10.14.2013

Sarah Bond: The Power to Divorce in Antiquity


Rabbis that sold their torture services were busted by federal authorities in New Jersey this week. The Orthodox Jewish rabbis were hired by wives who wished to obtain a divorce, which, in the Orthodox Jewish culture, you cannot do without the consent of the husband to obtain a "get."

Divorce certificate from 71 CE Masada:
"... You are free to become the wife of
any Jewish man you may wish"
Yet, as Haaretz observes, the hiring of rabbis to perform torture services is not without precedent. Though his views met with controversy, the twelfth century rabbi Maimonides ruled that a husband could be whipped into providing a get to his wife.

Turning to Rome (as I am wont to do), divorce was not always an option, it seems. Among others, Aulus Gellius notes that there was no divorce in the early Republic, prior to Carvilius Ruga divorcing his wife for being barren circa 233 BCE. From there, it seems to have caught on. Divorce came in two basic flavors: divortium (bilateral divorce) and repudium (unilateral divorce). Divorce within Roman cultures was something widely accepted and within the power of both husband and wife. Even pacts taken beforehand so as to bar a future divorce were seen as invalid (CJ 8.38.2, 3).  There is little evidence for widespread domestic violence against women at this time (Treggiari 1991, 430). Moreover, as Treggiari has argued, divorce seems less widespread in Roman society than previously thought.

As many pivotal scholars such as Treggiari, Nathan, and Cooper have pointed to, attitudes toward divorce shifted in the Roman Mediterranean only as Christianity became the predominant religion. As Cooper puts it, "The promotion of the conjugal bond was yet another means by which Christian teaching sought to undermine the Roman emphasis on consanguinity" (Cooper 2007, 160). A pivotal argument here is that the strength of the family and the conjugal bond provided consistency and strength during a period of turmoil.

Follis of Fausta, notably the 2nd wife of Constantine.


Ostensibly in the name of Christian marriage, but more likely in the grand tradition of using social legislation to show off one's power, Constantine ruled in 331 that women would lose their property ("down to a hairpin") and be deported to an island (Again, very Augustus-like) unless they proved their husbands were  either "a murderer, a preparer of poison, or a disturber of tombs." The husbands got off quite a bit easier. They would simply have to return a dowry unless they could prove their wives were an adulteress, sorceress, or procurer. Constantine's attempt to complicate repudium should not be taken as a stance against all divorce, since mutual divorce was left unhindered by this law (CTh. 3.16.1). Though there were some reversals (e.g., under Julian), obtaining a divorce continued to increase in difficulty during the later empire and to generally be more unfavorable toward the women. In 556, toward the later part of his reign, Justinian even abolished mutual consent as a valid reason for divorce altogether. 

Alright, I can't recount all the history of divorce in one blog post, but needless to say that by the high middle ages, divorce was a difficult thing to obtain altogether. What is perhaps most interesting is how this paradigm began to shift. For just one example, let us fast forward to 19th century England and a certain Caroline Norton. In 1827 she married a politician named George Norton. Far beyond their political differences, George beat her and had a tendency to use his power over custody of the children as a weapon against her (cf. Anna Karenina).

At that time the methods for obtaining a divorce fell predominantly under the umbrella of the Church of England and were generally quite unfavorable for the women involved. Norton fought hard and her efforts eventually led to the Custody of Infants Act 1839, the Matrimonial Causes Act 1857 and the Married Women's Property Act 1870. Although she later claimed women were not the equals of men, she did a heck of a lot to give women more power both in terms of their children and their marriages.

I guess what I have to say is this: historically, when you don't grant women the power to obtain a divorce--particularly to escape life threatening and abusive relationships--and in fact make them beholden to men in order to achieve one, actions are often taken that at first appear out of the ordinary and absurd. I am not claiming that these orthodox women were justified in hiring rabbis to torture their husbands for money, far from it. I am rather saying that it should never even have to come to this. It is one thing to say that divorce is forbidden, it is quite another to say that only a man can grant one.

Further Reading and Resources

Kate Cooper, The Fall of the Roman Household (Cambridge: Cambridge University Press, 2007). 

D. Instone-Brewer, Database of Marriage and Divorce Papyri (2000). [4th c. BCE-4th c. CE]

Susan Treggiari, Roman Marriage. Iusti Coniuges from the Time of Cicero to the Time of Ulpian (Oxford: Oxford University Press, 1991).

1 comment:

  1. Fascinating post. I'd heard about the Romans tending to have a more fair divorce policy, but didn't realize that domestic violence appears to be scarce. Rather interesting when you consider how patriarchal they were, with the whole "pater familias" thing.

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