streitpaar – Verfahren in Ehesachen
Frühneuzeit-Info 26 (2015)

Erscheinungsdatum: November 2015
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In Teil 4 der Vorschau werden der Beitrag von Claire Chatelain und eine Koproduktion von Margareth Lanzinger, Ellinor Forster, Janine Maegraith, Siglinde Clementi und Christian Hagen vorgestellt:

Ein adeliges Beamtenpaar vor Gericht
Der Einsatz von Kapitalsorten im Eheverfahren zur Trennung von Tisch und Bett
am Ende der Regierungszeit von Ludwig XIV.
Claire Chatelain
(in German language)

This paper presents a case study, focused on a trial of separation from bed and goods which occurred between a great magistrate and his wife (who came from a financial officer’s family), at the end of the Louis XIV reign. An exceptional documentation (based on summations and other sources, as notarial acts or courts sentences) allowed giving a micro analysis of this historical trial, led in front of the most important court of justice of the French kingdom, the Parlement de Paris, which was a secular one. What were the economic grounds of this marital separation? How the procedural followings which lasted five years were shaped? What were the consequences on the couple and their children? This research is interested in the French Old Régime mechanisms of judicial ways to break on kinship relationships especially those in the siblings. It leads to a comparative history in this field.

 

Konfliktpotenzial und Streitgegenstände im Kontext ehelicher Vermögensregime
Margareth Lanzinger/Ellinor Forster/Janine Maegraith/
Siglinde Clementi/Christian Hagen
(in German language)

In early modern times, property and wealth constituted an area with considerable potential for conflict. The initial thesis of this paper is that the causes of discord and dispute depended decisively on the respective marital property and inheritance systems. Because this could give rise to competing interests in different constellations and situations: between siblings, in-laws, parents, step-parents, other relatives or guardians, and not least within marital context. One setting potentially prone to conflict was the end of a marriage. Previously, implications and consequences of widowhood and divorce or legal separation of bed and board were regarded separately. However, the aim of this paper is to bring post-marital property arrangements and stipulations regarding widowhood together with findings on marital conflicts and separations. The question is to what extent property related subjects of dispute differed depending on whether a marriage terminated because of the death of either husband or wife, or because of divorce or legal separation. Property brought in by brides, questions of livelihood, and post-marital presence in the husband’s family home have all proven to be relevant aspects in both contexts. The study is situated in late medieval and early modern rural and urban areas of southern Tirol and is based on cases from the court books (“Verfachbücher”) and charters for several communities, noble family archives, as well as the consistorial records in the Diocesan archive in Brixen.

streitpaar – Verfahren in Ehesachen
Frühneuzeit-Info 26 (2015)

Erscheinungsdatum: November 2015
Bestellungen werden gerne entgegengenommen: Bestellschein

Teil 3 der Vorschau präsentiert die Beiträge von Andrea Griesebner und Susanne Hehenberger:

Ausweg und Sackgasse zugleich
Eheverfahren vor katholischen Konsistorien von der Mitte
des 16. bis ins ausgehende 18. Jahrhundert
Andrea Griesebner
(in German language)

Following a brief explanation of canon law the first section provides an outline of the sources for marriage litigations in the archduchy Austria below the Enns. It will highlight the possibilities and limitations the protocols of the consistories offer. The second section provides insights into the variety of marriage litigations made possible at early modern ecclesiastical courts, as well as quantitative trends. Based on a case study the third section provides deepened insight into the various contexts motivating women and men to sue their spouse. Between 1765 and 1781 Magdalena Pürckin and Peter Pürck conducted 13 proceedings, some initiated by the wife, some by the husband. The analytical focus is directed to the particular interest of the plaintiff and the defendant respectively as well as their discursive strategies to get a verdict in his or her own favor. The summary argues that the catholic marriage politics generates the various proceedings the ecclesiastical courts are dealing with. Nevertheless the persistence Peter Pürck in suing his wife for cohabitation and Magdalena Pürckin’s resistance is exceptional.
The article is based on long standing research on churchly marriage jurisdiction in the archduchy Austria below the Enns, financed by the Austria Research Fund and backed by the University of Vienna between October 2011 and October 2015.

