A

DIVORCE

DIVORCE. Prior to the Protestant Reformation in the mid-sixteenth century, legal divorce, in the sense of complete dissolution of the marriage bond with the right to remarry, was impossible anywhere in Europe because the Catholic Church, which governed marriage formation, considered marriage a sacrament dissoluble only by the death of one of the spouses. Unhappy couples did, however, sometimes divorce informally. While the Reformation made divorce theoretically possible in most Protestant regions, judges' reluctance to grant divorces, coupled with economic barriers, meant that not until the late eighteenth century did more than a small number of couples divorce legally.

CATHOLIC EUROPE

Throughout the early modern period, canon law offered only two avenues for Catholics unhappy with their marriages: separation or annulment. A separation from bed and board (separatio a mensa et thoro) granted a spouse who could prove the other spouse's adultery or excessive cruelty (or, infrequently, heresy) permission to live separately and separated the spouses' finances, often giving the innocent spouse possession of the wife's dowry. Neither spouse could remarry, however, because the marriage bond remained intact. In contrast, an annulment allowed remarriage because it declared the marriage had never existed. It did so on the basis of one or more legal impediments to the union, primarily if the spouses were too closely related either by blood or by marriage or if one spouse had contracted an earlier and valid marriage, had taken religious vows, was under the age of twelve for girls or fourteen for boys at the time of the marriage, or had married under duress. Despite earlier claims, scholars have come to agree that the use of annulments as quasi-divorces was not widespread. Indeed, convinced that marriage preserved moral order by containing sexual activity, ecclesiastical courts made obtaining separations and annulments quite difficult by imposing strict formal and evidentiary standards.

People from all economic levels brought suits, but separations and annulments were most necessary for the wealthy, for whom marriage, as a union of property and families more than of individuals, needed clear legal resolution. Only annulment would allow subsequent legal marriage with legitimate children and enforceable property and political arrangements—as in the case of Henry VIII (1491–1547), who in 1527 sought an annulment of his eighteen-year marriage to Catherine of Aragon (1485–1536) to marry Anne Boleyn (1507?–1536). People, particularly women, tended to use legal separations to confirm an already existing situation and to improve their legal and financial positions. For example, a wealthy woman who had already left her financially irresponsible, adulterous, and physically abusive husband might seek a legal separation to gain control of her dowry as well as to keep her husband from compelling her return. A poor couple generally only sought a separation or annulment when their marital situation caused a scandal and authorities intervened.

Unhappy spouses with little property, such as wage laborers, had an alternative to court: informal divorce. Authorities condemned these customs but could do little to stop them. Communities informally policed troubled marriages, enforcing conventional standards of marital behavior by sanctioning inordinately abusive or lazy husbands, disobedient wives, and adulterers of both sexes with penalties ranging from gossip to charivari, or ritual shaming. Neighbors acting as go-betweens might try to reconcile spouses, but they also might support spouses, and particularly abused wives, who left their marriages.

Desertion, sometimes by mutual agreement, was the most common means of dissolving a marriage. Poor communication exacerbated the lack of effective official oversight, enabling a spouse willing to start a new life in a distant location to make a new (though bigamous) marriage. The deserted spouse traditionally had to wait seven years for the absent spouse to be presumed dead before remarrying, but in practice many seem to have remarried much sooner, driven by economic needs. It appears that some communities condoned almost immediate remarriage, particularly when there were no children and multiple attempts at reconciliation had failed. Some couples lived separately in the same community, but they generally could not remarry. However, some people in isolated rural areas, such as seventeenth-century northern Spain, conceived of marriage as a contract that could be broken by the consent of the parties, who could then remarry at will.

As much as legal constraints, material circumstances severely limited both formal and informal marriage dissolution throughout the period, even where divorce became legal. Dissolving a marriage meant dissolving an economic unit outside of which it was difficult to survive. Both sexes initiated informal or formal dissolutions, but men more commonly did so, because they had wider employment opportunities. People who lived by working the land probably found it most difficult to separate or divorce. The association of military service and deserting a wife was well recognized, but some husbands deserted by finding jobs in distant cities. Women's well-known difficulty in supporting themselves without a husband, particularly if they had children, probably encouraged many wives to persevere in troubled marriages, sometimes despite life-threatening violence. Deserted wives, along with widows, appeared frequently on poor rolls.

