The secular matrimonial jurisdiction was introduced in parts of the Habsburg Monarchy with Joseph II’s Marriage Patent of 1783. With this Patent the matrimonial jurisdiction over all non-nobles, or commoners, were handed over to the local courts. In the cities the magistrates’ courts were those responsible and in the countryside the seigniorial patrimonial courts. Those persons belonging to the nobility were subordinate to specific courts (Landrecht).
Joseph II’s Marriage Patent defined marriage as a civil contract, however, it generally adhered to the regulations of canon law when it came to the dissolution of a marriage. It specifically ruled that the “[marriage] bond could under no circumstances be dissolved as long as both marital partners are alive.” (§ 36). Catholic married couples who could, or wished to, no longer live together could therefore still apply only for a divorce of bed and board. The dissolution of the marital bond, and the possibility of remarrying while the marriage partner was still living therewith connected, remained the privilege of only non-Catholic subjects.
USE OF COURTS
The secular matrimonial laws after 1783, in contrast to canon law, differentiated between consensual and non-consensual divorces. In the first three years following the implementation of Joseph II’s Marriage Patent disputing married couples could be divorced from bed and board only with consensual agreement. As of 1786, both possibilities were allowed.
Aside from divorces from bed and board, which, in contrast to the earlier practices of the ecclesiastical courts, were no longer to be limited in length, the married couples also resolved their conflicts concerning the consequences resulting from their divorce at the magistrate’s court or the local court respectively. Numerous married couples made their demands in regard to the division of property, the regulation of maintenance claims or custody of children. In addition to this one can also find requests for a “separate place of residence” or “provisional maintenance” for the duration of the divorce proceedings in the court records.
In contrast to the time period before 1783 the remaining files from the secular courts contain almost exclusively divorce proceedings. After 1786 the court of Lower Austria was responsible for litigations involving annulment (Hofdekret), the police authorities for “unauthorized separations” and marital conflicts.
Andrea Griesebner, translation Jennifer Blaak