive only 101 groschen and 13 para from her former husband as mehr, in

200  Ninja Bumann addition to a monthly sum of 50 groschen for child support. At that time, Abida had already unsuccessfully appealed against the verdict, which also saw her renewed appeal from 1896 rejected.5 Abida’s complaint highlights an important aspect, namely, that divorce proceedings among couples of various socioeconomic backgrounds frequently resulted in financial disputes. In addition, it shows that locals, including Muslim women, were definitely aware of the rights afforded them under Islamic law. Below we will discuss how Bosnian Muslims regularly appeared before Sharia courts, including the Habsburg-installed Supreme Sharia court, as well as other Austro-Hungarian authorities in order to claim financial entitlements. 13.3 Disputing Money and Goods Abida’s court case against her former husband, outlined in the previous section, illustrates how difficult it often was for kadis to fix the exact sums for the mehr and nafaka. On the one hand, this can be attributed to the fact that marriages did not have to be registered and were thus not recorded on paper. Similarly, not all Sharia court records were systematically archived, while some records were also destroyed during the violent occupation campaign of 1878 (see Younis 2022, 10–11). On the other hand, Islamic law traditionally favored oral testimony over written documentation as legal evidence. Hence, the outcome of disputes on financial entitlements in the aftermath of a divorce relied to a large extent on oral statements made by witnesses and experts (Hallaq 2009, 348–352). Returning to Abida’s mehr claim, court records indicate that the Travnik district Sharia court had initially determined its amount on the basis of witness testimony, as Abida was unable to provide any evidence to support her claims. Accordingly, the court ruled that a mehri misil should be awarded. This type of mehr was usually applied if no sum had been specified when the marriage was entered into and amounted to what would conventionally be paid to the bride. In order to establish which amount would be appropriate given the financial and social circumstances of the couple, two male or one male and two female witnesses had to testify (GS 1883a, 29). Interestingly, in Abida’s case, the witnesses declared that a mehri misil of only 101 groschen and 13 para would suffice, as Abida had been a widow when she married Zajko Zlotrg.6 This indicates that the amount of the mehri misil depended not only on current economic indicators but also on other criteria, such as social standing or marital status. Nevertheless, written evidence could help to prove claims. For example, when the Sarajevo district Sharia court ruled in late 1894 that Husejin Berberović, following his repudiation of his wife Nurija, had to pay a mehri mueddžel in the amount of 3,000 groschen, the kadi based his judgment on an excerpt from the couple’s marriage agreement registered in the sidžil, which had specified a mehr in the amount of 3,000. However, Husejin appealed this judgment on the grounds that Nurija could not prove with witnesses that the mehr had been set at that amount. Another confusing

Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina  201 matter was the fact that the sidžil entry did not explicitly state the currency that the mehr should be paid in. In the end, however, the Supreme Sharia court confirmed the kadi’s verdict and considered the sidžil entry legitimate evidence of the mehri mueddžel’s amount.7 Equally contested was the determination of the amount of alimony that a husband had to pay his repudiated wife for the nafaka during the iddet, or the compulsory waiting period after divorce. Exceptions were made if a repudiated wife either committed “apostasy from Islam” or had already completed the iddet without demanding maintenance (GS 1883a, 90–91). In the event of a dispute, it was common to establish the exact amount of the nafakai iddet based on testimonies from individuals familiar with the financial and social situations of the couple. For instance, a certain Šaban Sekavić repudiated his wife Zumra when entering a second marriage with a younger woman. It is important to keep in mind that divorce was not a prerequisite for remarriage, since according to Islamic law and Habsburg regulations, polygamy was legal for Muslim men (albeit not for Christian men or for women of any confessional background). As a consequence, Zumra appeared before the Tešanj district Sharia court to claim the mehri mueddžel in the amount of 48 kronen and the nafakai iddet of 1 krone and 20 heller per day. In the ensuing court hearing, the local kadi confirmed that Šaban had to pay a mehri mueddžel of 48 kronen but slightly lowered the nafakai iddet to 70 heller per day. This decision was based on the statement of the area’s muhtar (neighborhood headman) and two other locals who confirmed that the mehri mueddžel of 48 kronen and the nafakai iddet of 70 heller per day were sufficient. Šaban, however, argued that he and his (former) wife had agreed on a lower mehri mueddžel when they had entered into marriage and that this should have been recorded at the local Sharia court. In addition, he maintained that he would not earn enough to pay a nafakai iddet of 70 heller per day and simultaneously cover the living costs of his new wife. Still, the Supreme Sharia court upheld the initial court ruling on the grounds that three witnesses had confirmed that the amounts of the mehri mueddžel and the nafakai iddet were appropriate.8 In other cases, however, the Supreme Sharia court put more effort into investigating the actual financial situation of both parties in order to determine the precise amounts of nafakai iddet. In June 1905, a certain Salih Alibegović repudiated his wife Naza before the Konjic district Sharia court, paying her the mehr she was owed on the spot. However, soon thereafter, a dispute arose regarding the nafakai iddet. In July 1905, the local kadi ruled that, in light of the recommendations made by the muhtar and two other locals, Salih should pay Naza 80 heller per day. Both spouses appealed the ruling, whereupon the Supreme Sharia court began to investigate the property and income situation of the two claimants. Their investigation revealed that Naza had, together with her brother, inherited a concession in Nikšić in Montenegro, from which she drew a yearly income of 54 kronen. Turning to Salih’s holdings, these were more complicated to assign a value to. To

202  Ninja Bumann estimate his income, the Supreme Sharia court examined Salih’s desetina (tax) forms, using his agricultural yields as a basis for their figure. In the end, Salih’s monthly income was assessed at 24 kronen. A nafakai iddet payment of 80 heller per day would equate to more than half of this, however, the Supreme kadis reasoned that since Salih would need to make such payments for only a short period the original ruling should be upheld and the experts’ original recommendation of 80 heller per day accepted.9 Nonetheless, the Supreme Sharia court also considered what a man was able to pay to his former wife when deliberating. Thus, when in April 1913 the Bugojno district Sharia court decided that Muhamed Handžić had to pay 2 kronen per day as nafakai iddet to his repudiated wife Hedija, Muhamed appealed their ruling. He claimed that the local kadi from Bugojno did not take his poor financial situation into account as his work as a day laborer at the district office paid only 50 heller per day (or 15 kronen per month). Therefore, he asked the Supreme Sharia court to modify the judgment so that the amount of the nafaka would correspond to his income. After a thorough examination of Muhamed’s finances, the appeal body decided that 2 kronen per day was in fact too much, since Muhamed did not own any property and had only a small income of 15 kronen per month. Thus, it reconsidered the statements made by four locals that were familiar with Muhamed’s financial situation. Three of them had suggested 2 kronen, while one had cited 80 heller. The Supreme kadis decided to average these to determine the nafakai iddet, resulting in 1 krone and 70 heller per day. In light of Muhamed’s poor financial situation and Hedija’s own living costs, this figure was seen as more amenable to both parties.10 Apart from settling mehr and nafaka claims in the aftermath of divorces, the division of household property was another frequent cause of disputes that the kadis were asked to deliberate upon. In several court cases involving couples of diverse financial backgrounds, detailed lists which documented goods and their monetary value were submitted. Their distribution was, however, controversial. For example, after Almasa Konjhodžić was repudiated by her husband Salih Jelečević, she appealed to the Sarajevo district Sharia court on 28 February 1883. She demanded that Salih not only provide her the mehr and nafaka, but also with various household items (such as clothes, rugs, pillows, and tableware) all of which she listed and provided prices for. Moreover, Almasa included the house that she had allegedly bought on the list as well. As the Sharia courts were competent only in marital, familial, and inheritance matters, this property dispute was seconded to the county court that was authorized to adjudicate in all civil affairs apart from those relating to marriage and family.11 This case thus indicates that the division of competences between the Sharia and civil courts under Habsburg rule was often confusing. Hana Younis (2022, 15–16) confirms this assessment in her analysis of alimony appeals made before the Sarajevo district Sharia court. More confusion arose owing to the very specific rules relating to inheritance in Islamic law. Such provisions were not always taken into account in

Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina  203 practice, especially when it came to dividing an inheritance within a common household. In the event of a divorce, the division of inherited household goods became even more ambiguous. Pursuant to this, the Sarajevo district Sharia court turned to the Supreme Sharia court in 1897, complaining that it frequently had to contend with women claiming that certain objects, such as clothes or jewelry, had been given to them as gifts by the husbands they were divorcing. However, sometimes it turned out that the gifted objects did not legally belong to the husband but to his minor children who had inherited them from the husband’s deceased former wife. The Sarajevo district kadi inquired as to what steps he could undertake against such husbands and, more specifically, if he could punish them. The Supreme Sharia court, however, reminded the Sarajevo district kadi that the “Sharia prescriptions” did not envision any punishment in such cases, and that, moreover, Sharia courts were not competent in criminal matters. However, if a criminal matter according to the criminal law were uncovered, the Sharia court had to inform the district civil court or the public prosecutor.12 Again, the separation of competences between the Sharia and civil courts often proved to be complicated and was, in practice, highly contested. Another cause for contested divisions of household goods following a divorce can be traced back to the discrepancy between the separation of property according to Islamic law and what occurred in practice. Legal provisions rarely prevented one spouse from accessing the assets of the other spouse. For example, a certain Mućelefa Zaimović from the small Herzegovinian town of Prozor appealed to the Supreme Sharia court in April 1912, noting that after her first husband had passed away, as a poor widow with an underage child, she married a certain Mustafa Samardžić. Apparently, Mustafa had compelled her to sell the house that she had inherited from her deceased husband. As a result, she asked the local kadi to separate her from Mustafa. Since the kadi did not react to her demand, she filed an appeal with the Supreme Sharia court, which then ordered the local kadi in Prozor to hold a court hearing on the matter. In the end, Mustafa Samardžić agreed to a hul’ divorce, which saw both parties renounce any financial claims relating to their now-dissolved marriage. In this way, Mućelefa managed to divorce Mustafa, however, her house was not returned, and she forfeited any entitlements she would have received, such as the mehr or nafaka during her iddet.13 13.4 Regulating Divorce and Poverty The divorce cases discussed up to this point have highlighted that for women in particular, the financial restitution that accompanied divorce was of critical importance. However, entitlements guaranteed under Islamic law while they were still married to their husbands were of equal relevance. More specifically, husbands were legally obliged to provide nafaka (maintenance) to their wives. From archival documents, we learn that the wives of men who failed to pay nafaka frequently appeared before Sharia courts to claim what

204  Ninja Bumann they were owed – especially if they had a lower socioeconomic status. For example, Hajrija Čohadžić did not receive any maintenance from her husband Hašim Morić who – as she declared – had left her and her child in greatest need. When she turned to the local kadi, he obliged Hašim to pay the nafaka, but the verdict could not be enforced. Therefore, Hajrija turned to the Provincial Government in order to “save her and her child from misery” and to be able to remarry. The suit was passed on to the Supreme Sharia court, which ordered the local kadi in Sarajevo to arrange a court proceeding between the spouses. In the end, an agreement was reached and Hajrija returned to her husband, although it is not known if he afterward actually provided her and their child with nafaka.14 Despite the seemingly “positive” outcome in Hajrija’s case, many other wives who had been financially and physically neglected and/or abandoned by their husbands were less fortunate. Frequently, such wives turned to the Sharia court, however, most of the time, the authorities failed to compel their husbands to appear before the courts. This was either because their whereabouts were unknown or they simply refrained from showing up, despite being subpoenaed. Abandoned women were often in economically untenable situations, and could not remarry, unlike Muslim men who could legally have up to four wives. This situation was not particular to Habsburg Bosnia, as Selma Zečević (2007) has shown that absent husbands were a prevalent issue in late 18th-century Ottoman Bosnia as well. Yet, while Hanafi jurists extensively dealt with the safeguarding of a missing man’s property, they largely ignored the problematic situation of abandoned wives struggling to make ends meet. Although most Islamic scholars agreed that an abandoned wife should be given a share of the missing husband’s property as maintenance, they did not specify how a wife could claim this if the husband did not leave any property behind. Moreover, according to Hanafi tradition, a wife’s marital status could be changed to widowed, making her eligible for remarriage, only if the missing husband was declared dead. Barring official documentation, this was possible only after 90 to 120 years had elapsed (the precise amount of time varied from jurist to jurist), which made the dissolution of the marriage virtually impossible. Other Sunni legal schools were more amenable to abandoned wives. They generally upheld the principle that a woman could divorce her husband if four years had elapsed since the husband’s first day of absence, meaning that the woman could remarry after the ensuing iddet (waiting period) was over. This provided some loopholes: Judith Tucker (1998, 84) has argued that in Ottoman Syria and Palestine, Hanafi women who had been abandoned by their husbands frequently turned to judges of another mezheb to seek divorce. For Bosnia, this option was viable only in a limited sense, as all judges in the province adhered to the Hanafi mezheb. Still, women could theoretically travel outside Bosnia to a non-Hanafi judge who might be disposed to rule in their favor (Zečević 2007, 348).

Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina  205 The Habsburg occupation beginning in 1878 impeded this practice, as it separated Bosnia from the rest of the Ottoman Empire. At the same time, the imposition of Habsburg governance convinced many Muslims to migrate over the Ottoman border to continue to live in an Islamic state and/or to pursue improved economic opportunities (Karpat 2004; Imamović 2007, 134–140; Bandžović 2013, 197–236). This, in turn, further complicated the issue of abandoned wives. Indeed, a number of court cases indicate that husbands often crossed political borders into nearby Ottoman provinces (primarily the vilayet of Kosovo), leaving their wives behind in Bosnia. Although the Habsburg authorities tried to deliver court summons to such husbands via the Foreign Ministry, these attempts were often fruitless, as the missing husbands could not be located. This problem is exemplified by the case of a certain Hatuna Mandra from the Bosnian town of Visoko. Nine years after she had been abandoned by her husband Musa Liska (according to an archival file of Albanian origin), Hatuna Mandra turned to the Visoko district Sharia court in pursuit of a divorce. The local kadi, Škaljić, forwarded the case to the Supreme Sharia court in November 1894, and inquired as to whether Hatuna Mandra could be divorced according to the Maliqi mezheb, which allowed a marriage to be dissolved after the husband was absent and his whereabouts had been unknown for at least four years. Kadi Škaljić stressed in his address that Hatuna Mandra was “really poor”, as she had been abandoned without maintenance or goods. The Supreme Sharia court first advised the local kadi to summon the husband, who was purportedly living in Prizren, in the Ottoman vilayet of Kosovo. As Musa Liska neither confirmed receipt of the court’s summons, nor appeared before the court, Kadi Škaljić wrote to the Supreme Sharia court again in November 1895. In his letter, he asked once more what he should do with Hatuna Mandra, also adding urgency to the matter by indicating that “some mischief and disorderly behavior to which poverty forces her [had] to be feared”.15 When the Supreme Sharia court discussed Hatuna Mandra’s case in December 1895, they issued a circular, according to which Sharia courts could divorce a woman provided that she had been left by her husband for more than four years and did not know his whereabouts.16 As a result, Kadi Škaljić was allowed to divorce Hatuna Mandra from Musa Liska. Such a solution was not uncommon in the Muslim world. Rather, borrowing provisions from another mezheb (referred to as takhayyur) was a common method to reform Islamic legal practice and solve pressing issues (Karčić 1990, 208–210). In this vein, similar reform approaches are evidenced in other Muslim societies. Furthermore, most Muslim reformers abandoned the strict Hanafi doctrine that rendered a divorce in the event of a missing husband virtually impossible (Tucker 2008, 113). For instance, Rozaliya Garipova (2022, 782–786) has shown how Rizaeddin Fakhreddin- a Bashkir and Tatar Jadidist reformer and kadi in the Russian Empire – sent an empirewide request to Islamic scholars in 1896 to gather reform proposals on the issue of abandoned wives who had been left by their husbands without any

206  Ninja Bumann financial support. Thereby, the possibility of turning to another mezheb was intensively discussed as a remedy. Similar reform debates also emerged in late 19th-century Egypt. Kenneth Cuno (2015, 153–156) details how reform writers such as Muhammad Abduh identified missing husbands as well as husbands who paid little-to-no maintenance as a severe problem. Equally, they criticized the Hanafi tradition in this regard and suggested taking cues from the more liberal Shafi’i and Maliki mezhebs. In turn, this would help abandoned wives avoid poverty and its potentially morally harmful consequences. The problematic situation of impoverished, abandoned women highlights the economic dependence of wives upon their husbands, however, Muslim women did participate in economic life. With regard to Habsburg Bosnia, Ljiljana Beljkašić-Hadžidedić (1997) showed that they were involved in agricultural labor, domestic work, trade, the provision of services, as well as crafts, such as weaving, needlework, and embroidery. Nevertheless, in most occupations, salaries were not very high, and where men and women performed similar tasks, the latter received lower pay. Turning to the legal dimension, court documents show that judges and officials perceived Muslim women as economically dependent on their husbands, aligning with the Islamic legal framework, according to which a husband was obliged to provide nafaka to his wife. Even though the above-mentioned legal reform of 1895 enabled wives to seek divorce, they could do so only if the whereabouts of their husbands remained unknown for four consecutive years. As such, Ali Riza Prohić – at the time a kadi in Gradačac, but later from 1913 on, Supreme kadi – wrote to the Supreme Sharia court in 1905 concerning itinerant husbands who did not possess any property and abandoned their wives without providing maintenance. He outlined how Sharia courts were unable to come to terms with the issue, as either the court summons could not be delivered to the accused husband, or he would not appear at the hearing. Even then, as soon as another hearing could be organized, the roaming husband would no longer be at his former abode, having moved elsewhere in the interim. According to Kadi Prohić, such problematic matters could and did drag on for years without resolution. To remedy the situation, he suggested, on the one hand, that the district office be permitted to arrest such men and make them appear, by force if necessary, before the Sharia court. More than that, he also advocated that Sharia courts sentence husbands who failed to pay alimony to their wives to imprisonment. In its response, the Supreme Sharia court argued that according to the current Austro-Hungarian regulations, Sharia courts did not possess any criminal competences. Nevertheless, the Supreme kadis supported Kadi Prohić’s proposals and forwarded them to the Provincial Government. While the latter’s concrete response is not documented in archival material, it is known that Sharia courts were not granted any enforcement powers.17 Financially unsupportive husbands continued to be a major issue in Bosnia. Consequently, debates on reforming Islamic divorce regulations

Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina  207 re-emerged during World War I, as mobilization/conscription and economic hardship severely aggravated the already tense situation. Inspired by reforms in the Ottoman Empire that granted women divorces if the husband was absent, the Bosnian reis-ul-ulema (head of the ulema) Džemaluddin Čaušević pushed for further liberalization of divorce in 1916. He advocated adopting ideas from the Hanbali mezheb, so that abandoned wives could file for divorce even if they did know the whereabouts of their husbands. Finally, in January 1917, this suggestion was adopted by the Provincial Government to fill the loopholes left by the earlier reform from 1895.18 13.5 Enforcing an Economic Regime Although Islamic law offered women very few options for initiating a divorce, loopholes still existed, and women could live physically separate from their husbands. Islamic law requires wives to be “obedient” to their husbands, for which they are entitled to receive nafaka from them. In the event that a wife is našiza (Arabic: nāshiza, Ottoman: naşize) or “disobedient”, she would forfeit her right to nafaka. “Obedience” varied depending upon the context and could range from a wife’s sexual availability, making herself attractive to her husband, or even refraining from leaving the husband’s abode without his authorization (Tucker 2008, 53–57). In Habsburg Bosnia, kadis mainly considered a wife to be našiza if she left her husband without his approval. As a consequence, a “disobedient” wife could no longer claim nafaka and was forbidden to remarry, exerting considerable economic pressure on wives to avoid being declared našiza. However, this economically-based marital regime, supported on one side by the concept of the wife’s “obedience” and, on the other, by the husband’s payment of nafaka, was gradually reinterpreted under Austro-Hungarian rule (see Bumann 2022). Hana Younis (2015b, 426–429) has outlined in greater detail the significant confusion surrounding the issue of forcing “disobedient” wives to return to their husbands. For example, the local kadi in Gradačac asked the Supreme Sharia court in March of 1887 if it would be possible to apply coercive means upon “disobedient” wives if a court had ordered her to return to her husband. The Supreme Sharia court explained that no force could be used on “disobedient” wives and that they only forfeited their entitlements to nafaka through their actions.19 This did not prevent local men from appearing before court and asking for their “disobedient” wives to be compelled to return to them. In one case, a certain Muhamed Efendić appeared before the Brčko civil court in November 1892 and demanded that it enforce a Sharia court ruling, according to which his wife Aziza had to return to him “under threat of the Sharia’s consequences”. The case was forwarded to the Provincial Government, which explained that Aziza could not be forced to return to Muhamed as the Habsburg administration had prohibited kadis from ordering corporal punishment or terms of imprisonment in 1881. Instead, women

208  Ninja Bumann who did not return to their husbands would be declared našiza and lose their right to nafaka (ZN. n.d.). This Provincial Government’s directive did not signal the end of demands for using coercion against “disobedient” women. Rather, these reached their peak when several Muslim nobles from across Bosnia submitted a petition to Benjamin von Kállay, the joint Austro-Hungarian Minister of Finance and Governor of Bosnia, in December 1900. Because the appeal called for greater autonomy regarding Islamic affairs, it has subsequently been classified by several historians as a manifesto of the Muslim autonomy movement (Šehić 1980; Donia 1981, 128–159; Bougarel 2018, 17–20). The petitioners also specifically called for endowing Sharia courts with enforcement powers, directly linking this demand with the phenomenon of Muslim women abandoning their husbands without their approval or in lieu of an official divorce. They claimed that such practices would be “opposed to [their] religious institutions” and “destroy the foundation of Islamic marriage and family life”. As a remedy, they suggested allowing Sharia courts to impose fines and prison sentences (Anon 1903, 136–138). As this demand was not heard by the Austro-Hungarian authorities, a further petition, delivered to Kállay’s successor – Stephan Burián – in 1907, repeated the call to endow Sharia courts with enforcement powers. During subsequent negotiations between representatives of the Muslim autonomy movement and the Austro-Hungarian government, the measures it advocated were again rejected (Šehić 1980, 275–278; Durmišević 2008, 124– 125). The demand for Sharia courts to be given criminal competences was made once more during World War I. On this occasion, the complaints were not limited only to “disobedient” wives but extended to include marriages that violated Islamic legal provisions in general. The Provincial Government tried to accommodate the grievances voiced by the kadis and Islamic leaders through Directive No. 411 issued in January 1917 on the “control of immorality” and the unlawful re-marriage of “reservists’ women”. This regulation empowered authorities to separate couples that were unlawfully married (Jahić 2015, 130–135). Nevertheless, the directive did not augment the Sharia courts’ competences and thus failed to meet the local kadis’ demands. In this vein, Kadi Bukvica from Bugojno claimed in a letter to the ulema-medžlis (the religious governing body in Islamic affairs) in May 1918, that Directive No. 411 was ineffective as it did not authorize Sharia courts to issue criminal sentences against persons who engaged in “immoral” activities.20 The elaboration of Islamic legal reform proposals and demands for Sharia courts to be able to enforce rulings they had issued was not particular to Habsburg Bosnia. In fact, similar efforts can be observed both in practice and in writings in other Muslim societies of the late 19th century (Tucker 2008, 53–57, 67–68). In British-controlled Egypt, for example, the colonial administration started to enforce “obedience” in 1897. Thus, if a Sharia court ordered runaway wives to return to their husbands, the judgment could be

