One Empire, Two States, Many Laws Matrimonial Law and Divorce in the Austro–Hungarian Monarchy1
Following the Compromise of 1867 between the Habsburg House and the parties pressing for Hungarian independence, the territory of Austria and the territory of Hungary constituted separate jurisdictions, thus it is not surprising that matrimonial law developed differently in the newly sovereign Kingdom of Hungary. In Austria the 1811 civil code specifically circumscribed the right of Catholics, who constituted the overwhelming majority of the population and were only able to “separate from bed and board,” and non-Catholics to dissolve the bonds of marriage. In contrast, in Hungary as of the middle of the nineteenth century Catholics were also able to dissolve the bonds of marriage. In this article I examine the evolution of matrimonial law as well as the influence of the economic and social transformations of the nineteenth century on divorce rates and the spread of divorce. The introduction of the matrimonial law of 1895 and the easing of divorce proceedings in 1907 were direct causes of the steep rise in the already higher rates of divorce in Hungary around the turn of the century. While the higher divorce rates in the larger cities were influenced by industrialization and urbanization, in rural areas, where the rise in divorce rates was not negligible, other factors must be sought. After the adoption of the Hungarian matrimonial law, the number of divorces among Catholics grew and the number of divorce proceedings initiated by members of the lower classes, in particular peasants and agricultural workers, also rose. In general, the data indicate cultural divergences in the practice of divorce and reveal the significance of the differences between the lifestyle customs and legal traditions of different denominations on the one hand and on the other the importance of efforts on the part of the state to reconcile these differences and foster social integration.
Keywords: matrimonial law, divorce rates, denominational difference, urbanization, social integration, nationalism, Austro–Hungarian Monarchy
The rise in divorce rates in the nineteenth and twentieth centuries is one of the most interesting questions in the history of the family as an institution. How is it possible that while divorce was practiced almost exclusively among Protestants and only in unusual cases up until the nineteenth century, over the course of the next 200 years divorce gained legal acceptance in almost all of the states of the Western world and indeed by the end of the twentieth century had become almost familiar (as it were)? While contemporaries frequently blamed the moral decline of the family for the rise in divorce rates, sociologists and, in their wake, historians have emphasized the importance of economic and social factors. According to the theory of modernization, which gained ground in the decades immediately following World War II, the social structures that existed prior to the nineteenth century, which were necessarily founded on stable family households, were transformed by industrialization. Family bonds weakened and the nuclear family, consisting only of parents and children, became a more characteristic phenomenon. Parallel to this alleged shift, individual preferences began to play a role in the selection of a partner that would have been inconceivable earlier, and people’s expectations regarding marriage also grew, making marriages less stable and in the end leading to the gradual and accelerating rise in the number and proportion of divorces.2
150 years of research that have been pursued in the social sciences and the work that has been done by historians over the course of the past few decades notwithstanding, we still have only a vague sense of the reasons that have led to the current state of affairs regarding matrimonial law and the institution of marriage.3 Modernization theory has proven useful in understanding social processes, but at the same time it has made us aware of apparently unresolvable contradictions as well. Among these, the most important is perhaps the fact that modernization by no means caused a consistent rise in divorce rates outside the Western world,4 which throws into question the causal relationship between economic transformations and changes in the nature of family relationships or rises in divorce rates. In a historical context something that did not as yet seem problematic with reference to the time of the origin of the modernization theory, namely whether the history of divorce can be blurred with that of the dissolution of marriages, and what divorce rates themselves actually signify, has also been questioned. To cite a classic example, the difference in divorce rates in England and France at the turn of the century was striking. Divorce was far more common in France than in England. Gail Savage poses the question, “How is it that at the turn of the century a comparatively rural Catholic nation should have so many more divorces than a Protestant nation that was the most urbanized and industrialized in the world?”5 Her answer, that the legal system can effectively hamper or facilitate the spread of divorce, may be part of the explanation, but the problem makes clear the need for further study of the social uses of alternative solutions, both legal and otherwise.6
If we must be willing for the moment to do without a comprehensive theory that explains the general if varied rise in divorce rates, we nonetheless stand to glean some insights into the phenomenon from a comparative study of states and legal systems in which one discerns not only contradictory tendencies, but also similarities that may shed light on underlying causes for these divergences. An examination of trends in the Austro–Hungarian Monarchy (a state that was the creation of the Compromise of 1867 between the Habsburg House and Hungary) may prove particularly illuminating. A comparison of matrimonial law in Hungary and Austria is revealing not simply because the two states shared a close history and were indeed successors to the same political body (thus one confronts fewer methodological problems), but also because matrimonial laws in the territory of the Monarchy (which was a distinctive political formation in which two states shared power) were both a sign and symptom of the cultural and religious diversity of the population and the attempts of the state to bridge these differences. Thus, while the rise in the number and proportion of divorces corresponded to the general upward trend, the cultural and political-legal factors that either furthered or hindered this rise (and that in the case of other nation-states are perhaps more difficult to discern) are more easily distinguished.
Roads to(ward) Divorce
Austria and Hungary,7 the two constituent yet legally separated states of the Austro–Hungarian Monarchy, were both heirs to the reforms in matrimonial law of Emperor Joseph II, the Marriage Patent of 1783 (according to which marriage was a civil contract, not a religious institution). In the periods of increased centralization (1780–1790, 1850–1860), the differences between the two systems of matrimonial law disappeared, or rather diminished significantly, but in time they became determining. In the Austrian territories the civil code that was introduced in 1811 (the Allgemeines Bürgerliches Gesetzbuch) gave considerable momentum to the efforts to secularize matrimonial law. In the lands of the Hungarian Crown, however, the system of denominational laws was restored following the death of Joseph II, albeit with significant modifications, and state matrimonial law was introduced only a century later with a law that was passed in 1894.8 Originally both systems permitted divorce only in the case of people who were not Catholics. Catholics, who constituted the overwhelming majority of the population, were only allowed to separate, not legally divorce. This similarity in the substantive law changed, however, following the Compromise of 1867, when Hungary introduced laws permitting converted Catholics to divorce. In the Austrian provinces (what is referred to as Cisleithania) the tendency was in the opposite direction. Through the Catholic impediment to marriage the rights of the Protestant spouses of converted Catholics and in general of divorced Protestants were curtailed (they were not allowed to remarry or could only marry a non-Catholic).9 These diverging tendencies were topped by the matrimonial law that was introduced in Hungary in 1895. With the exception of Croatia, it made divorce legal for any Hungarian citizen, regardless of his or her denomination.
A comparison of the divorce rates in Austria and Hungary at the turn of the century clearly illustrates the significance of the differences in the two systems of matrimonial law (Figure 1).10
Figure 1. Crude divorce rates (divorces per 10,000)
As the chart illustrates, divorce rates in Hungary were almost always higher than in Austria. A significant rise in both took place around 1900, but while this rise was considerably less abrupt in Austria thanks to the stability of the legal framework there, in Hungary the legal changes resulted in a far more dramatic growth in the divorce rates. In the wake of the easing of restrictions on divorce in 1895 and the elimination of automatic appeal in divorce cases in 1907, divorce rates in Hungary were proportionally among the highest in Europe in the years leading up to World War I.11
As in the case of France and England, this comparison again throws into question one of the basic assumptions of the modernization theory. How is it that in Hungary, which was considerably less industrialized and held on to denominational matrimonial law for a much longer period of time, divorce rates were higher than in Austria, which was more economically developed and had secularized matrimonial laws as part of its civil code? The answer, of course, is obvious: divorce, which in 1868 was made possible in Hungary for converted Catholics and as of 1895 for every Hungarian citizen, was much more appealing than the institution of separation which was only available for the majority of the population in Austria. While the rise in divorce rates (both in absolute terms and proportionally) in Austria clearly indicates a growing social demand, the question remains: how is it that steps were taken towards the liberalization of the institution of divorce in Hungary a half-century before the secularization of matrimonial law, at a time when denominational laws were still in effect, while in Austria this did not take place until the Austrian state actually ceased to exist (the dissolution of the bonds of marriage was permitted in general only following the annexation of the country by Nazi Germany in 1938).
