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All the same, regardless of who received the dowry, it must be stressed that
the motives of any Christians who registered their marriage in the Ottoman court
also included a desire to get around certain impediments posed by the Orthodox
Church (such as forbidden degrees of kinship), or a strong desire to end an existing
(church) marriage by contracting another in the Ottoman court.32 Furthermore,
as Gradeva has pointed out,33 Christians intending to have a religious wedding
had first to acquire a marriage licence from the local metropolitan. This meant
that villagers would have to travel to the diocesan office (which was usually in
the same town as the Ottoman court) and then return home for the wedding, an
expensive and time-consuming journey. In addition, Orthodox subjects had to
pay the metropolitan a sum of money for the marriage licence to be issued, and
for the ceremony itself to be performed—a sum which depended on whether or
not there had been a previous marriage or even two. This was a tax known as the
nikâh resmi, which is mentioned in the berat s.34 According to a patriarchal act of
the mid-seventeenth century, it amounted to 200, 400, or 600 aspers (depending
on whether the marriage was the first, second, or third), plus thirty aspers for
the ceremony.35 They also had to pay the resm-i arus (or resm-i gerdek) to the
prescribed tax recipient for the area in which the bride lived. This tax varied
according to her religion, and to whether or not she was a virgin.36 Therefore
a non-Muslim couple wishing to get married had to pay the resm-i arus in any
case; then, if they wanted a church wedding, they would pay the nikâh resmi
to the metropolitan, and give something to the priest of the parish in which the
wedding was to take place. If the marriage was registered in the Ottoman court,
they would pay the registration fee. In many cases the resm-i arus seems to have
been considerably less than the nikâh resmi, and this might have played a part in
a non-Muslim couple’s choice of venue for their marriage.
By the same rationale, if the provisions of Islamic law had to be followed for
a marriage to be registered in the Ottoman court, then one would expect those
provisions to be followed to the letter in divorce cases involving two Christians
that were registered by the local Ottoman courts, just as in divorces involving two
Muslims, or a Muslim man and a Christian woman. Whether it was a talak divorce
or a hul divorce, in theory both parties received what was due them. And again, if
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the provisions of Islamic law were not fully implemented, this was a matter that
concerned the divorcing parties, not the Ottoman court, as long as no future claim
was lodged for sums owing.37 Should such a claim be lodged, then the case would
be tried according to Islamic law. After all, this sort of litigation between former
spouses over financial claims happened between Muslims too.38 It must also be
stressed that, unless it was specified in the document, we do not know if zimmi s
who applied to the Ottoman court to get a divorce had previously performed a
church marriage. Thus, when in 1605 in the Ottoman court of the kaza of Samos,
a non-Muslim named Leka stated in the presence of his wife Kaya (?), also a non-
Muslim, that he wished to divorce her [ tatlik murad ederim] because they did not
get along, and the divorce was issued with both Muslim and Christian witnesses,
we may presume that the woman received all that she was legally entitled to under
Islamic law; otherwise she could have demanded it by bringing an action against
her ex-husband in the Ottoman court.39 In 1648, a Christian from the village of
Asomati in the kaza of Veria declared that she and her Christian husband were
at variance, that she desired a hul divorce, and that she therefore renounced the
dowry [ mehr] and other entitlements, both “conjugal and legal” [ hukuk-i zevciyet
ve sair hukuk-i şeriye]. Her husband declared that he accepted the hul divorce,
and that his wife had discharged her “debt” [ zimmet].40 At the Ottoman court in
Nicosia in 1694, a Muslim convert stated that his Christian wife had asked him
for a divorce, renouncing her entitlement to the dowry and to maintenance; she
would keep the house and had no further claims to make.41
There are also many records of divorces between Christians in which it was
stated that no financial claims remained between the spouses. For instance, in 1602
a zimmi woman from Veria declared before the kadı and her Muslim ex-husband
that she abdicated her rights to nafaka and dowry; according to the document
the divorce was initiated by the man [ kendüye talak veren İbrahim bin Osman
mahzarında] and, thus, the reason for their appeal to the kadı was to register the
non-existence of any debts.42 Also, when a zimmi named Chrysomallis asked the
Ottoman court of Veria to register the dissolution of his marriage to his Christian
wife, Filia, on the grounds that they had been unable to have children, his wife
declared that she had received “the dowry and other entitlements.” It was also