Economy of Islamic Divorce in Habsburg Bosnia and Herzegovina  209 enforced by the civil administration. As Kenneth Cuno (2015, 185–204) outlines, this practice of state authorities bringing runaway wives back to their husbands had first emerged in France, traveling from there to the French colonial administration in Algeria, and ultimately, to Egypt. 13.6 Conclusions As was the case in other Muslim societies under European colonial rule, the Habsburg administration in Bosnia integrated existing Islamic institutions, such as Sharia courts, into its state apparatus. Consequently, divorces among Bosnian Muslims continued to be regulated in line with Islamic law. This meant that divorces were bound to financial entitlements, such as the mehr and nafaka. As such, local Muslims with various socioeconomic backgrounds appeared mainly before Sharia courts in pursuit of the financial entitlements foreseen by Islamic law in the event of a divorce. Owing to the ambiguity or lack of supporting documentation, those disputes which arose were often related to the precise amount of these monetary entitlements. Enforcing Sharia court judgments on such financial claims was often plagued with problems, especially when the divorce involved missing husbands who did not provide their wives with nafaka. This state of affairs induced several Bosnian kadis to call for reforms and to adopt divorce provisions from other more liberal mezhebs in order to provide abandoned women with more options. At the same time, calls for enlarging the Sharia courts’ competences that would undermine the hitherto available loophole for women wishing to divorce grew in volume: While Islamic law granted women few options for divorce, they could leave their husbands of their own volition, but would forfeit their right to alimentation in the process. Bosnian kadis and Islamic leaders thereafter sought to endow Sharia courts with enforcement powers to return “disobedient” wives to their husbands and to proceed against unlawful marriages more broadly. Hence, the rather economic regime of Islamic divorce was seen increasingly as inefficient and as sorely requiring enforcement powers. Although the precise arrangement of Islamic law in Habsburg Bosnia was directly linked to the imperial approach to integrating Sharia courts into a Christian state, such reform debates were not unique to Bosnia. In fact, similar discussions could be found in other Muslim societies of the time, including the Ottoman Empire and post-Ottoman space under European colonial rule. Archival Sources Arhiv Bosne i Hercegovine, Vrhovni Šerijatski sud Sarajevo, 1879–1918. Arhiv Hercegovačko-neretvanskog kantona, Fond kotarskog šerijatskog suda Mostar, 1888–1918. Historijski Arhiv Sarajevo, Fond kotarskog šerijatskog suda Sarajevo, 1882–1918.

210  Ninja Bumann Notes 1 See Arhiv Bosne i Hercegovine [hereafter ABiH], Vrhovni Šerijatski sud Sarajevo [hereafter VŠS]. 2 See ABiH, VŠS. 3 Arhiv Hercegovačko-neretvanskog kantona [hereafter AHNKŽ], Fond kotarskog šeriatskog suda Mostar [hereafter KŠS Mostar], box 25, 802/15. 4 ABiH, VŠS, box 19, B 1894–36. 5 Ibid. 6 ABiH, VŠS, box 19, B 1894–36. 7 ABiH, VŠS, box 19, B 1894–25. 8 ABiH, VŠS, box 29, B 1912–59. 9 ABiH, VŠS, box 25, B 1905–34. 10 ABiH, VŠS, box 30, B 1913–26. 11 Historijski Arhiv Sarajevo [hereafter HAS], Fond kotarskog šeriatskog suda Sarajevo [hereafter KŠS Sarajevo], box 2, 2.8.88. 12 ABiH, VŠS, box 163, F 1897–50. 13 ABiH, VŠS, box 29, B 1912–31. 14 ABiH, VŠS, box 22, B 1899–34. 15 ABiH, VŠS, box 19, B 1894–24. 16 ABiH, VŠS, box 1, A 1895–10. 17 ABiH, VŠS, box 25, B 1905–8. 18 ABiH, VŠS, box 31, B 1916–2; ABiH, VŠS, box 2, A 1917–1. 19 ABiH, VŠS, box 47, E 1887–20. 20 ABiH, VŠS, box 32, B 1918–32.

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212  Ninja Bumann Karčić, Fikret. 2005. Šerijatski sudovi u Jugoslaviji 1918–1941. Sarajevo: El-Kalem. Karpat, Kemal H. 2004. “The Migration of the Bosnian Muslims to the Ottoman State: 1878–1914. An Account based on Turkish Sources.” In Ottoman Bosnia: A History in Peril, Markus Koller and Kemal H. Karpat (eds.), 121–140. Publications of the Center of Turkish Studies 3. Madison, WI: University of Wisconsin Press. Kasumović, Amila. 2018. “Konkubinat u Bosni i Hercegovini na prijelomu 19. i 20. stoljeća.” Prilozi 47: 69–90. Kayhan Elbirlik, Leyla. 2013. “Negotiating Matrimony: Marriage, Divorce, and Property Allocation Practices in Istanbul, 1755–1840.” Diss., Harvard University. Peirce, Leslie P. 2003. Morality Tales: Law and Gender in the Ottoman Court of Antaib. Berkeley: University of California Press. Ruthner, Clemens. 2018. “Bosnien-Herzegowina als k. u. k. Kolonie: Eine Einführung.” In Bosnien-Herzegowina und Österreich-Ungarn: 1878–1918, Clemens Ruthner and Tamara Scheer (eds.), 15–44. Tübingen: Narr Francke Attempto. Šehić, Nusret. 1980. Autonomni pokret muslimana za vrijeme Austrougarske uprave u Bosni i Hercegovini. Sarajevo: “Svjetlost”. Surkis, Judith. 2019. Sex, Law, and Sovereignty in French Algeria: 1830–1930. Ithaca and London: Cornell Univ. Press. Tucker, Judith E. 1998. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of California Press. Tucker, Judith E. 2008. Women, Family, and Gender in Islamic Law. Themes in Islamic Law 3. New York: Cambridge Univ. Press. Younis, Hana. 2015a. “Rasipništvo u praksi šerijatskih sudova u Bosni i Hercegovini od 1878. do 1914. godine.” Prilozi 44: 81–104. Younis, Hana. 2015b. “Razvjenčanja kroz dokumente Vrhovnog šerijatskog suda Sarajevo u prvim decenijama nakon Austro-Ugarske okupacije.” In Proceedings of the Fifth International Congress on Islamic Civilization in the Balkans, Eren Halit (ed.), 419–436. Sarajevo: IRCICA, Research Centre for Islamic History, Art and Culture. Younis, Hana. 2018. “‘Nezakonita’ djeca pred zakonom: Dokazivanje očinstva u Bosni i Hercegovini na razmeđu 19. i 20. Stoljeća.” Prilozi 47: 45–67. Younis, Hana. 2022. “The Image of Women Life Through Documents of the Sharia Court in Sarajevo 1878–1914.” Journal of Balkan Studies 2 (1): 9–27. Zečević, Selma. 2007. “Missing Husbands, Waiting Wives, Bosnian Muftis: Fatwa Texts and the Interpretation of Gendered Presences and Absences in Late Ottoman Bosnia.” In Women in the Ottoman Balkans: Gender, Cultura and History, Amila Buturović and İrvin C. Schick (eds.), 335–360. Library of Ottoman Studies 15. London and New York: I.B. Tauris. Zilfi, Madeline C. 1997. “‘We Don’t Get Along’: Women and Hul Divorce in the Eighteenth Century.” In Women in the Ottoman Empire: Middle Eastern Women in the Early Modern Era, Madeline C. Zilfi (ed.), 264–296. Leiden and New York, Köln: Brill. ZN. n.d. “104.789/III. ex. 1892. Otpis zemaljske vlade od 4. februara 1893. na okružnu oblast u Dol. Tuzli.” In Zbirka naredaba za šeriatske sudove u Bosni i Hercegovini. 1878–1900, 162–164. Sarajevo.

14 New Possibilities – New Practices? Divorces of Jewish Couples under the Purview of the Austrian Civil Code in the 19th Century Provisions, Agreements, and Property Issues Ellinor Forster This chapter focuses on Jewish couples in the Habsburg lands who wished to separate. The availability of options for such couples will be shown through three examples of Jews who contracted their marriages according to the Jewish rite between December 1810 and November 1811. In two cases, wives appealed to the secular court, and in the other, it was the husband. The closely related categories of gender and religion within the marriage provisions of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch or ABGB) of 1811 privileged Jewish men over women. Yet in certain cases, Jewish women and their lawyers exploited the unfavorable legal arrangements in order to assert their claims. Questions over property remained central to all cases as a critical influence on the choice of strategy. 14.1 Legal Provisions The codification of Jewish marriages was included in the civil laws of the Habsburg monarchy only in a second attempt. It was the Roman Catholic Church that Joseph II as the regent of the Austrian lands primarily opposed. Up until the late 18th century, marriage legislation and marriage jurisdiction, for example, had rested with the ecclesiastical authorities. As part of the wider process of expanding civil law, which had begun in the 1750s, Joseph II placed an increasingly greater level of importance upon removing this authority from the Church. Jurists from the law commission working towards this aim presented the Josephinian Marriage Patent (Josephinisches Ehepatent) in 1783, which defined marriage as a civil contract and gave corresponding authority over such matters to the secular courts (JGS 1783, 117).1 Although the Marriage Patent primarily regulated Catholic marriages, separate provisions were included for non-Catholic Christians. A crucial difference lay in the fact that Catholic married couples could only divorce from bed and board, which prevented remarrying until the death of a divorcee, whereas the marriages of non-Catholic couples could become completely divorced according to the rules of their faith, which included the possibilities for remarrying. DOI: 10.4324/9781003334552-16

214  Ellinor Forster The separation of a marriage in which the marriage bonds remained intact was called “divorce from bed and board”, while the separation of the marriage union and the marriage bond was called “separation of the marriage”. In order to avoid any uncertainties, the term “marital dissolution” is used here instead to refer to cases in which separated spouses could subsequently remarry. Another crucial difference lay in the varying legal options between Catholics and non-Catholics. According to canonical marital law, a Catholic spouse had to demonstrate reasonable grounds for a temporary separation or an unlimited divorce from bed and board. Yet the Josephinian Marriage Patent allowed for a divorce by mutual consent. After three years, a court order allowed Catholic spouses to file for divorce, but only if the other spouse had maliciously not consented to the divorce and the petitioning spouse had previously asked the court or police for help (Griesebner 2022, 529–564). Non-Catholic couples could file for full divorce under the Josephinian Marriage Patent on grounds such as physical violence, threat of death, or malicious abandonment (JGS 1783, 117, §§ 49–50, 201). However, Jewish matrimony did not fall under the Josephinian Marriage Patent. This purview came later, following the patent of 3 May 1786 which covered Jewish subjects. Jewish marriages could be dissolved, but only on the condition that both spouses agreed – similar to the situation of Catholic couples in divorcing from bed and board (JGS 1786, 543, § 3, 43). This arrangement corresponded to Mosaic Law in principle as marital dissolution was permissible when a husband freely granted divorce and the wife voluntarily accepted it. According to Mosaic Law, however, one exception for non-consensual separation was in cases where the wife had committed verifiable adultery. Here, Mosaic law permitted the husband to divorce his wife even against her own will. The terms of mutual consent to full divorce would have overridden this gendered legal inequality, but it did not last long; multiple protests by Jewish authorities led to the civil marital law being reintroduced according to Mosaic law for Jews in 1791. This realignment entailed the right for Jewish husbands to once again serve divorce notices to their wives without mutual consent in the case of proven adultery, though Jewish women had not received the same right (JGS 1791, 130, 27–28; JGS 1800, 130, 85–86). In keeping with this anomaly, these gender-specific peculiarities of Jewish marriage continued in the Civil Code of 1811 and functioned as the legal basis for the three Jewish couples presented here (ABGB 1811, §§ 123–136). In the case of the Viennese couple “F.”, whom the jurist Carl Anton Pratobevera (1769–1853) discussed in a legal case from 1817, no further biographical information can be identified due to the usual anonymization practices in such descriptions (Pratobevera 1817, 226–229). A better partial comparison can be made for the other two couples – Sara Leidersdorfer and Hirsch Barach from Vienna2 and Benjamin Burgauer and Dina Lazarus from Hohenems.3 Sara Leidersdorfer (1780–1861) came from the wealthy Viennese merchant family named Leide(r)sdorfer.4 For Hirsch Barach (1775–1845),5