The divergent tendencies of the evolution of matrimonial law in Hungary and Austria were undoubtedly due in part to the different confessional structures of the two populations and the greater importance in Hungary of non-Catholic denominations for which divorce was permissible. At the turn of the century, the population in Austria was 80 percent Roman Catholic and 12 percent Greek Catholic. Only roughly 5 percent was Jewish, 2 percent was Protestant, and 2 percent Orthodox. In Hungary the majority was also Catholic, but Roman Catholics comprised only 49 percent of the population, while 11 percent was Greek Catholic, 5 percent was Jewish, 13 percent was Orthodox, 7 percent was Lutheran, and 14 percent was Calvinist.12 The importance of these differences, however, should not be overstated, since in Hungary as in Austria matrimonial law was dominated by canon law until the middle of the nineteenth century, supported on the institutional level by the courts of the Catholic Church, which was regarded as the avita religio and enjoyed a special relationship with the Habsburg House. It is worth noting, for example, that until the introduction of reforms by Joseph II, the sphere of authority of the Catholic ecclesiastical courts extended in principle to the affairs of non-Catholic couples as well.
The distinctive confessional structure of the population in Hungary really became important towards the end of the eighteenth century. Following the death of Joseph II, the National Assembly that was held in 1790 rehabilitated in defense of the old constitution, which had been ignored by the late emperor, the rights of the “accepted” religions (receptae religiones), which alongside the Catholic Church also included by then the Orthodox Church, the Lutheran Church, and the Calvinist Church. This included jurisdiction in matrimonial affairs, which in Austria remained within the sphere of the state.13 The only reason that the establishment of the planned Protestant courts in Hungary was never implemented and matrimonial cases among Protestants remained within the sphere of authority of the county and urban courts (which were still under the influence of the Estates and made rulings based on the Marriage Patent of Joseph II) was that the Hungarian law was shelved in Vienna.14 The noble reform movement that began to emerge in the National Assemblies held in the 1830s, which pressed, in the name of liberal and national ideals, for a transformation of the legal system and greater independence for Hungary, saw not the defense of ecclesiastical rights, but rather national integration and the creation of civil society as its primary goal. Prominent figures of the movement took a stand in support of the freedom of religion and equality among the various denominations. In practice, this meant curbing the written and unwritten prerogatives of the Catholic Church, a supra-national institution that enjoyed a kind of alliance with the dynasty. Regarding the question of matrimonial law, it meant restrictions on canon law and the assertion of the newly introduced liberal legal measures.
Fundamentally, the fact that with respect to the legal acceptance of divorce there was a “breakthrough” in the Hungarian half of the empire in the middle of the nineteenth century in that every Hungarian citizen, including converted Catholics, could seek a divorce, was a consequence of this political situation. The key element of this was the liberalization of religious conversion, which was established in a law passed in 1844.15 While the goal of the law was not to facilitate divorce, but rather only to make the free practice of religion a legal reality, the measure nonetheless had this as one of its consequences. In the case of a husband or wife who had converted to a Protestant denomination, when arriving at a ruling in a case of divorce the county and city courts took into consideration the person’s denomination at the time of the submission of the request for a divorce, not his or her denomination at the time of the marriage, and therefore were able to grant a divorce in spite of the Catholic belief in the inviolability of marriage.16 This was all brought to an end by the defeat of the 1848 Revolution, since in 1853 the Austrian civil code was temporarily introduced in Hungary, but after the reassertion of the Hungarian legal system in 1861 and then the passage of new laws in 1868, the courts not only revived these practices but even built on them. Since the Hungarian laws of 1868 specified that “the acts committed by a convert following his conversion should be judged by the teachings of the Church to which he has converted, and the principles of the Church he has left impose no obligations on him,” the Hungarian courts would even grant a divorce in cases in which only one of the spouses had converted, while the other had remained part of the Catholic Church.17
Thus when the Hungarian state resolved, at the end of the nineteenth century, to make questions of matrimonial law entirely the prerogative of the state, it was absolutely clear that divorce would become a matter of civil law, and that the Catholic dogmas would constitute no obstacles to it. The domination of the Austrian civil code, in contrast, ensured a durable legal framework which, with a brief interruption of an ultramontan course taken by the neo-absolutist regime in 1856 to 1868, when the matrimonial affairs of the Empire’s Catholic subjects were relegated to the competence of the ecclesiastical courts, lasted for more than a century. Furthermore it preserved the various systems of different church dogma, which it had adapted and incorporated into the civil code. Thus while Jews and non-Catholic Christians were able to divorce (if according to different rules), the 111th paragraph of the Austrian civil code contained the following stipulation: “The valid bond of marriage between two people of the Catholic faith can only be broken by the death of one of the two. This bond is indissoluble even if at the time of the marriage only one of the two was Catholic.”18 The liberal political initiatives of the 1860s and the social movements that began to gather steam at the turn of the century (and had the reform of matrimonial law as one of their goals) were unable to alter these basic principles, even if, as of the middle of the nineteenth century, it became ever more common for people to circumvent the law (and even if by the first years of the twentieth century this was not unheard of among people belonging even to the highest circles).19
The Frequency of Divorce: Traditions and Modernity
A hasty overview of the evolution of matrimonial law clearly reveals that over the course of the nineteenth century denominational belonging was of tremendous significance for married couples in the Austro–Hungarian Monarchy. The right to marry or divorce depended on the denominations of the spouses, whether the case was held in a Church forum or a secular forum. There were no exceptions to this until the practice changed entirely with the enactment of the new matrimonial law in Hungary on October 1, 1895. This law introduced marriage and divorce as civil institutions and brought matrimonial cases under the purview of the state. Social scientists have not yet examined the ways in which contradictory secularization (in the case of Austria) or belated secularization (in the case of Hungary) influenced the matrimonial or legal behavior of people of different denominations in practice, and the extent to which these processes of secularization contributed to or slowed the rises in divorce rates in different parts of the empire, parallel to the economic and social transformations of the nineteenth century.
If one compares the published statistics on marriage with the denominational composition of the population, in both Austria and Hungary people who belonged to non-Catholic denominations (which had permitted divorce for centuries) were the most active. In the Austrian lands, even if we draw no distinction between divorce and separation, people belonging to the religious minorities (Protestants, Orthodox, Jews), which represented only 8 percent of the population, accounted for 15–18 percent of the divorces. The percentage of Roman Catholics who had “separated from bed and board” corresponded to their percentage of the overall population (80 percent), while the percentage among Greek Catholics fell short of their proportion to the entire population. While one can no longer speak of legal distinctions between the denominations in Hungary following the enactment of the matrimonial law in 1895, in the period between 1898 and 1913 non-Catholics still accounted for 64 percent of the divorces, while they represented only 40 percent of the total population. One discerns the influence of religious proscriptions against divorce in the fact that Roman Catholics accounted for only 32 percent of the total number of divorces and Greek Catholics only 4 percent. In the period under examination the denominational composition of the demographic trend (in other words the rise in divorce rates) was influenced (somewhat surprisingly) only by the growing weight of the Orthodox population living in the peripheral areas of the Monarchy. In Austria their contribution grew from a mere 1 percent at the end of the nineteenth century to 4 percent by 191020 and in Hungary from 4 percent in 1900 to 21 percent in 1913.
