the practice of requesting vula s—permission to marry issued by the bishop.
Orthodox Christianity permits the termination of marriage as a means of
avoiding debauchery, but the Church made efforts to prevent divorce by imposing
reconciliation terms, property sanctions, penance, limitations on remarriage, etc.
Under canon law, grounds for divorce were torturing and beating of the wife,
attempted murder of a spouse by the other, adultery by the wife, absence of the
husband for three years or more, serious illness (but only after attempting to cure
it), mental disorder, impotence (but not infertility) of the husband for three years
or more, and alcohol abuse. Canon law regulated the status of the children after
divorce—which of the parents would take care of them, their allowance, etc. It
was accepted that a wife would take back her dowry, except in cases where the
blame for the divorce lay with her.10
Despite the existence of regional differences, the custom among Christian
Bulgarians—as reconstructed by ethnologists (on the basis of material from
the late nineteenth and twentieth centuries) and historians of law—regulated
matrimonial matters in a relatively uniform fashion due to the early adoption
of Christianity, allowing its dogmas to influence the treatment of marriage.
Customary law incorporated all the grounds for divorce provided by the canons,
the only deviation being the addition of the infertility of the wife and bad breath. In
the course of time, custom evolved so as to grant greater powers to the head of the
family. As late as the beginning of the twentieth century, public opinion regarded
divorce as an extraordinary and rare event. That, however, was probably wishful
thinking and did not reflect actual practices: indeed, the fact that informants
interviewed by Bulgarian ethnographers around the end of the nineteenth and the
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beginning of the twentieth centuries enumerated the grounds for divorce in great
detail betrayed their familiarity with the practice.11
The Church exercised its legal functions in family and marital matters through
ecclesiastical courts (bishopric councils) and on the basis of the principles of
Roman law.12
Shari‘a Norms and Actual Practice: Muslim Women
Seeking Remedy for Matrimonial Problems before Kadı Courts
I shall now briefly outline the basic matrimonial rules as they were enforced in
practice by the Ottoman courts in the Balkans. The present paper does not aim at
drawing a comparison between the manner in which the matrimonial matters of
Christians and Muslims were treated by kadı courts. However, I find it appropriate
to cite some examples from the sources where the main actors were Muslim rather
than Christian women.
According to the Shari‘a, marriage [ nikâh] is not a religious sacrament but
rather a civil contract legitimizing sexual relations between a man and a woman,
and the creation of their offspring. Marriage is differentiated from the wedding
feast, which is a traditional rite complex based upon the customs of different
Muslim peoples.13
The existence of a nuptial contract is a prerequisite for the validity of the Muslim
marriage. The elements of concluding a nuptial contract are the simultaneous
expression of an agreement to enter into marriage by the two parties, declared
at the same place in the presence of witnesses. The agreement can be stated
personally or by the representatives or guardians of a juvenile spouse. The
contract can regulate different aspects of matrimonial life, and even stipulate the
grounds for divorce, but its core is the wedding gift [ mehr] given by the groom to
the bride. The mehr consists of two parts: one presented to the bride at the time
of the marriage [ mehr-i muaccel], and another that the wife is to receive upon the
death of her husband or in case of divorce [ mehr-i müeccel]. Without the gift, the
marriage is invalid.14
The Shari‘a rules are evidenced in the sicil s, either by the nuptial contracts
entered into by the spouses, or by the registration of concluded marriages.
