Until infidelity or impotence do us part – the history of divorce in Norway

May 20, 2017 - 06:20

The history of divorce reveals hidden stories of love, domestic violence and societal ideals for a healthy marriage.

The two people on the photograph are probably Herbjørn Østensen Svalestuen and his wife Torbjørg O. Svalestuen, photographed in their house around the year1907. (Photo: Ole O. Bakke/Norsk Industriarbeidermuseum)

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This article was originally published on Kilden - Information and news about gender research in Norway. Read the original article.

“He dragged her by the hair into the gutter,” recalled Doc. Henrik Høyer, testifying for Karine Matsdatters in her divorce case from 1608. “I did drag her by the hair, but not into the gutter,” her husband Nils Jonssøn corrected.

They came to the Cathedral annex in Bergen to expose the history of their marriage in the hope of breaking their marriage pact. Every single word of the dialogues was carefully written down in detailed protocols.

“It could be very chaotic,” says historian Hanne Marie Johansen. She did her PhD in  on the history of divorce in 1998.

“Particularly the first half of the 17th century. The legal culture was spontaneous; people could just enter and chitchat with the judges. Women brought their friends into the alleys and persuaded them to give testimony about their husbands coming home drunk and acting abusive towards their wives.”

Contrary to what many may believe, namely that divorce was reserved for the elites, the legal protocols show that the couples come from all layers of society. The poor weren’t charged any legal costs.  

“There is much family history in legal documents,” says Johansen.

She is contributing with an article in a special issue of Scandinavian Journal of History that focuses on divorce. 

“Through the study of the history of divorce we can gain insight into what was considered normal. Where did they draw the boundaries concerning the punishment of wife and children for instance? We gain access to the prevalent attitudes of the popular culture.” 

Impotence – yes, violence – no

Divorce policy is the topic of Johansen’s last article on the Norwegian history of divorce. The history begins with the reformation, which celebrates its fifth centennial this year.

“The reformation altered our perception of marriage,” says Johansen.

“Celibacy became inferior of marriage, and the clergy were allowed to marry. Luther fronted this by marrying a nun, and promoted family life as the greatest joy in life.

Moreover, divorce was permitted.

“Within the Catholic faith marriage is still a sacrament. Protestantism departed from the principle that marriage was insoluble,” says the historian.

Luther and other reformers found the grounds for permissible divorce in the Bible. Three grounds were identified: infidelity, desertio – when one of the partners leaves or disappears, and impotence.

During the 16th and 17th centuries, domestic violence was heavily debated as a possible ground for divorce. Luther eventually concluded that domestic violence was not an acceptable reason for divorce, but other reformers disagreed.

Norway’s first legal act on the issue was Fredrik II’s ordinance on marriage issues from 1582, in which divorce was made legal in accordance with the three recognised biblical grounds.

“The marriage ordinance was basically just inserted into later legislation. Therefore, you may say that the 1582 act was valid on paper until we got a new marriage act in 1909,” says Johansen.

More women applied for divorce

Divorce was not common in Norway during this period. There were perhaps four or five instances each year in the late 1500s and around ten each year during the 1600s.

The cases were tried in the so-called chapter court, often led by the bishop. The main reason why people applied for divorce was desertio, that the husband, and perhaps in exceptional cases the wife, had disappeared. This applied to two thirds of the cases. Therefore, until the 18th century the majority of those who applied for divorce were women. 

The rest of the cases concern infidelity. In Karine and Nils’ case above – where he dragged her by the hair, though not into the gutter – it wasn’t the violence that granted Karine her divorce. It was the fact that Nils had a child with someone else – he had obviously been unfaithful to his wife.

“In some cases violence, fighting, or financial deceit is clearly the actual reason,” says Johansen.

“But they needed the infidelity card in order to be granted divorce.”

Therefore, according to the legislation intended infidelity in order to achieve divorce was not acceptable.

“One woman said straight out that she had been unfaithful in order to be granted divorce. As a result, her application was rejected.”

Around two thirds of the partners accused of infidelity were men, one third were women.

“This says a lot about the culture,” according to Johansen.

“In principle, women had some rights. In some cultures, infidelity is something that women in particular should avoid getting into. The legislation and the legal practice in Norway were not entirely off in this regard. The law applied to both genders.”

Interceded in violence cases

The two main motivations for applying for divorce seem to be either a desperate need to get out of an impossible life situation or the prospects of a new, more attractive marriage union.

“In these cases the judges often argue that if the woman has prospects of being provided for within a new marriage they will not stop the divorce from going through.”

According to Johansen, the judges in the beginning of the 17th century were sensible and practical. 

“The authorities emphasised the friendship aspect of marriage. Parents were role models for their children, and living a life in peace and tolerance was a Christian ideal. The focus was not that women were supposed to obey their husbands, but rather that they should build a healthy relationship together. The way in which they spoke about this seems reasonable and almost modern.”

Domestic violence was considered a crime. But the chapter court was not entitled to grant divorce on this ground.

“Nevertheless, the chapter court dealt with cases concerning violence, fighting, and drinking during the first half of the 17th century. The judges listened and interceded,” says Johansen.

“At best the couples could hope for separation. The chapter court came up with practical solutions, for example that the partners lived apart for two years in order to see what happened afterwards. It corrected brutal husbands and urged the couples to stay calm.”

Just write to the king!

Towards the end of the 17th century, these rather chaotic legal protocols disappear, however.