The attitudes of the various denominations regarding divorce, however, were by no means uniform. The denominational composition of the population and the divergent political and legal traditions and denominational “popular customs,” all of which varied from region to region, resulted in significant differences in the practical attitudes towards matrimonial law, even among groups of people belonging to the same Church. Thus the regional differences in divorce rates (Figure 2) were not simply products of divergent denominational structures. Transylvania, a province in the southeastern corner of the Monarchy that had the highest divorce rates, is a revealing example. The Hungarian statistics do not provide a breakdown of the divorce rates on the basis of denomination, but we can nonetheless state with confidence that the high rate of divorce was due to the remarkably high proportion of people belonging to non-Catholic denominations (58 percent). This does not explain the high divorce rate entirely, however, since the non-Catholic population of the neighboring region bordering the River Tisza was just as high (57 percent), but the divorce rate was considerably lower.21 The phenomenon was basically due to the special position of Transylvania and the wide-ranging political and legal autonomy that the non-Catholic Churches enjoyed there. In the Transylvanian Principality, which became independent from Habsburg-ruled Royal Hungary at the time of the Ottoman conquest, the ideas of the Reformation found fertile ground, bringing with them an early version of the notion of religious tolerance. Thus the Counter-Reformation that swept through the Hungarian Kingdom in the seventeenth century did not gain much ground in Transylvania, which remained something of a bastion of Protestantism, even after the province became part of the Habsburg Empire at end of the century. The Catholic rulers essentially respected the distinctive political setup in Transylvania, one essential part of which was the maintenance of the rights of the “accepted” denominations (Lutheran, Calvinist, Unitarian, Roman Catholic, and as of 1848 Orthodox). As of the sixteenth century the rights of the Churches included purview of issues pertaining to marriages,22 and this was suspended only briefly (for a few years) in the wake of the reforms of Joseph II.23
Figure 2. Crude divorce rates (divorces per 10,000 inhabitans) in the Austro-Hungarian Monarchy in 1910 (1900)
The separate right and practice of divorce in Transylvania brought with it the early spread of the recourse to this institution. It is telling, for instance, that in the middle of the nineteenth century in the Calvinist diocese of Udvarhely there were annually 7-12 divorces for every 10,000 Calvinists, which was double the average in Hungary in the 1910s (see Figure 1) and also considerably higher than the Transylvanian average (see Figure 2).24 The divorce rate among Lutheran Saxons and Unitarians (the smallest Protestant denomination in Transylvania) was similarly high. In the period between 1871 and 1893 the Lutheran Matrimonial High Court in the city of Nagyszeben (Hermannstadt in German, today Sibiu in Romania) granted between 100 and 150 divorces every year,25 which came to an average of 5 to 8 divorces for every 10,000 Transylvanian Lutherans. The records of sittings of the Unitarian Ecclesiastical High Court of the city of Kolozsvár (Klausenburg in German, today Cluj in Romania) in the period between 1869 and 1895 contain similar data. The average of 40 to 70 divorces per year indicates a divorce rate between 8 and 13 divorces for every 10,000 Unitarian people.26 While the Orthodox Church was not included among the “accepted” religions until 1848, the continuously working ecclesiastical courts in Transylvania probably also granted more divorces than those in Hungary. In the decanal district of Torda (today Turda in Romania) at least 10 divorce cases were initiated on average every year in the period between 1880 and 1899, which may have raised the divorce rate among the local Orthodox community to 8 for every 10,000 Orthodox people in the district.
The divorce rates among members of different denominations and the divorce rates in general in the second half of the nineteenth century were influenced not only by denominational structures and legal traditions, but also by accelerating economic and social transformations, which can be discerned most clearly in divergent divorce rates in the expanding cities on the one hand, and among the rural population on the other. The two metropolises of the Monarchy, Vienna and Budapest, offer striking and paradigmatic examples of this. Vienna’s place in the popular divorce movement at the beginning of the twentieth century was on the verge of being extreme: 37 percent of the divorces and separations granted in the Austrian half of the empire were issued by the Wiener Landesgericht. The divorce rate hovered around 4.5 percent, in contrast with 0.5 percent in rural areas. The divorce rate among Catholics living in Vienna at the beginning of the twentieth century was eight times as high as the divorce rate among Catholics living in rural areas (3.9 percent in comparison with 0.5 percent), among Jews living in Vienna it was seven times as high (7 percent in Vienna in comparison with 1.1 percent in the rest of Austria), and among Protestants six times as high (5.9 percent in Vienna in comparison with 1 percent in the rest of Austria). Similarly, in Hungary the divorce rate of 5.8 divorces for every 10,000 people in Budapest was much higher than the divorce rate of 2.1 percent in the rest of the country. Regarding denominational breakdown between the capital city and the rest of the country, the largest difference again is found among Catholics. While the divorce rate among Catholics in Budapest was four times as high as the divorce rate among Catholics in the rest of Hungary (5 percent in comparison with 1.2 percent), among Jews it was two-and-half times as much (7.5 percent in comparison with 3 percent), among Lutherans twice as much (6.2 percent in comparison with 3.3 percent), and among Calvinists one-and-a-half times as much (6.4 percent in comparison with 4.7 percent). The actual differences in divorce rates between urban centers and “rural” areas in both halves of the empire must have been even larger than these statistics suggest (both in general and broken down according to denomination), since the term “rural” in this context actually includes many cities in Austria and Hungary.
Nonetheless, with regards to the question of urban lifestyle and urbanization, the differences between the two countries are at least as telling as the similarities. As the example of Vienna suggests, in Austria the cities played a considerably larger role in the divorce movement than in Hungary. While in Austria cities with populations of at least 50,000 (which served as judicial seats) accounted for approximately 50 percent of the divorces, in Hungary this percentage was only 15.27 It is also worth noting that in Hungary in the first decade of the twentieth century, parallel with the rapid rise of divorce rates, the role of the larger cities in this trend did not grow, but rather declined (from 19 percent in 1900 to 15 percent in 1910). In other words, the rise in the divorce rates was rather fuelled by the “rural” population. In Transylvania, among Unitarians and Lutherans who were seeking a divorce in the second half of the nineteenth century, urban residence and lifestyle certainly did not play an important role (in the case of Lutherans this is particularly surprising given the large proportion of Lutherans who lived in cities).28 For instance, the decisive majority of the Unitarians who were seeking a divorce (a group about which we know more) lived in villages and were probably simple peasants.
Divorces among Jews offer a distinctive but nonetheless revealing example of the interrelationship between “modernization” and denominational belonging with respect to marital relations. The statistics on divorce indicate that attitudes towards and trends regarding divorce among Jews (who had practiced separation for millennia) in the Austro–Hungarian Monarchy and especially Austria were similar to attitudes and trends among Catholics. Marriages among Jews in rural areas rarely ended in divorce, in contrast with marriages among Jews in urban centers. The Jews in Vienna, who constituted 13 percent of the Jews in the Austrian provinces, accounted for 50 percent of the divorces among Jews, while this same figure for Jews in Galicia (where 62 percent of the Jews of Austria lived) hovered around 25 percent. In this case, however, one must be careful with the official data. As the Austrian statistician Karl Hugelmann has cautioned with regards to the figures from 1882 and 1883 (i.e. before the regular disclosure of divorce statistics), “We must compare the Jewry of Vienna and Galicia in order to discover the reason for the differing results, and then we begin to suspect that the difference is merely a matter of appearances. As in the case of many marriages among Jews in Galicia, many divorces never came to the knowledge of the state authorities.”29 Thus the statistics only include divorces that were recognized according to the civil code.