New Possibilities – New Practices?  215 marrying her meant entering Viennese Jewish society, as he had originally come to Vienna from Lemberg in 1800 with his first wife Malka and his daughter Fanny since he was tolerated as a merchant (Warensensal) (Pribram 1918, 178). His first wife died in 18056 and he subsequently married Sara Leidersdorfer five years later.7 Benjamin Burgauer (1781–1862), was born into the Jewish community of Hohenems, where his father – of the same name (1741–1796) – had migrated from Burgau county in 1773 at the age of 31 together with his widowed mother Judith (1720–1786). She married Maier Uffenheimer (1719–1789), that is, into one of the wealthiest Jewish families, which also enabled the stepson to advance. Maier Uffenheimer held the title of imperial and royal court commissioner and was active in extensive regional trade as well as becoming the head of the community. Benjamin Burgauer’s father married into a leading trading family of Hohenems. In a house ownership appraisal of Hohenems in 1806/7, Burgauer’s widowed mother Jeanette Moos (1751–1833) appears as the owner of the house. The house valuation of 800 gulden meant she was not among the wealthiest Jewish citizens in Hohenems who owned houses worth up to 4,000 gulden. Burgauer, as a peddler and tradesman, owned no house at that time, which may explain his marriage to the 44-year-old widow Dina Lazarus (1767– 1837), who was 14 years his senior, in 1811. Born in Balbronn in Alsace, Dina had married the Hohenems merchant Bermann Wolf Levi in 1799, whose house was valued at 450 gulden in 1806/7. Her first husband died in 1809 in a rockslide near the custom’s house in Landeck (Tänzer 1905, 68, 167, 314–316, 704, 779). 14.2 The Attractiveness of the New Model of a “Divorce from Bed and Board” for Jewish Wives and Husbands Due to the sacramental nature of the marriage bond, divorce from bed and board became the only option open to Catholic couples who wished to end wedlock up until 1938 – apart from an annulment or through death. Along with the provisions contained within the Civil Code, this option became an entirely novel option available to Jewish couples. Divorce from bed and board became unpopular among Catholic couples as it prevented them from remarrying during the remaining lifetime of their spouse. Although changes were proposed on numerous occasions, for example already in the codification process of the 1780s, no majority appeared for the desacramentalizing of marriage (Forster 2013, 95–125; 2019, 151–168). Similar requests occurred in the late 19th and early 20th centuries when debates and possible ways to dissolve marriage bonds reignited (Harmat 1999). Amidst this backdrop, it may at first seem surprising that Sara Leidersdorfer, who as a Jewish woman would have had the option of total marital dissolution, instead sought a divorce from bed and board in 1812. Yet when compared to marital dissolution, divorce from bed and board offered her some distinct advantages: Firstly, in regard to property, divorce from bed and

216  Ellinor Forster board usually awarded the wife a financial retainer to be either agreed upon by the couple alone or determined by the courts in questions of guilt. This course became Sara Leidersdorfer’s intention; in her petition for divorce from bed and board, she also demanded a retainer worth 3,000 (Viennese) gulden per year to be paid quarterly upfront.8 Divorce from bed and board also offered certain advantages for the husband in terms of administering assets. A wife’s marriage portion as well as her other assets usually formed part of the commercial activity of the husband and would have had to be withdrawn from his business to be returned in the event of marital dissolution. Paying monthly or even quarterly alimony in the form of a retainer, however, was akin to taking interest off of this capital. In this case, however, Hirsch Barach wished to avoid a divorce from bed and board and submitted a countersuit for the return of Sara, who had left to live with her mother. As long as the proceedings were ongoing, however, he was unsuccessful.9 Another significant advantage for Jewish couples seeking a divorce from bed and board rather than marital dissolution was the special articles governing marriage between Jews mentioned above. Suits for divorce from bed and board allowed couples to circumvent the mutual consent enshrined in Mosaic Law and the General Civil Code. The petitioner – either the husband or wife – could file for divorce upon multiple grounds: physical violence, adultery, malicious abandonment, criminality, immorality that undermined the family’s standing or depreciated property, continual injury, and insult or risks associated with physical ailment such as infection (ABGB 1811, § 109). One reason that Sara Leidersdorfer gave for seeking a divorce from bed and board was grievous bodily harm. Though she had clearly indicated to her husband on their wedding night, and on several other occasions, that she endured her “monthly cleansing” which upended any sexual intercourse, her husband disregarded this information and persisted in “visiting” upon her. In making her case and point, she mentioned how on one such occasion she had fainted and that he had to give her tea twice. Moreover, she argued that copulation during her menstruation was not permitted under Judaism and submitted an attestation of this fact from a rabbi. Her second reason was that her husband supposedly publicly mentioned that she had not been a virgin (at the time they got married) which led to his feeling of having been deceived and his repeated insults against her.10 Finally, she further alleged that he had attempted to seduce their maid.11 The courts dealt with the allegations in different ways. The municipal magistrate did not view coition during menstruation as immoral or a vice. The rabbi’s explanation that coitus in this situation was a sin according to Jewish tenets was regarded as insufficient due to opposing opinions and interpretations. In principle, sexual gratification within marriage – even during menstruation – was not viewed as abusive. In considering the accusation that she was not a virgin, Hirsch Barach had apparently denied mentioning this in front of others. The municipal magistrate stated that this allegation constituted not a

New Possibilities – New Practices?  217 grievance but a future admonition as it could certainly be the case within the confidential bounds of marriage.12 Sara Leidersdorfer appealed to the next higher level, the Lower Austrian Court of Appeal. In June 1812, the court upheld her claims since it was believed that coition during menstruation harmed her health and constituted a sin in Judaism. The further accusation that Hirsch Barach stated that he had not found his wife to be a virgin could also be “very damaging to an honorable woman, and therefore counted as gross mistreatment”. The spouse could not expect any future respect from her husband, but the allegation exposed her to continual harassment. The Court of Appeal accordingly gave her the opportunity to prove through testimony that he had spoken to others about sexual intercourse during menstruation as well as her fainting and her husband’s accusation that she was not a virgin.13 Hirsch Barach appealed against this verdict, and in December 1812, the third instance confirmed the verdict of the municipal magistrate, meaning Sara Leidersdorfer’s lawsuit met with dismissal.14 Evidently, some agreement to a dissolution of the marriage was reached between the couple later on, since Hirsch Barach married a second time in 1815 according to Jewish records,15 while Sara Leidersdorfer remained unmarried.16 There are no records of how this dissolution agreement was reached. In 1817 Pratobevera wrote of the case of the “F.” couple, stating that very few Jewish separation cases were heard in Christian civil courts; he suspected the influential sway of the rabbis, who sought to prevent such steps, was to blame for this. Indeed, the rabbis had previously held jurisdiction over marriages (Pratobevera 1817, 230). However, the few extant cases indicate the pressures exerted throughout the process and the further attempts to circumvent the issue of consent in order to reach marital dissolution. 14.3 The Dual Nature of Consensuality within Jewish Marriage Law and the Attempted Practices of Circumvention When Benjamin Burgauer desired to divorce his wife Dina Lazarus in October 1825, he encountered difficulties due to the fact that she refused to accept the letter of divorce. After pursuing several strategies at the outset, Benjamin Burgauer had only one option remaining to dissolve the marriage despite her protest: proven adultery, which could not be disputed. He pursued several strategies from the outset. First of all, he presented one possible reason for annulment: a declaration of invalidity for the marriage. Namely, his wife could not fulfill her purpose of the marriage to bear children because her vagina, where the hymen was normally located, was so tightly sealed that complete conjugal relations and the subsequent carrying of children was impossible. The problem with this argument was that the couple had already been married for 14 years and he would have had to pursue the annulment of the marriage on the grounds of a marital impediment right at the beginning of the marriage. He initially explained away this omission, claiming it was due to “innate shyness”.17

218  Ellinor Forster Burgauer advanced further arguments in support of his claim to dissolve the marriage which were also reasons that applied to Christian marriages. The decisive factor for him to file the suit – according to his stated reasons in the application – was the behavior of his wife, which had deteriorated so much that it was impossible for him to endure it any longer. He added that Dina had even made grave threats against him.18 As a precaution, he had already taken care of the necessary formalities required for marital dissolution: mediation with a rabbi whose testimony he included in the complaint. The rabbi certified that no amicable settlement could be reached between the couple and that he had called on Burgauer several times to discuss their marital disputes, but despite reconciliation nothing could be resolved.19 The Municipal and Regional Court in Innsbruck, the relevant authority on legal cases for Jewish marriages, referred to the necessary voluntariness and the only possible legal recourse in cases of proven adultery on behalf of the wife.20 Mosaic law had not always been so strict; up until the Middle Ages, rabbis recognized several grounds for dissolution and allowed wives to initiate marital dissolution. Yet from the 12th century onwards, forced dissolutions became increasingly rare and tended instead towards necessary voluntariness in dissolution cases (Dubin 2007, 85–86). A Jewish husband’s unilateral right of action against his wife’s adultery still stemmed from the understanding that the wife became the husband’s property upon marriage, from which he could separate himself. Binding the wife to the husband was perceived as a problem throughout modern times, and in Israel until today. Moreover, in cases where husbands abandoned their wives, women were still bound to their husbands and could not remarry (Keil 2007, 323–343; Gotzmann 2008/2009, 91–126). 19th-century Austrian jurists adopted different positions on this gender-specific inequality within Jewish marital law. Pratobevera argued for equality in 1817 (Pratobevera 1817, 248). Ignaz Graßl, a jurist and author of a treatise on Austrian Jewish marital law, attempted to justify this inequality by finding 18th and 19th-century Mosaic law already represented a clear improvement over conditions in earlier centuries, whereby Jewish husbands could dismiss their wives from the marriage without justification. Furthermore, polygamy was no longer permitted. From a “philosophical standpoint”, one would have to decide “in favour of mutual equality in treatment”, he wrote in 1838, and also noted how “a legislator proceeds from the maxim of maintaining concluded marriages as far as possible” and so “only reluctantly and only to the extent that the religious conceptions of the various tolerated religious parties entail” allows for a dissolution of marriage. According to “Jewish concepts”, “such permission is only required in the case of adultery on behalf of the wife”, since for Jewish husbands it is considered a duty to follow their religious concepts to dismiss “an adulterous wife”. Thus, the legislator, wanting to uphold marriages and prevent dissolutions, had adopted these stipulations and accordingly did not grant Jewish wives the same right against their husbands (Graßl 1838, 243–44).

