The divorce grounds provided for in the Napoleonic Code are listed in subchapter 1.2.3. Nevertheless, given their weight in the divorce proceedings, as well as the fact that court judgements ascribed them significance that often did not result directly from their literal wording, they deserve a separate chapter.
Let us reiterate: a divorce could be pronounced on grounds of adultery (Arts. 229–230 of the cc), outrageous conduct, ill-usage and grievous injuries (Art. 231 of the cc), condemnation of one of the spouses to an infamous punishment (Art. 232 of the cc), previous separation (Art. 310 of the cc), and at a mutual petition of the parties (Art. 233 of the cc). Each of these grounds, with the exception of the last,1 will be covered in a separate chapter. It must also be emphasized that formal and factual grounds for divorce were sometimes divergent, which I will come back to in the conclusions.
I have managed to draw up quantitative diagrams only for formal grounds (3 and 4). I have based my calculations on court judgements. In respect of Kalisz and Bydgoszcz, some of them may not be final judgements; as for the judgements of Kraków and Warsaw tribunals, they should all be final, as civil status registrars pronounced divorces on their basis. I have taken into account 522 judgements, of which 41 were based on two articles simultaneously (thus the sum of percentages of divorces pronounced on grounds of individual articles exceeds 100%).
Grounds for divorces pronounced by tribunals with their seats in Warsaw, Kraków, Kalisz and Bydgoszcz
Grounds for divorces pronounced by tribunals with their seats in Warsaw, Kraków, Kalisz and Bydgoszcz
It can be immediately concluded that the numbers of judgements issued by the individual tribunals vary greatly. In the case of Bydgoszcz, there were only 16 judgements; in Warsaw 65; and in Kalisz and Kraków 164 and 274 respectively. For this reason I found it expedient to draw up a collective list showing absolute numbers (diagram 4).
As results from these lists, the most popular ground for divorce, and by far, was Art. 231 of the cc (outrageous conduct, ill-usage and grievous injuries exercised by one spouse on another). Another significant ground was adultery (Arts. 229 and 230 of the cc). The remaining grounds for divorce were applied infrequently. Due to this, I will first discuss divorces pronounced on the basis
4.1 Divorces Due to Outrageous Conduct, Ill-Usage and Grievous Injuries
Pursuant to Art. 231 of the cc, a divorce could be obtained as a result of exces, sévices or injures graves.2 Therefore, proper understanding of these three words: exces, sévices and injures was of key importance for the interpretation of this article. In the French legal nomenclature, each of these three terms had a slightly different meaning. The author of the Polish translation of the code, Franciszek Ksawery Szaniawski, explained that exces meant an attempt against the life of the other spouse, sévices signified long-lasting abuses against the other spouse, while injures graves denoted acts and words that violated the honour of the other spouse.3
Thus, theoretically, it was possible to differentiate between outrageous conduct, ill-usage and grievous injuries. Nevertheless, Polish lawyers of the first half of the 19th century did not bother with such subtle distinctions.4 This is attested to by the offences from Art. 231 of the cc cited in the court files, which are often difficult to identify with the terms exces, sévices or injures. For example: calling
The lack of consistency in Polish terminology of offences originally referred to as exces, sévices or injures, as well as the practice of qualifying individual offences as grounds for pronouncement of divorce on the basis of Art. 231 of the cc (this problem will be discussed further on in this subchapter), suggest that Polish lawyers, including judges, treated these terms as a general clause of sorts. Thus, in practice, it was up to the tribunal to decide each time whether or not pronouncement of divorce was admissible on the basis of proven offences. For this reason, I will not discuss the individual offences that were treated as grounds for divorce under Art. 231 of the cc without any attempt at making distinctions between exces, sévices and injures.
Physical violence is ubiquitous in divorce cases brought to court on the basis of Art. 231 of the cc. Most often, it was the husband who attacked his wife. Sometimes, the opposite was true, as well as mutual aggression. Unfortunately, the available source material does not allow for a precise determination of the scale of physical violence. It is true that many victims of domestic abuse testified about their injuries (they were also confirmed by witnesses), but such accounts have little to do with the precision of modern-day medical examinations. Medical certificates were not used as proof very often (worse yet, in the material studied I have only found mentions of such certificates, but they were not physically attached to the court records).5
In the face of lack of precise accounts, one can only surmise that domestic abuse did not often involve an attempt against the other spouse’s life or premeditated long-term detriment to her or his health.
I have encountered mentions of attacks with the use of an axe6 or knife,7 but it is difficult to tell whether they were actual attempts against the wife’s life,
All kinds of objects were used (or their use was at least attempted) in family disturbances. Usually, these were everyday objects, such as:
- –knife,19
- –pistol,20
- –spade,21
- –log of wood,22
- –chair,23
- –stick,24
- –cane,25
- –rifle,26
- –whip,27
- –
shoetree,28 - –ladle,29
- –dish filled with hot soup,30
- –jar and bottle,31
- –glass,32
- –and even a pipe.33
When she was 7 months pregnant, squeezed her with the door so violently, that as a result the petitioner miscarried and fell seriously ill as a consequence. Moreover, he caused the miscarriage of another foetus by beating her with his fists and calling her undeserved invectives, this time at 4 months of pregnancy, and the petitioner complained to the midwife about the reasons for her miscarriages.34
As I have already mentioned, medical certificates were not submitted often, and even when they were invoked, this was rarely recorded in the court files as precisely as in the following quote: Finally, she presents an attestation issued on thirteenth June of this year by medical doctor W. Czekierski, confirming that the petitioner suffered a lengthy period of deafness of the left year as a result of a beating.35
Without giving any reasons, while fighting with the petitioner in their common household, behind closed doors, he beat her with his fists, which produced visible bruises on her body, and gave the petitioner
strong and long-lasting internal pains. Because of this, the petitioner could not sleep and cried through many nights, which the servants heard.36
The severity of injuries could also be attested to by the length of medical treatment, which could last from a few days37 to a few weeks.38 Some accounts mentioned bloody wounds,39 swelling as a result of beating40 or injuries inflicted with a knife.41 One of the wives allegedly hit her husband with a scale with such force that he had to carry his arm in a sling for two weeks.42 The gravity of injuries could also be proven by damage to the object with which they had been inflicted. The wife mentioned above allegedly used not only the scale to abuse her husband, but also a ladle, which fell apart into pieces from the repeated strikes.43 A certain husband, in turn, beat his wife with a stick so hard that the stick broke.44
Physical violence often went hand in hand with mental abuse. Other times, mental abuse was the only form of violence. At times it may have been a conscious effort to force the other spouse to leave. For example, one of the petitioners claimed that the defender started to hate her immediately after the wedding, told her almost every day that he couldn’t stand her and that he would bother her in every way possible until she took her leave.45 The motif of throwing the wife out of the common house recurs in many cases.46 Sometimes, it was the husband who had to leave the house in fear of his aggressive wife,47 or at least sleep outside of the bedroom as a result of a fight.48
There were all kinds of reasons for domestic arguments, but they are often difficult to establish based on the source material. One fight that obviously broke out for a trivial reason is the one started by the husband, who said at the
Some other ways of abusing the wives included not allowing them to be seen by a doctor,51 or refusal of help in sickness.52 According to one allegation, the petitioner in her weakness could not eat regular meals, and she kept asking for a little soup only, but the husband prohibited people from cooking separate food for her.53 In at least a few cases, I encountered the allegation of mistreatment of the husband’s children from the first marriage.54 Spouses also tried to get back at each other by seizing or destroying their property. There are some general accounts about a husband tearing his wife’s gloves55 and cap,56 or about burning the wife’s shirt and shawl.57 But also one of the defendants’ wives was accused of tearing her own and her husband’s clothes,58 and on top of it, of knocking out the windows.59 Another wife took out her anger against the husband by intentionally damaging house appliances.60 Relatively frequent are also allegations concerning taking objects out of the house61 or the husband’s refusal to finance his wife’s justified needs.62 One of the accounts mentioned hiding money and silver spoons.63
Having returned home […] at night, he started arguing with his wife, calling her a whore, may sudden death befall you, sudden death will find you tonight.65
[…] I’ll take you to the river and drown you like a dog.66
[…] wherever I may get you, I will kill you like a dog. Someone has to die at hand today.67
If his wife does not come to him, he will rip the clothes off her, kick her in the behind and throw her out of the house.68
[…] what do you want from me, you of dog’s blood and soul, once I get to killing you, a million devils will come for you, and I won’t live with you, you old rascal, romp, etc.69
Throughout the two years I spent there, she would come back home around ten at night, and in the presence of myself and others who lived there, she called her husband all kinds of names without a reason, calling him rascal, criminal, and such, often, drunk she would get on her knees and pray to the moon, raising her hands and asking for God’s vengeance against her husband, saying “may he die, may he waste away” and similar.70
It is clear from these quotes that court clerks were not overly prudish, which is why we are able to find colloquial and vulgar words in the files. Parties and their
You are not worthy of looking at my face, I deserve a better wife than you, and he also said may ten thousand cramps befall you.72
Ignacy Jabłkowski claimed that the devil is dearer to him than his wife, he also said that he would have all of her old junk taken out and burnt, and he also said things like: you and your entire family are rascals, ruffians, thieves; dogs are dearer to me than you all. I only feed you out of mercy, I could chase you out and you’d have to beg.73
She called her husband a Ruthenian, she yelled that he knows nothing about nothing, manages things like a scoundrel, and that she rules in the house. She also called him a robber and a thief.74
I married you not for sentiment, but for your property. And you, salva venia, started to eat shit and you don’t know when to stop, you monkey, go and bark at the dog and not at me. Kiss my behind.75
Usually, however, court files only contain epithets that the conflicted spouses hurled at each other. Name-calling frequently had to do with the indecent conduct (often licentiousness) of the addressee; other times the invectives referred to an animal or to a disliked ethnic group.