The existing sicil s from Bulgarian towns contain some documents that may be
considered marriage registrations. There are also abundant indirect indications
that the practice of contracting prenuptial agreements began to be applied in
the central parts of Rumeli as early as the sixteenth century, in compliance with
Shari‘a requirements. A prima facie comparison of sicil s from Bulgarian towns
with sicil s from other parts of the Balkans (reflecting a far greater number of
registered prenuptial agreements) would appear to indicate that among Muslims
in Bulgarian lands the practice of contracting such agreements before the kadı
court in particular did not become widespread before the second half of the
seventeenth century.15 The entries in documents that might be regarded as marriage
registrations are usually very concise. One such nuptial contract was registered
in 1686 in a sicil from the town of Sofia. The husband-to-be was Ahmed, and the
ivanova, marital ProBlems of Christian Women
157
wife was Fatime, daughter of Ahmed (?), having Şaban, son of Mustafa, acting
as her proxy, with his capacity attested by Ahmed, son of Mehmed, Ahmed,
son of Hüseyin, and Mehmed, son of Mustafa. The mehr was 800 akçe; Osman
Efendi, son of Hasan Kâtib, Ahmed Çelebi, and others acted as witnesses for the
nuptial contract.16 In a sicil from the town of Rousse, a nuptial contract in Arabic
was entered in extenso in 1715: in the name of Allah and in consistency with
the Shari‘a, the kadı of the town, Abdullah, son of el-Hac İbrahim, registered a
marriage between Abdülfettah and Havva, with a mehr of 100,000 akçe and in the
presence of two witnesses.17
The policy of the Ottoman government was to encourage Muslims to execute
their marriages before the court. However, if all the requirements were met,
marriages concluded without the involvement of a kadı were also deemed
legal.18 During the sixteenth century, a practice emerged according to which
the imam (prayer leader) of a mahalle (neighborhood) would officiate at the
wedding ceremonies, but with the authorization of the kadı; this practice only
gained wide popularity and formal establishment in the nineteenth century. In
such cases, a permission [ izinname] was entered into the sicil s by the kadı for the imam of the mahalle in which the bride resided, allowing him to officiate at
the marriage between the “virtuous virgin, willing to enter a marriage” and the
groom, before the witnesses, with the stipulated mehr and “provided that there
are no Shari‘a impediments to this marriage.”19 The registration of these acts
in the sicil completed the legal, contractual aspect of the marriage, while the
participation of the imam, who uttered special prayers, appears to have endowed
the nuptials with the character of a religious ceremony. The imam also ensured
that the Shari‘a requirements for a legally valid marriage were observed. Living
among the population, the mahalle imamı was obviously in a position to have first-
hand information about everyone’s marital status
. These facts, of course, were
also known to the obligatory marriage witnesses, but the imam, being involved
in the administration of the population, must have been regarded as the proper
person to give a true assessment of the situation and, above all, to undertake the
actual verification. The formula “provided that there are no Shari‘a impediments”
should probably be interpreted in this sense. The kadı issued a marriage licence on
each individual occasion. By registering this document in a sicil, he legalized the
purely juridical, contractual side of the marriage. The imam, on the other hand,
was responsible for making sure that the Shari‘a norms for a valid and legitimate
marriage were not violated. Fourteen marriages of Muslims, administered under
the authorization of the kadı, were registered in two columns in a sicil from Sofia
on 24 October 1616. It was established that no Shari‘a impediments existed. The
marriages were registered by the relevant entries ( nikâh tezkeresi) and stamped
with the seal of the mahalle imamı.20 The distribution of functions between the
kadı and the imam reflected the actual manner in which the Shari‘a as a legal
system coexisted with the sacred Islamic ritual in the context of the matrimonial
institution.21 The requirement that marriages be renewed in cases where an offence
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had been committed against Islam also suggests a certain sacral component in the
nature of the marriage.22
There are records of occasions when women formally established their current
matrimonial status. They did so in order to be granted the right to dispose of their
husbands’ assets, or to be able to marry again in cases where this was not their
first marriage. The representative of Sultana Hatun, daughter of Ebubekir from
Sofia, stated in court that her husband Mustafa had drowned on his way back
home from a military campaign. She had been informed of that fact by her fellow
townsmen Ahmed Beşe, son of Mehmed, and Mehmed Beşe, son of Mustafa, who
also testified accordingly before the court, which consequently issued a certificate
[ hüccet] to her.23
Documents included in sicil s from Bulgarian towns exemplify the typical
provisions that were included in the marriage contracts in practice. While marital
agreements could include a variety of provisions and regulate different matters,
marriage contracts registered in court in these parts of the Ottoman Empire
were quite simple and did not include anything beyond the minimal obligatory
elements.24
A variety of sources confirm that in Rumeli, at least starting from the sixteenth
century, brides were indeed given mehr upon entering marriage, and that a second
part was given in case of divorce or the death of the husband.25 Apparently it was
not obligatory for the wife to bring a dowry [ cihaz], which was considered her
property. All expenses relating to the support of the family and the upbringing of
children were borne by the husband. In case of divorce, the wife was permitted
to have custody of the children until the ninth year of girls and the seventh of
boys.26
Muslim men were permitted by law to marry up to four wives simultaneously,
and there was no limitation on the number of concubines and slave women they
might have. Some instances of bigamy surface in inventories of inheritance. There
are even cases of men being married to four wives—for example the famous
Trısteniklizade es-Seyyid İsmail Ağa.27 However, monogamy prevailed among
Muslims in the area and period under review.
