A Living Law: Divorce Contracts in Early Modern Russia

GEORGE DANDIN: Ah! I give it up altogether, and I can see no help for it. When one has married, as I have done, a wicked wife, the best step which one can take is to go and throw one's self into the water, head foremost.

—Molière

The historiographical reconstruction of early modern Muscovite divorce and remarriage law and practices was initiated at the end of the 19th century by Russian legal historians as an erudite prerequisite to the study of modern Russian family law or, alternatively, as a part of comparative law studies.¹ All but abandoned for many decades, it was resumed not long ago from a different and broader perspective. Gregory Freeze and Daniel Kaiser were the first to introduce the analysis of marriage law and practices into two distinct, though connected, discussions about, first, the place and role of Orthodoxy in different strata of early modern Russian society and, second, the evolution of the extent and efficiency of church and state control over the tsar's subjects. The evidence about divorce and remarriage practices collected by Freeze tends to reinforce his general argument that, at least at the popular level, Orthodoxy exerted but weak spiritual authority, while the church was unable to monitor its adherents effectively until the 1760s.² Kaiser uses the same kind of material to argue, on the contrary, that the majority of Muscovite Christians had appropriated fundamental elements of Christian practice by the 17th century, while the church administration was far from impotent before parishioners.³

This contradiction suggests that citing divorce and remarriage practices in broader discussions of religiosity may be premature, for our source base remains insufficient: we simply do not have a coherent picture of practices either locally or across the entire empire. The present article aims to enrich this source base, focusing on a practice of divorcing by contract without the intervention of the church court. It synthesizes preceding research on so-called divorce letters (razvodnoe pis´mo, otpusknaia gramota, svobodnoe pis´mo, zapis´) and adds a proportionally significant number of newly discovered contracts, which allows us to take a step forward in elaborating a more complete and, in fact, a more consensual picture. On the one hand, the material presented in this article corroborates and enhances the vision of severe limitations upon the power of the church courts to control divorce and remarriage among the provincial populace. On the other hand, the same materials show that divorcing outside the church institutions did not automatically indicate the rejection of Christian rules or values. Men and women who chose to divorce by contract did not exhibit less formal respect for Orthodox principles than those who duly subjected themselves to episcopal authority.

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The study of divorce and remarriage practices throughout the medieval and early modern Christian world encounters serious difficulties due to the lack of sources. Deeply influenced by the church doctrine of indissolubility of marriage, Catholic societies, and even Protestant ones (despite the Reformists' rejection of the sacramental status of matrimony), do not constitute propitious contexts for the study of these practices, for when they existed, people tended to hide them.⁴ Eastern Slavic Christendom presents a somewhat different case. Here a relatively liberal Byzantine marriage law prevailed for a very long time. In certain countries it continued to function well into the 19th century.⁵ In Russia, the authorities started to develop an uncompromising church doctrine and powerful law enforcement mechanisms in the 1720s, and progressively transformed their divorce and remarriage policy into one of the most draconian in Europe. But prior to this shift, the tsar's subjects, in contrast to Western Christians, did not have an especially strong incentive either to repress a need for divorce and remarriage or to conceal these practices. While early Russian sources of this kind are astonishingly scanty, the cause for this silence should be imputed more to the historically unfavorable conditions in the creation and preservation of family archives than to the rarity of the practice.⁶

Furthermore, for the whole of Europe, available sources are primarily judicial documents...