The first group included insults such as: kurwa (whore),76 nierządnica (harlot),77 stara kurwa (old whore),78 bladź (a Russicism),79 putin (likely a
Some animals that did not enjoy good reputation were: świnia (pig),111 suka (bitch),112 ropucha (toad),113 wielbłąd (camel),114 pies opchły (dog with fleas)115 and małpa (monkey)116 (this last epithet suggested the loose conduct of a person to whom it was applied).117 Closely related were also such insults as: bestia (beast),118 ścierwo (carrion),119 jucha (blood of a beast),120 psia krew (dog’s blood) and sobacza dusza (dog’s soul).121 The category of disrespected nations included: Ruthenians,122 Gypsies,123 Jews124 and Germans.125 Sometimes, only adjectives served as slurs: nieuczciwa (dishonest),126 głupia (stupid),127 niepoczciwa (wicked, mischievous, although it was likely used in the meaning of promiscuous),128 francowata (infected with a venereal disease).129 Moreover, I have encountered invectives such as: baba (old or mean woman, roughly equivalent to hag),130 cham
Sometimes the family of the other spouse also fell victim to the insults. A certain husband referred to his father in law as peasant and a simple soldier.140 Another one called his mother in law a mecheska.141 Yet another husband called his wife’s children scoundrels (hycle) and tigers.142 Insults were usually hurled directly at the other spouse, sometimes in public (rarely in public and in absence of the husband or wife).143 Sometimes, the invectives were included in letters, and one husband wrote insulting words about his wife on walls, gates and window shutters.144 Name-calling was additionally aggravated by the presence of other people, such as the petitioning wife’s children from the first marriage.145 It is extremely difficult to establish the weight that courts ascribed to individual insults. They were often accompanied by physical violence and other forms of abuse. It must be emphasized, however, that some divorces were pronounced exclusively on grounds of verbal abuse.146
Unproven accusations of serious offences other than adultery (or attempts to commit them), such as poisoning152 or theft,153 also served as grounds for pronouncement of divorce in some cases. Another form of injury was a situation in which a wife, having lied about a miscarriage she allegedly suffered at the petitioner’s fault, threatened him: now, you rascal, they will put you in handcuffs, I miscarried because of you.154
The inquisitions have proven that the defendant kept a mistress, although not at the common house, which means that it cannot be considered an
offence against Art. 230 of the Civil Code, and thus cannot be considered a ground for divorce, but nonetheless it should be deemed an injury.155
Admission of the husband’s marital unfaithfulness as an injury allowing for divorce and, in consequence, levelling the inequalities established by the legislator in respect of female and male adultery, was not specific to Poland only. Emese von Bone, a researcher of Dordrecht court files from the times when Napoleonic Code was in effect there (1811–1838), also encountered a divorce petition based on the allegation that the husband led a promiscuous life and used the services of prostitutes.156 Such understanding of the discussed provisions of law was not foreign to the French doctrine, either. In a commentary to the Napoleonic Code written by Jean Joseph Delsol half a century after the aforementioned judgement, we can read that adultery committed by the husband, even if outside of the common residence, can be deemed a grievous injury in some cases, for example if it is done overtly, or in other circumstances.157
Such an interpretation of Arts. 229–231 of the cc significantly undermined the limitations of the wife’s possibility to demand divorce due to the husband’s adultery only in a situation when he kept the mistress in the common residence.
The fact that the defendant wife sometimes cohabited and lived with other men, as well as called her husband insulting names, must indeed be considered a grievous injury. In consideration of this, given that Article two hundred thirty one of the Civil Code specifies it as a determined cause for divorce, based on inquisition and the cited provision, the Tribunal […] hereby dissolves the marriage.158
the solemnly contracted unions become unbearable when the heart of one of the spouses is disappointed, great is the woe of one whose spouse not only does not want to know her, but also refuses to provide her with assistance and friendship, with help in bearing the difficulties of daily life, and when he wounds what is dearest to every human being, that is their honour.159
Finally, it must be noted that in the opinion of the Kalisz tribunal: It is indeed an injury if the husband declines a church wedding following the civil wedding.163
My husband refused to take me to the theatre in Kalisz, instead he went accompanied by other women. When I realized this, hatred took over me and we had a fight, and when he called commissary Kozłowski to take me to jail, I hit him in the face. This action of mine was an indecent one, but it does not justify my husband’s petition for divorce, as I did it out of love and attachment that I feel for him, and not out of wickedness. This loving wife, seeing a rival trying to steal her place, took this step out of love, which does not know bounds of the law, and cannot bring detriment to her. The husband, in turn, who swore faithfulness to his wife, cannot run after other women and poison the heart of his wife, and if he does, than he has no right to complain about the wife’s transgressions,
because these are caused by boundless love only […] and these words, and these strikes that my husband complains about cannot be deemed grievous injuries or ill-usage.164
the petitioner, with the intention of opening up a path toward divorce and of exhausting her husband’s patience, provoked him wickedly to take harsher measures, but this was to no avail. Whenever the husband, tired of her ill conduct, became angry at her, it was always at her fault.165
not admitting to grievous injuries, in fact denying them, he explains that if he ever insulted the wife, it was in the course of marital quarrels, and he only used these words in moments of passion and only to punish the wife for being wasteful.166
Another defendant sought justification for his violence in the lack of mutual attachment, the wife’s frequent refusal to fulfil her marital duties and in disobedience and rudeness that she exhibited toward him.167
It would be superfluous to observe that it is not a question of simple agitation of temper, of a few harsh words spoken in moments of anger or discontent, of a few insults, even out of place, on the part of one of the spouses, but of real excesses, personal mistreatment, abuse in the strict sense of the word saevitia, cruelty, and insults of a very serious nature.168
Considering that the petitioner lodged her petition for divorce on grounds of outrageous conduct, ill-usage and grievous injuries but failed in the course of inquisition to prove these facts that, pursuant to Art. 231 of the Civil Code, could serve a cause for divorce; considering that any such facts that have been proven cannot be considered outrageous conduct, ill-usage or grievous injuries in the low class from which the parties to this dispute originate, and finally considering that the parties have been married for 20 years already […].169
Outrageous conduct, ill-usage and grievous injuries proven by the witnesses, specifically pulling by the hair and beating with fists, which occurred between the parties, considering that they are citizens of the
city of Kraków, must be considered serious enough to encompass the contents and spirit of Art. 231 f the Civil Code, and their long-term conjugal life cannot be deemed any justification of such grievous injuries and ill-usage, nor a reason to deny the benefits of the law to the petitioning party.170
My husband […] insulted me by calling me monkey, rascal, whore, etc., but he also beat me so badly that I was sick for weeks. These cruelties affected me so much that sometimes, out of desperation, I would drink, and sometimes when both me and my husband were drunk, we would fight and call each other names, but we also hit each other, and whoever could hit harder would end up victorious. Such cases are a daily occurrence among people of our standing, and they are not a manifestation of grievous injuries or ill-usage, as they are not caused by anger or hatred of one against the other, but by a confusion of the mind brought on by the drunkenness.174
Examples of offences that were, by their very nature, considered insufficient to pronounce divorce under Art. 231 of the cc, have been discussed in subchapter 3.1.2.