 

Das fehlende fleischliche Band
Sexuelles Unvermögen als Scheidungsargument vor dem Passauer und
Wiener Konsistorium (1560–1783)
Susanne Hehenberger
(in German language)

Many Catholic spouses filed for divorce or separation by bed and board in the early modern period. Only a few of them argued that their inability to execute the marital duty was the main cause. In this article, I focus on a small sample of 51 couples who used the argument of male or female impotence in the course of marriage litigations in the consistories in Vienna. After exploring the meaning of impotence and divortium in these sources, the article analyses the different interests of claimants (e.g. escape from an unhappy union or the desire for a new marriage) as well as the response of defendants to these allegations (denial, confession, counter-claim or negotiation). As canon law allowed the annulment of marriages only in cases of premarital, enduring and incurable impotence, consistories had to search for clear evidence before they rendered judgement. The appellate court – the nunciature in Vienna –then had to confirm the annulment before it would become effective. In theory, the evidence of one spouse confirmed by an oath cum septima manu (testimony of seven reliable men or women) would suffice as proof. In early modern practice, either the litigant or the consistory often demanded additional medical evidence, which was regularly provided by the medical faculty of the university in Vienna. In cases of female impotence, however, midwives were consulted. Even if evidence seemed clear and the carnal bond was missing, it became increasingly difficult to enforce a divortium quoad vinculum from the sixteenth to the eighteenth century. This situation was exacerbated after Pope Benedict XIV created the position of defensor matrimonii in November 1741, a figure who acted ex officio to protect marriage in the first instance.

streitpaar – Verfahren in Ehesachen
Frühneuzeit-Info 26 (2015)

Erscheinungsdatum: November 2015
Bestellungen werden gerne entgegengenommen: Bestellschein

Teil 2 der Vorschau stellt die Beiträge von Johann Weißensteiner und Iris Fleßenkämper vor:

Böswilliges Verlassen und „tolerierte“ Partnerschaften im katholischen Bereich
Die Entscheidungspraxis des Passauer Offizialates in Wien von 1558 bis 1592
Johann Weißensteiner
(in German language)

In examining the records of marriage litigation at the consistory of the diocese of Passau in Vienna (established in the 14^th century for the parts of the diocese Passau situated in the archduchy of Lower Austria) for the period 1558–1592 the author made the observation, that there was a lot of cases, in which abandoned spouses, whose mates had disappeared without their knowledge and consent, and lived since some years together with a new partner, asked for permission to remarry. Although they got not the license for a second marriage, their new partnership was tolerated. Such couples usually got a certificate by the consistory about this toleration and were also permitted to receive the eucharist in the churches. This practice, which was also common in the dioceses of Freising and Regensburg and in other parts of Europe, lasted till 1579. On 12 October of this year two prominent Jesuit fathers forced the consistory of the diocese of Passau in Vienna to stop this practice. The decision can be seen as an act of “social disciplining” by which the Catholics enforced their particular rules for all aspects of life and so also in the field of family life. Indeed the appointment of the later cardinal and bishop of Vienna Melchior Klesl as official of the diocese of Passau in Vienna was the startup of the Counter Reformation in the Habsburg countries. Thus since 1580 catholic spouses, who were separated from their former mates, did no more get a license to live in a new partnership unless they could proof the natural death of their former husband or wife. At the same time in protestant villages in Lower Austria some landlords in similar cases divorced the first marriage and permitted the abandoned part to remarry.

