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XIV: Fourteenth International Congress of Medieval Canon Law
August 5 – 11, 2012 (Toronto, Canada)
The Legal Framework of Divorce ‘a mensa et thoro’ and the Administration of Justice within the Low Countries
In a 1471 a court case, a woman was driven out of her marital home and started divorce proceedings against her husband Pierre. This paper focuses on the turning point of the 15th and 16th centuries, and demonstrates the administration of justice, lay jurisdiction and secular jurisdiction.Divorce cases and division of marital property were decided by four decretals in canon law. Marital property was divided between the spouses and the wife kept her dowry unless she was being divorced due to adultery, where she would lose her dowry. There were some variations between courts from one diocese to the next.
Property division was often made before and during divorce proceedings. An agreement was recorded before the local bench of the Alderman. In 1456, an official referred to a public document that was recorded by two notaries and was interested in its contents. He certified, rather than confirmed or approved the division of property. The cleric only cared about the content of the division. Most cases were certified rather than approved, approval being more for the wishes of the couple.
When a husband was convicted of adultery, he lost the right of administration of his wife’s dowry and her property. Conversely – the wife lost her dowry if she was guilty of adultery.
Divorces cases before lay jurisdiction: Marital property in Antwerp. They looked if it was due to the husband’s adultery, wife’s adultery, and in such cases, it was ok to go before the office of the Alderman and sue for divorce. If both spouses committed adultery, both spouses kept their own property. In the 15th century, according to records in Antwerp, both couples and the Alderman tend to favour a negotiated agreement. Even when the couple was in disagreement, the Alderman encouraged the couple to go to a mediator.
How were couples were managing their separations? In the Low Countries, divorce was mixed. Property division was the couples first interest rather than formal separation with the main interest being to protect the family property.