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Introduction Es más facil atar que desatar. (It is easier to bind than unbind.) —Spanish saying¹ In early modern northern Spain the church made marriages; and despite its own claim that matrimony was permanent, the church allowed divorces too. When church courts issued annulments, they bent and fitted Catholic laws in such a way as to appease the stubborn interests of beleaguered wives and husbands wanting to end their time in the purgatory of marriage. The Catholic Church still does this today, bureaucratically permitting huge numbers of annulments to couples divorcing in secular courts.² This book explores the most notorious type of trial in ecclesiastical courts: those in which an annulment , the equivalent of a divorce, was granted on grounds of impotence. Impotence was a very successful pretense for winning an annulment. Probably as a result, it was by far the most common basis for annulment in the busy church court of Calahorra and La Calzada.³ By contrast, the small number of couples that asked the court for annulments on grounds of incest/ consanguinity, lack of consent, or unequal status nearly all lost their pleas. Aside from the sexual notoriety and the curiosity that impotence cases elicit, there are several reasons to study them. Most importantly, they demonstrate instances when women were able to litigate against their husbands. In fact, nearly all the demands for annulment were brought to the court by women against their male spouses. The church court was one of the few venues, and perhaps the only legal one, in which women could act independently to prosecute their husbands. Contrast this with secular courts and legal procedures in which, unless she were a widow, a woman had to be represented by a man who would speak in her name: a father, husband, or brother. Another significant aspect of impotence trials is that litigants clearly used these annulments as forms of de facto divorce. In some cases, in fact, litigants freely switched their pleas from separation to annulment and vice versa. A smaller number of plaintiffs were so uncertain whether to ask the court for a separation or an annulment that they allowed the judge to decide which plea seemed most plausible. Annulments based on impotence, like separations resulting from battery, were clearly early modern Catholic precedents to modern divorce. At least three facts permitted a discussion of divorce in a Catholic legal system that did not recognize it. First among these, if we limit ourselves to the language of the day, both separations and annulments were commonly and legally called divorcio: divorce. Clearly, in the parlance and mentality of the day divorce existed, with remarriage permitted in the case of annulments. Second, the physical, social, and financial conditions that were part of Catholic annulments were just like modern divorces: the wife’s titular property (dowry) was returned to her, the property accumulated during marriage was split between the couple, and even restraining orders could be promulgated to prevent menacing husbands from harming their wives. Finally, customary divorce was plainly present in the Basque and Spanish mentality. Plays, proverbs , and the records of public notaries reveal that, whether legally permitted or not, divorce was an option in the minds of early modern women and men.⁴ What else could explain the wife in Cervantes’ one-act play The Divorce Judge who demands “Divorce, divorce, divorce. A thousand times divorce !”⁵ For all these reasons, throughout this investigation I will use the word divorce when referring to separations and annulments.⁶ It was, after all, the word the litigants used. The church’s position, however, was that it never allowed the breaking of a legitimate marriage. This statement is true because the church could decide whether a “legitimate matrimony” existed or not by making use of complex and equivocal arguments.⁷ Though ratified by consummation and consent, for instance, Henry ’s marriage to Catherine of Aragon was eventually annulled using a sophistry alleging consanguinity because Catherine had married Henry’s brother Arthur decades earlier.⁸ That the church never allowed the dissolution of a legitimate marriage is also true because, no matter how permanent the physical and economic separation of a husband and wife, they were still married in the eyes of God. Roderick Phillips, one of the foremost historians of European divorce, also rejects the idea that the Catholic Church allowed divorce.⁹ He argues, first, that early modern Catholic divorcio was far removed from modern divorce because it did not allow for remarriage.¹⁰ To accept this, however, one must assume that the...

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