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14.11.27, Butler, Divorce in Medieval England

14.11.27, Butler, Divorce in Medieval England

There was no divorce in medieval Europe--at least, not in the sense that we understand it in modern society, as a legally sanctioned end to the marriage bond that fully returns a person to single-person status. Nevertheless, medieval married people found ways out of many unworkable unions, from having a marriage annulled to gaining a civil separation to simply abandoning one's spouse and starting over. Focusing on the experience of women in particular, Sara Butler's book explores the various ways that people in later medieval England ended unworkable marriages. Her extensively researched court cases show that marital indissolubility was relative, and that there were options when a marriage was beyond repair.

Butler begins by arguing that medieval divorce, like medieval marriage, was a multi-step process that involved courts, church and community as much as it involved the couple itself. Accordingly, the structure of her book follows the process of divorce from the decision to end the marriage to the question of divorce's aftermath. Her first chapter, ("Why did they leave?") deals for the most part with grounds for annulment as they appeared in the church courts of medieval England: cases revolving around consanguinity, affinity, pre-contract, coerced consent, and impotence. All of these, if sufficiently proven, could secure a canonical annulment of the marriage. Medieval women who wished to end their marriage for more personal reasons such as a spouse's adultery or cruelty might also petition the church courts for a legal separation--though in these cases church courts would do their utmost to reconcile the couple in question. Finally, there was voluntary mutual separation: Butler argues that this "self-divorce" was likely more common than we know, since the practice rarely produced litigation. Making an argument from near-silence is a tricky business, and this is an area perhaps better covered by Ruth Karras's recent monograph on informal marriages in the Middle Ages--published, unfortunately, too late to be of use in Butler's framing of her own arguments. But the few tantalizing traces that Butler has located add to what may be--one hopes--a growing field of inquiry.

Butler's next chapter ("The Logistics of Divorce") presents an overview of the journey from decision to finalization. It is in this chapter that her approach to "divorce" as a process rather than as an act is at its strongest, as she outlines the role that families, friends, and even local clergy might play in either attempting to reconcile the couple or, assisting in ending the relationship. The following chapter ("The Risk Factor") addresses the potential consequences not only for women leaving their husbands but also for the family and community members who assisted divorcing spouses, thereby risking suits for ravishment or even raptus (a felony crime), or violence from spurned husbands (and here the author's earlier work on domestic abuse in medieval England shows, to excellent effect). Yet even with all these risks, court cases show that women were willing to try for divorce, and many had family members who were willing to run parallel risks in order to support them.

While Butler's chapter on risks is probably the most compelling of her book, the following one, "Whose property was whose?", is the best supported--not surprising, since property litigation is the area of marital dissolution that has left the largest documentary footprint. Butler's chapter is thus thorough--her broad category of "divorce" means that she covers not only dotal restitution in the case of annulment but also maintenance payments in cases of legal separation--but contains few surprises, given the wealth of research that has already been done in this area. The most innovative portion of this chapter is the one that Butler admittedly has the least documentation for: the informal agreements that self-divorcing couples arrived at. This note of "intriguing but difficult to document" applies even more to Butler's next chapter, on the fate of children of marital dissolution. Butler is frank that this chapter raises more questions than it is able to answer: questions of custody, child support, legitimacy, and the potential for abuse in blended households. Because the documentation is thin, Butler is forced to argue by analogy--although this reader at least wishes she had been more explicit in pointing out that her examples in this chapter come primarily from cases involving the children of widowed women, rather than separated ones. The social and legal context would have been different for the children of marital dissolution, and even within Butler's category of "divorce" the situation of children of annulment would have differed vastly from those whose parents simply separated without legal sanction of any kind.

Ultimately, readers' reactions to this book will hinge in large part on how comfortable they are with Butler's use of the term "divorce" to encompass several distinct socio-legal phenomena, each with its own set of legal and social ramifications. Butler is aware that the term she is using may encompass several processes that medieval people would have seen as distinct, and she is careful to say so in her introduction, but is sometimes less so in the body of the book, so the reader should read the evidentiary chapters with an eye to which type of marital dissolution the author is discussing in any given chapter section. A second potentially problematic elision is her treatment of the various courts. Her use of both secular and ecclesiastical court records is necessary for a full exploration of the end of marriage: only an ecclesiastical court could grant an annulment or a separation mensa et thoro, but most of the monetary settlements would have been the province of the secular courts. There are many places in the chapters, however, where it is unclear which courts the author is dealing with at any given moment, as Common Law courts, manorial courts, borough courts, and equity jurisdictions like Requests or Chancery, to say nothing of the ecclesiastical courts, operated under different rules when it came to women's litigation.

In spite of these issues, Butler's book raises important questions about the dissolution of marriage that one hopes to see followed up on. Her book also suggests new ways that historians might approach medieval marriage in general. The first of these is the idea that, while there were plenty of legal and social obstacles to divorce, couples could and did effectively end their marriages in various ways. The second, parallel issue is that the dissolution of marriages was, like the making of a marriage itself, a process, and one that involved not only the couple but also their families and communities. If future researchers take up these insights, we could soon have a picture of the end of medieval marriage as nuanced as the one we currently have of its beginning.