Il divorzio imperfetto: I giuristi medievali e la separazione dei coniugi (review)

The formation and dissolution of marriage is vitally important, not only to the parties involved but also to historians who study medieval society. Marchetto’s investigation of the canon law dealing with divortium a mense et thoro, or “incomplete divorce,” as he calls it, is a magisterial treatment of the development of a central, if sometimes puzzling, element in the matrimonial law of the medieval church.

Separation from bed and board was a creation of medieval Western canon law and had no direct parallels in Roman, Jewish, Byzantine, or Germanic law. As Marchetto demonstrates, the concept originated among teachers of canon law and theology in medieval universities, was subsequently incorporated into ecclesiastical law, and still survives in one form or another as an alternative to “complete” divorce, which in modern Western legal systems carries the right of remarriage.

Marchetto divides his book into three parts. The first and longest of them (pp. 21–231) deals with the development of doctrine concerning marriage and divorce among medieval canonists, civilians, and theologians. Part 2 (pp. 235–324) outlines the gradual crystallization of a procedural system for handling separation cases, while part 3 (pp. 327–426) analyzes the grounds on which a separation might be granted. A concluding section (pp. 427–41) summarizes Marchetto’s arguments and is followed by an impressively comprehensive bibliography (pp. 443–91). The author limited the index at the end to personal names and hence excludes subject entries. This is a pity, especially in a work of this size and complexity, although the detailed table of contents at the beginning of the book provides at least a modicum of help for those who wish to locate his treatment of a particular matter.

One especially fascinating topic among the many that Marchetto treats is his investigation of the emergence of cruelty (saevitia) as a ground for marital separation. What makes this so unusual is that it first appeared in the writing of Bulgarus, a teacher of civil law, was then adopted and developed by later twelfth- and thirteenth-century canonists and theologians, and was widely accepted by church courts as a legitimate basis for granting separations long before it was formally approved and incorporated into the official texts of canon law.

Marchetto’s book centers almost exclusively on the development of academic doctrines concerning marital separation and pays scant attention to the actual practice of courts and judges. Although it seems true that judges usually did follow the formal prescriptions found in the texts of the Corpus iuris canonici and the interpretations of those texts current among university teachers of canon law, it has become increasingly clear that regional variations from the doctrinal norms were not entirely uncommon. To understand how the law concerning marital separation was actually implemented in practice, therefore, requires investigation of the surviving case records of ecclesiastical courts. Those records are widely scattered and often difficult to access, and scholars have begun to study them systematically only in recent years. A realistic understanding of the workings of marital separation law thus requires that Marchetto’s treatment be supplemented by consultation of case record studies such as Coniugi nemici: la separazione in Italia dal XII al XVIII secolo, ed. Silvana Seidel Menchi and Diego Quaglioni (Bologna, 2000) or Charles Donahue, Jr.’s Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts (New York, 2007).