One finds an explanation for this phenomenon in the discrepancies between state and denominational law regarding divorce and the civil and ritual practice of divorce. Before the introduction of the Marriage Patent of 1783 in Austria and the Austrian civil code in 1853 in Hungary, issues pertaining to marriage among Jews were decided by the rabbinical courts (the bet-din), which was autonomous from the state. In accordance with the age-old ritual, divorce was completed when the husband handed the bill of divorce (get) to his wife and his wife accepted it. Over the course of the nineteenth century the expansion of state oversight to include these affairs in general collided with the “quiet” resistance of the Jewish communities. At the same time, some rabbis and some spouses (in particular wives) used the compulsion to adapt as a means of increasing their own influence or bringing about a turn in their seemingly hopeless situation for the better.30 It was primarily Jews who lived in the western provinces of the Habsburg Empire and Jews who lived in cities and had essentially integrated into Christian society who turned to the state to resolve marital issues. In contrast, the vast majority of the Jews of Galicia were able to continue to ignore the state laws regarding marriage and address the questions that arose in accordance with their religious law (halakha). Clearly the growing middle-class Jewry represented an ever larger proportion of the couples seeking divorces, though the available sources yield no reliable estimates of these proportions. It is quite possible that if we could compile statistics regarding the purely ritual divorces (i.e. not acknowledged by the state), then the ratio of divorce rates in Vienna to divorce rates in rural areas would be flipped. Given the dearth of data regarding these ritual divorces, we can mention as a kind of analogy the case of Russia. The frequency of divorce among the Jewry living in the western provinces in the first half of the nineteenth century was strikingly high, and while in time it declined considerably, it remained high at the beginning of the twentieth century. In 1901, for instance, there were 12 divorces in Vilno (today Vilnius in Lithuania) for every 10,000 Jewish inhabitants of the city, in other words the divorce rate was roughly comparable with the divorce rate among the Lutherans and Calvinists of Transylvania.31 It is perfectly conceivable that the divorce rates among the Jewish communities of Galicia and even among the Orthodox Jews of the Hungarian counties neighboring Galicia were just as high.
In 1878 the Hungarian government was compelled to pass a separate decree “on the subject of hindering divorces of Israelite couples that were carried out in a careless manner by some rabbis.”32 One decade later Magyar-Zsidó Szemle (Hungarian-Jewish Review) carried a report indicating that of the marriages conducted by rabbis among the Jews of Sáros county, only one-third were recorded in the registry of marriages kept by the representatives of the religious community.33 The periodical, which was neologue in its spirit, may well have exaggerated these “irregularities” and the scale of the alleged flouting of the laws of the state, but the Jewish communities of Máramaros, another county in northeastern Hungary (today Maramureş in Romania) also become notorious for the striking number (and proportion) of illegitimate children and cohabitating but officially unmarried couples, which was due in part to the failure to register marriages with the local organs of the state.34 Considering the fragmentary data, it is quite clear that the statistics do not reflect a significant proportion of the divorces among Jews, as they were not granted by the state courts (much as the marriages themselves had not always been recorded in the official registries). Thus the regional divergences in divorce rates among the Jewry were not so much a product of different attitudes towards marriage or divorce. Rather they reflect varying degrees among the Jewish communities of integration into the larger civil society.
The Role of Law
The peculiarities of marital law and divorce rates that were rooted in differences between denominations, regions, settlement types and legal systems, while accounting for the varying pace of the spread of divorce in the Austrian and Hungarian halves of the empire, shed only limited light on the reasons behind this growth, and fail completely to explain the dynamics of the process. The immediate cause of the steep rise in the divorce rates in Hungary was legal in nature: it was prompted by the adoption of the matrimonial law of 1895 and the curtailment of the process of divorce in 1907. Thus it is clear that, as a next step, one must examine more closely how the legal reforms influenced in practice the spread of divorce and what was happening at the same time in Austria, where the practice of law and the civil code on which it was based ensured a continuously stable legal background.
By way of introduction it is worth noting that the Hungarian matrimonial law of 1894 was not simply a “divorce law,” but rather ushered in a complete change of systems in the sphere of matrimonial law in Hungary. It codified matrimonial law by creating a coherent system that took the place of norms that had been shaped somewhat freely by the courts within a framework created by royal decrees and laws. In doing so, it secularized and civilized matrimonial law, creating a civil law in lieu of norms that varied from region to region and denomination to denomination. The civil law regulated the means of contracting and dissolving marriages in a way that applied to all Hungarian citizens uniformly and exclusively. At the same time, given the complexity of the legal changes it is not easy to venture an answer to the question of what role was played by the matrimonial law in the breaking loose of divorce rates. It is true that the elimination of denominational distinctions led to an abandonment of many formal procedures (priestly mediation, dual litigation in the case of mixed marriages) and informal ones (such as religious conversions before the submission of a petition for divorce) that were a hindrance to divorce (first and foremost for Catholics), but the law also contained many measures that tightened restrictions. It created serious obstacles to hasty divorces, eliminating for instance the practice of divorce by mutual consent. It also introduced the principle of culpability, defined precisely the acceptable grounds for divorce, made the right of action obsolete, and limited the period of time for the initiation and completion of the proceedings for a divorce.
The effects of the matrimonial law on the legal practice at the time developed in a contradictory manner. In the wake of the enactment of the law, the decisions of the courts became unpredictable. In divorce proceedings that had begun earlier and had not been concluded by October 1, 1895 (and were based on grounds for divorce that were no longer compatible with the new regulations), new petitions had to be submitted and in many cases the high courts directed the lower courts to arrive at new rulings. The proportion of rejected petitions also grew, the proceedings lasted years, and the costs of a divorce case grew considerably.35 In the first two years the divorce rate fell to a historical low (see Figure 1), while at the same time the number of petitions for divorce submitted on the basis of the new matrimonial law rose abruptly. As a consequence of the initiation of an enormous number of proceedings by the end of the century there was a huge backlog of divorce cases, as indicated by the court statistics (which were kept as of 1899; see Figure 3).36 Even five years after the enactment of the new matrimonial law only 30 percent of the new or unresolved divorce cases in Hungary were settled in some manner, either with the acceptance or the rejection of a petition for divorce or with a legally binding annulment (or in some cases with withdrawal of the petition). This did not change much until 1907, the continuous rise in the number of divorces that were granted notwithstanding.
Figure 3. Circulation of matrimonial cases in the royal courts in Hungary (1899–1913)
One can get a sense of what this backlog of cases actually meant in practice by comparing the duration of divorce proceedings at the turn of the century in different parts of the Monarchy. Given the sources, this is possible first and foremost in the case of the two capital cities. While only 24 percent of the divorce proceedings that were initiated before the Royal Court of Law in Budapest in 1900 were completed within a year, 34 percent within two years, and 19 percent within three years (and the remaining 23 percent took even longer),37 on the basis of the marital actions approved by the Wiener Landesgericht in 1901, 98 percent of the cases it handled were brought to completion within a single year and only a small fraction took years to be resolved. In general the Austrian courts handled matrimonial cases rapidly. 97 percent of the divorces, annulments, and invalidations that were issued in Austria in 1901 were issued within a year, and this rate did not drop later. And one should note that the Austrian statistics only measured the duration of cases of separation (processuale Scheidungen) and divorce (Ehetrennungen) that were subject to litigation, and these comprised only one-fourth of the total number of divorces. Separations that took place with the announcement and acceptance of the consent of the two parties (einverständliche Scheidungen) took even less time, officially at most only a few weeks or, in the case of a consensus reached in the course of legal proceedings, a few months.