 

Wann ist mein Mann mein Mann?
Zur Gültigkeit von Eheschließungen in der protestantischen
Grafschaft Lippe im 17. Jahrhundert
Iris Fleßenkämper
(in German language)

The legal and social conceptions of marriage profoundly changed within the course of the German Reformation. In denying the sacramentality of marriage, Luther and his followers re-interpreted marriage, family, and sexuality as genuinely worldly affairs and attached them to the realm of the earthly kingdom. The Lutheran reforms of marriage resulted from the need to overcome fundamental contradictions of Canon law with regard to the legitimacy of clandestine marriage formations. In this paper I will ask for the influence Protestant marriage reforms had on the culture of norms and jurisdiction in the Protestant County of Lippe, Germany, and I will explore the roles and functions of the clergy in implementing these reforms. Various marriage-related cases brought before the local consistory court show that the new regulations concerning marriage formation were neither thoroughly enforced by court nor observed by the subjects. Following the legal practice of former episcopal marriage courts, the consistory of Lippe still adhered to principles and concepts of common law that had already been prevalent in medieval times.

streitpaar – Verfahren in Ehesachen
Frühneuzeit-Info 26 (2015)
Erscheinungsdatum: November 2015

Die diesjährige Ausgabe der Frühneuzeit-Info widmet sich dem Themenschwerpunkt Ehekonflikte und richtet den Fokus auf die vielfältigen, oft komplex ineinander verstrickten Gerichtsverfahren vor kirchlichen und weltlichen Ehegerichten sowie die darin von den Streitparteien (respektive deren Anwälten) vorgebrachten Konfliktfelder. Der obrigkeitliche Umgang mit „eigenmächtigen Trennungen“ und bigamen Verbindungen sowie die Frage nach den Trennungs- bzw. Scheidungsfolgen bilden weitere Schwerpunkte des Heftes.

Die Zeitschrift wird in wenigen Wochen erscheinen. Bis dahin wollen wir interessierten Lesern und Leserinnen wöchentlich zwei der insgesamt zwölf Beiträge vorstellen. Den Anfang machen Bronach Kane und Duane Henderson mit je einem Beitrag zum Spätmittelalter:

Courtship, Childbearing & Gender in Late Medieval England
Bronach Kane
(in English language)

Existing studies of premarital pregnancy in late medieval English society have focused on manorial fines imposed on sex and childbearing before marriage, as well as the Church’s attempts to channel sexual activity into the bonds of matrimony. This article uses extensive litigation from the church courts to argue that, while childbearing mattered little under formal canon law, pregnancy and parenthood were integral to narratives of courtship and marriage in practice. For female plaintiffs in particular, discourses of stability, cohabiting, and love underpinned legal arguments to enforce marriage contracts. Male parties could, in turn, exploit cultural perceptions to depict sexual relationships as temporary and based solely on desire. Despite these gendered patterns, young women could appropriate and reconfigure cultural models that were hostile to female sexuality in order to advance claims of marriage. Ultimately, this article argues that the discursive agency exercised by female plaintiffs and deponents suggests that gendered models were more flexible in social practice where courtship and childbearing were concerned.

 

Der unglückliche Bund
Zur Praxis der gerichtlichen Ehetrennung vor dem
Freisinger Offizialat im Spätmittelalter
Duane Henderson
(in German language)

The paper investigates the practice of marriage separations “from bed and board” (a mensa et thoro) at the bishop’s court of Freising at the end of the fifteenth century. Beginning with a brief summary of the position of late-medieval canon law and legal opinion defining the grounds for a separation “from bed and board” and regulating its modalities, the study points out the extent of regional and individual variations in the application of these rules as has been revealed by recent research. On this evidence it becomes apparent that the medieval practice of marriage separation must primarily be studied at the local jurisdictional level, such as is documented in the records of the consistorial court of Freising (1424/1462-1524). Drawing from this both detailed and comprehensive source material, the paper presents the case study of a prolonged marital conflict which was pursued in a series of legal suits from 1476 to 1481. In its various phases, this court battle addresses the major legal and social questions involved in late-medieval marital separation cases in Freising and reveals the problems and advantages of a legal settlement.

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