Ecclesiastical Jurisdiction (1857–1867)

INSIGHTS

OFTEMPORARYANDLIFE-LONGSEPARATIONS
The separation from bed and board is approved for as long it takes for the plaintiff to feel that he or she can reassume marital cohabitation without fear of harm for their temporal or eternal well-being. 

The quo­ted for­mu­la­ti­on of a ver­dict in a divorce pro­cee­ding stands for many ver­dic­ts pas­sed by the Vien­nese archie­pi­scopal mar­ria­ge court in the 1860s. The mar­ria­ge court gran­ted the mar­ried coup­le a tem­pora­ry sepa­ra­ti­on from bed and board and makes the length of the sepa­ra­ti­on depen­dent upon how long the plain­tiff feels that his or her tem­po­ral and eter­nal “well-being” is in dan­ger. This excerpt from the ver­dict does not indi­ca­te who the per­pe­tra­tor of the dan­ger was. In most cases the dan­ger ori­gi­na­ted from the hus­band, from his pro­pen­si­ty to vio­lence and/or his alco­hol or gamb­ling addic­tion.

While bet­ween 1783 and 1856 – when in Vien­na and other parts of the Habs­burg mon­ar­chy the sta­te courts had juris­dic­tion over matri­mo­ni­al affairs - sepa­ra­ti­ons from bed and board were always pro­noun­ced and appro­ved as inde­fi­ni­te, the archie­pi­scopal mar­ria­ge court usual­ly allo­wed only “tem­pora­ry” sepa­ra­ti­ons from bed and board and coun­ted on a pos­si­ble recon­ci­lia­ti­on and the­re­with also a reu­ni­t­ing of the mar­ried coup­le. It was only in rare cases (usual­ly in the case of pro­ven or admit­ted adul­te­ry) that the coun­cilors gran­ted a “life-long divorce from bed and board”. With this restric­tive legal prac­tice, the coun­cils ali­gned with the juris­pru­dence of the church courts befo­re 1783.

 

DIVORCE RATES IN VIENNA BETWEEN 1857 AND 1865

In 1867 Karl Dwor­zak wro­te an expe­ri­ence report based on his long term ser­ving as a coun­cilor of the archie­pi­scopal mar­ria­ge court in Vien­na. His sta­tis­ti­cal data regar­ding the divorce figu­res in Vien­na is of par­ti­cu­lar inte­rest. In the first eight years of the church court’s juris­dic­tion Dwor­ak coun­ted 2,100 peti­ti­ons for divorce. It is inte­res­ting that he did not dif­fe­ren­tia­te bet­ween the ver­dic­ts in which a life-long divorce was gran­ted and tho­se in which only a tem­pora­ry sepa­ra­ti­on was appro­ved:

From 1 January 1857 until the end of 1865 more than 2,100 petitions for divorce from bed and board were submitted to the archiepiscopal marriage court. 

From these 1,760 proceedings were decided with a verdict, 230 with reconciliation of the opponents, 122 with rejection without examination and 5 cases do to the death of one of the disputing parties. 

From 100 marital disputes settled with a verdict an average of 66 verdicts granted a divorce, while 34 were rejected.

From 100 approved divorces 58 were granted on terms of the sole fault of the husband, 24 on the sole fault of the wife and 18 on joint fault of both married parties.

From 100 approved divorces the reason for the divorce was: in 17 cases the adultery of the husband, in nine cases the adultery of the wife, in 68 cases mistreatment or dangerous threat, in 72 cases severe mortification, in 6 cases malicious abandonment, in 13 cases infectious disease, in 9 cases a prison sentence and in 16 cases wastefulness. In approximately 300 verdicts there was only one case in which enticement to vice was approved as the reason for divorce. Of course, in most verdicts several reasons for divorces were provided. There was only one case where the reason for the divorce was a successful attempted poisoning by the husband, who was punished with several years in prison.  

It also appears to be worth mentioning that from 100 married couples who stood before the marriage court 35 to 40 % were living in marriages without children.

From 100 verdicts there were 28 appeals; from 100 appealed verdicts 8 were repealed or partially amended in the courts of higher instance.

 

Karl Dwor­zak: Aus den Erfah­run­gen eines Unter­su­chungs-Rich­ters in Ehe­streit­sa­chen (From the expe­ri­ence of an inves­ti­ga­ting judge of mar­i­tal liti­ga­ti­on), Vien­na 1867, p. 166f.

 

NOTA BENE / MIND YOU

In the divorce dos­siers of the archie­pi­scopal mar­ria­ge court of Vien­na from the year 1867 expla­nato­ry notes with the abbre­via­ti­on “N.B.” (=Nota bene) reap­pe­ar, some­thing which we mis­sed in the sources from the Civil Court of the Vien­na Magistrate’s Office from bet­ween 1783 and 1850. The rea­son why we mis­sed them was becau­se the comments, usual­ly writ­ten on the left mar­gin of the pages, pro­vi­ded (often uni­que) insights into per­cep­ti­ons or hap­pe­nings bey­ond the actu­al admi­nis­tra­ti­ve prac­tices.

Karl Dwor­zak, the refe­rent of the church court, who was respon­si­ble for the divorce pro­cee­dings of the coup­le August and Anna Dirn­böck, for examp­le, added the fol­lo­wing com­ment, in which his per­so­nal per­cep­ti­on of the defen­dant wife can clear­ly be seen, in the assess­ment he wro­te in Decem­ber 1867:

N.B. Defendant perfect comedian. Declaimer [= elocutionist] 

 

THINK ABOUT IT, IF WE GET DIVORCED …”

One case of divorce pro­cee­dings from 1867/68 pro­vi­ded us with more than the usu­al amount of extant docu­ments. Throughout the cour­se of the pro­cee­dings the young coup­le, which had been mar­ried only half a year befo­re the liti­ga­ti­on star­ted, very avid­ly exch­an­ged let­ters. The let­ters were sub­mit­ted as evi­dence and were enc­lo­sed with the tri­al records. Main­ly it was the hus­band, who was inte­rested in a recon­ci­lia­ti­on, and who, in his let­ters, reflec­ted on how life would be after a pos­si­ble divorce from bed and board:

Think about it, if we get divorced, we are both basically dead for the rest of our lives, we wouldn’t be allowed to get married again, and living in sin is horrible […] 

Team of the Pro­ject, trans­la­ti­on Jen­ni­fer Blaak