At the same time, however, there are many reports of individuals entering into
subsequent (second or further) marriages, and this practice accounts for the fact
that the status of being single was uncommon in the Muslim society. After the
death of Mehmed, from the mahalle Kara Hisar, his son and two daughters, all of
legal age, inherited one half of the house that their father had inherited from his
deceased wife who was not their mother and had no living children of her own.28
Under Shari‘a law, there were both permanent and temporary impediments
to entering into a marriage and remaining in it. The permanent ones were
consanguinity—lineal or collateral—as well as kinship by marriage and “by milk”
(colactation). Temporary impediments included the case in which a man and a
woman were divorced by the so-called triple divorce; the man already had four
wives; the groom belonged to a non-Muslim denomination, since Muslim women
were prohibited from marrying non-Muslim men; and the idda period—for three
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159
lunar months after the death of her husband or after a divorce, the wife could not
remarry. A husband was allowed to impose corporal punishment if his wife did
not perform her connubial duties. In case the husband disappeared, his wife was
obligated to wait for him for four years.
According to Shari‘a law, a valid marriage could be dissolved in two ways:
nullification of a marriage in cases where it had not been consumed, and divorce
[ talâk], the latter having two forms: final [ bâin], and provisional or reversible
[ selâse].29
A divorce initiated by the husband needed no substantiation and could
be enforced in two ways: talâk-i bâin—where the marriage was terminated
immediately after the declaration of the husband’s intent; and talâk-i selâse—
or triple divorce, where the husband’s desire to divorce had to be expressed
unequivocally three times, simultaneously or over a certain interval, and during
which he could cancel the divorce. There existed a specific form of talâk-i bâin
known as conditional divorce, where the husband would make certain stipulations
or set a condition, and if they were not fulfilled the wife would be free of her
marital bond with him.
It was not obligatory for these declarations to be made in the presence of the
wife. A divorce initiated by the husband did not have to be declared before a kadı
court, and was not registered in the sicil s.30 We learn of the fact that Mahmud, son
of Mustafa, had divorced Rukiye by talâk from the record on the case that she
brought against him, claiming 20 kuruş for mehr-i muaccel, 42 kuruş for mehr-i
müeccel, and a 5 kuruş allowance. With the assistance of two witnesses, however,
Mahmud proved that he had already paid her these sums.31
A wife could move for divorce [ tefrik] only before a court and only on certain
grounds: the husband’s absence for four years or more; his inability to support her
if she was able to prove that such support was owed to her; the non-performance
of a husband’s connubial duties for three years or more; the husband’s impotence,
if it was proven that he had been in that condition at the time of the wedding,
and after an additional one-year period had elapsed; insanity, leprosy, or other
diseases, after two years had elapsed. In case the woman had been a juvenile at
the time of the marriage and the union had not been consummated, she could
divorce upon coming of legal age. Other grounds for divorce included the case
where the husband led an immoral w
ay of life or compelled the wife to same; the
husband’s disposition of his wife’s property against her will; and his preventing her
observance of religious rites. In 1728, Mustafa Ağa, father of Zeyneb and acting
as her representative, declared before the court in Sofia and in the presence of her
husband İbrahim Beşe: “İbrahim cursed the faith and religion of my daughter and
because of this I plead for her to be divorced.” The court ruled in favor of divorce
and the payment of 1000 akçe as mehr.32
Documentation on divorce is far more abundant than that on the contracting of
marriage among Muslims. Judging from the grounds for divorce that are found
in the sicils from the Rumeli territories, we may again conclude that prenuptial
agreements in that region contained only the minimal prerequisites for their
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validity under the Shari‘a, without employing the far greater variety of terms
and provisions permitted by law.33 In practice, women divorced most commonly
by hul/ hal. This is natural, since those divorces were of the tefrik type and it was
obligatory for them to be registered before the kadı court.34 Under that procedure,
the woman quoted the relevant acceptable grounds—usually the formula “there
was no good life between us,” “there was no understanding between us,” or “we
had quarrels and arguments,” and more rarely it was added that the husband had
been abusing her. Entries under this procedure always include the husband’s
consent, and for that reason, this type of divorce has been described as divorce by
mutual consent.35 The wife owed compensation to the husband, which practically
meant that she would forfeit her claim to mehr and an allowance from her ex-
husband. In some cases, she also assumed the support of the children. A dweller in
the mahalle Kuru Çeşme in the town of Sofia, the gypsy woman Saime, daughter
of Prechin, stated before the court that the gypsy Hüseyin, son of Mustafa, was
her husband, but that there was no understanding between them. “Because I am
outraged by his rude behaviour, I want a hul divorce, and I therefore renounce the
mehr-i muaccel of 1000 akçe agreed upon as his obligation.” Saime also assumed
the responsibility of supporting their child, and became the child’s guardian.36
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