New Possibilities – New Practices?  219 In the 19th century, most courts – particularly the highest jurisdictions – insisted on strict adherence to legal norms and rarely referred to Christian reasoning for divorce and separation. In 1861, for instance, a Jewish wife sued for marital dissolution before the Viennese Regional Court, citing “maltreatment and life-threatening threats” against her as the grounds. The first sitting had granted her request, but on the second and third occasions, a different judgment was reached. The relevant legal passages, which standardized the dissolution of Jewish marriages, spoke of mutual voluntary consent and of involuntary dissolution on account of adultery proven against her. No other dissolution case, especially not against the husband’s will, was described as permissible (Pfaff et al. 1895, 331). 14.4 Provisions in Marriage Contracts In order to be prepared for a unilateral request for divorce, Jewish couples already made the necessary provisions in marriage contracts. Ignaz Graßl’s treatise of 1838 shows that this was an oft-used practice, even though he gave this possibility little chance of success (Graßl 1838, 240). Both Sara Leidersdorfer and Hirsch Barach as well as the “F.” couple had used this option and agreed on corresponding clauses in the marriage contract. Sara Leidersdorfer and Hirsch Barach stipulated the amount of 3,000 gulden as a retainer for her “in case they could not live together”. This sum matched the amount that Sara referred to in her suit for divorce from bed and board.21 The “F.” couple had stipulated that in the event that the wife was “forced to leave the house because of discord and no reconciliation was reached”, the husband would have to give her the letter of divorce. When after a few weeks of marriage, the husband was sentenced to five years in prison for fraud, the wife attended court in 1812 to demand the right to divorce, with reference to the marriage contract, and also the dissolution of the marriage. Here, too, property formed an important factor. Although she could have demanded the restitution of her marriage portion and payment of the counter-marriage portion, the husband rejected her demand and insisted that no “discord and incompatibility” had arisen on account of his “misfortune”. She had no right to leave him following this logic and instead it was her duty to “remain with her husband even under hardship”. Finally, this contractual clause was incompatible with Austrian matrimonial law for Jews, as a marital dissolution could be granted and accepted only voluntarily. The wife argued that the marriage was a civil contract, which, therefore, could be annulled. Moreover, she viewed the contractual agreement in their marriage contract as voluntary in nature, and since they had both signed it, it had been made valid. In the first hearing, the wife’s claim was initially dismissed, but the Court of Appeal allowed the dissolution since it followed the argumentation of the voluntary nature of the clauses of the marriage contract. The husband was to give her the letter of divorce, however in a third hearing the Highest Judicial Office confirmed the decision of the first court, meaning the lawsuit ultimately failed

220  Ellinor Forster (Pratobevera 1817, 226–229). Due to the uncertain financial situation, the claim of wife “F.” for her marriage portion and the counter marriage portion remained endangered (Klein 2007, 345–384). 14.5 Mutual Negotiation of the Consent to Dissolve Marriages Benjamin Burgauer, who had been unsuccessful in invoking Christian grounds for divorce from bed and board, could rely only upon insisting on a marital annulment or the option of convincing his wife to accept the letter of divorce after all. The court rejected the first approach as he had continued the marriage despite knowing of the impediment to marriage, meaning he could not insist on an annulment. Moreover, it had not been proven that the alleged impediment had existed prior to the marriage.22 As Hohenems was under the jurisdiction of the Dornbirn District Court, these court authorities now tried to dissuade Burgauer from his request in January 1826.23 Yet he persisted in justifying the annulment based upon the impediment with the intent to pressure his wife into “voluntarily” accepting a marital dissolution.24 A battle of wills can be glimpsed from the case records. After an initial failure to reach an agreement, Burgauer requested another appointment, as he believed they would be able to come to an agreement, indicating that further negotiations occurred out of court.25 The second hearing, however, did not succeed since Dina Lazarus declined a marital dissolution. In their letter to the Innsbruck authorities, the judges of the Dornbirn District Court called her a “Xanthippe”, referring to Socrates’ wife who was said to have been shrewish and thus reflecting a typical male point of view.26 Pressure on her increased as argumentation now focused on her body and its alleged infertility. Burgauer had to provide proof of how he had convinced himself of this ailment, “especially when the last time was and in what way”.27 The voyeuristic character of the court becomes evident here. Together with their legal representatives, the couple finally came to a final hearing before the Dornbirn District Court on 6 March 1826. Benjamin Burgauer and his lawyer claimed that Dina Lazarus had been examined by the responsible midwife in the presence of two other witnesses before her marriage, namely at the time of her first marriage, upon the order of the district court physician, which proved her physical incapacity for coitus. Furthermore, Burgauer had the opportunity to explain why he only now applied for annulment after 14 years as he had first received this information from the public health official, Dr. Folie, in October of the previous year. This evidence proved to be a decisive factor in convincing him to file the complaint. He had noticed the impediment immediately after marriage, but at that time had believed the infertility issue was also possibly his fault. It was only when Dr. Folie clarified his wife’s situation that he realized her responsibility. He sought to paint his wife as a criminal who had fraudulently deceived him. Dina Lazarus and her lawyer rejected the allegations and again referred to the law. If he had wanted to assert his right to annul the marriage, he should have overcome his “innate shyness”, not continued the

New Possibilities – New Practices?  221 marriage – which had by this time already lasted 15 years – to only now come forward with a claim. Moreover, he had failed to prove that this alleged ailment precluded children.28 Lazarus’s age at marriage – 44 years old – together with the unlikelihood of conception, though possible, was not mentioned by either side. During earlier attempts to persuade his wife to accept the letter of divorce, Burgauer offered the prospect of alimony to her. Initially, Lazarus did not accept29 but in the course of the last hearing several apparent discussions between the parties finally led to an agreement. The property settlement played a central role. Burgauer proposed to pay Lazarus 3 gulden and 30 kreuzer of imperial currency per week as a retainer for her life maintenance – and to do so in advance each month via the Jewish community head in Hohenems. This sum corresponded to the interest on 3,640 gulden, which he had to secure in return by depositing 1,500 gulden with the Jewish community council and insuring the remaining sum of 2,140 gulden on his house and synagogue chairs. The arrangement also included a remarriage for Burgauer. In his case, insurance on the house and synagogue chairs was obviously insufficient, but a further deposit of 500 gulden with the Jewish community council followed. Just as Sara Leidersdorfer had suggested in her divorce lawsuit, in this property arrangement the assets brought in by Dina Lazarus remained in the care and company of Burgauer – although this amounted to only 1,000 gulden. For her, therefore, this represented a more favorable solution than if she had received her share after the dissolution and had to live off of the interest. This additional sum perhaps corresponded to the agreed counter-marriage portion, which was not explicitly addressed in the agreement. In the event of her death, it was stipulated that the 1,000 gulden she had contributed would go to her heirs and the remaining 2,640 gulden to Burgauer or his heirs. He also had to bear the costs of the lawsuit.30 The dissolution took place solemnly on 15 June 1826 with the handing over of the writ of divorce.31 Burgauer then married a second time, while Lazarus did not remarry (Tänzer 1905, 704). 14.6 Conclusions At the beginning of the 19th century, lawyers boasted that the General Civil Code applied equally to all citizens. The fact that there were always deviations, especially when it came to female citizens, was conceded only in the footnotes (Forster 2012, 269–293). The concessions to the different spiritual authorities, however, which led to diverse confessional and religious marital constructions, contradicted this principle substantially. Often, when comparing marriage laws, the focus is on the differences between Christian denominations, and far less often between Christians and members of other religions. In one regard, the dissolution regulations for Jewish marriages went further than Catholic ones in permitting remarriage. Yet the requirement of voluntariness for a divorce decree entailed many restrictions. At the same time, the

222  Ellinor Forster provision that only the husband could separate from his wife against her will in the case of proven adultery but not vice versa, caused a gender inequality that is not found in the legal norms governing Christian couples. The divorce cases examined from the early 19th century demonstrated attempts at solutions for circumventing these dilemmas, which were rarely successful due to strict jurisdiction. What these provisions actually meant for married couples, however, is revealed by a closer examination of their property arrangements. Only the retainer arrangements within a divorce from bed and board, for example that of Sara Leidersdorfer, can explain why this was advantageous for both spouses. Dissolution usually meant respective assets reverted to the spouses and marriage contracts were annulled, and property arrangements could be made in this case as well. As problematic as the presupposed voluntariness in the handing over and acceptance of the letter of divorce was, it also offered Jewish wives a possibility to tie their agreement to dissolve the marriage to a corresponding property arrangement. In such cases – for example that of Benjamin Burgauer and Dina Lazarus – both could draw advantages: He did not have to return her marriage portion, but could keep it invested in his trade, while she, through her stubborn refusal, had obtained a more advantageous amount than would have been the case if the assets had been split. Conversely, as the couple “F.” showed, the wife had no chance of having her contributed marriage portion and the agreed counter marriage portion returned to her, due to her husband’s refusal and the fact that he was in prison. She remained bound to her husband. Archival Sources Tiroler Landesarchiv (TLA), Stadt- und Landrecht Innsbruck (StLR), Ehesachen 1816–1825, 9/72. Wiener Stadt- und Landesarchiv (WStLA), Bestand 1.2.3.2.A6, Schachtel 7,9/1812. Notes 1 The Josephinian Marriage Patent, as well as all subsequent patents and royal decrees, are cited according to the Judicial Code Collection 1780–1848 (Justizgesetzsammlung), [hereafter JGS], provided online by the Österreichische Nationalbibliothek. Alex. Historische Rechts- und Gesetzestexte: https://alex. onb.ac.at/static_tables/tab_jgs.html 2 I would like to thank Andrea Griesebner very much for the opportunity to include the case of Sara Leidersdorfer and Hirsch Barach. The documents of the divorce proceedings are kept in the Wiener Stadt- und Landesarchiv [hereafter WStLA], 1.2.3.2.A6, Schachtel 7,9/1812. They were collected as part of the research project "Marriages at Court". https://ehenvorgericht.univie.ac.at/?lang=en. 3 Tiroler Landesarchiv, Stadt- und Landrecht Innsbruck [hereafter TLA], Ehesachen 1816–1825, 9/72.

New Possibilities – New Practices?  223 4 Sara Barach (Leidesdorfer). Jewish records Vienna: https://www.geni.com/people/ Sara-Barach/6000000010222226247. 5 Hirsch Hermann Barach. Jewish records Vienna: https://www.geni.com/people/ Hirsch-Barach/6000000054431468061. 6 Malka Barach. Jewish records Vienna: https://www.geni.com/people/ Malka-Barach/6000000054205901834. 7 Sara Barach (Leidesdorfer). Jewish records Vienna: https://www.geni.com/people/ Sara-Barach/6000000010222226247. 8 WStLA, Motives Municipal magistrate concerning the lawsuit of Sara Leidersdorfer, 5 March 1812. 9 WStLA, Motives Municipal magistrate concerning the lawsuit of Sara Leidersdorfer, 5 March 1812. 10 WStLA, Motives Lower Austrian Court of Appeal concerning the lawsuit of Sara Leidersdorfer, 16 June 1812. 11 WStLA, Motives Municipal magistrate concerning the lawsuit of Sara Leidersdorfer, 5 March 1812. 12 WStLA, Verdict and motives Municipal magistrate concerning the lawsuit of Sara Leidersdorfer, 5 March 1812. 13 WStLA, Verdict and motives Lower Austrian Court of Appeal concerning the lawsuit of Sara Leidersdorfer, 16 June 1812. 14 WStLA, Verdict Highest Judicial Office, 15 December 1812. 15 In 1815, he married the eighteen-year-old Nanette Wottitz (ca. 1796–1872). This marriage seems to have been separated too, as she later married Heinrich Trebitsch (ca. 1788–1846). Anna Nanette Trebitsch Barach (Wottitz). Jewish records Vienna. https://www.geni.com/people/Anna-Barach/6000000002765160890. 16 Sara Barach (Leidesdorfer). Jewish records Vienna: https://www.geni.com/people/ Sara-Barach/6000000010222226247. 17 TLA, Lawsuit Benjamin Burgauer, 30 October 1825. 18 TLA, Lawsuit Benjamin Burgauer, 30 October 1825. 19 TLA, Attempt to reconciliate (Nachweis des Versöhnungsversuchs) by Rabbi Israel Lissauer, Hohenems, 10 October 1825. 20 TLA, Referee’s protocol (Referentenprotokoll), 12 November 1825. 21 WStLA, Motives Lower Austrian Court of Appeal concerning the lawsuit of Sara Leidersdorfer, 16 June 1812. 22 TLA, Referee’s protocol (Referentenprotokoll), 9 November 1825; Fiscal Office (Fiskalamt) to Municipal and Regional Court (Stadt- und Landrecht), 15 December 1825; Referee’s protocol (Referentenprotokoll), 24 December 1825. 23 TLA, Answer Dornbirn District Court, 4 January 1826. 24 TLA, Protocol Dornbirn District Court, 9 January 1826. 25 TLA, Dornbirn District Court, Protocol with Benjamin Burgauer, 17 January 1826; Summons of Benjamin Burgauer and Dina Lazarus for 23 January 1826. 26 TLA, Referee’s protocol (Referentenprotokoll), 28 January 1826. 27 TLA, Draft Municipal and Regional Court (Stadt- und Landrecht) to Dornbirn District Court, 28 January 1826. 28 TLA, Dornbirn District Court, Protocol with Benjamin Burgauer, Dina Lazarus, and Ignaz Rosenthal as lawyer, Dornbirn, 16 January 1826. 29 TLA, Dornbirn District Court, Protocol with Benjamin Burgauer, Dina Lazarus, and Ignaz Rosenthal as lawyer, Dornbirn, 16 January 1826. 30 TLA, Dornbirn District Court, Date of hearing protocol, 6 March 1826. 31 TLA, Rabbi Israel Lissauer to Dornbirn District Court, Hohenems, 16 March 1826; Dornbirn District Court to Municipal and Regional Court (Stadt- und Landrecht), 21 July 1826; Dornbirn District Court, Protocol, 14 July 1826.