4.2
Of all divorces pronounced on the basis of Art. 231 of the cc, some attention must be given to those that took place following a probationary period. As my readers certainly remember, if outrageous conduct, ill-usage or grievous injuries were proven, the court could hold off the divorce and order the spouses to wait a certain period of time, called the probationary period (see: subchapter 3.5.3). The party that demanded dissolution of the marriage after the lapse of one year of probationary period did not have to prove the other spouse’s offences once again. The only circumstance that could potentially impede the divorce was if the court found that the spouses had reconciled.175
4.3 Pronouncement of Divorce on Grounds of Adultery
As I mentioned in chapter 1, adultery is one of the most prevalent divorce grounds in many legal systems, and so it comes as no surprise that it was also included in the Napoleonic Code, limited in comparison with the catalogue of premises of the revolutionary era. It is also worth noting that provisions of the Code civil that regulated these issues were some of the most-often cited within the context of discrimination of women in the Napoleonic legislation.176
This situation resulted from the fact that Polish tribunals, against the principle that exceptions should not be interpreted extensively, read the provision of Art. 230 of the cc in a way that allowed for divorce based on practically any marital infidelity committed by the husband in the common residence.180
It is appropriate to pay some attention here to the French term concubine, since the extent of its denotation affects the distinction between cases in which the French legislature intended to allow divorce on the grounds of marital infidelity and those in which it considered it inadmissible. The term we are interested in derives from the Latin word concubina. In Roman law, the term concubinat was used to describe a permanent relationship between a free man and a free woman, who were not married to each other.181 This meaning was adopted in the modern French language. Antoine Furetiere’s 17th century dictionary states that a concubine is a woman whom a man enjoys but does not marry.182 Similarly, Le Grand dictionnaire universel du XIXe siècle defines concubinat183 as the state of two people living together without a marriage, and concubine184 as a woman cohabiting with a man who is not her husband. The linguistic interpretation of the original text of the code therefore leads to the unequivocal conclusion that the legislator had in mind not an accomplice to
Also the extra-linguistic directives show that the legislator referred to a more steady relationship. If the legislator had intended to introduce a provision according to which any infidelity committed by a husband in a shared home could be grounds for divorce, it would have probably read more or less like this: “a wife may demand divorce on the grounds of her husband’s adultery committed in the common residence”. Such a rule, however, would have immediately raised the question of ratio legis. After all, does the place of the offence affect its gravity? The legislator’s aim was therefore to limit the wife’s ability to request divorce only to situations where the husband has permanently tied himself to another woman who, in addition, lives in the shared home.
This is how the speakers who presented the principles of the Code civil to the Legislative Body (Corps législatif) understood this provision. For example: Jean-Baptiste Treilhard argued that a husband’s unfaithfulness justifies a divorce request only if it involves the exceptional contempt shown to his wife, expressed by keeping the concubine in the shared home.185 Jean-Claude Gillet was of the opinion that the ground for divorce under Article 230 of the cc occurs when a husband shares his home with his wife and his concubine.186 Jacques-Fortunat Savoye-Rollin emphasized that the wife’s adultery destroys the family, while the husband’s adultery does not necessarily have such far-reaching consequences.187 In the light of these statements, there is no doubt about the intention of the authors of the Code civil, which was to limit the petitions for divorce on the grounds of the husband’s adultery only to a situation where the husband, in an open and persistent way, kept his concubine in the common home. Surely, the intention was not to recognize a one-off marital infidelity as a ground for divorce under Art. 230 of the cc, especially if the
Moving on to the Polish circumstances, it is worth noting that Piotr Burzyński, a professor of the Jagiellonian University and author of Wykład prawa cywilnego francuzkiego published in the mid-19th century, understood the concept of interest to us similarly. He was of the opinion that a mistress is a woman with whom a husband maintains relations frequently and for a certain period of time. One-off, isolated acts of unfaithfulness would not give rise to this ground. Burzyński also added that it is necessary for a woman who has relations with a married man to live at his house, at his order, at his instruction or at least at his advice.190 This last opinion is controversial, however. Jean Joseph Delsol correctly argued that the husband who would indulge in adultery with a housekeeper or servant chosen and hired by his wife, would not find in this circumstance an excuse for dismissal of a petition lodged by his wife.191
Art. 230 of the Napoleonic Code requires that if adultery is to be a cause for divorce, the husband must keep the mistress in the common residence where he lives with his wife. This means that the adultery cannot be an isolated incident; it must be repeated and the mistresses must be maintained by the husband. The reason behind this provision is most fair, as keeping such a woman in the house violates the peace of the wife
and of the entire household, and the wife is justified to deem herself aggrieved in such cases, as it would be difficult to tell who is the true woman of the house, whether the wife or the mistresses, as they are both maintained by the husband in the common residence, but the marriage contract bestows entirely different rights to the wife. Incidental satisfaction of desire, which the petitioner takes for adultery, is not considered the slightest offence by the French law. All the witnesses have testified about this one time only, which is why it cannot be considered an adultery. Moreover, the main witness Józef Marcinkiewicz clearly testified that the defendant was drunk at the time, and all the witnesses assert that right after the girl was sent off.192
Franciszek Kostrzewski, image with caption: Był z inną [he was with the other one] “Kłosy” 1876, no 551, p. 33
One night, maybe after 10 in the evening, W. Gogolewski came to the room where I slept with a girl named Jadwiga and with Miss Dąbrowska. He was accompanied by his lordship Piotr Bagniewski and by a French officer. W. Gogolewski began to make advances to Miss Dąbrowska, who rejected him and ran off. From there he came to me, but I scolded him and he left alone. He finally approached the girl, Jadwiga, who was sleeping. They started speaking quietly, so I couldn’t hear what was being said, but then they went to the straw mattress and lied down. I could hear them kissing and panting. Then W. Gogolewska came into the room, barefoot and in her nightgown, calling Jadwiga, but when no one answered, she walked up to the straw mattress. She noticed W. Gogolewskil lying with the girl and said “here you are, this is why I wanted”. W. Gogolewski answered: “what did you come here for? You can leave”.193
As follows from the counsel’s words, Wiktor Gogolewski did not deny the events as described. He claimed, however, that his wife was not faithful to him either. His explanations did not convince the tribunal, which pronounced the divorce at his fault.194 The Kalisz tribunal came to even farther-reaching conclusions in the case of the Szulc spouses, who had not lived under the same roof for a long time (more than that: the husband had three children with another woman, which was proven with birth certificates). Even though Fryderyk Szulc lived separately from his wife, the tribunal invoked Art. 230 of the cc, finding that the discussed provision still applied if the concubine cohabited with him, because the husband’s house is the wife’s place of residence.195
Usually, as in the case of Wiktor Gogolewski, a servant became the husband’s ‘lover’,196 although there were of course exceptions to this
Sometimes, the relationship between the employer and his employee became so intense, that the girl seemed to play the role of a mistress and not of a servant.198 Rare were the situations in which such a concubine took the place of the wife by the husband’s side, however. The case of Ewa and Jan Riewe was certainly untypical. The husband was found guilty of having sexual relations with a servant numerous times. What was exceptional in this case was how he treated the wife. According to the account of Mrs. Riewe, her husband treated her worse than the servant with whom he committed adultery. Among other things, he took away her bedding and gave it to the mistress instead.199 Similarly, Paweł Kopydłowski chased his wife Agnieszka out of the house after more than ten years of marriage. He then started living with another woman with whom he had three children.200
My mother Elżbieta Goleniowska was living with the Dukowski spouses two years after their wedding in the town of Szadek. When my mother found out that Dukowski had threatened to beat his wife, she sent me to go with him and find this sister of mine, who was hiding from him in the village of Szadkowice. When we arrived, it turned out she was not there, and on our way back, when we were walking through a forest, Dukowski raped me. Back home, with both of the spouses in the house, he became bolder with me, and had frequent sexual relations with me. I became pregnant as a result, and gave birth to a son I named Michał, but he died five days after.201
Both Mrs. Nerska’s taste in men (officers), as her abandonment of her husband to start a relationship with another man were hardly uncommon. The fact than in many trials208 the wife’s adultery was followed by abandonment of the husband’s house and by a steady relationship with another man likely resulted also from the fact that the Napoleonic Code, unlike the revolutionary legislation and Landrecht, did not consider abandonment to be grounds for