stated in the document that she might contract a second marriage. This particular
case is also interesting because it did not use the usual Arabic word mehr for the
dowry, but rather the Greek word brika [ προίκα] [ brika ve sair hukukumu bi-t-
tamam ahz ve kabz edüb]. In this case, as in other similar instances, the marriage
may already have been dissolved by the local metropolitan, and the purpose of
registering it in the Ottoman court was to officially and conclusively confirm the
absence of “debts.”43
It is worth noting one more case, this time involving Armenians. In 1755, an
Armenian couple from Ortaköy in İstanbul testified before the kadı that, since
they did not get along, and since no dowry had been specified in accordance
with the requirements of their religion, they wished their marriage to be annulled
and had no financial demands upon one another. In this case, the provisions of
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Armenian religious and customary law were used to support the application, while
the breakdown of the marriage was registered in the Ottoman court to provide an
official record of the absence of any further obligations. The wedding itself had
probably been a religious one, which was why the couple invoked their religious
law to justify their separation.44
Although the court documents describe no more than the facts themselves and
leave us to guess at the motives, private thoughts, and hopes of those involved in
the cases, it must be stressed that the Christian reaya had the opportunity to choose
the judicial system which met their needs on any given occasion. Women who had
difficulty getting divorce papers from the local metropolitan owing to deliberate
dilatoriness in issuing them (in the hope that the couple would reconcile) would
turn to the Ottoman judge for the relevant hüccet, and in this way they forced
the episcopal court to issue the ecclesiastical divorce too.45 Furthermore, if a
Christian woman wanted to divorce her husband, it was easier for her to apply
for a hul div
orce―as long as her husband was in agreement over the financial
settlement―than to go to the ecclesiastical court. One reason for this was that
in the Ottoman court, she could apply for a divorce without stating the precise
reason. By contrast, ecclesiastical divorce documents recounted the reasons
which had prompted either spouse to seek a divorce, precisely because it was the
dissolution of a legal cohabitation blessed by the Church, and not of one based on
a financial transaction. In theory, these grounds for divorce had to agree with what
was laid down in the legal textbooks used by the ecclesiastical authorities. This is
why the Church was forced to extend the grounds for divorce, in order to dissuade
Christians from going to the Ottoman courts for their divorces.
One exception to this practice was the consensual divorces granted by
ecclesiastical authorities from the eighteenth century onwards, for these do
not mention the reasons for the couple’s “incompatibility,” nor did they attach
blame.46 A woman who very much wanted a divorce and was unable to cite any of
the grounds accepted by the Church therefore had to either secure her husband’s
agreement and apply for a consensual divorce on the grounds of incompatibility,
or go to the Ottoman court for a hul divorce, again with her husband’s agreement
and reaching a financial settlement with him. This does not mean that financial
settlements, whether in the form of payment from the man to the woman or vice
versa, were not reached in ecclesiastical consensual divorces; they were simply
not recorded.
Finally, there is one unexplored parameter: the frequency of appeals by non-
Muslims to Ottoman courts to register their marriage or get a divorce. Certainly,
the ratio of the zimmi s who applied for such matters to the kadı was much lower
than that of Muslims. For instance, in court record No. 1 from the kaza of Veria,
there is only one registration of divorce between zimmi s; the same is true of court
record No. 19. However, to answer this question, one would have to conduct a
comparative study of the archives of the ecclesiastical court and a Şeriye Sicili of
the same area and period, provided that both exist.
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251
On the basis of what has been said above, the hüccet s attest to cases in which
people applied to the Ottoman court for a divorce, seeking an immediate solution
to a personal problem, and taking advantage of the provisions of Islamic law. This
particular parameter will be analyzed below.
Although the role of the woman is passive—or at least difficult to detect—
in the cases of marriage and divorce registered in the Ottoman court, we have
a clearer picture when the woman approached the court on her own initiative,
whether seeking a divorce, claiming custody of her children and the allowance
for raising them, or bringing a charge of sexual assault and/or violence. In these
cases, it is clear that the women were strongly asserting their rights, even if they
were represented at the court by someone else, usually a male relation.