224  Ellinor Forster References Dubin, Lois C. 2007. “Die Zivilscheidung einer jüdischen Frau im Habsburgischen Triest des späten 18. Jahrhunderts.” In Juden im Recht. Neue Zugänge zur Rechtsgeschichte der Juden im Alten Reich, Andreas Gotzmann and Stephan Wenderhorst (eds.), 81–108. Berlin: Duncker & Humblot. Forster, Ellinor. 2012. “Die Spiegelung widersprüchlicher Vorstellungen über die Geschäftsfähigkeit von Frauen im österreichischen Privatrecht um 1800.” In Kontinuität im Wandel. 200 Jahre ABGB (1811–2011), Heinz Barta, Christine Lehne, Monika Niedermayr and Martin Schennach (eds.), 269–293. Innsbruck: Innsbruck University Press. Forster, Ellinor. 2013. “Between Law, Gender and Confession: Jewish Matrimonial Law Provisions against the Background of Catholic and Protestant Regulations in 18th- and 19th-Century Austria.” In Gender Difference in European Legal Cultures. Historical Perspectives, Karin Gottschalk (ed.), 95–125. Stuttgart: Franz Steiner Verlag. Forster, Ellinor. 2019. “Einpassen von religiösen Rechten und Gewohnheiten in die zivilrechtliche Kodifikation. Diskussionen über katholische, protestantische und jüdische Eherechtsbestimmungen in Österreich im 18. Jahrhundert.” In Grundrechte und Religion im Europa der Frühen Neuzeit (16.–18. Jh.), Cecilia Cristellon and Luise Schorn-Schütte (eds.), 151–168. Göttingen: Vandenhoeck & Ruprecht. Gotzmann, Andreas. 2008/2009. “‘Drei Hochzeiten und ein Todesfall’. Zwischen jüdischem Eherecht und Zivilehe.” ASCHKENAS – Zeitschrift für Geschichte und Kultur der Juden 18/19 (1): 91–126. Graßl, Ignaz. 1838. Das besondere Eherecht der Juden in Oesterreich nach den §§. 123–136 des allgemeinen Gesetzbuches. Vienna: Mösle & Braumüller. Griesebner, Andrea. 2022. “Das Josephinische Eherecht. Eine Gemengelage aus Altem und Neuem im Dienste einer bürgerlich-patriarchalen Geschlechterordnung.” In Central European Pasts: Old and New in the Intellectual Culture of Habsburg Europe, 1650–1750, Thomas Wallnig and Ines Peper (eds.), 529–564. Berlin and Boston: De Gruyter Oldenbourg. Harmat, Ulrike. 1999. Ehe auf Widerruf? Der Konflikt um das Eherecht in Österreich 1918–1938. Frankfurt am Main: Klostermann. Justizgesetzsammlung. 1780–1848. Österreichische Nationalbibliothek. Alex. Historische Rechts- und Gesetzestexte online. https://alex.onb.ac.at/static_tables/ tab_jgs.html Keil, Martha. 2007. “Aguna (‘die Verankerte’): Strategien gegen die Benachteiligung der jüdischen Frau im Eherecht (1400–1700).” ASCHKENAS – Zeitschrift für Geschichte und Kultur der Juden 17 (2): 323–343. Klein, Birgit E. 2007. “Ungleichheiten als Chance? Jüdinnen und das jüdische Ehegüterrecht in Norm und Praxis.” ASCHKENAS – Zeitschrift für Geschichte und Kultur der Juden 17 (2): 345–384. Pfaff, Leopold, Joseph von Schey and Vincenz Krupský (eds.). 1895. Sammlung von Civilrechtlichen Entscheidungen des k. k. obersten Gerichtshofes, Band 29. Vienna: Manz. Pratobevera, Carl Joseph. 1817. Materialien für Gesetzeskunde und Rechtspflege, in den Oesterreichischen Staate, Band 3. Vienna: Geistinger.

New Possibilities – New Practices?  225 Pribram, Alfred Francis. 1918. Urkunden und Akten zur Geschichte der Juden in Wien. Erste Abteilung, allgemeiner Teil 1526–1847 (1849). Vienna and Leipzig: Wilhelm Braumüller. Tänzer, Aaron. 1905. Die Geschichte der Juden in Hohenems und im übrigen Vorarlberg. Meran: F. W. Ellmenreichs’s Verlag.

Glossary

Akçe  Ottoman silver coin Alimony  Monthly or yearly income a husband is to pay to his bed and board separated wife in Catholic areas where the dowry system is the rule (such as Italy), since in absence of marriage annulment the dowry remains property of the husband. The amount is not decided by the Church but by the protagonists, if necessary, in the framework of a civil process. Annulment of the marriage  The marriage is declared null and void. The spouses are no longer tied with the spiritual marriage bond. Aphorismos  Temporary excommunication Berat Decrees by Ottoman Sultans usually granting specific privileges Community of acquisitions  Property the bride and groom owned before the marriage remains in their respective ownership, property they acquired during the marriage would become joint property, excluding or including inheritances and gifts. Council of Ten  Highest organ in the Republic of Venice, in charge of most serious political issues, including the supervision of divorce proceedings. Counter marriage portion (Widerlage)  Property of the groom brought to the marriage (see also marriage portion) Coverture  An English common law concept whereby a woman’s legal persona was subsumed by that of her spouse upon marriage, particularly as far as property was concerned. A married woman was called a feme covert (femme couverte) because she was under the “cover” of her husband Curialism  Religious-­ political trend in the Catholic world according to which the Roman Curia is the supreme and only authority on a matter (here on divorce issues) Divorce from bed and board  The married couple is allowed to live apart from each other indefinitely, but is still bound by the spiritual marriage bond and therefore spouses are not allowed to remarry before the death of the other spouse. Donatio propter nuptias (progamiaia dorea)  A gift of the groom or his family to the bride at the time of the marriage

Glossary  227 Douaire  Income granted to the widow for her maintenance from the husband’s assets as specified in the marriage contract. If the wife was not charged with any fault in the event of divorce, she retained the right to this income. Dower  Marriage payment of the groom or his family to his bride. In England, dower was the traditional common law entitlement of a widow to a life interest in one-­third of the freehold land her husband had possessed during the marriage. Dowry  Marriage payment to the bride by her family, often representing her patrimony. In many cases the dowry was considered inviolate and remained the property of the wife (although it was often managed by the husband) but in other cases it could be merged with the property of the husband. Fesih  Legal annulment Freebench  In England, the customary right of a widow to a share of her late husband’s copyhold estates; the proportion varied from manor to manor but was often limited to a woman’s “chaste widowhood”. General community of property  Both marriage-­portions as well as all other assets that the bride and groom owned, or were to acquire or inherit in the future, merged into “joint property” that belonged to both spouses in equal shares. Giuseppinismo  Italian term for Josephinism, referring to the political model given in the late 18th century by Austrian Emperor Joseph II (Giuseppe II), who enlarged the jurisdictional competence of the State against the Church (see jurisdictionalism). Heiratsgut  Property of the bride brought to the marriage (see marriage portions) Hospodar  A title of Slavonic origin meaning lord or master, also the title by the Ottoman appointed rulers of the provinces of Moldavia and Wallachia Hul’ (Kul’, Khul’, muhala) divorce  Divorce initiated by the wife and granted with the husband’s consent, according to which women were required to forfeit part or all of their delayed dowry, sometimes with additional compensation. iddet (‘idda)  Usually three-­month long legal waiting period for women after divorce or death of the husband to ascertain pregnancy İzinname  Official marriage permit Jointure  In English law, a widow’s right: specifically, an interest in property settled upon a woman and her future husband before their marriage (usually drawn upon her marriage portion or dowry) that would vest in her if she outlived him. Jurisdictionalism (or anti-­curialism)  Political trend according to which the State has authority over the Church (here on divorce) Kadi (qadi)  Islamic judge Kafaa  Suitability or equality between spouses. The rules of kafaa attempt to prevent a mismatch between the marrying parties in terms of family, religion, profession, freedom, good character, or financial means.

228 Glossary Kanunname  Ottoman law codes issued by Sultans Kepinion  Some see it as a form of marriage but more akin to concubinage. The Orthodox Church considered it illegal cohabitation although often legally contracted in Islamic courts. Koftehar Cuckold Letter of divorce  To obtain a valid dissolution of a Jewish marriage, the husband had to hand over a formal document, called the “letter of divorce”, which had to be accepted by the wife. Marriage contract  Usually signed before the wedding but could also be concluded during the marriage or amended with mutual consent. The agreements regularly covered both the marital property regime and the division of property after the death of one spouse. Marriage portions (Heiratsgut und Widerlage)  With no further specification in the marriage contract both parts merged to form the “joint property”, which belonged to both spouses in equal shares and therefore fell to the estate of the deceased spouse. Marriage portions (Heiratsgut und Widerlage) on survival  Upon the death of one spouse both portions automatically became the property of the widowed spouse and therefore did not have to be divided by the widow or widower with any heirs. mehr (mahr, mehir)  Dower paid by the husband to the wife mehri misil  Specific type of dower assigned to a woman if no sum had been specified when she had entered into marriage and amounting to what would conventionally be paid to the bride mehri mueddžel (Mehr-­i müeccel, mahr-­e-­muajjal, mehr-­i müeccel) Deferred dower transferred from husband to wife upon his death or divorcing her mezheb (madhhab)  School of thought within Islamic jurisprudence Morning gift  Usually a gift from the groom to the unmarried bride, which became and remained her property regardless of the agreed property regime. There are also records of morning gifts made by widows to unmarried men. Muezzin  Moslem official who calls the faithful to prayer muhayyere olmak/olmamak  To consent or not to consent to a marriage contracted by a person’s proxy without the person’s authorization. Muhtar  Neighborhood headman muta  Temporary marriage or marriage with time specific parameters Müvekkil Principal nafaka (nafaqa)  Maintenance for divorced wife or minor child Nafaka-i iddet  Maintenance during the iddet (waiting period for women after divorce or death of the husband) naip  Ottoman official rank našiza (nāshiza, naşize)  “Disobedient” wife who forfeited her right to maintenance by the husband Nizamiye courts  Secular courts introduced in the Ottoman Empire in the late 19th century

Glossary  229 Nomocanon  Manuals of law often combining elements from Roman and Canon law Paraphernalia  Property outside of the community of property. It could be used for the benefit of the marital economy, but legally remained the property of the contributing person, usually the woman. Phanariot  Inhabitant of the Phanar district of Istanbul. Also a class of Orthodox Christians, mostly Greeks, closely tied to the Ottoman government and the Patriarchate of Constantinople. Philonikia  Conflict, argument Portion, also marriage portion Akin to dowry. In England, a portion was the part of a bride’s natal family’s estate that a woman might expect in lieu of inheritance and the part she contributed to the formation of a new household.­ reis-ul-­ulema  Head of the Islamic community in Habsburg Bosnia and Herzegovina reya (raya, reaya)  Member of tax-­paying lower class commonly used to refer to non-­Muslims (zimmis) Separation from bed and board  Couple remains married but is allowed to live apart for a time specified in the judgment Separation of property  Premarital property situation remains unaffected by marriage Şeyhülislam  Highest ranked mufti in the Ottoman Empire sicil (sidžil)  Kadi court register Spiritual marriage bond Christian religions assume that marriage creates a spiritual bond that is dissolved only by the annulment of the marriage or the death of one of the spouses. The Catholic Church forbids entering into another marriage as long as the spiritual marriage bond is in place. takhayyur  Legal reform by borrowing provisions from another Islamic legal school talak (ṭalāq)  Divorce initiated by the husband Tanzimat  Series of reforms promulgated in the Ottoman Empire between 1839 and 1876­ ulema-medžlis  Religious governing body in Islamic affairs in Habsburg Bosnia and Herzegovina Vekil Proxy vilayet  Province in the Ottoman Empire Widerlage  Property of the groom brought to the marriage (see marriage portions) zapit  Ottoman official rank