As for lieutenant colonel Tavernier, it is known to me that he was quartered at my house for 26 weeks, during which time my daughter-in-law came every Sunday to church, and on these occasions she visited the manor house, where they saw each other. I have never seen my daughter-in-law engage in any indecency with the said lieutenant colonel, but my brother Szymon Makowski, who has since passed away, told me that he had seen the lieutenant kiss Gogolewska on the mouth. When the lieutenant colonel received an order to march, my daughter-in-law came to me and asked me to accompany her to see him off. I tried to dissuade her from this, I said it would not look good, but she convinced me and finally we all went to Częstochowa. We stayed in a separate house, but during our sojourn in Częstochowa the lieutenant colonel was at our place all the time, we all took walks together, […] my daughter-in-law went for a walk with the lieutenant colonel to a garden that was in front of our lodgings, and I heard that a certain Miss Więckowska was present at the beginning of this walk, but I don’t know if anyone else was there too. I only heard from my husband and from his sister in law that they walked alone, and what the purpose of these walks was. I also saw with my own eyes Tavernier showing a garter to my daughter-in-law, although I do not know whether he took it by force, or if my daughter-in-law gave it to him willingly. When they returned from the walk, the lieutenant colonel asked my son and me about the reason of his sadness. I replied that I did not know. Before leaving in the evening, the lieutenant colonel invited us all to have chocolate the next day. I excused myself, saying that I was leaving the next day, and indeed I did not go. My daughter-in-law and her husband went, and when they came back we all left and went to a house on the last street to watch the march. My daughter-in-law stood up on a
stool to wave goodbye, and right after she started to cry and soon after our return home she fell ill.210
The defendant committed adultery in the petitioner’s house here in Kalisz in 1806 with his apprentice from Saxony, whose surname the petitioner does not remember. The petitioner caught the adulterers in the act, as follows: One day the petitioner went to buy lumber in a nearby village with a farmer called Gutsch, who lived in Hollendry Zimnowodzkie. He left the defendant money to run the house for a few days and told her that he would not be back during this time. Since he had suspected for some time already that she was in cahoots with the apprentice, he complained to the farmer about it, and especially about not having any proof thereof. The farmer said that it would not be difficult to get the proof. All they had to do was go back to Kalisz at night and demand to be let into the house. The petitioner did so. The cart driver stopped the wagon in front of the window, while the petitioner knocked on the door asking for the wife to open up. The defendant woke up and started to open the door, and the apprentice tried to jump out of the window, but noticed the farmer who was waiting for him. While standing outside of the chamber, the petitioner heard the workshop door open. He found the apprentice’s clothing by the marital bed, and in the other bed he found the apprentice, naked. The defendant immediately admitted to adultery in the presence of Gutsch and of the apprentice Wincenty Nazarski, who came to the room awakened by the noise.211
She saw the defendant cut off some of her hair, which they both selected to reject all greys, and then she took the hair, at her employer’s order, to a wig-maker, to whom she paid 3 zlotys for weaving it into a thick braid. Later, they re-braided the hair into a thinner braid and took it to a goldsmith, to whom she paid 15 zlotys for encasing the hair in gold, and then she gave these braids, that is watch fobs, to Mr. Wincenty Tarczewski in the mudroom, and later saw him wear them. Later, the defendant received a ring from Mr. Wincenty Tarczewski, and she showed it to the witness and told her that Wincenty Tarczewski gave it to her. There was a chain attached to the ring, which was to symbolize eternal love.212
The lover, in turn, declared that he would wear these fobs until the day he dies, and he will have them put in his coffin.213 The relationship between Zajączkowska and Tarczewski was definitely not platonic, which is attested to by other fragments of testimonies given by women heard as witnesses. One of them had heard that: the petitioner had caught his wife in bed with Mr. W.T., that is Wincenty Tarczewski, and she herself saw them kissing and him leaving her bed dressed in underpants only, carrying his shoes in his hands.214 Another one heard the defendant, when she was sleeping in the same room, kissing Mr. Wincenty Tarczewski, and the bed was creaking.215
the petitioner sat on the wife’s bed, crying and persuading her not to see Mr. Wincenty Tarczewski anymore, and she swore to him that “she would do anything and everything he asks for, whether he tells her to live or to die, she would listen”, and while saying this, she was kissing her husband’s legs.216
After 13 years of living with this wife, he had not sired a son, which is against the instinct that nature has given to people. Having admitted that he committed the act of which he is accused, he also petitions for divorce, given that none of the objectives of marriage set by the laws of nature and civil laws have been fulfilled in this union. He moreover states that when spouses are unable to accomplish the prescribed aim of marriage, such a marriage neither can nor should continue to exist.219
Józef Hymans, in turn, claimed that he committed adultery not in order to injure or insult his wife, but solely with the aim of protecting her health, during a time of her weakness, and thus does not believe that the fact he is accused of can be grounds for divorce.220
Soon after the wedding, Friedland came to me and told me that his wife tried to pretend that she was a true virgin, so she killed a pigeon and smeared its blood on her nightgown. Friedland told me that his wife was mischievous.221
Did the defendant infect his wife with a venereal disease while they lived together? Or was it the opposite: did the petitioner catch the disease as a result of her adultery […] with Mr. Tavernier, a French lieutenant colonel, and transmit it to her husband in the course of their carnal relations?225
Jan Chełmiński, L’Armée du Duché de Varsovie, Paris 1913, an unnumbered page between pages 118 and 119
∵
This discussion of matters of sexual nature invites the question of the degree to which this subject was taboo in the researched period. Court files suggest that it was not. Numerous parties to trials, as well as many witnesses, spoke of marital infidelity in a very direct way. For example: one of the servants testified that one evening the petitioner (wife) asked her to go to the defendant, and at this time she had carnal relations with him many times, and this repeated frequently.226 This was usually the expression of choice: carnal relations,227 sometimes referred to as carnal knowledge,228 having to do with each other,229 or
To sum up, the cases included in the query demonstrate that marital infidelity took on two major forms: of adultery committed during cohabitation (once or a number of times), or of abandonment of the other spouse to start a relationship with another person (in one of the cases I even encountered evidence of bigamy).231
The offences committed by husbands were often different than those committed by the wives (time, duration, partner). The wives frequently entered into steady relationships and left their husbands, which suggests that the new relationships had both a physical and emotional significance. As for the unfaithful husbands, it can be surmised that in the majority of cases their relations with partners in sin were limited to sexual encounters only (sometimes repeated, sometimes not), and that they did not involve any emotional attachment. This means that this research confirms the stereotype according to which women tend to be unfaithful for emotional reasons and are more committed to their affairs, while men do it to satisfy their sex drive.232
Finally, it deserves mention that the fragmentarily preserved court files contain a wealth of information about the daily lives of adulterers from the social circle of craftsmen, peasants and landed gentry. Representatives of higher social classes, whose love affairs were often at the centre of public opinion’s and life writers’ interest, were not as willing to divulge information during court trials. What is more, unfaithful aristocratic women, whose affairs were universally known, frequently initiated the divorce proceedings and obtained judgements that blamed their husbands for the breakdown of marriage. Such was the case of Karolina Chodkiewicz née Walewska,233 Zofia Czosnowska née Potocka234 and Maria Walewska née Łączyńska (lover of Napoleon i).235
4.4
Pursuant to Art. 232 of the cc: The condemnation of one of the married parties to an infamous punishment shall be to the other grounds for divorce.236 In the studied material I found only 19 judgements based on Art. 232 of the cc (ca. 3% of all cases). This type of divorce proceedings was simplified, which means that documentation pertaining to them is relatively scarce237 (Cf. subchapter 3.1.6. Proceedings in divorce cases initiated due to a spouse’s condemnation for a felony).
Some practical problems were also caused by the differences between the modern French civil law and the German penal law, which was still in effect. For example: Regina Trawińska demanded divorce invoking two Prussian decrees, based on which her husband had been condemned to imprisonment and whipping due to a strong suspicion of theft. It must be noted here that the Prussian Criminal Ordinance did not employ presumption of innocence and allowed for the punishment of people who were not proven guilty, as per the legal theory of proof. The judges, however, did not see this as a problem and pronounced divorce.238 Among other offences that resulted in divorce there were also embezzlement and fraud,239 violent robbery240 and domestic violence.241
4.5 Divorce Due to Previous Separation
When the separation of persons pronounced for any other cause than that of adultery in the wife shall have continued three years, the married party who was originally defendant, may demand divorce of the court, which shall allow it, unless the original plaintiff, present or duly summoned, consents immediately that such separation shall cease.243
I have only encountered five divorce judgements issued on this basis; all by the Kraków tribunal.244 I have also come across a dismissal of a petition for divorce that invoked this article.245 These cases concerned separations pronounced during the Austrian times, and the legal problems that emerged in them were primarily caused by the differences between French and Austro-Galician legal systems.
4.6 Comparison with France
Publications based on source material research conducted in France (Rouen and Lyon) make it possible to compare French and Polish judgements, at least in respect of grounds for divorce. This is illustrated by the following diagram. The numbers of divorces in the French cities (a few tens in each one of them) do not allow for drawing far-reaching conclusions, however. Nevertheless, two issues merit attention. First, the prevalence in the Polish territories of divorces pronounced on the basis of Art. 231 of the cc (outrageous conduct, ill-usage and grievous injuries). This article was frequently applied also in France, but it did not dominate in divorce cases. Secondly, of interest is the very low number of divorces pronounced in Rouen due to the husband’s adultery. Clearly, the local judges heeded the legislator’s will more closely, that is treated female and male unfaithfulness quite differently (Arts. 229 and 230 of the cc).
