DIVORCE.
Manner of declaring a divorce—Causes for divorce—Divorce easy to
get—Separation—Division of property in case of separation—Penalty
for wife-beating—Restrictions on the extravagance of women.
A divorce was declared in the following manner. The wife had to declare
the separation, and the reason of it, three times in three places in the
presence of witnesses—first, in front of them on a bed; secondly, in
front of the men’s door; and, thirdly, at the _Thing_; but separation
did not prevent either party from marrying again afterwards.
Mörd gave advice to his daughter Unn how she should separate herself
from her husband, Rut, when he was not at home.
“When thou art quite ready thou shalt go to thy bed, and with thee the
men who are thy followers; thou shalt name witnesses at the bedside of
thy husband, and declare that thou art separated from him by a lawful
divorce, as fairly as is possible after the rules of the _Althing_ and
the laws of all the people. The same naming of witnesses thou shalt also
have at the men’s door, and then thou shalt ride away” (Njala, c. 7).
The causes for divorce were numerous. A cause of divorce was that of
wearing clothes belonging to the opposite sex, as when a man wore a
shirt so open that you could see his breast; or when women wore
breeches; and we find that sometimes these clothes were cunningly made
on purpose to bring about a separation.
One day Thórd Ingunnarson asked Gudrún what a woman was liable to if she
always wore breeches like men. She answered:
“‘They are to be punished for that just as a man is punished who has
such a large opening in his clothes that his bare chest is displayed.
Both are reasons for divorce....’ Thórd at once rushed to the law court
and named witnesses, he declared himself divorced from Aud, because she
wore closed breeches like men” (Laxdæla, c. 35).
“Gudrun, Usvifr’s daughter, was forced by her father to marry Thorvald
Halldórsson, of Garpsdal. She always asked him to buy her the most
costly things. Once, when she asked him for something, he said that she
knew no moderation, and gave her a cheek-horse (box on the ear). She
answered: ‘Now thou hast given me what we women think of great
importance, and that is a good complexion, and thou hast cured me of
importunate requests.’ The same evening Thórd (Ingunnarson, a good
friend of hers) came in. Gudrun told him of this disgrace, and asked how
she should take revenge for it. Thórd smiled, and replied: ‘I know a
good way; make a shirt for him with an opening of divorce, and declare
thyself separated from him for this reason.’ Gudrun said nothing against
this, and they left off speaking, but that same spring Gudrun declared
herself separated from Thorvald, and went home to her father at Laugar”
(Laxdæla, ch. 34).
Divorce was easy to get,[38] especially for the man, on the ground of
the wife’s infidelity; while the wife could get it on the ground of
repeated ill-treatment from her husband.
“If a man does not sleep in the same bed with his wife for six seasons
on account of dislike, then her kinsmen can claim her property and also
her _rétt_, but she shall herself keep her property” (Gragas, i. 329).
A man could separate from his wife without a lawful reason, but the
separation was looked upon as a disgrace by her kinsmen, and revenge was
sure to follow.
“If a man wants to separate from his wife, he shall declare himself
separated so that each of them may hear the other’s voice, and have
witnesses present” (Gulathing’s Law, 54).[39]
If a husband tried to take his wife out of the country against her will
she could separate herself from him.
“If a man wants to take his wife against her will out of this land she
shall declare herself separated if she likes, wherever they happen to
be, if she can do it with reason; then he is liable to lose her and her
property as if they had owned no property together, and he has no more
right to that woman after they have separated than to any other woman
with whom he has not lived” (Gragas, i. 331).
A wife could not separate without reason,[40] and even if she left her
husband with good reason on her side, he could keep her dower, and could
force her to come back.
In case of a separation, the wife’s parents or kinsmen could claim the
_mund_ and the _heimanfylgja_.
A bondi, Thorkel, having heard that his wife Asgerd loved another man,
was, on his remonstrating, told by his wife to choose one of two
alternatives.
“Thou mayst choose one of two conditions. To stay with me as if nothing
had happened; otherwise I will at once name witnesses, and declare
myself separated from thee, and let my father claim my mund and
heimanfylgja” (Gisli Sursson’s Saga, p. 16).