Name Index

Algeria 196–197, 209 Alsace (France): Balbronn 215 Archduchy Austria below the Enns (Austria): Korneuburg 35, 37, 135; Krems 130; St Pölten 120; Tulln 48; Vienna 2, 33–34, 40, 48, 120, 130, 132, 135, 138, 214–215 Bavaria (Germany): Passau 33–35, 37, 42 Biscay (Spain) 70–72, 74, 76; Bilbao 2, 70–80 Bosnia and Herzegovina 12, 195–200, 204–209; Brčko 207; Bugojno 202, 208; Gradačac 206–207; Konjic 201; Mostar 168, 199; Prozor 203; Sarajevo 196, 199–200, 203–204; Tešanj 201; Travnik 199–200; Visoko 205 Burgau county (Spain) 215 Byzantine Empire 177–179, 182, 188–189 County of Tyrol (Austria) 41, 119; Innsbruck 218, 220; Landeck 215 County of Lippe (Germany) 148–151, 155–156; Salzufen 148–149, 151–154 Egypt 168, 197, 206, 208–209 England 4, 6, 12, 26–27, 54–57 France 4–5, 12, 63, 84, 86–87, 91, 128, 209; Beauvais 86; Cambrai 86; Ile de France 84; Paris 2, 6, 84–85, 87–92, 101

Galicia (Ukraine): Lemberg (L’viv) 215 German hereditary lands 4–6, 33–34, 43, 48–49 Greece 4, 12, 177, 190–191; Athens 2, 183; Larissa 185 Habsburg Monarchy 4–6, 11, 33, 43, 45, 48, 115–116, 123, 125, 128–129, 195–202, 213 India 196 Italy 4, 97; Udine 98; Venice 2, 12, 97–99, 101–102, 104, 107, 109; Vicenza 99 Kosovo 205 La Rioja (Spain): Calahorra 70–71, 74 Moldavia (Romania) 184, 187–188, 190 Montenegro: Nikšić 201 Ottoman Empire 1–2, 5, 12, 161, 164, 172–173, 177–181, 183–185, 187–191, 195–199, 204–205, 207, 209; Istanbul 2, 162–163, 167–168, 187, 190, 196; Ottoman Palestine 204 Rumelia (Bulgaria, Greece, and Turkey) 199 Russian Empire 205 Serbia 184; Novi Pasar 186 Syria 204

Name Index  231 Spain 4, 12, 70, 72, 76–77 Sweden 17, 19–20, 26; Snevringe 18–19; Tuhundra 18–19; Västerås 18–21, 23–24

Vorarlberg (Austria): Dornbirn 220; Hohenems 214–215, 220–221 Wallachia (Romania) 187–190

Subject Index

abuse 26, 36, 72, 76, 79, 109, 120, 121, 135, 150, 198 acquired 7, 8, 26, 41, 49, 77, 85, 87, 89, 92–93, 99, 105, 107, 108, 131, 133, 135, 137, 151, 203, 216, 221, 222 administration 10, 20, 80, 89, 117, 125, 130, 131, 176, 195–198, 207, 209 adultery xi, 3, 12, 34–37, 39, 44, 55–56, 58, 60, 64, 66, 87–88, 92, 100, 102, 104, 116, 119, 147, 149, 155–156, 178–179, 180–182, 188–189, 191–192, 214, 217–218, 219, 222 advocate 41, 42, 105 agreement 2, 7, 8, 12, 13, 43, 46, 49, 56–58, 100–101, 107, 134–135, 137–140, 150, 165, 178, 186, 199, 200, 204, 217, 219, 220–222; dissolution agreement 104, 134, 170, 186, 199, 214, 217, 222; inheritance agreement 7, 43, 49, 135, 137, 161; marriage agreement 1, 6, 8, 92, 100, 107, 133–134, 161, 163–166, 168, 172–173, 178, 200, 219; property agreement 7, 27, 49, 86, 88, 139, 202, 221–222; transfer agreement 134, 137, 138, 139–140 Akçe 182, 226 alimony 1, 5, 13, 33, 35, 39–42, 45–46, 48, 55, 57, 66, 77, 98, 101, 104, 105, 107, 108–109, 110, 121, 124, 129, 131–132, 136, 138, 140–142, 151–153, 156, 167, 171–172, 182, 195, 198–199, 201–202, 206, 216, 221; provisional alimony 35, 39, 40, 118, 131, 226 annulment 3, 11, 33, 35, 38, 57, 86, 87–88, 102, 119, 121, 131, 136, 138, 162, 171, 215, 217, 220, 226

aristocratic 61, 97, 99, 101 arrangement see agreement Aphorimos 181, 186, 226 autonomy 187, 208 bankruptcy 7, 86, 88 berat 185, 186, 226 bigamy 3, 33, 70, 179 breadwinner model 11, 17, 45, 129 bride 1, 5, 7, 8, 41–43, 45, 47, 48, 57, 60, 72–73, 75, 80, 93, 100, 130, 135, 138–139, 143, 164, 166, 178, 200 bridegroom 1, 5, 7, 8, 41, 43, 45–47, 72–73, 80, 130, 135, 138, 143, 165, 178 brother 61, 74, 101, 103, 106, 130, 132, 135, 140, 201 business 4, 8, 9, 45, 47–49, 76, 86, 89, 108, 128, 133–137, 139, 216 capital 33, 39, 45, 65, 70, 74, 100, 137, 139, 140, 155, 163 cash 42, 47–48, 77–78, 135, 137, 139–140 Chancery 57–59, 64–66 childbirth 7, 42, 79, 90, 100, 151, 155 childless 90, 122 children 7, 8, 10, 13, 33, 42–48, 57, 61, 63–64, 72, 75, 78–80, 85, 88–90, 98, 100–101, 104, 106, 110–111, 119, 121, 123, 129–130, 132–138, 140, 142, 148, 151–156, 166, 178–179, 181, 188, 198, 200, 203–204, 217, 221 custody of children 1, 13, 33, 35, 39–40, 46, 48, 57, 78–79, 89, 121, 148–149, 150–152, 156, 179, 188, 198–199 Christian denominations: Anglican 3, 5, 11, 27; Catholic 3–5, 11, 27, 33–34,

Subject Index  233 43–44, 48, 57, 61, 70, 74–75, 86, 98, 115–117, 123–125, 137, 177, 196, 213–215, 221–226; Orthodox 3, 5, 9, 11–12, 162, 177–179, 181–187, 189–191, 196; Protestant 3–4, 11–12, 54–55, 57, 62, 92, 147–150 church records 34, 37 civil marriage 1, 4, 35, 117, 137 clergy 65, 101–102, 109, 116–118, 184 clothes 26, 28, 72, 77–78, 105, 108, 111, 153–154, 202–203 cohabitation 35–36, 38–39, 40, 56, 59, 70, 74, 86, 97–98, 121, 123, 125, 131, 140, 184 common practice 1, 135, 165, 197 community of property 6–8, 26, 41, 43–47, 49, 54, 77, 84–89, 92, 128–130, 132–133, 135, 137, 139, 141–142, 150, 153, 156; of acquisition 41, 43, 45–46, 48–49, 226 compensation 40, 171 conflict 12, 115, 117, 122, 129, 132–133, 137, 140–142, 147–149, 151, 153, 189; marital conflict 2, 12, 115, 147–149, 156 consent 3, 7, 11–12, 43–44, 47, 66, 75, 93, 133, 141, 152, 154, 162, 166, 199, 214, 216–217, 219 council 36, 58, 62–63, 67, 152, 154–155, 221 Council of Ten 97, 100–103, 105, 109, 226 court: civil court 5, 79, 90, 99, 103, 105, 107–108, 121, 124, 196–197, 202–203, 207, 217; criminal court 87, 101; ecclesiastical court 5, 33, 39, 56, 58, 65, 86–87, 102–103, 110, 117–119, 121, 124–125, 177, 179, 183, 190, 196–197; local courts 5, 34, 44; secular court 40, 70, 87, 118, 124, 213; Sharia court 161– 162, 172, 195–209 court fees 117, 173 court records 17–21, 26, 119, 124, 149, 195, 200 Coverture 11, 15, 54–56, 58–60, 63–66, 226 credit 7, 18, 27, 66 Curialism 101, 226 custody 1, 13, 33–35, 39–40, 46, 48, 57, 78–79, 89, 121, 148–149, 150–152, 156, 179, 188, 198–199

custom 42, 59, 84–85, 88–89, 91–92, 103, 150, 185, 191, 215 death of one spouse 3–4, 7–8, 10–11, 16, 33, 35, 41–42, 46–47, 54, 59–61, 63–66, 70, 79, 91, 130, 132–133, 137, 140, 165, 181, 213, 215, 221 death registers 79 debts 1, 37, 54, 57, 59, 78, 85, 86, 90–93, 132, 136, 139, 151, 153–154, 170–171 defense 36, 105, 131, 136 divorce: conditional divorce 3, 168, 169; consensual divorce 3, 5, 43, 46, 116, 187, 190–191; contested divorce 3, 5, 43–44, 46, 49, 116, 214; divorce from bed and board 3–5, 9, 12, 33, 35–36, 38, 48, 54–59, 61–66, 70, 86, 91, 97–98, 102, 104, 116, 119–125, 148–149, 152, 154–156, 213–216, 219–220, 222, 226; hul’ divorce 170–173, 180–181, 186–187, 189–190, 198–199, 203, 227; talak (ṭalāq) divorce 169–173, 198, 229 dispute 21, 25, 54, 62, 64–65, 98–99, 107–108, 110, 117–118, 120, 132–134, 138, 149–150, 152, 157, 161, 166, 170–172, 199, 201–202 dissolution of the marriage bond 1, 3, 35, 44, 46, 136, 138, 177–178, 181–182, 187, 198, 204, 217–219 doctrine 11, 43, 57, 62, 205 documents 2, 9, 10, 12, 16–17, 35, 49, 59, 70–71, 73–76, 79, 90, 98, 108, 117–119, 121, 123, 137, 139, 143, 161, 164, 168, 170, 172–173, 203, 206, 222 domestic work 18, 22–23, 206 Donatio propter nuptias 151, 188, 226 donation 43, 90–92, 94 dower 55–57, 60–65, 84–85, 87, 178, 180–181, 227 dowry 6–7, 55–56, 61, 64, 77, 78, 84–89, 91–93, 100, 106–108, 110–111, 150–151, 153, 178–179, 181, 183, 188–190, 198, 227 education 153–154 emotions 3–8, 75 empowerment 103, 110, 208 endangerment of life and health 116, 120, 152, 217 enforcement 5, 22, 36, 39, 88, 197, 206, 208–209