The state of affairs in Hungary became unmanageable at the turn of the century. In time the courts and the government were compelled to submit to the pressure put on them by people involved in divorce proceedings. In a manner that was in clear contradiction with the spirit of the law, the courts began to give ground to people seeking a divorce. In cases of petitions for divorce that were based on “deliberate and unjustifiable abandonment,” they did not examine the circumstances of the break, but simply took cognizance of the fact of the separation itself. In consequence, it became more common for spouses to bring their cohabitation to end by mutual consent, and they were not compelled to air their “dirty laundry” in the courts. They were thus able to free themselves of each other relatively quickly and painlessly. As Figure 3 indicates, soon most divorces in Hungary were proclaimed following cases of abandonment. The proportion of such cases rose from 44 percent in 1899 to 72 percent by 1913. In 1907 the government also contributed to the reduction in the proportion of cases awaiting adjudication by securing passage, at the suggestion of the Minister of Justice, of a law to reduce the burdens of the Hungarian Royal Court of Law, part of which was a restriction of appeals in divorce cases. The law rescinded the obligatory submission of divorce cases to higher courts and limited the right of appeal of an attorney charged with the task of defending the marriage to a second instance.38 The adoption of the law helped to reduce the pressure on the highest court, but it made the proceedings simpler for husbands and wives who in a concealed manner had mutually agreed to seek a divorce and had no intention of appealing, while in the meantime the minority who prolonged marital conflict in the courts frequently sought legal redress. This clearly also pushed spouses who earlier had hoped to resolve their marital disputes in the courts in the direction of divorce by mutual consent. However, mutual consent was not accepted by the courts as legitimate grounds for divorce. The couples could only achieve their goal by requesting divorce on the grounds of abandonment in order to circumvent this obstacle. In the end, the elimination of obligatory appeals and the consequent rise in the number of divorces granted on grounds of abandonment shortened the procedures in divorce cases, thereby also reducing the costs of a divorce, making people more likely to pursue a divorce, and causing an increase in the proportion of completed divorces (which rose to 54 percent by the outbreak of World War I). In consequence, divorce rates rose steeply.
What considerations prompted legislators to give in to the “pressure” applied by those seeking a divorce? In response to a note of caution made during the discussion of the 1907 bill, that the abolition of the compulsory supervision of divorce cases would make separation much easier, the representative who had submitted the bill noted, “the goal of this law is not to make divorce more cumbersome, or divorce cases more difficult or more costly, but rather to ease the burdens on the Royal Court of Law.”39 This may seem like a cynical reply, but one cannot deny its logic. Easing the burdens on the Royal Court of Law and the civil courts in general, one of the consequences of which was the steep rise in the number of divorces, was intended to facilitate the effective enforcement of state law. The effective enforcement of state law was particularly important in both halves of the Monarchy, since the law was one of the most important tools in the hands of the government with which to integrate the ethnically and denominationally variegated peoples into one at least legally uniform society. In Austria the civil code of 1811 asserted the authority of the state in questions of matrimonial law. In Hungary this process was unquestionably belated, but Hungarian nationalism, which by the end of the nineteenth century had gathered considerable strength, made etatist tendencies more pronounced and placed tools at the disposal of the state in the interests of furthering not only social integration, but also cultural assimilation.40
The big question that remains, however, is what caused the sudden jump in the number of petitions for divorce in Hungary after 1895 and the subsequent continuous rise. For it was this jump that diverted the courts to a road that ran contrary to the intentions of the legislators, and eventually broke the resistance of the legal system. We should not delude ourselves with the hope that we will find an entirely adequate answer to this question on the basis of the contemporary statistics, but an examination of the changes that took place around the turn of the century in the composition of the groups of people seeking a divorce may offer some insights regarding the underlying reasons for this phenomenon. It may not provide us with any understanding of the expectations of the husbands and wives who sought a divorce, nor may it help us grasp their motivations, but it will enable us to learn more about the group of people who hoped to resolve their marital disputes once and for all in the civil courts. The statistics reveal two very important tendencies. One is the denominational shift in the composition of this group, the other is the social shift.
The extension of the right to divorce to include Catholics after 1895 undoubtedly gave momentum to the rise in the number of petitions for divorce and the number of actual divorces. True, we do not really have any statistic with which we can compare the proportion of Catholics among those seeking a divorce (they comprised 35 percent, this proportion rose to 40 percent only towards the end of the period under examination), but the change should be regarded as revolutionary, since for Catholics the dissolution of the bonds of marriage had previously been legally impossible. While we have no figures for the number of separations issued by the ecclesiastical courts, the mere appearance in the civil courts of people who had sought separations from the ecclesiastical courts could not possibly have caused the increase. One finds further confirmation of this in the fact that while legislators supported the assertion of Catholic dogma in civil law by maintaining separation from bed and board as a legally recognized option, until the outbreak of World War I a total of only 23 petitions for separation were approved in the entire country, which indicates that there was hardly any interest in this civil variant of the legal institution. The example of the Hungarian capital clearly indicates that with the enactment of the matrimonial law, the rise in the proportion of Catholics among the people seeking a divorce was not caused simply by the emergence among them of those who would previously have opted for conversion. In the matrimonial disputes over which the Budapest Royal Court of Law presided in the period between 1866 and 1895, the proportion of people who were either Catholic or who had converted to Catholicism in order to facilitate the procedure was 41 percent of the total number of people pursuing litigation. Following the enactment of the law of 1895, with the rise in the number of petitions for divorce this grew to 52 percent.41 (It is hardly likely that the number of conversions that took place in order to enable a couple to divorce in other parts of the country would have come close to the number in Budapest.)
The other important shift, alongside the removal of legal distinctions between denominations with regards to matrimonial law, was the broadening of the social base of the people seeking divorce. If one examines the national statistics regarding divorce, which go back to 1898, the rise in the proportion of industrial workers and agricultural day-laborers at the end of the nineteenth century is striking. The proportion of people subsumed under the statistical category that included industrial workers, day-laborers employed in industry, and factory workers rose from 4 or 5 percent to 11 percent. The proportion of agricultural day-laborers among people seeking a divorce, which before 1904 never went even as high as 10 percent, was consistently above 25 percent in the years leading up to World War I. At the same time, the proportion of people with characteristically middle-class occupations, who earlier had comprised a significant share of the people seeking a divorce, as well as the proportion of land-owning peasants dropped significantly. In the case of Budapest, the written documentation of divorce cases indicates that while the proportion of people from lower social strata among those seeking a divorce had already begun to grow earlier, this proportion grew significantly after 1900.42
In contrast with the shift that took place in the denominational composition of the group of people seeking a divorce, this transformation was by no means unique to Hungary. In Austria there was also a rise in the proportion of manual laborers (the category included factory workers, journeymen, miners, day-laborers and pieceworkers, and people employed in other non-independent occupations) among men seeking a divorce at the turn of the century. While in the period between 1884 and 1886 they comprised 17 percent of the divorcees and 18 percent in 1890–1892, in 1900–1902 and 1906–1908 this figure rose to 27 percent. The strikingly high proportion of agricultural workers among those seeking a divorce, however, was peculiar to Hungary. The proportion of peasants with small-holdings, for instance, dropped to 25 percent in the years just before the outbreak of World War I, but this figure nonetheless surpassed the corresponding figure of 9 percent for the category of “farmers, small-holders” in Austria.43 Thus the “democratization” of divorce in Hungary, which was one of the most important factors in the rise in divorce rates, cannot be as closely linked to enactment of the matrimonial law as the transformation in the denominational composition of the group of people seeking a divorce. Perhaps it was due in part to shifts in mentality, possibly something of a “renaissance” of marriage and the spread of the middle-class cult of the family. Whatever the hypothetical causes, it is quite clear that the formulation and realization of aspirations for social change were facilitated by a legal change that was not directly tied to the regulation of divorce, namely the expansion of litigation by right of poverty in forma pauperis.