Grounds for divorces pronounced on the basis of the Napoleonic Code on the Polish territories, in Rouen and in LyonSOURCE: for rouen: r. phillips, family breakdown in late eighteenth-century france. divorces in rouen 1792–1803, oxford–new york 1980, p. 58; for lyon: d. dessertine, divorcer a lyon, lyon 1981, pp. 177 and 189
As a side note, in this case, giving grounds for divorce was not required. Determination of both parties was, however, indispensable. See: subchapter 3.2.
Art. 231 of the cc: The married parties may reciprocally demand divorce for outrageous conduct, ill-usage, or grievous injuries, exercised by one of them towards the other. [Les époux pourront reciproquement demander le divorce pour exces, sévices ou injures graves, de l’un d’eux envers l’autre].
F. K. Szaniawski, Jak przepisy Kodexu Napoleona o rozwodach rozumianémi bydź maią? Rzecz czytana na publiczném posiedzeniu Szkoły Prawa dnia 27 marca r. 1811, Warszawa 1811, pp. 12–13. Cf. also: J. G. Locre, Esprit du Code Napoléon, tiré de la discussion …, Paris 1807, vol. 4, p. 157 et seq.
For example, a prosecutor at the Kalisz tribunal seemed not to make a distinction between ill-usage and grievous injuries when he argued: The royal prosecutor does not think that Art. 231 of the Code should be taken so lightly, as per the thought and spirit of this law, ill-usage and grievous injuries are not a result of simple fits of anger that may happen at moments of bad mood or discontent; but rather must be interpreted as grievous injuries in the strict sense, that is such that result in overt danger to the other spouse and his or her, so to speak, integrity (TCKal, vol. 9, fol. 248v-249. Despite the prosecutor’s argument, in this case the tribunal granted the divorce). Bronisław Fidelus, a researcher of Kraków court judgements from the years 1815–1833, reached similar conclusions: The Tribunal of First Instance did not delve into precise analysis of all the individual facts, but rather adjudicated that the facts presented by the petitioning party under Art. 231 constituted grounds for pronouncing divorce [B. Fidelus, Rozwód w orzecznictwie sądów Wolnego Miasta Krakowa w latach 1815–1833 na tle przepisów prawa małżeńskiego osobowego (Ph.D. thesis: Archives of the Jagiellonian University), Kraków 1982, p. 402].
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 30, p. 79; TCKal, vol. 8, fol. 182v; Cyrkuł ii, vol. 99, fol. 230v; Cyrkuł IiI, vol. 120, fol. 77v.
Cyrkuł iii, vol. 118, fol. 24v.
TCKal, vol. 292, p. 215. From a deposition given in another case, it follows that it was the wife who threw a knife at her husband, but he dodged it (Cyrkuł iii, vol. 110, fol. 18v-19).
TCKal, vol. 295, fol. 21, vol. 296, p. 430, vol. 297, p. 225; TCByd, vol. 4, fol. 49v, vol. 6, fol. 157, vol. 7, p. 226, vol. 8, fol. 169; Cyrkuł iii, vol. 110, fol. 44v.
TCKal, vol. 292, pp. 136, 292 and 355.
TCKal, vol. 296, p. 429.
TCKal, vol. 297, p. 225.
TCKal, vol. 737, p. 386.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 382; Cyrkuł iii, vol. 101, fol. 19v, vol. 110, fol. 42.
Cyrkuł iii, vol. 101, fol. 6v.
Cyrkuł iii, vol. 101, fol. 4v; Cyrkuł iii, vol. 101, fol. 20; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 873 (throwing on the ground).
TCKal, vol. 304, fol. 141v.
Cyrkuł iii, vol. 120, fol. 80.
TCKal, vol. 313, fol. 115v.
TCKal, vol. 292, p. 215; Cyrkuł iii, vol. 101, fol. 4.
TCKal, vol. 292, p. 215.
Cyrkuł iii, vol. 101, fol. 6v.
TCKal, vol. 292, p. 355; TCByd, vol. 7, p. 226.
TCKal, vol. 41, fol. 778v, vol. 746, fol. 68.
TCByd, vol. 8, fol. 169.
TCKal, vol. 296, p. 318; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 381.
TCKal, vol. 296, p. 429.
TCKal, vol. 295, fol. 21; Cyrkuł iii, vol. 120, fol. 92v.
Cyrkuł iii, vol. 120, fol. 87.
Cyrkuł ii, vol. 99, p. 156.
TCKal, vol. 746, fol. 68.
Cyrkuł vi, vol. 100, the Żebrowski spouses case [s.l.].
Cyrkuł iii, vol. 101, fol. 20; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 18, p. 1127.
TCKal, vol. 738, p. 96.
TCKrak, vol. 187, fol. 572. Other accounts of miscarriages: Cyrkuł iii, vol. 99, p. 157v, or of putting the wife at risk of one: Cyrkuł iii, vol. 101, fol. 4v-5. In another case, the beating received by the pregnant wife precipitated labour: TCKal, vol. 22, fol. 300v.
Cyrkuł ii, vol. 99, fol. 116v.
TCKrak, vol. 187, fol. 571.
Cyrkuł iii, vol. 101, fol. 4v.
Cyrkuł iii, vol. 120, fol. 80.
TCKal, vol. 41, fol. 779v, vol. 746, fol. 68; Cyrkuł iii, vol. 101, fol. 20.
Cyrkuł iii, vol. 110, fol. 30v-31.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 475, vol. 94, p. 15.
Cyrkuł ii, vol. 99, p. 156.
Cyrkuł ii, vol. 99, p. 156.
TCKal, vol. 23, fol. 284v.
Cyrkuł iii, vol. 120, fol. 119.
TCKal, vol. 296, p. 266; Cyrkuł iii, vol. 118, fol. 64v; TCByd, vol. 8, pp. 169–170.
Cyrkuł ii, vol. 99, fol. 183: in this case, the wife chased her husband with a knife in her hand.
TCKal, vol. 297, p. 227: she forced [him] to leave her bed by being quarrelsome, and often he had to sleep on nothing but straw.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 93.
Cyrkuł ii, vol. 99, fol. 182v.
TCByd, vol. 3, fol. 34v.
Cyrkuł iii, vol. 118, fol. 13.
TCKal, vol. 738, p. 96.
TCKal, vol. 55, fol. 138.
TCKal, vol. 9, fol. 114v.
TCKal, vol. 313, fol. 460.
Cyrkuł iii, vol. 120, fol. 79v.
TCKal, vol. 8, fol. 311.
Ibid. Account of another wife who knocked out the windows in her husband’s house: TCKal, vol. 55, fol. 138v.
Cyrkuł ii, vol. 99, fol. 183.
For example: Cyrkuł iii, vol. 120, fol. 84, vol. 120, fol. 105v (in this case, the wife squandered the husband’s property to finance her drinking).
Cyrkuł ii, vol. 99, fol. 314; Cyrkuł iii, vol. 118, fol. 13: refusal to finance indispensable clothing.
Cyrkuł iii, vol. 120, fol. 86v–87: they were taken by the wife from a chest and hidden under a barrel in the mudroom.
Cyrkuł vi, vol. 100, the Żebrowski spouses case [s.l.]. Another death threat: TCKal, vol. 296, p. 318. Threat of poisoning: Cyrkuł iii, vol. 120, fol. 68v. Threat of beating: TCKal, vol. 296, p. 266.
Cyrkuł iii, vol. 110, fol. 29-29v.
Cyrkuł ii, vol. 99, fol. 320v.
Cyrkuł ii, vol. 99, fol. 252-252v.
Cyrkuł iii, vol. 110, fol. 31v.
Cyrkuł ii, vol. 99, fol. 100v-101.
Cyrkuł iii, vol. 120, fol. 82v-83.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 33, p. 313.
Cyrkuł iii, vol. 120, fol. 79v.
TCKal, vol. 738, p. 96.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 86.
TCKal, vol. 297, p. 227.
TCKal, vol. 292, p. 355; TCByd, vol. 3, fol. 29v; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 381; Cyrkuł ii, vol. 99, fol. 79v and 158; Cyrkuł iii, vol. 97, fol. 20v, vol. 108, fol. 7.
Cyrkuł iii, vol. 110, fol. 44v.
Cyrkuł iii, vol. 120, fol. 92v.
