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Conclusion
- University of Nevada Press
- Chapter
- Additional Information
Conclusion Quien hizo el casamiento hizo el apartamiento. (Whoever made marriage made divorce.) —Spanish saying¹ When scholars explain the development of modern loans at interest, they rarely neglect its roots in Catholic Europe even though the Catholic Church disavowed interest and punished usury as a sin. In Spain, good Catholics earned interest on loans by, among other ruses, utilizing the censo al quitar.² The censo al quitar allowed a borrower to temporarily sell land to a creditor and then lease it from him for a predetermined period of time at a price usually percent higher than his selling price. The land would revert to the original seller at the end of the lease. Catholic separations and annulments form a basis for the history of modern divorce in much the same way that the censo al quitar does for the history of credit. The Catholic Church banned divorce as it did usury, but separations and annulments fulfilled the common need for divorce just as the censo al quitar satisfied people’s need for credit. The development of modern divorce is most often portrayed as revolutionary rather than evolutionary. Lawrence Stone, for instance, engages in clear exaggeration to show the vast difference between divorce in old-regime Europe and contemporary divorce: “Eight hundred years ago, in the Christian West, the highly restrictive moral code of the medieval canon law made divorce virtually impossible, except for the very rich and powerful. . . . By way of contrast, a few years ago a judge in America casually granted one woman no fewer than sixteen divorces in eleven years.”³ Recent studies have treated divorce as a modern phenomenon that appeared first with the Reformation and became consolidated with the social changes that resulted from the Enlightenment. In this progressive history of divorce, affection and disaffection are the new modern factors that propelled demands for divorce and remarriage in the nineteenth and twentieth centuries.⁴ This focus on affection places a great importance on adultery as the primary motivation for divorce . The preoccupation with love-based marriages also assumes that remarriage is the proper and principal goal of divorce. In this “revolutionary” history of divorce, several historians define Protestant divorces as the only true divorces in the modern era. “Real divorce,” writes Beatrice Gottlieb, “legal dissolution and permission to remarry during the lifetime of the first spouse—was written in the laws of Protestant countries.”⁵ Catholic divorces Conclusion become ignored rather than being included as an important model for modern divorce. Sixteenth-century reformers loudly derided Rome’s refusal to allow divorce and remarriage; however, their concerns were almost entirely over adultery and, most importantly, the ability of men to divorce women. Reformers like Calvin wanted to ensure that men be allowed to divorce and remarry on grounds of adultery and severe disaffection.⁶ Religous reformers generally ignored wife battery as grounds for divorce; Calvin himself denied divorce to an abused wife who had lost an eye, and sent her back to live with her husband.⁷ However, the Protestant fight with Rome over divorce need not be the central event in the history of modern divorce. Not only did sixteenth-century reformers ignore abuse as an important motive for divorce, but they wrote from a male perspective because they were principally concerned with disaffection and extramarital affairs as reasons for divorce. Rarely did men, after all, file for divorce because they were physically abused. Rather, men were and are more likely to divorce a first wife in search of a second. Most divorces today, however, are begun by women. And a large percentage of women who seek divorce do so out of disaffection, to protect themselves and their children from abusive husbands.⁸ Early modern Catholic annulments, which had as their aim the ending of marriages, were clearly predecessors to many modern divorces that share these goals. As Jeffrey Watt stated so well: “The separation of body and property [the separation from hearth and cohabitation] should be viewed as a logical step in the evolution of divorce.”⁹ Roderick Phillips has refuted the assumption of a generation of historians of marriage who considered annulments as a means of de facto divorce in medieval and early modern times. According to the earlier view, annulments based on consanguinity were easy to procure in medieval Europe and served medieval Europeans as the equivalent of modern divorce. Phillips has pointed to research that suggests annulments were, in fact, not easily obtained, especially on the pretext of consanguinity. My own research indicates that Phillips is correct in...