“They become more and more boring as time progresses,” says the historian.

The legal system was professionalised, the legal experts became more influential, and the trials became more formal.

“Unless there was proof of infidelity, they didn’t take the case.”

The requirements for evidence became stricter, as did the requirements for unblemished record – that the priest or the local police could vouch for the part applying for divorce. The chapter court could spend several months and numerous meetings discussing individual cases.

Within the Danish-Norwegian autocracy there were now two ways of getting a divorce – either through legal trial or by writing to the king. And in 1790 the king decided that granting divorce was something he would be happy to do.

“The king had received requests for divorce every now and then, and did grant it. Now he decided that this was something he wanted to do, and he encouraged people to apply to him,” says Johansen.

The applicants had to prove unblemished record, but they didn’t need any specific reason for wanting a divorce.

“This is the Age of Enlightenment, being liberal was modern. During the French revolution, they had divorce tribunals.”

But again, one of the good and well-known reasons for wanting divorce appears:

“If you beat and tyrannise your spouse in the 18th century it means you’re breaking the marriage contract, according to several prominent thinkers of the time. Being beaten and tyrannised is not what your wife signed up for.”

The dispositions don’t match

Among the letters to the king, Johansen has found stories concerning families and social norms. Between fifteen and twenty couples were granted divorce each year in Norway in the years between 1790 and 1814, when the numbers gradually started to fall. In total, 538 couples were granted divorce on the king’s mercy between 1790 and 1831.

“The letters were addressed ‘To the King’. Then there are pages upon pages about what went wrong. Maybe they made a mistake in their youth, or the whole arrangement was too hasty. Or the husband was a tyrant. They didn’t need to state any reason, but they write about tyranny and drinking,” says Johansen.

“It could be the widow who remarried someone who drank and spent all the money. Or it could be people who write that the passion has disappeared and that friendship is the only thing left in the marriage. They often write that the dispositions, their mindset or temper don’t match and that they want a divorce for the sake of the children. The letters sound very modern.”.

Johansen quotes a Scottish historian, Leah Leneman. She claims that nowhere else are we better able to witness the social changes that took place during the beginning of a new, modern era, than within the Scottish divorce cases from the late 1700s. The same may be said about the Norwegian letters to the king, according to Johansen.

“They are filled with the ideals of the Age of Enlightenment and the French revolution, such as secularism, individualism, and gender equality.” 

Significant contribution to research

The liberal divorce policy lasted until Norway’s independence in 1814. The Parliament did not approve of the king’s powers. Writing letters to the king asking for divorce was by definition to bypass the law with its three biblical grounds for divorce.

“The legislative power was strongly against the fact that the king was putting current law aside; there was a struggle to maintain the constitution and the Parliament as a sovereign legislative body,” says Johansen.

In Denmark, where this conflict was non-existent, they saw no change in their divorce practice. The change happened gradually in Norway, but around 1830 it was systemised. Again, it was highly unusual to be granted divorce.

“Moreover, it was extremely important for the Parliament to restrict the Swedish king’s opportunities of becoming popular among the people,” says Johansen.

“Granting divorces was a way of making oneself well liked among the people.”

The strict practice was maintained for several decades. Figures from the 1870s suggest that approximately seven couples were divorced each year.

However, from the end of the 19th century, liberal winds blew across Scandinavia. Women’s rights were put on the agenda, the moral debate flourished, the bohemians fought for more liberty, and Ibsen wrote about Nora leaving Helmer and the children.

In Denmark, Johannes Nellemann, Minister of Justice and professor, decided to write a thesis on the historical development of divorce in Denmark. This study also discussed the change in the Norwegian divorce practice after 1814.

According to scientific articles from the 1890s, Nellmann’s thesis from 1882 was decisive for Norwegian liberal politicians’ initiation of reforming the divorce legislation.

Norway in the lead with new divorce act

The existent practice was, as is often the case, liberalised before a new legislation was implemented. After 1890, the numbers rose from six-seven a year to more than fifty divorces a year.

The new Norwegian divorce act was passed in 1909, and a number of legal grounds were recognised as valid reasons for divorce. The law also established two ways to obtain a divorce – through the legal system or through administrative appropriation, as is also the practice today.

The law didn’t exactly revolutionise women’s lives; there were still a number of reasons which made it difficult for women to divorce their husbands

“But it was a step in the right direction. Legislation sends out a signal,” says Johansen.

The new divorce legislation in Norway also inspired the other Nordic countries to revisit their own legislation on the issue, and a Nordic collaboration was initiated in order to revisit the entire marriage legislation.

The 1970s divorce explosion

The new legislation did not result in any immediate increase in the number of divorces. Many other things had to come into place before more women were able to imitate Ibsen’s Nora. The numbers increased immediately following the Second World War, and started falling again in the 1950s.

From the 1970s the numbers rose drastically and have remained relatively high since then. High divorce figures were closely connected to the social revolutions at the time, the revolutions in education, women’s entry to the labour market, the sexual revolution, and women’s financial emancipation.

The divorce figures in Norway have been declining the last few years. According to Statistics Norway (SSB), less than forty per cent of those who get married divorce.

“Perhaps the numbers are about to stabilise,” says Johansen.

“Many of the couples who previously would have divorced are not married today, but cohabitants instead. Those who get married are the more stable couples; there are more breakups among cohabitants.”

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Translated by
Cathinka Dahl Hambro