234  Subject Index equality 65, 91, 218 estate 7–8, 16, 18–19, 26, 37, 40, 42–43, 47, 49, 55, 59–65, 84, 90–92, 106–108, 112, 130, 132–133, 135, 137, 139, 141–142, 148 ever-­married 18–23, 27 expenses 85, 149, 153 family strategies 101, 109 farm 8, 16, 37, 45, 47, 133–134, 136, 140, 149 father 48, 60, 63, 77–79, 84, 89, 91–93, 100–101, 106, 110, 112, 121, 133, 139, 152–153, 166, 215 father-­in-­law 139 fatwa 167, 169, 172 fesih 171, 173, 227 foreclosure 136 freebench 59, 227 freedom 61, 102, 104, 180, 196 gender 2–3, 7, 9, 10, 13, 18–20, 22–23, 27–28, 36, 43, 45, 77, 87, 97, 99, 103–104, 107, 110, 120, 129, 134, 141, 147, 198, 213–214, 218, 222; gender order 2, 10, 13, 45, 77; gender perspective 36, 99 generation 85, 93, 102, 137–138, 148 gift 40, 42–43, 46, 63, 65, 93, 150–151, 153, 178–179, 188–189, 203 giuseppinismo 98, 227 goods 27, 39, 55–56, 59–60, 78, 84–87, 89–90, 92, 150, 152–154, 200, 202–203, 205 government 99, 102, 149–150, 155–156, 186–187, 196, 197, 199, 204, 206–208 grandfather 79, 91, 93, 166 guardian 8, 88, 164, 166, 188 Heiratsgut 41; see also marriage portion High Commission 65 hospodar 188–189, 227 household 11, 16–17, 19–27, 39, 45, 55, 72, 75, 77, 106, 129, 131–132, 134, 136–137, 140, 147, 149, 152, 180, 202, 203; household economy 16, 22, 24; household goods 39, 202, 203, 152 hul’ see divorce Hustru 23–27 iddet (‘idda) 171–172, 198–199, 201–204, 227 illness 36–37, 116, 120

income 6, 11, 17, 37, 56, 61, 63, 66, 129, 130–131, 136, 142, 148, 151, 201–202 inheritance 1, 2, 6–8, 13, 16, 34, 41, 43, 45–47, 49, 54–55, 85, 89–90, 92, 132, 135, 137–139, 141–142, 148–149, 153–154, 161, 181, 184, 197, 202–203; inheritance portion 49, 55–56, 59–62, 85; inheritance regime 6, 13; unequal inheritance 7, 137, 202 inventory 16, 85, 133, 153 investment 107 İzinname 164, 227 jail 71–72, 87 jointure 55–56, 60–62, 67, 227 judge: civil judge 44, 65–66, 88–90, 104–108, 121, 135, 149–150, 206, 220; ecclesiastical judge 115, 118, 122–123, 125–126, 180 jurisdiction: civil jurisdiction 4, 33–34, 43–44, 54–55, 66, 84, 88, 98, 101–102, 109, 116–117, 124, 197, 220; ecclesiastical jurisdiction 4, 33–34, 44, 54, 57, 66, 70, 98, 115–117, 120, 124, 179, 185–186, 213, 217 jurisdictionalism (or anti-­curialism) 101–102, 109, 227 jurist 60, 87, 89, 164, 204, 213–214, 218 justice civil justice 98–100; criminal justice 39; see also courts kadi (qadi) 162, 164–165, 167, 169– 174, 180, 183–187, 189–190, 196–209, 227 kanunname 181, 189, 228 kepinion 184, 186, 228 kinship 93, 97, 106 laborers 23, 37, 55 land 17, 23, 42, 45, 47–49, 55, 58, 60–61, 64, 85, 92, 130–131, 133–136, 138, 140–141, 151, 153; landlord 92 land title register 47–48, 140 law: canon law / ecclesiastical law 37, 39, 54, 56, 71, 102, 115–117, 122–123, 147, 183, 188; Civil Code of 1786 (Josephine Law Codes) 45–46, 214; Civil Code of 1811 (ABGB) 45–46, 116–117, 121, 123,

Subject Index  235 128–129, 141–142, 213–214, 216; Code Civil (French, 1804) 129; common law 8, 55–59, 63, 65, 150–151, 153–154; customary law 6, 41, 49, 88, 128, 150, 188; Islamic law 2–3, 8–9, 163–165, 170–171, 173, 177–178, 182–183, 189–190, 195–196, 198, 200–203, 207, 209; Jewish (Mosaic) law 2–3, 5, 9–12, 43, 60, 213–218; Joseph II’s Marriage Patent 4, 33, 43, 49, 116, 213–214; Law on the Marriage of Catholics in the Austrian Empire (LCEA) 115–117, 121; Order for the Ecclesiastical Courts of the Austrian Empire (OEA) 116–117, 121 lawsuit 10, 40, 63, 74, 77, 92, 120–121, 123, 131, 135–136, 153, 156, 169, 171, 217, 219, 221 letter of divorce 217, 219, 228 lineage 85–86, 88, 90–99, 93 litigation 18, 22, 44, 62 livelihood 37, 154 loan 91, 131, 140, 161 maintenance see alimony marriage contract 5–9, 41–43, 46–49, 57, 77, 85, 89, 93, 98, 100, 102, 128, 130–142, 153, 162, 164–168, 170, 173, 180, 219, 222, 228 Marriage portion 7, 8, 35, 39–42, 45–48, 56, 58–60, 62, 77, 136, 138–139, 141, 216, 219–222; counter marriage portion 7, 8, 40, 41–42, 45–48, 77, 219, 220–221, 222, 228–229 Marriage regime 6–7, 13, 26, 41–42, 45, 47–49, 77, 84, 128, 130, 137, 207, 209; see also community of property mediation 118, 199, 218 mehr (mahr, mehir) 165–167, 170–173, 178, 180–181, 183, 198–103, 209, 228 mehri misil 200, 228 mehri mueddžel (Mehr-­i müeccel, mahr-­e-­muajjal, mehr-­i müeccel) 164, 200–201, 228 mezheb (madhhab) 198, 204–207, 209, 228 midwife 155, 220 money 16, 76, 85, 92, 107, 121, 130, 132, 147, 154, 170, 200

Morgengabe see Morning gift Morning gift 40, 42, 228 Mortgage 7, 89, 92–93, 131 Mother 21, 40, 46–47, 71, 84, 90, 93, 101, 104, 106, 110, 121, 131, 134, 136, 138–140, 215–216 mother-­in-­law 93 Muezzin 162–164, 228 muhayyere olmamış idim 165, 228 Muhtar 168, 201, 228 muta 184, 228 Müvekkil 165, 228 nafaka (nafaqa) 167, 180, 198–104, 206–209; nafakai iddet 201–202, 228 naip 186, 228 našiza (nāshiza, naşize) 207–208, 228 negotiations 88, 156, 161, 168–169, 208, 220 neighbors 73, 75, 80, 152, 155, 162–163, 167, 173 Nizamiye courts 197, 228 nobility 37, 49, 85–86, 89, 90, 105 Nomocanon 188, 229 Notary 128, 130, 137–138 obligations 1, 3, 8, 47, 105, 119, 125, 131, 163, 178, 182–183 ownership 42, 55, 78, 91, 129, 132, 134, 137, 139, 141–142, 148, 215; see also joint property parents 8, 27, 45, 47, 66, 74, 79–80, 88, 91–92, 133, 137, 139, 165, 178, 181–182 parish register 130, 141 patriarchy 45, 56, 79, 138, 141 Phanariot 187–189, 229 philonikia 189, 229 plaintiff 10, 12, 35–36, 38–39, 44, 87, 102, 117, 120, 125, 128, 131–132, 135–136, 141, 165, 171, 199 possessions 8, 57, 60, 109, 141, 180; see also property poverty 118, 147, 154, 203, 205–206 power 4, 6, 11, 23, 88, 101, 103, 110, 125, 129, 131, 147, 151, 166, 185, 206, 208–209 proceedings: divorce proceedings 5, 8–9, 34, 36, 38–39, 44, 71, 74, 76, 78–80, 117–118, 120, 125, 129, 131–134, 136, 142, 179, 191, 195, 200; probate proceedings 7, 34; separation

236  Subject Index proceedings 38, 89, 93; sponsalia proceedings 119 property: distribution of property 1, 138, 142; division of property 34, 130, 138, 156, 186; hereditary property 85; joint property 7, 13, 41, 47, 77, 129, 131, 133, 150–151, 153–154, 156; marriage property 6, 41, 45, 47, 77, 150; movable property 6, 85, 133; real property 54, 61 provisions 5–6, 9, 11, 13, 47–48, 55, 57, 59, 87, 89, 91, 115, 140, 181, 183, 202–203, 205, 208–209, 213, 215, 219, 222 rank see status real estate 7–8, 18–19, 26, 47, 49, 55, 84, 90, 92, 130, 132–133, 135, 137, 139, 141–142, 148 reconciliation 35–36, 43, 117–118, 120, 122, 149–150, 152, 156, 218–219 Reformation 4, 54, 56–57, 64–65, 147, 149 Regent 213 Regulation 1, 2, 5, 11, 13, 39, 45–46, 115–116, 121, 148, 164, 182, 185, 189, 197–198, 201, 206, 208, 221 reis-­ul-­ulema 196, 207, 229 relatives 89, 103, 130–132, 155; see also kinship remarriage 3–4, 7, 10–12, 33, 35, 56, 60, 62, 65–66, 70, 72, 80, 84–85, 137, 140, 147, 155–156, 177–178, 182, 198, 201, 204, 221 rent 25, 58; rental income 37 renunciation 198 reputation 105, 118 Revolution 4, 65, 86, 191 reya (raya, reaya) 186, 229 rights: administration rights 80, 130; inheritance rights 8, 137, 141; maintenance rights 1, 45–46, 54–55, 57, 59, 66, 118–119, 121, 124, 129, 132, 138, 142, 167, 171, 182, 195, 198, 203–204, 206; patrimonial rights 93; property rights 6, 9, 23, 27, 129, 134, 142, 198; usage/ usufruct rights 6, 89, 136 ruler 97, 101, 147, 187 sacrament 3, 37, 55, 87, 97, 118, 178, 215 sale 7, 64, 89, 92–93, 131, 133

savings 135 separation: from bed and board 12, 37–38, 79, 87–88, 92, 102, 105, 107, 116–117, 120, 152; of goods 89–90; of property 6–8, 39, 41–42, 45, 47, 49, 77, 86–88, 91, 97, 109–110, 128, 151, 203, 229 servants 22, 37, 45, 73, 77, 80, 104–106, 110, 117, 129, 133 settlement: court settlement 36, 59, 91, 136, 149, 152, 161, 183; remarriage settlement 140; separation and divorce settlement 7–9, 13, 40, 43–44, 46, 48–49, 57, 59, 66, 121, 141, 183, 195, 218 Şeyhülislam 196, 229 share: equal share 7, 41, 43, 47, 85; inheritance share 43, 60, 85, 130, 135, 137, 181, 204 siblings 16, 183 sicil (sidžil) 198, 200–201, 229 sister 91, 130, 140, 151 social position 1, 37, 148 son 7, 47, 64, 77–79, 85, 89–91, 93, 134, 140, 183 spiritual marriage bond 3–4, 11, 229 statement/counter statement 21, 36, 65, 118, 130, 135–136, 141, 162, 165, 167, 169–172, 200–202 status: legal status 7, 196; marital status 9, 19, 23–27, 41, 161, 166, 168, 173, 200, 204; social status 2, 13, 104, 106, 129, 148, 187 stepchildren 78, 133–135, 137, 142 stepdaughter 78 stepmother 78 stipulation 8, 48, 168, 180–182, 189–190, 198, 218 strategies 2, 84, 88–91, 97, 101, 103, 109–110, 125, 217 succession 88, 90–91, 129, 133 takhayyur 205, 229 talak (ṭalāq) 169–173, 198, 229 Tanzimat 197, 229 testament see will textile production 21 tolerance 38 town 20, 24, 34, 37, 75–76, 148, 152–155, 168, 203, 205

Subject Index  237 trade 8–9, 16, 18–19, 21–23, 27, 37, 46, 48–49, 76, 142, 147, 206, 215, 222 trade license 8, 48 transmission: of assets 89, 91, 93; of lands 89 treason 62 tutelage 131 two-­supporter model 17, 27 unmarried 9, 19, 20–23, 40–41, 132, 137, 217 usufruct see rights ulema-­medžlis 208, 229 vekil 165, 229 verdict 34, 36, 38–40, 42, 46, 118, 120, 135, 151, 162, 200–201, 204, 217 violence: domestic 147, 151; physical violence 37, 42, 44, 71, 101, 128, 214, 216; sexual 37

wage 23, 147 wealth: access to wealth 17, 55, 59, 92–93, 108, 135, 151; see also property wedding 42, 57, 71, 75, 93, 99, 107, 123, 135, 139, 153, 216; see also marriage welfare 10, 191 Widerlage see counter marriage portion widower 18, 41, 72, 132 widowhood 41, 55, 59, 61, 85, 151 will 42–43, 45, 47, 63–64, 135 witness 21, 25, 135, 161–162, 164, 167, 172–174, 212 work 37, 75–77, 133, 136, 147, 206; domestic work 11, 17, 19, 22–23, 77; managerial work 17, 19–20; repertoire of work practices 16–19, 25, 27 War 36, 63, 91, 100, 135, 179, 207–208 zapit (zabitas) 186, 229