|In this page the legal practice of the Russia Empire for the reference period, concerning divorces of married couples, is described. The main source was the book of K.Ducmanis /Ducmanis/.|
|Divorces in the 19th century were
not very common though possible, except the marriages of the Catholic Church
that were not divorced. Divorces were not considered in the Civil Law but
were the responsibility of the religious confessions.
Russian Orthodox Church
In the Russian Orthodox Church divorces were accomplished by a consistory. The grounds for divorce in this Church became fewer and fewer during the 19th century. The last Laws were adopted in 1850 that admitted the following grounds for divorce:
1. Adultery of one of the spouses. The word one is essential here. If both spouses were guilty in adultery, the marriage was not to divorce.
In case of adultery, the insulted part could choose one (and only one) of two possibilities - either to sue in a secular court, that could cause imprisonment of the guilty part in a jail or in a monastery (for women) for 4-8 months, or to apply for a divorce.
It was not easy to prove adultery. Two witnesses were needed who could confirm that they had seen all. The birth of an illegitimate child did not make the problem simpler. It was necessary to guarantee again that the child was born from these illegal contacts.
K.Ducmanis /Ducmanis/ wrote that the system created professional witnesses, who sworn that they had seen all what was needed for a divorce; some spouses specially organized scenes of adultery and invited witnesses to observe them secretly and to catch red-handed etc. But, anyway, I do not think that there were a lot of divorcing couples busy with these kinds of activities.
2. Impossibility of sexual life. The marriage could be divorced during the first three years of the marriage, if it was discovered that one of the spouses was not capable of sexual relations. The incapability should not have been inherited and should not have been acquired after the marriage. A trivial example: the castration of the husband before the marriage could be a ground for divorce, but after the marriage could not; the inherited absence of testicles could not bring the ground for divorce. The conclusion of the medical authorities of the province level was needed to prove the impossibility of sexual relations.
3. Deprivation of a spouse. It means that if one of the spouses was exiled to Siberia or to penal servitude (katorga) and lost all civil rights, the other one might got a divorce, but it was not obligatory.
4. Missing of a spouse. If one of the spouses was missing for at least 5 years, the other one could get a divorce. The fact of the missing was to be proven what was very complicated procedure. The missing means here that nobody knew where the missing spouse lived.
The spouses were obliged to live together, but if they did not, it was not a ground for divorce.
5. Childlessness. If the marriage was childless, it could be ended, if both parts joined a monastery.
The marriages of Lutherans could be divorced only by a consistory. There were 5 consistorial regions of Lutherans totally in the Russian Empire - Vidzeme [Livland] province belonged to Vidzeme consistory, Kurzeme [Kurland] and Vitebskas [Witebsk] provinces were situated in the Kurzeme consistorial region. A couple applied for a divorce in the consistory of the husbandís residence (registration) place.
The grounds for divorce in the Lutheran Church were the following:
1. Adultery. Unlike for the Orthodox religion, the technical proof by the witnesses was not necessary, it was sufficient that "well-grounded suspicion" existed. However, if the wife was raped, the fact could not cause a divorce. If the insulted part continued to live and to sleep together, the right to demand a divorce was lost, as well if the insulted part also had illegal sexual relations.
The sexual contacts before the marriage could create a ground for divorce. So, the wife could apply for a divorce, if she discovered that the husband had sexual contacts with other woman (women) after the betrothal. The husband had right to divorce, if the wife had had sexual events with other man even before the betrothal. However these rights were lost after a child was born, as well as if the couple continued sexual life knowing the premarital history of each other.
2. Unsolicited absence. If a spouse left the family without serious reasons and was absent for a year, the consistory had to require that he/she came back. If during another year it did not happen, the marriage could be divorced. If the wife returned after the unwarranted absence, she had to prove she was chaste during this time, otherwise the husband had the right for a divorce.
3. Longtime absence. This is the absence that occurred against the will of spouses. If it lasted longer than 5 years, the marriage could be divorced.
4. Avoidance or impossibility of the creation of children. The impossibility could be a ground for divorce, if it arose before the marriage. If it happened after the marriage, then it was to be caused by the fault of the respective part.
The avoidance had to be systematic - longer than one year and if the Pastor could not convince the couple to terminate the avoidance. According to the rules of the Ev.-Luth Church of that time, if a couple used any of the pregnancy preventing aids or methods that were known at that time, then this couple could be considered as avoiding the creation of children and could be divorced.
5. Incurable contagious or repulsive disease.
6. Imbecility. No matter it was continuos or periodic. It should have been medically proven that the disease is incurable and had been lasting longer than a year. The healthy part was obliged to provide subsistence to the divorced spouse.
7. Immoral life. For example, abuse of alcohol, wastefulness etc. The Pastor and the another part should have done all what was possible to end the dissoluteness. The Consistory decided if the measures had been sufficient to allow a divorce.
8. Cruelty. The cruelty could be expressed in deeds or in words and should not have been provoked by the insulted part. The spouses in this case could be separated for a while, and if it brought no good results, the marriage could be divorced.
9. Serious defamation. This was an attempt of a spouse to defame the other spouse by lies or otherwise, which has caused loss of the honor, the liberty or the position at the working place. The insulted part could apply for a divorce in 6 months after the moment he/she learned about the deed.
10. Deprivation of a spouse. If one of the spouses was exiled to Siberia or to the penal servitude (katorga) and lost the civil rights, the other one could apply for a divorce.
For the Old-believers the same grounds for divorces were observed as for the Russian Orthodox with the only difference that they applied for a divorce in a secular court.
According to the religious rules, a Jewish husband could get a divorce in any moment for any grounds or without a ground at all. He was obliged only to pay to the former wife the sum of money that was previously agreed in the marriage contract. The reading of the marriage contract was the obligatory part of each marriage ceremony. At the contrary, the wife never had rights to propose a divorce. In spite of this evident simplicity, there were not more divorces among Jews than among believers of other religions, I suppose.
The Laws of the Russia Empire set out that the marriage of Jews could be divorced in cases where one of the spouses converted to the Russian Orthodox religion and insisted on the getting a divorce. The requirement follows from the prohibition of an Orthodox from marrying a Jew or a Muslim.
In this connection one may propose an easy way of divorce for Orthodox spouses - in place to prove the fact of adultery, why could not one of spouses convert to Judaism (what would be difficult) or Islam (what would be easy) and after the divorce to come back to the Orthodox religion? The answer is simple: until 1905 it was not allowed to leave the Orthodox religion.
Children of divorced couples
The Laws for the Baltic provinces discussed the problem of the children of divorced couples. In general the children stayed with the spouse who was found not guilty in the divorce.
The duty of bread-winning for the children after divorce was laid on the fathers. The divorced husband was also obliged to support financially his former wife. The amount of the alimony had to correspond to the estate (social group) of the family.
© Bruno Martuz‚ns. 1995-2002