While for the moment we are compelled, in the absence of the necessary statistics, to base conclusions about the rise in the use of litigation in forma pauperis on the complaints of the attorneys who were officially ordered to take up the defense of paupers, the tendency connected to the “demand” for social justice and the acknowledged function of the law as a tool of integration is unmistakable.44 Otherwise it would be impossible to explain how spouses who belonged to the lower social strata were appearing in ever larger numbers in the chambers of the royal law courts precisely at a time when people seeking a divorce were faced with obstacles that were entirely new and that naturally added to the costs of the litigation. Because the court files survived in a more complete form in Vienna, which accounted for more than one-third of the total number of divorces (which as noted earlier includes separations and annulments) in Austria, we know that after 1900 many husbands and wives involved in divorce cases requested free legal aid, although the costs they would have had to cover without free legal aid did not even come close to the costs in Hungary.45
Conclusion and Discussion
An examination of the evolution of matrimonial law in the Austro–Hungarian Monarchy, the divorce rates in Austria and Hungary, and judicial practice in both halves of the empire strengthens the doubts that have arisen recently concerning the modernization theory and the spread of divorce, at least with regards to the early stages of this process. The theory presumes and implies the homogeneity of “traditional societies” in that it presupposes the general stability of the family as allegedly necessitated by exterior forces and characterizes the destabilization of the institution of the family, which is the alleged cause of the spread of divorce, as a process that was closely intertwined with economic and social transformations. The use of this model to explain the demographic shifts that took place in the Austro–Hungarian Monarchy with regards to divorce, however, is encumbered by numerous problems. For instance, the different directions in which the legal systems in Austria and Hungary developed with respect to matrimonial law and the differing legal regulations regarding divorce resulted in higher divorce rates and a more abrupt rise in divorce rates in Hungary in spite of the fact that the economic and social transformations in the (western) Cisleithanian provinces were considerably more advanced than in Hungary. As an examination of the regional divorce rates demonstrates, there is no connection between the rise in divorce rates within the individual systems of jurisprudence and economic development, or if there is, it is only discernible in the case of the larger cities. The high rate of divorce in Bukovina (in the case of Austria) and Transylvania or Banat (in the case of Hungary) can hardly be explained by the modernization theory.
The example of Hungary, a country in which the rise in divorce rates at the turn of the century was abrupt, is revealing. Not only do the distinctive trends in divorce rates broken down by region not corroborate the suppositions of modernization theory, the social factors behind the spread of divorce also do not correspond to the expectations one would have. Seemingly paradoxically, in Austria, where divorce rates rose much more slowly, the significance of urbanization was much more pronounced than in the other half of the Monarchy. In Hungary, after 1900 the role of the large cities (which was not decisive in the first place) actually declined with the spread of divorce. Regarding the occupational composition of the group of people seeking a divorce, the sources clearly demonstrate that peasants with small holdings, agricultural workers and servants comprised an increasingly large proportion (in time more than 50 percent) of this demographic shift. While the proportion of peasants with small holdings within the agricultural sector declined, in the years leading up to World War I they still accounted for one-fourth of the divorces in Hungary. (In Austria, the rise in divorce rates in Bukovina was also largely the result of divorce proceedings initiated by peasants with small holdings.)
The example of the Hungarian half of the empire is also notable from the perspective of the regulatory role of the law. Unquestionably the rise in divorce rates reflects a shift in the nature of family ties. However, in my assessment the legal system, legal traditions, and legal changes did more than merely facilitate the early spread of divorce. The divorce rates in Transylvania clearly indicate the importance of changes in the concrete political power relations. They also reflect the significance of the extent to which a particular law had become an integral part of the value system of a given community. (The data on Transylvania belie the misconception according to which the low rate of divorce in so-called “traditional societies” can be attributed to structural causes and objective compulsions.) Political factors, including the conflict between the Habsburg House and the Hungarian Estates and the nation-state political ideals of the liberal opposition, all played a role in the breakthrough with regards to divorce in Hungary in the middle of the nineteenth century. In Austria, where there were no similar tendencies and where the Catholic Church remained very influential, the law moved in another direction, or rather it essentially came to a standstill with the introduction of marriage as a civil union. In contrast, the enactment of the Hungarian matrimonial law offers a revealing example of the interrelationship between social forces and legal shifts. While in the stable legal context of the Austrian provinces the rise in divorce rates was consistently moderate, in Hungary legal reforms at the turn of the century caused divorce rates to rise sharply. Matrimonial law put many obstacles in the path to divorce, but by opening wide the legal gates, it set off a process that provided its own momentum. The flood of petitions for divorce resulted in less stringent judicial practice and compelled the state to ease the legal procedures in divorce cases.
With regards to the regulatory power of the law, it is worth noting the culturally different application of the institution of divorce. Economic causes played only an indirect role in the rise in the number and proportion of divorces. In contrast, one can cite several examples demonstrating that not only was social access to the legal institution different denominationally and socially because of legal or financial reasons, but legal divorce itself was different depending on the religious and/or regional traditions and the value systems of the various social groups, what one might call “informal law.” The serious marital conflicts of Transylvanian Protestant peasants probably ended in the majority of cases with the dissolution of the marriage by the court. This may have been true in the case of marital conflicts among Jews as well, though these issues only rarely went beyond the religious communities, which stuck to their traditions, and for the most part never made it to the civil courts. In general members of wealthy social strata were also compelled to settle their marital conflicts by legal means, though this didn’t always necessarily mean a divorce case. However, for the better part of the nineteenth century this was not true of members of the working class who were born in the large cities or the rural (Catholic) peasantry.
The fact that, as of the end of the nineteenth century, legal solutions to marital conflict and, among them, sooner (Hungary) or later (Austria) the dissolution of the bonds of marriage began to prevail was due first and foremost not to the influence of economic processes, but rather to the complex interplay of power relations, social demands, changes in the law, and shifts in jurisprudence. Thus an ever-larger proportion of failed marriages ended in legal divorce, washing away the aforementioned cultural differences and gradually making strikingly divergent social practices more uniform to some degree. The cultural diversity of the Austro–Hungarian Monarchy on the one hand and the efforts of the state, in particular in Hungary, to promote social and national integration on the other cast the problem in a particularly sharp light and show the responses and reactions with which it met. In this regard, the assertion and strengthening of state purview of Jewish marriages, which took place parallel with the process of emancipation, is paradigmatic. This expansion of state authority resulted in an increase in the number of divorces, but only according to the official statistics. But this constituted not simply an attempt to undermine the competency of the organs of the Jewish religious communities, but rather the displacement by the state courts of their Church rivals, as well as, in the case of Hungary, the assertion of a civil code that was independent of denominational traditions and the expansion of the authority of the state to include the affairs of Catholic, Orthodox, and Protestant married couples. Parallel with legal regulation and official intervention that was intended to facilitate the “normalization” of family relations, the assurance of the ability of members of lower social strata to pursue legal action was an additional factor, alongside the shifts that took place in role of denominational difference. In this context it is understandable that the government and the courts did not take more aggressive measures to reduce the unquestionably alarming rise in the number of divorces. As a legal institution, divorce paradoxically was a tool of social integration, and the state saw the rise in the number of divorces as at most an unpleasant but necessary concomitant of this process.
