ABSTRACT
Until the introduction of civil marriage in 1938 – in what is now Austria – couples in the German hereditary lands of the Habsburg Monarchy could only marry in church. The churches determined the rules not only for marriage, but also for separation. To this day, the Roman Catholic Church holds the belief that married couples are bound by a spiritual bond that can be dissolved only by annulment or death. However, as the chapter shows, Catholic couples could be separated for a limited time period or divorced indefinitely from bed and board. Although the spiritual bond of the marriage remained intact, marital duties ended and the consequences of the couple’s separation had to be settled.
Until 1783 Catholic consistories ruled on divorce suits, while secular matters were usually heard in secular courts. The first section of the chapter reconstructs the reasons that legitimized a temporary separation or an indefinite divorce from bed and board according to canonical marriage law. For the analysis of court practice, it concentrates on the Archduchy of Austria under the Enns, which today essentially comprises the Austrian provinces of Vienna and Lower Austria. In 1783, the rules of the game changed, especially in the following three decades, when secular courts took over and only consensual divorces were allowed. The second section points out that in these years the judicial approval of a divorce from bed and board required an out-of-court divorce settlement, in which the couple had to specify how marital property would be divided and who would receive custody of which children. It was not until the Austrian Civil Code of 1811 that contested divorces were again permitted. During the long period under investigation, not only the modalities in the access to divorce changed, but also the marital regime and inheritance laws, as the chapter argues, have been equally important for the question of whether divorce was a realistic option in practice. In contrast to community of property, which prevailed under customary law in the archduchy, the civil law codifications of 1786 and 1811 stipulated the separation of property.
As the chapter shows, the bride and groom continued to agree on one of the various forms of community of property in the marriage contracts. All the assets they subjected to community of property belonged equally to both spouses and affected their respective negotiating positions in the event of a divorce.
