Matrimony before the Court

Focusing on separation and cohabitation proceedings, the goal of the research project is to study marital jurisdiction in the Archduchy of Austria below the Enns from the 16th to the 19th century. The project intends to fill the research gap for Catholic territories of the Holy Roman Empire in general, for those of the Habsburg Monarchy particularly. The regional focus is mostly due to the availability of sources and the possibility of comparing metropolitan, small-town and rural conditions. Until 1783 the Catholic Church held the authority over marriage law. In contrast to the churches of Protestant denominations, the Catholic Church considers marriage a sacrament. The bond of marriage therefore can only be undone by either an annulment of the marriage, or by the death of a spouse. Until the introduction of civil marriage - in Austria not until 1938 - catholic marriages could not be divorced. The only option available was a separation from bed and board. Because the bond of marriage remained intact, remarriage was proscribed. The archduchy belonged to the jurisdiction of three dioceses. The consistory of Wiener Neustadt did not preserve protocols from the period before 1768; the protocols of the consistory of Passau ("Unteres Offizialat") and of Vienna have survived almost entirely from the end of the 16th century onward. A first glance at the protocols of the 17th century confirmed our decision to pursue a comparative approach. The suits concerning the break of the marriage vow (Sponsalia) and requests for dispensation account for the bigger part in the protocols of Passau, whereas the Viennese consistory had to deal more often with requests for cohabitation or separation. The Detailedness of the entries in the protocols differ, but often the argumentation of the couple, respectively their advocates, are written down at length. The arguments brought forward are diverse and do not only refer to the arguments qualifying for a separation within canon law. The Marriage Ordinance of 1783 conferred the marriage jurisdiction in archducal market towns and cities to the Magistrates, in all other instances to the Manorial Courts. The records from the Viennese Magistrate are currently stored in 52 boxes. At first glance these sources reveal their differences according to the subject matter, i.e, uncontested or contested separations. Of special interest are the separation complaints. Often many pages long, the spouses narrate their marriage experiences and explain why do not want to live together. The abolishing of Patrimonial Courts 1849 marks the end of the core period of investigation. With respect to our methodology we decided to use quantifying and qualifying methods and combine our praxeological approach with discourse analysis. We want to focus on the spouses` narrations: Which arguments were accepted by the catholic and after the Josephine Marriage Ordinance (1783) by the secular judges? Which ones were refused? To what extend did the context -culturally and normative - chance and how did this affect the argumentations within the proceedings of separation and divorce from the 16th to the 20th century? Existing studies have most often placed their analytical focus on specific issues. In contrast, we do not wish to confine the fields of research beforehand but to study the continuities and discontinuities in the following topics: physical violence; emotions; economy and housekeeping, sexuality; cohabitation; verbal violence and honour; and confession and religion.

Till Death Do Us Part. Emanating from the doctrine that with the performance of a church wedding husband and wife dispense an indissoluble sacrament, Roman marriages can only end with the death of one spouse. An annulment does not end the marriage but declares it null and void, technically as never have existed. Couples commit themselves with a church wedding to mutual support and to a joint residence. To cope with marital conflicts, the medieval church fathers invented the institution of separation from bed and board and laid down the conditions qualifying for a life independently from the spouse. Couples, who were separated through this institution, whether temporarily or for an unlimited period of time, continued to be married in the eyes of the church and were not allowed to remarry during the lifetime of a spouse. With the introduction of civil marriage - as late as 1938 in Austria - this institution came to lose its former importance. The notion that before the introduction of civil marriage Catholic wives and husbands did not always accept an unbearable marriage as inevitable fate fell into oblivion.Between 2011 and 2015 the research team under the direction of Prof. Andrea Griesebner investigated marriage jurisdiction in the Archduchy Austria below the Enns, present-day Lower Austria and Vienna. The period covered ranges from the mid-16th to the mid-19th century. In 1783 the jurisdiction in matrimonial matters, which was, until then, the domain of the Church, shifted to the secular courts. Given the length of the period covered, the research team focused on selected time segments, documenting nearly 122 years of ecclesiastical and 25 years of secular marriage jurisdiction. The marriage proceedings of nearly 2.100 couples in total were analyzed, a proportion of whom litigated several times. In contrast to the secular courts, which basically only negotiated litigations concerning divorce from bed and board, the ecclesiastical courts offered manifold possibilities for litigations, which were also used in practice. "Abandoned" spouses filed complaints for cohabitation, while spouses, wives and husbands used the ecclesiastical court to negotiate the conditions of living together. They applied for the annulment of the marriage or requested a divorce or at least a separation from bed and board.The Josephine Marriage Ordinance (1783) as well as the Austrian civil code (ABGB, 1812) reduced the variety of possible litigations. As opposed to canon law, secular regulations allowed the spouses an uncontested divorce from bed and board. Although neither the Church courts nor the secular courts conferred the right to remarry to the couples, the consequences of separation or, alternatively, divorce nevertheless had to be decided. The courts needed to clarify whether and how the property was to be divided, who had to pay alimony and how much, and who should gain the custody of the children. In addition to the variety of conflicts that spouses or their barristers brought before the court, the research team was interested in the options available to men and women of different social strata and the legal norms limiting or expanding these options. The marriage litigations can be viewed, in a condensed form, in a database incorporated into the research project's web portal "Ehen vor Gericht". It also describes the legal framework as well as the surviving sources and the procedure for their collection and contains the blog of the research project, which was maintained from the project's inception: www.univie.ac.at/ehenvorgericht