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1 This essay was made possible by the Balassi Institute – Hungarian Scholarship Board, which provided a fellowship for residence at the Collegium Hungaricum in Vienna in the summer of 2005, the spring of 2012, and the autumn of 2013.
2 William J. Goode, World Revolution and Family Patterns (New York: The Free Press of Glencoe, 1963), 27–86. Roderick Phillips, Putting Asunder. A History of Divorce in Western Society (New York: Cambridge University Press, 1988), 361–402, 591–600.
3 Phillips, Putting Asunder, 582–83. Lotta Vikström, Frans Poppel, and Bart Van de Putte, “New Light on the Divorce Transition,” Journal of Family History 36 (2011): 107–9.
4 William J. Goode, World Changes in Divorce Patterns (New Haven: Yale University Press, 1993), 214–50. Japan is a paradigmatic example. In the era of capitalist development leading up to World War II, divorce rates continuously declined. See Harald Fuess, “Als Japan die Welt anführte. ‘Das Land der schnellen Eheschließung und der schnellen Scheidung,’ 1870–1940,” Nachrichten der Gesellschaft für Natur- und Völkerkunde Ostasiens e. V. 171–172 (2002): 75–92.
5 Gail Savage, “Divorce and the Law in England and France prior to the First World War,” Journal of Social History 21 (Spring 1988): 500.
6 Olive Anderson, “State, Civil Society and Separation in Victorian Marriage,” Past and Present 163 (1999): 161–201. Samuel Pyeatt Menefee, Wives for Sale. An Ethnographic Study of British Popular Divorce (Oxford: Basil Blackwell, 1981); Ginger S. Frost, Living in Sin: Cohabitating as Husband and Wife in Nineteenth-Century England (New York: Manchester University Press, 2008), 96–122.
7 My use of the term “Hungary” in this essay does not include Croatia, which constituted a distinct jurisdiction. Regrettably, there are neither contemporary statistics nor the necessary historial inquiries for an examination of demographic shifts related to divorce in Croatia. Until the middle of the nineteenth century Hungarian matrimonial law was in effect. After this essentially the Austrian matrimonial law of 1856–1868 was adopted. See Ljiljana Dobrovšak, “Ženidbeno (bračno) pravo u 19. stoleću u Hrvatskoj,” Croatica Christiana Periodica 29 (2005): 77–104. An examination of demographic shifts in Bosnia, which was occupied and then annexed by the Monarchy, is also not possible due to a similar dearth of sources.
8 1894: Statute XXXI in Magyar Törvénytár. 1894–1895. évi törvényczikkek, ed. Dezső Márkus (Budapest: Franklin-Társulat, 1897), 174–93. To date, the best survey of the evolution of matrimonial law in Hungary is the general part of the ministerial justification of the proposed law: Az 1892. évi február hó 18-ára hirdetett Országgyűlés Főrendi Házának irományai, vol. 8 (Budapest: Pesti Könyvnyomda-Részvény-Társaság, 1894), 201–64. With respect to Austria: Werner Ogris, “Die Rechtsentwicklung in Cisleithanien 1848–1918,” in Die Habsburgermonarchie 1848–1918, ed. Adam Wandruszka and Peter Urbanitsch, vol. 2, Verwaltung und Rechtswesen (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1975), 591–93.
9 Ulrike Harmat, Ehe auf Widerruf? Der Konflikt um das Eherecht in Österreich 1918–1938 (Frankfurt am Main: Vittorio Klostermann, 1999), 17–24.
10 Figure 1 and the published statistics on which this essay is based: Karl Hugelmann, “Die Ehelösungen in Oesterreich in den Jahren 1882 und 1883,” Statistische Monatschrift 11 (1885): 1–21; Oesterreichische Statistik. Die Ergebnisse der Civilrechtspflege in den im Reichsrathe vertretenen Königreichen und Ländern im Jahre [1884–1909] (Vienna: K. K. Statistischen Central-Commission, [1888–1912]); Österreichisches Statistisches Handbuch [1910–1913] (Vienna: K. K. Statistischen Central-Commission, [1912–1916]); Statistisches Jahrbuch der Stadt Wien für das Jahr [1884–1913] (Vienna: Verlag des Wiener Magistrates, [1885–1916]); Tivadar Szél, A budapesti házasságok (Budapest: n.p., n.d. ), 302; A M. Kir. Kormány [1901–1913.] évi működéséről és az ország közállapotairól szóló jelentés és statisztikai évkönyv (Budapest: [1902–1915]); Budapest Székes Főváros Statisztikai Évkönyve [1894–1912] (Budapest: Budapest Székes Főváros Statisztikai Hivatala, [1896–1914]). It is worth noting that I am consistently including among the divorces in Austria the “separations from bed and board” and the annulments, which because of restrictions on research on the ecclesiastical archival material is only possible in the case of Hungary as of 1895, at which time the number of these kinds of matrimonial cases dwindled to virtually nothing. It is also important to note that the raw figures for divorce in Hungary before 1896 were much higher.
11 On the international comparison of divorce rates, see Phillips, Putting Asunder, 585. For ratios of newly concluded marriages, see Béla Tomka, Családfejlődés a 20. századi Magyarországon és Nyugat-Európában: konvergencia vagy divergencia? (Budapest: Osiris, 2000), 127.
12 Adam Wandruszka and Peter Urbanitsch, eds., Die Habsburgermonarchie 1848–1918, vol. 4, Die Konfessionen (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1985), Tabelle 3. (Die Konfessionelle Gliederung der Bevölkerung Cisleithaniens 1869–1910), and 282–83. A Magyar Szent Korona Országainak 1910. évi népszámlálása. Első rész: A népesség főbb adatai községek és népesebb puszták szerint (Budapest: Magyar Kir. Központi Statisztikai Hivatal, 1912), 8.
13 The 1790: Statute XXVI, point 11 proclaims the reassertion of the jurisdiction of the Church in marital affairs. Dezső Márkus and Kálmán Csiky, eds., Magyar Törvénytár. 1740–1835. évi törvényczikkek (Budapest: Franklin-Társulat, 1901), 175–77.
14 Kornél Sztehlo, A házassági elválás joga Magyarországon és az ország erdélyi részeiben (Budapest: Franklin-Társulat, 1890), 32–33.
15 1844: Statute III, paragraphs 5–11. Dezső Márkus, ed., Magyar Törvénytár. 1836–1868. évi törvényczikkek (Budapest: Franklin-Társulat, 1896), 199.
16 Sztehlo, A házassági elválás joga, 87.
17 1868: Statute XLVIII Addressed the question of divorce in cases of mixed marriages. Magyar Törvénytár 1836–1868, 500–1. On conversions and their legal force, see 1868: Statute LIII, paragraphs 1–8, ibid., 501.
18 Allgemeines Bürgerliches Gesetzbuch für die gesammten Deutschen Erbländer der Oesterreichischen Monarchie, I. Theil (Vienna: k. k. Hof und Staatsdruckerey, 1811), 41.
19 Waltraud Heindl, “Aspekte der Ehescheidung in Wien um 1900. Grenzen und Möglichkeiten der Erforschung des Problems,” Mitteilungen des Österreichischen Staatsarchivs 33 (1980): 218–46. Harmat, Ehe auf Widerruf?, 24–72. Margarete Grandner and Ulrike Harmat, “Begrenzt verliebt. Gesetzliche Ehehindernisse und die Grenze zwischen Österreich und Ungarn,” in Liebe und Widerstand. Ambivalenzen historischer Geschlechterbeziehungen, ed. Ingrid Bauer et al. (Vienna–Cologne–Weimar: Böhlau Verlag, 2005), 287–304; Ulrike Harmat, “Divorce and Remarriage in Austria–Hungary: The Second Marriage of Franz Conrad von Hötzendorf,” Austrian History Yearbook 32 (2001): 69–103; Sándor Nagy, “Osztrák válások Erdélyben 1868–1895. Otto Wagner erdélyi házassága,” Fons. Forráskutatás és Történeti Segédtudományok 14 (2007): 359–428.