Cyrkuł iii, vol. 108, fol. 7 (from Russian блядь – whore).
Cyrkuł ii, vol. 99, fol. 293.
TCKal, vol. 50, fol. 6.
Cyrkuł iii, vol. 101, fol. 4, vol. 120, fol. 119.
Cyrkuł iii, vol. 110, fol. 18, vol. 120, fol. 105v.
TCKal, vol. 327, fol. 437v.
TCKal, vol. 327, fol. 437v-438.
TCByd, vol. 3, fol. 29v.
Cyrkuł ii, vol. 99, fol. 160v; Cyrkuł iii, vol. 110, fol. 18.
TCKal, vol. 55, fol. 137–140, vol. 738, p. 279; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 989.
TCKal, vol. 292, p. 355; vol. 296, pp. 430 and 578; TCByd, vol. 3, fol. 29v; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 380; Cyrkuł ii, vol. 99, fol. 79v; Cyrkuł iii, vol. 97, fol. 5v, vol. 97, fol. 20v, vol. 101, fol. 4, vol. 110, fol. 18 (in reference to the husband).
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 989; TCKal, vol. 327 fol. 187v.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 80; Krakowskie sądy wyższe, vol. 183, p. 25; Cyrkuł ii, vol. 99, fol. 156v.
TCKal, vol. 304, fol. 116v.
Krakowskie sądy wyższe, vol. 183, p. 25.
TCKal, vol. 304, fol. 118v.
Cyrkuł iii, vol. 110, fol. 19v.
Cyrkuł iii, vol. 120, fol. 86v.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 383; Cyrkuł iii, vol. 97, fol. 5v, vol. 101, fol. 4, vol. 110, fol. 42.
TCKal, vol. 327, fol. 187v (Latin for worthless, good-for-nothing).
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 80.
TCKal, vol. 55, fol. 138.
TCKal, vol. 323, fol. 831v.
TCByd, vol. 3, fol. 34v.
TCKal, vol. 23, fol. 517v; Cyrkuł ii, vol. 99, fol. 156v; TCByd, vol. 8, p. 94.
Cyrkuł iii, vol. 110, fol. 21.
TCByd, vol. 8, pp. 94 (German: Schlingel – scoundrel, ruffian).
Krakowskie sądy wyższe, vol. 183, p. 23.
Cyrkuł ii, vol. 99, fol. 182v.
Krakowskie sądy wyższe, vol. 183, p. 23.
Cyrkuł iii, vol. 120, fol. 83 (probably from the nickname received by a Warsaw prison, which was located in the building of a former gunpowder magazine [prochownia]).
Cyrkuł iii, vol. 120, fol. 83.
TCKal, vol. 294, fol. 287v, vol. 296, p. 578; Cyrkuł ii, vol. 99, fol. 79v; Cyrkuł iii, vol. 97, fol. 5v, vol. 108, fol. 6v.
TCByd, vol. 3, fol. 34v.
Cyrkuł ii, vol. 99, fol. 158.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 989.
Cyrkuł ii, vol. 99, fol. 156v.
TCKal, vol. 292, p. 355, vol. 294, fol. 287v, vol. 296, pp. 430 and 578; Cyrkuł iii, vol. 108, fol. 6v.
Małpa [in:] S. B. Linde, Słownik Języka Polskiego, Warszawa 1809, vol. 2, part 1, pp. 20–21.
TCKal, vol. 296, p. 430; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 380; Krakowskie sądy wyższe, vol. 183, p. 24; Cyrkuł ii, vol. 99, fol. 182v.
TCKal, vol. 23, fol. 79; Cyrkuł iii, vol. 101, fol. 9v.
Cyrkuł ii, vol. 99, fol. 158v; Cyrkuł iii, vol. 120, fol. 79.
Cyrkuł ii, vol. 99, fol. 252.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 24, p. 80.
Cyrkuł ii, vol. 99, fol. 65.
TCKal, vol. 304, fol. 116v (specifically: Jewish whore); Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 989 (Jewish rabbi).
TCByd, vol. 3, fol. 34v: German bitch.
Cyrkuł iii, vol. 97, fol. 5v.
Ibid.
Cyrkuł iii, vol. 97, fol. 20v.
Ibid.
TCKal, vol. 296, p. 578, vol. 323, fol. 812v: stupid hag.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 989.
Cyrkuł iii, vol. 110, fol. 21.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 989: a distortion of drongal, that is the phonetic transcription of drągal (tall, awkward man. This is the interpretation in: S. Kotlarczyk, “Cztery monologi sceniczne: Wojtek Fujara w tijatronie; Dobry system pocieszny nauczyciel w szkole między dziećmi; Srul Katarinengelb na balu; Izydor Szrapner prosto z frontu”, Wadoviana. Przegląd Historyczno-Kulturalny 2008, no. 11, p. 178).
Cyrkuł ii, vol. 99, fol. 100v, vol. 99, fol. 225.
Cyrkuł iii, vol. 110, fol. 6.
TCKal, vol. 55, fol. 138.
TCKal, vol. 297, pp. 227–228.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 82, p. 79.
Cyrkuł ii, vol. 99, fol. 315.
TCKal, vol. 23, fol. 77v.
Cyrkuł ii, vol. 99, fol. 254v (Hebrew: Meches – a baptised Jew; femenine form: Mecheska; see: M. Arct, Słownik ilustrowany języka polskiego, Warszawa 1929, vol. 1, p. 343).
Cyrkuł iii, vol. 120, fol. 79.
TCKal, vol. 310, fol. 192: in this case, the husband insulted his wife at an inn, in her absence.
Cyrkuł iii, vol. 110, fol. 7.
TCKal, vol. 313, fol. 460.
TCKal, vol. 333, fol. 562 et seq. Here the verbal insult consisted in an allegation of adultery, combined with the statement that the wife had turned the family home into a brothel. Importantly, the husbanded had lodged a petition with the criminal court to have his wife punished for adultery. An example of a divorce pronounced on ground of verbal abuse: TCKal, vol. 310, fol. 192 et seq.
This was most likely what happened in the case of the spouses Karolina née Walewska and Aleksander Chodkiewicz. Allegations included in the petition: Archiwum Młynowskie Chodkiewiczów, p. 144 et seq. Account of their conjugal life: M. Chachaj, Poufne instrukcje dla adwokatów Aleksandra Chodkiewicza w sprawie rozwodowej z Karoliną z Walewskich, [in:] Zbrodnie, sensacje i katastrofy w prasie polskiej do 1914 roku, eds. K. Stępnik, M. Gabryś, Lublin 2010, pp. 67 et seq. Deed of divorce: Cyrkuł iv, vol. 43, entry no. 25.
TCKal, vol. 2, p. 139, vol. 300, fol. 366v. TCByd, vol. 4, fol. 49v; similarly Dziennik dekretów Sądu Kasacyjnego, Warszawa 1812, vol. 2, p. 379–381 and TCKal, vol. 54, fol. 12 (in this case, the husband sued the wife for divorce based on Art. 229 of the cc, but he did not prove the allegation of adultery).
TCKal, vol. 54, fol. 12.
Cyrkuł ii, vol. 99, fol. 308v-309.
TCKal, vol. 323, fol. 814.
166 TCByd, vol. 8, p. 94: such actions of Mrs. Hantelman, that is accusing her Husband of poisoning, and putting his reputation at risk, given the condition of W. Hantelman as a public official, whose character and honour must be impeccable, constitute a serious injury against him.
TCKal, vol. 301, fol. 597: the husband initiated a criminal case.
TCKal, vol. 323, fol. 831v-832.
TCKal, vol. 731, p. 70–71; similarly: TCKal, vol. 33, fol. 126v: even if the defendant did not commit adultery with a servant outside of the common residence, and if this act took place in a different house only, it must always be considered a grave affront against the wife, and as such it takes the place of other forms of abuse.
E. von Bone, Women and violence in the Netherlands: Grounds for Divorce in the French Civil Code, [in:] El cisne II: violencia, proceso y discurso sobre género: red de trabajo de derecho romano, estudios de género y tradición jurídica romana, Lecce 2012, p. 37. Similarly, the Kraków tribunal qualified boasting to strangers of frequenting houses of ill repute as an act covered by the disposition of Art. 231 of the cc (Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 12, pp. 411–412).
Delsol, J. J., Explication élémentaire du Code Napoléon, mise en rapport avec la doctrine et la jurisprudence, Paris, 1867, v. 1, p. 243: l’adultère du mari, même commis hors de la maison commune, pourrait, selon les cas, être considéré soit à raison de sa publicité, soit à raison d’autres circonstances, comme une injure grave; similarly: P. Burzyński, Wykład prawa …, vol. 1, p. 283.
