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6
Judicial Treatment of the
Matrimonial Problems of Christian Women
in Rumeli During the Seventeenth
and Eighteenth Centuries
Svetlana Ivanova
In the middle of the seventeenth century, the Bulgarian Catholic bishop Philip
Stanislavov (1608/10–74) complained that members of the Pavlikian heretic sect
inhabiting the Rumeli province of the Ottoman Empire would not understand that
divorces were not allowed, and wanted for a man to be able to leave one wife and
take another, arguing that this was the practice with the Turks and the Orthodox
Christians.1 Indeed, in the multi-religious Ottoman society of the pre-industrial
age there functioned several distinct matrimonial models based on the Shari‘a
(Islamic law) and on the religious laws and customs of Orthodox Christians,
Catholics, Roma, Jews, Armenians, etc. As a result, matrimonial issues were dealt
with differently within different communities, and thus, from the perspective of
historical research, it is necessary to study these varying practices separately
before they can be compared. For this reason, I focus in the present article on
Orthodox Christian women.2
Marriage was among the most important factors determining a woman’s
status—particularly so in pre-industrial society, when remaining unmarried was
simply not an option—and thus it occupies a central place in women’s studies.3
The wedding of the Orthodox Christian woman, her position within marriage,
the crisis situations of divorcing and becoming a widow—these are the matrimonial
events on which I attempt to shed light with the aid of the Ottoman-Turkish sicils 4
( sijill, the records of the Muslim Ottoman judges [ kadı/ qadi]). The geographical
region covered by this paper fits within the central part of the European provinces
of the Ottoman Empire known as Rumeli, by and large coinciding with the
present-day territories of Bulgaria.
The Documents
For the purposes of the present paper, I have not used sources pertaining to the
broader customary legal framework regulating the matrimonial status of Orthodox
women in the past. There are relatively few sources on the manner in which
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the Orthodox Church regulated its members’ matrimonial matters in the period
preceding the second half of the eighteenth century. Particularly scarce are the
acts of bishopric councils.5
Fortunately, Ottoman court records detailing the treatment of the matrimonial
problems of Orthodox Christians are available, and their number is unmatched
by all other types of sources. The kadı sicilleri are one of the largest groups
of documents concerning our subject, in terms of both number and volume.6
Notwithstanding their great potential, however, they also impose certain
limitations on our understanding of the various aspects of the topic.
Quite a few kadı documents on the matrimonial status of women in the Balkans
and other parts of the Empire are already in scholarly circulation. Furthermore,
some conclusions have been drawn concerning the potential of Ottoman judicial
documents as historical sources as well as the methodology of their interpretation,
and it is important to outline at least some here. Ottoman judicial documents
are generally not suitable for quantitative analysis. However, they can be used
to document how certain practices may have spread or disappeared. It is also
necessary to analyze these documents by region. Frequently scholars will include
texts of selected translated or annotated empirical material in their studies, and
compare them to the relevant Shari‘a rules.7 When present-day researchers read
through the records of judicial disputes between spouses—records in which
even direct speech can be found—they are tempted to consider them as literal
transcripts. However, the current literature on sicil s warns against this tendency:
judicial records were not mere transcripts of the actual arguments that took place
before the court, and their purpose was not to render an accurate account of what
happened, but rather to outline the relevant elements of the case in accordance
with a scheme provided for by Shari‘a law, by using formulae guaranteeing
the procedural validity of the drafted document and the eventual court decision
contained in it.8
Cases concerning marriage and divorce as they occur in the registers of Islamic
judges cannot be compared quantitatively to their counterparts adjudicated under
the customary law of the various confessional communities. It is difficult to assess
the validity of the all-too-general view that custom took precedence over formal
legal institutions during the pre-industrial age in the Bulgarian lands. It is also
impossible to determine the proportion of Christian and Muslim women who
resorted to the courts instead of seeking mediation within “custom”; neither do
we know what fraction of Christian women preferred the court of kadı to that of
the bishops.
Despite the limitations of the Ottoman material, however—not least due to
its volume—without its help it is impossible to study the institution of marriage
within the Christian milieu, and the status of women therein, prior to the nineteenth
century.
ivanova, marital ProBlems of Christian Women
155
The Legal Framework:
Canon Law Treatment of Marriage and Divorce
The Orthodox Church regarded marriage as a religious and legal institution.
Starting in the end of the ninth century in the Byzantine empire and later
in Bulgaria, attempts were undertaken to impose the church nuptials as an
obligatory element of marriage, and they became a sacrament while preserving
their relation to the customary system by the required public character of the
wedding celebration. Marriage was strictly monogamous.9 It was preceded by
an engagement, considered to be almost equal to a marriage by both custom and
the Church. The prenuptial agreements, including those concerning financial and
property matters, were concluded at the time of the engagement. By the fourteenth
century, the rule had been established that at most three successive marriages
were permitted by canon law, irrespective of the reasons for the termination of the
preceding ones—death of the spouse or divorce. Under the Orthodox canon law
effective in the Balkans during the fifteenth to eighteenth centuries, barriers to
entering a marriage were consanguinity of up to the seventh degree, and kinship
by marriage or sponsorship (being godfather/godmother to the same child). Thus,
one of the functions of the clergy was to ensure the implementation of these rules
and the observance of the prohibitions. The policy of the Church was to impose