20 As of 1910 the statistics on divorces in Austria do not indicate the number of divorces among Orthodox separately, so it is not possible to assess the potential increase in their significance. Oesterreichische Statistik, Die Ergebnisse der Civilrechtspflege [1884–1909.], Österreichisches Statistisches Handbuch [1910–1913.]
21 A M. Kir. Kormány [1901–1913]. évi működéséről.
22 Réka Kiss, Egyház és közösség a kora újkorban. A Küküllői Református Egyházmegye 17–18. századi iratainak tükrében (Budapest: Akadémiai, 2011), 99–145; Sztehlo, A házassági elválás joga, 37–44.
23 The 1791: Statute XXXIV in Transylvania reestablished the jurisdiction of the Churches in the province. See Dezső Márkus, Sándor Kolosvári, and Kelemen Óvári, eds., Magyar Törvénytár. 1540–1848. évi erdélyi törvények (Budapest: Franklin-Társulat, 1900), 529. Later the enactment of the Austrian civil code did not affect the Protestant Church courts: “Kaiserliches Patent vom 29. Mai 1853,” Reichs-Gesetz-Blatt für das Kaiserthum Oesterreich, 31(1853) (Stück. 7, Juni 1853). Following the Compromise of 1867 cases involving marriages between Protestants in Transylvania remained within the sphere of authority of the Churches. 1868: Statute LIV, paragraph 22, Magyar Törvénytár 1836–1868, 511.
24 Zsuzsanna Kolumbán, “A házasságok felbontásának joga és az erdélyi református egyház a 19. században,” in Jogi néprajz – jogi kulturtörténet. Tanulmányok a jogtudományok, a néprajztudományok és a történettudományok köréből, ed. Barna Mezey and Janka Teodóra Nagy (Budapest: ELTE Eötvös Kiadó, 2009), 450.
25 Bogdan Crăciun, “Three paradoxes of the Family History or Divorce, Lutheran Style,” in Families in Europe between the 19th and the 21th Centuries. From the Traditional Model to Contemporary PACS, ed. Antoinette Fauve-Chamoux and Ioan Bolovan (Cluj-Napoca: University Press, 2009), 651.
26 Erdélyi Unitárius Egyház Központi Gyűjtőlevéltára. Főpapi Törvényszék ülésjegyzőkönyvei 1869–1895. When compiling the statistics I made every effort not to include divorces that had been obtained through migration or conversion (in other words divorces that had been granted by Unitarian courts, but initiated by couples who had not initially been Unitarians and had either migrated and/or converted).
27 In Austria the divorce statistics for 1907 and 1908 include the number of divorces pronounced by the courts in the large cities, but the territorial jurisdiction of these courts (with the exception of Vienna) extended far beyond the administrative area of the city. The divorces that were pronounced constituted 59 percent of the total number of divorces (data from the court in Innsbruck for 1907 were not published), hence the estimate of 50 percent. Cities that numbered more than 50,000 inhabitants but did not have a court were: Pilsen, Königliche Weinberge, Zizkow, Pola, Przemysl, Smichow.
28 Among the Saxons divorce rates in some of the entirely rural seats in the period between 1886 and 1890 were higher than the divorce rates in the city of Nagyszeben or Sebes: Crăciun, “Three Paradoxes,” 652.
29 Hugelmann, “Die Ehelösungen,” 9.
30 Lois C. Dubin, The Port Jews of Habsburg Trieste. Absolutist Politics and Enligthtenment Culture (Stanford: Stanford University Press, 1999), 174–97. Lois C. Dubin, “Jewish Women, Marriage Law, and Emancipation: A Civil Divorce in Late-Eighteenth-Century Trieste,” Jewish Social Studies: History, Culture, Society 13 (2007): 65–92.
31 ChaeRan Y. Freeze, Jewish Marriage and Divorce in Imperial Russia (New England–Hanover: Brandeis University Press, 2002), 157, 148–59.
32 Decree 17619 of the Ministry of Religion and Education, issued in September 27, 1878: Magyarországi Rendeletek Tára 12 (1878): 774–83.
33 Magyar-Zsidó Szemle (1889): 28–29.
34 Dávid Kohn, “Zsidó népmozgalmi statisztika,” in Az Izraelita Magyar Irodalmi Társulat Évkönyve, ed. Vilmos Bacher and Ferenc Mezey (Budapest: n.p., 1895), 35–40.
35 For more on the example of Budapest, see Sándor Nagy, “A házasság felbontása Budapesten (Pest-Budán) a 19. században” (PhD diss., Eötvös Loránd University, 2012), 201–3. Reaching similar conclusions regarding the judicial practice of the Royal Court of Pécs: Csabáné Herger, A nővételtől az állami anyakönyvvezetőig. A magyar házassági köteléki jog és az európai modellek (Budapest–Pécs: Dialóg Campus Kiadó, 2006), 192–95.
36 A M. Kir. Kormány [1901–1913]. évi működéséről.
37 Budapest Főváros Levéltára, VII.2.c. Budapesti Királyi Törvényszék peres iratai, 1900, V. irattári osztály; Nagy, “A házasság felbontása Budapesten,” 201.
38 1907: Statute XVII, paragraphs 6–7, in Magyar Törvénytár. 1907. évi törvényczikkek, ed. Dezső Márkus (Budapest: Franklin-Társulat, 1908), 174–78.
39 Az 1906. évi május hó 19-ére hirdetett országgyűlés Képviselőházának naplója, vol. 7 (Budapest: Pesti Könyvnyomda-Részvény-Társaság, 1907), 207–8.
40 It is characteristic that at the time the Hungarian matrimonial bill and the necessity of the introduction of marriage as a civil institution were justified with the following argument: “the individual Churches, both in their organization and in their liturgies, rest on foundations of national belonging, and the Churches’ jurisdiction over matrimonial law also emerges as the jurisdiction of the nationalities.” Justification of the bill “on matrimonial law.” General justification: Az 1892. évi február hó 18-ára hirdetett országgyűlés Képviselőházának irományai, vol. 15 (Budapest: Pesti Könyvnyomda-Részvény-Társaság, 1894), 44.
41 Nagy, “A házasság felbontása Budapesten,” 28–29.
42 The proportion, among the people involved in divorce proceedings in Budapest, of artisan assistants, shop assistants, day-laborers, office workers and attendants, as well as other tradesmen who were probably also not professional independent was (taken as a group) 29 percent in the cases initiated in 1866–1880, 34 percent in 1881–1895, and 50 percent in 1896–1910. Nagy, “A házasság felbontása Budapesten,” 32–33, 181.
43 One cannot compare the entire agricultural sector, because the Austrian court statistics include agricultural day-laborers, servants, and domestics among the workers.
44 Nagy, “A házasság felbontása Budapesten,” 96–97. According to this, in the 1890s the administrative practice of issuing certificates of poverty became more consistent and the countersignature of a clergyman, which had been customary, was no longer necessary. This was particularly significant for poor Catholics who were preparing for a divorce case.
45 Heindl, “Aspekte der Ehescheidung in Wien,” 228. My research on divorce cases in Vienna in the period between 1898 and 1910 confirms the spread of divorce cases initiated with free legal aid.