Cyrkuł iii, vol. 120, fol. 113–114. We may consider the judgement of the Kalisz tribunal, containing the following passage, in a similar context: Since it has been proven that the defendant hurled grave verbal insults against the petitioner, that he also had carnal knowledge of other women while the spouses lived together, which is also a grievous injury, the court, having deemed the lowliest words that the defendant used to insult the petitioner, despite the fact that the spouses belong to the high social class, to be grounds for divorce pursuant to Art. 231 of the Napoleonic Code, additionally compounded by having sexual relations with other women […], having heard the royal prosecutor, the Tribunal adjudicates and pronounces the divorce (TCKal, vol. 9, fol. 297v). This judgement is all the more surprising since a servant heard in this case testified that: indeed she had had carnal relations with the defendant four times, both in the residence of the parties and in farm buildings. 9, fol. 296). Thus, it is difficult to tell why in this case the tribunal did not base its decision on Art. 230 of the cc, which concerned divorce due to the husband’s adultery in the common house.
Cyrkuł ii, vol. 99, fol. 194v; similarly: TCKal, vol. 22, fol. 607-607v. One of the petitioners, in turn, gave the following account: My wife, who knows why having joined the followers of a sect who call themselves the Faithful, which spread its delusional ideas in the village next to ours, began to leave our common house frequently and without my knowledge, sometimes for over ten days and nights. She would spend this time with those faithful lunatics, and at first, since I had feelings for her, I put up with her shameful conduct, only using husbandly persuasion to discourage her from following this unreasonable path and to make her act like a decent wife. My efforts however proved futile, as my wife not only did not desert the path once taken, but to make things worse, she doubled her wrongdoings against me by abandoning my house altogether and she spent her days, or better said nights, with the followers of the aforementioned sect, mostly with young men. Overtaken by the devilry of this superstitious denomination, when I once against tried to convince her to return to honourable life after these last actions, she told me clearly that she wants salvation, and as such she cannot know a husband, and that she has taken back the marriage wows given to me […] Can a husband suffer a more grievous injury from his wife than when she abandons his house for no reason at all, and instead spends her days and nights with the followers of a sect, under the pretence of an invented worship? (TCKal, vol. 327, 437v-438). I have also come across one judgement in which the tribunal, sticking to the letter of the law, adjudicated that abandonment of the husband’s house is not in and of itself a determined legal ground for dissolution of marriage, and it is not stipulated in Title VI of Book I of the Civil Code (TCKal, vol. 298, fol. 26-26 v).
Cyrkuł ii, vol. 99, fol. 203.
TCKal, vol. 10, fol. 53; similarly: TCKal, vol. 50, fol. 33 et seq.
TCKal, vol. 55, fol. 32 et seq.
TCKal, vol. 731, p. 201.
TCKal, vol. 8, fol. 182v-183.
Cyrkuł ii, vol. 99, fol. 114.
180 TCKal, vol. 6, fol. 441v. The Napoleonic Code ordered the wife to be obedient to her husband (Art. 213). Nevertheless, the French law had abandoned the traditional approach to ius castigandi. It must be remembered that its effect at least until the implementation of the Code of Punishments (see: J. Śliwowski, Kodeks karzący Królestwa Polskiego, Warszawa 1958, pp. 96–97) could be deduced from Landrecht. I have not, however, encountered such argumentation. Another husband admitted that he punished his wife forced to do so by the indecent conduct of the petitioner, who had lived as husband and wife with a Prussian officer (TCKal, vol. 22, fol. 246).
Cyrkuł ii, vol. 99, pp. 315v-316 (justification of domestic disturbances).
Il serait superflu d’observer qu’il ne s’agit pas de simples mouvements de vivacité, de quelques paroles dures échappées dans des instants d’humeur ou de mécontentement, de quelques refus, meme déplacés, de la part d’un des époux, mais de véritables exces, de mauvais traitements personnels, de sévices dans la rigoureuse acception de ce mot savitia, cruauté, et d’injures portant un grand caractere de gravité (J. B. Treilhard, Exposé des motifs de la loi sur le divorce, par le conseiller d’état Treilhard, [in:] Code civil des Français: suivi de l’exposé des motifs, sur chaque loi, présenté par les orateurs du gouvernement …, Paris 1804, vol. 2, p. 327.)
TCKrak, vol. 158: Księga I wyroków cywilnych … Wydział I. Nr 1–113 (I-III.1817), pp. 818–819. Similarly, the Kalisz tribunal arrived at the conclusion that in the circle of craftsmen a wife who insults her husband or knocks out the windows of his house cannot be deemed to have committed an offence serious enough to dissolve the marriage (TCKal, vol. 55, fol. 141).
Krakowskie sądy wyższe, vol. 237: Wyroki cywilne sądu apelacyjnego (1817), pp. 746–747.
Cyrkuł iii, vol. 97, fol. 8 (persons of higher birth). The Kalisz tribunal royal prosecutor emphasized: In evaluating the seriousness of ill-usage, we must account for the standing of the divorcing couple and adjust our criteria (TCKal, vol. 9, fol. 249).
TCKal, vol. 2, p. 139.
Cyrkuł iii, vol. 110, fol. 10 (counsel’s argument); TCKal, vol. 44, fol. 647v.
TCKal, vol. 8, fol. 182v-183. Tying the gravity of injuries with the social standing of the parties was approved by the Court of Cassation (Dziennik Dekretów Sądu Kasacyjnego Księstwa Warszawskiego, vol. 2, p. 380).
Examples of such judgements: Cyrkuł iii, vol. 99, fol. 44 et seq.; TCKal, vol. 311, fol. 313 et seq.; Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 673 et seq.
For example: E. von Bone, Women and Violence in the Netherlands …, pp. 38–39; K. Sójka-Zielińska, Kodeks Napoleona. Historia i współczesność, Warszawa 2008, pp. 94–95; T. Wysłobocki, Obywatelki: kobiety w przestrzeni publicznej we Francji przełomu wieków XVIII i XIX, Kraków 2014, p. 334; N. Kapuścińska-Kmiecik, Zdrada małżeńska w dziewiętnastowiecznych pałacach i dworkach ziemiańskich, Łódź 2013, p. 46. The last of the listed authors noted that the divergent approach to female and male adultery was characteristic of the morality of Polish landed gentry in the 19th century (p. 392).
Le mari pourra demander le divorce pour cause d’adultere de sa femme.
La femme pourra demander le divorce pour cause d’adultere de son mari, lorsqu’il aura tenu sa concubine dans la maison commune.
Tomasz Wysłobocki asked directly: Which reasonably thinking husband who decides to cheat on his wife brings the mistress home? (Obywatelki: kobiety w przestrzeni publicznej …, p. 334). Cf. also: J. G. Locre, Esprit du Code Napoléon …, p. 142.
But rather not at a house of prostitution – see the position of the prosecutor: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 12, p. 408 and: TCKal, vol. 294, fol. 288. I write about the possibility of treating indecent conduct as an injury to the other spouse in subchapter 4.1. It should be noted that the use of services provided by prostitutes was often seen as a merely biological activity.
W. Dajczak, T. Giaro, F. Longchamps de Berier, Prawo rzymskie. U podstaw prawa prywatnego, Warszawa 2009, p. 229; W. Wołodkiewicz, M. Zabłocka, Prawo rzymskie. Instytucje, Warszawa 2001, pp. 100–101.
Concubine, [in:] A. Furetiere, Dictionnaire universel, contenant généralement tous les mots françois …, La Haye 1694, vol. 1 [s.l.].
Concubinat, [in:] P. Larousse, Le Grand dictionnaire …, vol. 4, p. 862.
Concubine, [in:] P. Larousse, Le Grand dictionnaire …, vol. 4, p. 862.
J. B. Treilhard, Exposé des motifs de la loi sur le divorce, par le conseiller d’état Treilhard, [in:] Code civil des Français: suivi de l’exposé des motifs, sur chaque loi, présenté par les orateurs du gouvernement …, Paris 1804, vol. 2, p. 327.
J. C. Gillet, Discours prononcé au corps législatif, par le tribun Gillet, l’un des orateurs chargés de présenter le voeu du tribunat, sur la loi relative au divorce, [in:] Code civil des Français: suivi de l’exposé des motifs, sur chaque loi, présenté par les orateurs du gouvernement …, Paris 1804, vol. 2, p. 401.
J. F. Savoye-Rollin, Rapport fait au Tribunat, par le tribun Savoye-Rollin, au nom de la section de législation, sur la loi relative au divorce, [in:] Code civil des Français: suivi de l’exposé des motifs, sur chaque loi, présenté par les orateurs du gouvernement …, Paris 1804, vol. 2, p. 353.