If a separation took place where neither party could be said to have
been guilty of criminality, then the wife took the same amount of
property as she would have at the death of her husband, or as she would
take in case she left him on account of any unfaithfulness on his part.
If she left him without any valid cause, or he separated from her on
account of her repeated infidelity, then the husband had the right to
retain all her property as long as she lived, and her heir had no claim
to anything of the _tilgjöf_. But if she was unfaithful only once, she
forfeited her _tilgjöf_, and kept the rest of her property. If the man
drove her away against her will for that single offence, she came into
all her rights.
“If a wife commits adultery, or separates from her husband without
reason, she has forfeited her mund and her increase of a third
(_thridjungsauki_). If her husband offers to take her back and she will
not accept it he shall keep all her property while she is alive and then
her next heir shall get her heimanfylgja but no increase of a third. If
they are reconciled and he takes her back, their property shall remain
as if there had been no breach between them. If she repeats the crime he
shall keep her property while he is alive, and if he will not take her
back, then it shall be as has already been said. If she does not and
promises redress, and offers to live with her husband and he will not
take her, then she shall get her heimanfylgja but not the increase of a
third. If the husband wants to rob her of her heimanfylgja and says she
has committed this crime before, and people have not before heard him
accuse her of it, she shall take the _einseidi_ (oath of one) and get
her heimanfylgja, but not her increase of a third if he will not take
her back. If a hindrance separates them according to God’s laws each of
them shall have their respective property” (Frostathing’s Law, xi. 14).
It was a common provision in all the laws that a man was not allowed to
beat his wife, under a penalty of paying the same indemnity as he had a
right to receive if he himself were beaten. If he had beaten her three
times and did it a fourth, then she could leave him, taking with her her
_heimanfylgja_ and _tilgjöf_.
“If a man beats his wife with keys or latches, then he is liable to pay
three marks. Also if he takes another woman and puts her in the house;
she is called _hearth-rival_. Thirdly, if a man beats his wife with a
horn or with the fist on an ale-bench, then he is to pay three marks. If
she three times gets _rétt_ for these reasons, the fourth time she may
separate from him, or not, as she likes” (Borgarthing[41] Laws, ii. 8).
“When Börk had left his farm Helgafell Thordis went forward and named
witnesses that she declared herself separated from her husband Börk, and
pleaded as a reason that he had struck her, and she would not put up
with his blows. Their property was divided, and Snorri (a son of her
former marriage) took charge of it on behalf of his mother, for he was
her heir” (Eyrbyggja, c. 14).
Restrictions were put upon the extravagance of women.[42]
“The wife of a _hauld_ (odal’s bondi) is allowed to buy to the extent of
one eyrir, and not more. If she buys for more the bargain shall not be
kept, except her husband wishes it so” (Earlier Frostathings Law, xi.
22).
“If a wife gives away her husband’s property he can claim it all, and
prosecute the man who received it. If a man sends his wife to the Thing
to pay debts or other expenses of theirs, her hand-shaking is valid,[43]
and also when she goes to a ship to make bargains with his consent, but
no other transactions are valid unless he wishes them to be so. When she
buys what is necessary for their household while he is at the Thing,
that is also valid. The woman shall not sell half her land, a farm or
more, or a _godord_ (dignity of godi), or a seagoing ship, except with
the will of her guardian” (Gragas, i. 333).
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Footnote 38:
In Iceland a high degree of poverty after the marriage was a lawful
reason for divorce (Gragas, 40).
Footnote 39:
Frostathing Law, xi., xiv.
Footnote 40:
According to Borgarthing Law, a wife after waiting three years for the
return of her husband could marry again.
Footnote 41:
Cf. also Gulathing’s Law, 54.
Footnote 42:
There is an example of a man leaving his wife on account of
extravagance in the household, and for insulting him in the presence
of people (Landnama, ii. 6; Njala, 34).
Footnote 43:
A bargain was sealed by hand-shaking, a custom still prevalent in
Norway, where, when the traveller has paid his fare on the post road
from one station to another, the driver shakes hands with him.