RELIGIOUS REFORM

Rejecting church control of marriage, and with it the sacramentality and indissolubility of marriage, the Reformation legalized divorce with remarriage in most of Protestant Europe (with the major exception of England) by the mid-sixteenth century. For the next two centuries, however, divorce remained largely theoretical and unobtainable for most people.

Protestant joint lay-ecclesiastical courts, perhaps even more than their Catholic predecessors, sought to preserve marriage to promote its primary purposes of saving people from the sin of wantonness and social disorder. They made legal separation difficult and granted divorces only in cases of adultery or desertion, which struck at the heart of marriage in their eyes, never on the grounds of incompatibility and only rarely for extreme cruelty. Judges granted few divorces and frequently forced couples to reconcile. Scottish courts between 1658 and 1707, for example, granted a total of thirty-five divorces, fewer than one per year.

Divorce was punitive: usually only the innocent party could remarry and received custody of any children and control of most financial resources. A divorce suit often led to criminal prosecution for an adulterer, who could be punished with imprisonment or even death, as in Calvinist Geneva. In part because wives were subject to a stricter definition of adultery than husbands, men requested and received more divorces than women.

The Council of Trent's reconfirmation of marital indissolubility in 1563 meant that in areas that remained Catholic, legal divorce continued to be impossible. Despite this basic difference, sixteenth- and seventeenth-century Protestant and Catholic authorities approached the problems of marital breakdown and informal dissolution with similar efforts at control and with similarly limited success. Linking marital harmony to social order, Catholic priests and Protestant pastors chastised spouses living apart privately and publicly at church, while magistrates of both confessions levied fines and even imprisoned those who refused to cohabit. Parish priests investigated the marital status of outsiders seeking to marry their parishioners, making bigamous remarriage after desertion more difficult. In Spain the Inquisition focused on rooting out bigamy, meting out one hundred lashes and three to five years in the galleys to men and banishment to women found guilty. A few Protestant and Catholic regimes for a time even created de facto divorce for adultery when they pursued and executed adulterers. Civic and religious institutions also developed to help unhappily married women, known in Italy as the malmaritate, offering refuge from abusive husbands and even assistance in seeking legal separations.

The effects of these efforts on actual behavior remain unclear. People still dissolved their marriages as before and even devised new ways. Some spouses in seventeenth-century Switzerland used notaries and written acts to divide their property and separate, while some eighteenth-century English husbands engaged in the infamous "wife selling" by "auctioning off" their wives on market day to prearranged "buyers."

SECULARIZATION

The eighteenth century, especially the latter half, saw the secularization of control of marriage in both Protestant and Catholic Europe, as civil powers eroded ecclesiastical control of marriage. In Catholic lands change was primarily institutional, leaving the content of the law largely unchanged, as in France where the monarchy claimed jurisdiction over such matters as marriages of minor children, bigamy, and separation. These institutional changes did, however, lay the groundwork for the French Revolution's legalization of divorce in 1792.

In Protestant regions encroachment of secular institutions eroded the influence of churchmen and with it their conception of marriage as a union based on duty, opening the way for a softer official attitude toward divorce. Sweden, for example, placed divorce under secular jurisdiction in 1734. Secular judges, influenced by Enlightenment ideas that love, respect, and companionship were central to marriage, became more willing to grant divorces and separations when these qualities were lacking, namely in cases of cruelty or even incompatibility. These broader grounds made legal divorce a possibility for many more people, particularly for women, who began to seek divorces in much larger numbers. At the same time proto-industrialization and urbanization loosened household economic ties, making it possible for more spouses, and especially wives, to dissolve their marriages.

See also Concubinage; Family; Gender; Marriage; Sexuality and Sexual Behavior; Women.

BIBLIOGRAPHY

Gottlieb, Beatrice. The Family in the Western World from the Black Death to the Industrial Age. New York and Oxford, 1993.

Kamen, Henry. The Phoenix and the Flame: Catalonia and the Counter Reformation. New Haven and London, 1993. Especially chapter 6.

Kingdon, Robert M. Adultery and Divorce in Calvin's Geneva. Cambridge, Mass., 1995.

Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society. Cambridge, U.K., 1988.

Stone, Lawrence. Road to Divorce: England 1530–1987. Oxford, 1990.

Watt, Jeffrey R. The Making of Modern Marriage: Matrimonial Control and the Rise of Sentiment in Neuchâtel, 1550–1800. Ithaca, N.Y., and London, 1992.

EMLYN EISENACH