Cf. Le Droit civil français, par K. S. Zachariae, traduit de l’allemand sur la 5e édition, annoté et rétabli suivant l’ordre du Code Napoléon, eds. G. Massé, Ch. Vergé, Paris 1854, vol. 1, p. 249, footnote 3.
J. de Maleville, Analyse raisonnée de la discussion du Code civil au Conseil d’État, Paris 1805, vol. 1, p. 248 (des enfans étrangers). And so: J. G. Locre, Esprit du Code Napoléon …, p. 141.
P. Burzyński, Wykład prawa cywilnego francuzkiego, Kraków 1852, vol. 1, p. 281.
J. J. Delsol, Explication élémentaire …, vol. v, p. 243: le mari qui se livrerait au désordre avec une gouvernante ou une domestique qui auraient été choisies et engagées par sa femme, ne trouverait pas dans cette circon stance une excuse qui pût faire rejeter la demande que la femme viendrait à former.; similarly: Le Droit civil français, par K. S. Zachariae …, vol. 1, p. 250, footnote 6.
TCKal, vol. 300, fol. 365-365v.
TCKal, vol. 299, fol. 342v.
TCKal, vol. 300, fol. 367.
TCKal, vol. 33, fol. 145-145v; Cf. J. J. Delsol, Explication élémentaire …, v. 1, p. 243 (citing Art. 214 of the cc).
For example: TCByd, vol. 3, fol. 34, vol. 8, fol. 169; Cyrkuł iii, vol. 108, fol. 20; TCKal, vol. 9, fol. 113, vol. 738, p. 96. As regards the choice of mistresses, the conclusions to be drawn from court files may at first sight seem contrary to the depictions offered by life writers, who focused primarily on love affairs within the upper class (Cf. N. Kapuścińska-Kmiecik, Zdrada małżeńska …, p. 225, footnote 3).
I encountered one situation in which the husband had sexual relations with his wife’s sister (TCKal, vol. 298, fol. 135v-136). In one case, it was alleged that the husband committed adultery in the family home with a visitor. One of the witnesses in this case was asked: How do you know, and who told you that lady Malinowska came to the room of His Lordship Mister Michał Linzer late at night and stayed in there with him? (TCByd, vol. 7, p. 34).
TCKal, vol. 33, fol. 125v.
TCKal, vol. 295, fol. 238v: he took her bedding and gave it to another woman, so she was forced to sleep on straw.
TCKal, vol. 312, fol. 176, vol. 313, fol. 194.
TCKal, vol. 298, fol. 135v-136.
TCKal, vol. 7, fol. 235v.
TCKal, vol. 7, fol. 237v.
TCKal, vol. 7, fol. 236.
TCKal, vol. 7, fol. 237.
TCKal, vol. 7, fol. 235-235v.
TCKal, vol. 7, 234v.
Similar was the fate of the Berkenthim, Rauner and Psarski spouses, as well as of the Maszkiewicz spouses, whose marriage fell apart as follows: During the last war with the Austrians, she dressed the wounds of an injured sergeant Kasper Mużynowski at the hospital in Warta. Once he got better, she committed adultery with him, and even brought him home. When the petitioner protested against this indecency, she left his house and moved to Uniejów with her suitor, and even though the petitioner managed to bring her back, Mużynowski followed her to Warta and she continued her relationship with him. Finally, when said Mużynowski became a director in Błaszki, she went to this town with him, and from there to Kalisz. Brought back to Kalisz, they now openly live as husband and wife (TCKal, vol. 296, p. 270).
The mere acknowledgement of someone’s absence did not dissolve the marriage (P. Burzyński, Wykład prawa …, vol. 1, p. 209), although practice did not always follow the letter of the law (for example: Cyrkuł iii, vol. 99, fol. 12 et seq.).
TCKal, vol. 300, fol. 153–153v. Moreover, according to the testimony of the defendant’s mother, twelve love letters exchanged between the daughter-in-law and a certain Karwosiecki were found in the Gogolewski house (these were letters from Karwosiecki and copies of replies to them; TCKal, vol 300, fol. 154v-156).
TCKal, vol. 319, fol. 507v-508. Similarly, Józefa Rauner at first committed adultery with her husband’s apprentice, and then left with him to another town (TCKal, vol. 41, fol. 327v).
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 55, pp. 128–129.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 55, p. 128.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 55, p. 121.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 55, p. 122.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 55, p. 123. Emotional involvement was also likely the reason for the infidelity of Marianna née Trzcińska, who abandoned her husband Franciszek Psarski because, as illustrated by handwritten letters of the defendant […], she had left to another country for love and does not want to live with the petitioner […] and she has given birth to a son while living abroad (TCKal, vol. 6, fol. 447v).
For example: TCKal, vol. 299, fol. 78.
For example: TCKal, vol. 6, fol. 447v.
TCKal, vol. 7, fol. 246v.
Cyrkuł iii, vol. 108, fol. 18v-19.
Cyrkuł iii, vol. 97, fol. 22. The subject of premarital defloration also came up in the case of the Jesionek spouses: according to the words of the petitioning husband, his wife had had carnal relations with military men in public […]. Not only did she satisfy her lust with them, but she also had separate arrangements with Jews, and she did the same with them […]. Besides the foregoing, the petitioner also claims that the defendant had lost her innocence before being married to him, and that her wicked disposition and reticence to follow her husband’s orders have often given rise to marital quarrels and grievous injuries. 2, pp. 258–259).
Cyrkuł iii, vol. 97, fol. 22–22v.
Cyrkuł iii, vol. 120, fol. 80 (sexually transmitted disease); TCKal, t. 10, fol. 19 (sexually transmitted disease).
TCKal, vol. 5, fol. 335 (sexually transmitted disease).
TCKal, vol. 299, fol. 245v.
TCKal, vol. 9, fol. 113.
Also: TCKal, vol. 41, fol. 327v, vol. 298, fol. 6v and vol. 8, fol. 85v-86, where we read the following account: I am the same Rozalia with whom, when I [was] in service at the house of tax collector Pasek in Ostrów, the defendant Milibitz had carnal relations, and when I fell pregnant by him, the defendant gave me 50 zlotys, but the child born out of this act is already dead. The defendant always came to me, and I never went to the parties’ common residence.
TCKal, vol. 7, fol. 237v.
Cyrkuł ii, vol. 99, fol. 244.
TCKal, vol. 10, fol. 19, vol. 33, fol. 122v.
TCKal, vol. 741, p. 123.
Cf: R. Dawkins, The Selfish Gene, Oxford 2006, p. 163 et seq.; N. Kapuścińska-Kmiecik, Zdrada małżeńska …, p. 306, footnote 409.
Cyrkuł iv, vol. 43, fol. 25 et seq.; Archiwum Młynowskie Chodkiewiczów, fol. 83.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 15, p. 849 et seq. Description of this couple’s marriage: N. Kapuścińska-Kmiecik, Zdrada małżeńska. … pp. 254–257.
Cyrkuł iv, vol. 14, fol. 65v et seq.; A. Mauersberger, “Maria Walewska (1786–1817)”, Ateneum. Czasopismo poświęcone sprawom kultury 1938, Y. 1, no. 2, p. 61 et seq.
La condamnation de l’un des époux a une peine infamante, sera pour l’autre époux une cause de divorce. An infamous punishment was defined by the code of formal penal law and punishment effective at the time (Code des délits et des peines, [in:] Lois de la République Française, no. 204, Paris an iv), Arts. 602–604.
Sometimes it doesn’t even explicitly state the offences for which the spouse had been sentenced (TCKal, vol. 54, fol. 511–512).
TCKal, vol. 8, fol. 320–321. Other examples of husbands sentenced for theft: Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 39, p. 121; TCKal, vol. 8, fol. 320v (a husband sentenced by the Prussian court for a suspicion of theft).
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 33, p. 314 (husband).
TCByd, vol. 12, p. 259 (husband condemned for violent robbery).
TCKal, vol. 58, fol. 169v (husband condemned for violence against his wife).
Le Droit civil français, par K. S. Zachariae, vol. 1, pp. 263–264.
Lorsque la séparation de corps prononcée pour toute autre cause que l’adultere de la femme aura duré trois ans, l’époux qui était originairement défendeur pourra demander le divorce au tribunal, qui l’admettra, si le demandeur originaire, présent ou dument appelé, ne consent pas immédiatement a faire cesser la séparation.
Akta rozwodowe z terenu gmin, powiatu i miasta Krakowa, vol. 6, p. 19, fols. 185 and 211, vol. 9, fol. 79, vol. 21, fol. 527 et seq.
Krakowskie sądy wyższe, vol. 181, p. 559 et seq.