In two cases from Crete, the widows of Muslims claimed custody of the
children and daily allowances for expenses. In 1670, Fatma, daughter of Abdullah,
initially applied for expenses to cover the cost of “food and clothing” for the four-
year-old daughter she had with her late husband, a Muslim. She was awarded the
sum of four aspers a day out of her husband’s estate, which, however, she would
have to repay when her daughter came of age. In a second application, made five
days later, she asked the court to recognize her as her daughter’s guardian [ vasi]
responsible for “managing and safeguarding” the little girl’s property. Her request
was granted as she was deemed fully qualified given that she had also recently
converted to Islam [ Fatma bint Abdullah nam hatun şeref-i İslam müşerrefe olub
vesayet-i mezbureye kadire olmağın]. She had apparently converted shortly before
or shortly after her husband’s death, probably so that she could be recognized as
her daughter’s legal guardian, a role that would have allowed her to stay with the
child and also gave her full control over her daughter’s share of her late husband’s
estate until she had come of age; it also meant that she would not be restricted to
an allowance of limited duration that she would eventually have to repay.47 By
contrast, in a similar case a few years later (1657), the non-Muslim widow of a
fief-holder and mother of a baby boy applied to the Ottoman court of Rethymno
and was granted a daily allowance to cover her son’s food and clothing, while the
court appointed a male as the child’s legal guardian.48
That mothers would change their religion so that they could keep their children
for as long as possible after their Muslim husband’s death or after divorce is more
clearly apparent in a case tried by the judge of Veria in 1600. A Muslim sipahi
accused his Christian ex-wife of kidnapping their young son. The whole process
reveals that the divorce had been issued just three days before the case was
brought before the court, and that, according to the woman, her Muslim husband
had had her Christian husband and their two children murdered and had forced
her to marry him. She admitted to having kidnapped the boy because she knew
that under Islamic law he could stay with her until he was seven. It also appears
that the reason the sipahi had filed for divorce had been her insistence on bringing
the child up in the Christian faith. The court’s decision was that the boy should
stay with his mother until he was seven on condition that she converted to Islam
(which she did in the course of the trial), while the father was ordered to pay 150
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aspers a month as maintenance.49 Under Hanafi law a zimmi woman is entitled to
have temporary custody [ hakk-ı hizane] of a child until the age of seven for boys
and about nine for girls, as long as she does not attempt to change the child’s
religious beliefs, for by law a child has his/her father’s religion.50 In this particular
case, the court imposed conversion to Islam as a condition of custody, because the
father had accused the mother of trying to turn the child towards Christianity. The
apparent paradox and contradiction of the mother’s undergoing conversion and
at the same time deliberately choosing to impart the principles of the Christian
faith to the child (which may have also happened in the 1670 case) betrays a
consciously superficial and perhaps dissembling change of religious “identity.”
The way post-divorce child custody was handled by both Islamic law and the
canon or customary law of the local Christian communities may have influenced
some women’s decision to turn to the Ottoman court. As stated above, in the event
of divorce, Islamic law—and especially its Hanafi version—gave the mother
custody of the children up to the age of seven for boys and nine for girls. Her right
to custody until these ages is especially clear in the Hanafi school. The mother
would forfeit that right if she herself renounced it or proved unworthy of it, for
example by
getting remarried. It is important to note here that the right to custody
did not depend on who had initiated the divorce proceedings; even if the woman
had sought a hul divorce, she could renounce her right to an allowance for the
children’s support but still retain her right to temporary custody of them.
On the other hand, the issue of post-divorce child custody in Orthodox
communities is unclear. The Hexabiblos of 1345 states that a mother should have
custody of her child as long as she renounces the possibility of remarriage. A
scholion by Harmenopoulos himself explains that the question of custody arises
only in the event of the husband’s death; in the case of divorce, custody is awarded
to the parent who is not at fault.51 This conflicts with what Maurer has written in
his account of the “public, private, and ecclesiastical law” of the Greek lands in
the nineteenth century: according to him, a man who left his wife had, apart from
returning the dowry and prenuptial gifts, to bring up the children of the marriage.
If he did not want to bring them up himself, the mother would do so, but he had
to support them financially.52 Although there is no mention of what happened if
the wife was held to be at fault in the divorce, we may consider it very likely that
custody of the children would be awarded to the husband or his family, unless
he renounced this right in favour of his ex-wife, without however paying for
their support. Maurer includes this particular practice in the “civil customary law
of the nineteenth century.” The involvement of customary law in this issue is
also apparent in a consensual divorce issued by the ecclesiastical court of Kos in
1772, in which it was stated that the man would assume the obligation to pay two
para s a day for his daughter until she came of age.53 What legal regulations were
applied in relation to child custody after divorce on the island of Naxos during
the seventeenth century also remains unclear. What we certainly know is that the
children could claim shares from the inheritance of both parents.54
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To return to the foregoing cases, even in the case of a mixed marriage (between
a Muslim man and a Christian woman), the mother could claim custody until
the child reached the of age of 7–9. If, on the other hand, one considers only