публикация №1536600296, версия для печати


Дата публикации: 10 сентября 2018
Автор: Tatyana MAXIMOVA
Публикатор: БЦБ LIBRARY.BY

The subject of the family union has been with the human race since time immemorial. Philosophers of the antiquity had it high on their agenda. One interesting Arab saying on the delicate and often touching subject says: "Marriage is like a besieged fortress: those who are within want to get out, and those without want to get in." The Russian 19th-century classic Ivan Turgenev had his own view on the subject. He wrote: "What can one say about family life in general? One can compare it with milk... but milk quickly gets sour." In our day and age legal dissolution of a marriage usually means lots of headache, but is not something impossible. And more than a century or so ago the situation was dramatically different. And practically insoluble. What were the legally accepted grounds for divorce and who gave the permission for a legal dissolution of a marriage?

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By Tatyana MAXIMOVA, Editor, RODINA magazine

Legal norms of divorce in Early Rus emerged with the advent of Christianity (988- 989 A.D.). The grounds for divorce were only two-demise of one of the spouses, or adultery. When time legal grounds for divorce were broadened, and the process began under Peter the Great (1682-1725) who legalized a free and personal choice of the bride and the groom. He also established a more mature marriage age as compared with the 13th-century Legal Code (called Kormchiy- helmsman) and banned marriages of what he called "stupid fools" ("duraki"). The family union began to be regarded as an act of personal free will.

From 1722 divorce suits in Russia became the competence of the Holy Synod (top government body from 1721 to 1917) which was in charge of the affairs of the Russian Church. Its verdicts on such suits were final.

But problems with getting an official permission for a legal dissolution of a marriage were far removed from the common folk, so to speak. Under an ukase (decree) of December 13, 1744, divorce applications from "persons of nobility" were submitted for "royal consent" and the examples of sovereign rulings on the family affairs of their loyal subjects were many. Thus the Procurator-General of the Senate, Pavel Yaguzhinsky, who had family problems for years, finally divorced his first wife under the friendly pressure from Peter the Great. In the reign of Catherine II (1762-1796) Countess Razumovskaya married in secret Count P. Apraksin who was already a married man. When the scandal was brought to the royal attention it was ordered "to punish them both with all severity. And then the abandoned wife of Count Apraksin was secretly advised to take the veil-something in keeping with her own intentions".

The main ground for divorce for the common folk was adultery, and in the pre-Petrine times it were mainly women, or wives, who were punished for infidelity. The husband of an adulteress not only could, but simply had to divorce her, and if and when he decided to pardon his infidel better half, he had to be punished himself. This included a year-long church penance and a monetary fine.

Peter the Great, set on the idea of equal rights for his male and female subjects, put an end to that tradition. Since his time male adultery was also recognized as ground for divorce and the obligatory separation from unfaithful wife became a thing of the past. An obligatory condition for a legal dissolution of a marriage were testimonies of two or three witnesses and/or birth of children out of wedlock. A personal admission of his or her guilt by the culprit could not be taken into account. In April 1877 Countess Yevdokiya Shakhovskaya submitted an application for divorce, which was formally accepted, and there were witnesses of her husband's infidelity. Faced with abundant evidence, the Synod dissolved the marriage. The countess was permitted to marry again and Count Shakhovskoy was sentenced to remain single for the rest of his life and received a church penance for a period of seven years.

Getting the right witnesses in such cases, however, was not so simple, and without them the case was lost.

Since 1720 there appeared in the Russian legal code a new ground for divorce-exile, or banishment. One of the first to avail herself of the new law was the first wife of Count Grigory Orlov. And as for the Synod, it went out of its way in order to limit the range of applications of the new legal norm. The usual formal answer to divorce applications from wives whose husbands were stripped of the noble status and/or demoted from officers to the ranks was: the status of a serviceman is not a loss of honor.

It was very seldom in this country that marriages were dissolved by the unwilling authorities when the spouses decided to take monastic vows. Bearing in mind the rather common practices of the pre-Petrine times, when husbands often got rid of their hated wives by forcing them to take the veil, the Synod banned such separations until the death of one of the spouses.

The Act of the Marriage Union of 1836 declared that: "If one of the parties, having abandoned the other, offers her no information of his or her situation for over one year, the deserted party is entitled to apply for divorce." According to statistics it was this ruling that proved to be the most common reason for breaking the family bonds. During that time Russia was engaged in numerous military conflicts and the wives often knew nothing of the whereabouts of their soldier husbands. And it was therefore not surprising that many decided to marry again after some time.

As often as not, the missing husbands suddenly returned from the army to their house and home. And if and when that happened, our wise ancestors resorted to friendly agreements. One such agreement said: "On the 15th of January, 1716, on the case of private Ivan Afanasyev of the Vyatsky Regiment conscripted from the village of Sholkovaya in the year of 704. I left behind in the village my wife. In my absence my wife married in the year 710 peasant Yemelyan Savostyanov from the village of Barantsovo. And now, being dismissed from my regiment for a time, I returned to my village, and seeing that my wife is married to Yemelyan Savostyanov, I had a friendly discussion with him and decided to part with my wife in his favor. In future I shall make no claims against them and he, Yemelyan, should give me for her by agreement a compensation of two rubles in cash and four barrels of wine. And I have received one ruble and the second one is to be paid during the Holy Week this year; and the wine-I shall take the first two barrels before and the other two during the Easter week..."

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Under Article 241 of the Rule of Theological Consistory: "application for divorce can be submitted when one of the spouses is incapable of rnatrimonial cohabitation..." But even there were many reservations. First of all such petitions had to be submitted not earlier than three years after marriage. The impotence had to be congenital, and not acquired during marriage, and had to be confirmed by a medical commission. After that the Synod had no choice but to meet the request. In situations of this kind the applicant had the right to marry again while the respondent was doomed to celibacy to the end of his or her life.

As for our Orthodox Church, it always did her best to try and preserve each and every matrimonial union, no matter how unhappy it could be. That is why a divorce appeal from Princess Sofia Naryshkina was rejected even despite two tangible arguments in its favor: adultery of the husband (his casual affair, in which he caught syphilis, ruined his health and became impotent). But the unfortunate wife was unable to provide the necessary witnesses, or prove her husband's impotence, because children were born in their marriage.

Another ground for divorce could be "an attempt by one of the spouses on the life of the other, or cruel treatment on his or her part, endangering the health and life of the other." But in most such cases the husband and wife were permitted to live separately, but they could not marry again. The philosophy behind this norm probably was that the couple will "make peace after some time and would agree to restore their union".

When a second marriage was not on the agenda, members of the gentry usually spared themselves the trouble of fighting the bureaucratic routine. A formal divorce was replaced by a de facto separation in which the husband and wife divided their possession and retired to their villages. This relative freedom, however, had one drawback: the husbands continued to bear the responsibility for their wives, especially in property rights. One such example is the case of the Suvorovs-Count Alexander and his

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spouse. Taking advantage of a rather cool attitude of Emperor Pavel I to her husband, with whom she lived in separation, she demanded (in October 1797) that he should расу all her debts to the tune of 22 thousand rubles and that her annual maintenance allowance should be increased. The famous military leader replied that he himself was in debt and could not comply with her demand. But the sovereign was on the side of the countess in the dispute. These family problems and the royal discontent pushed the famous field-marshal to an extraordinary decision: at the start of 1799 he appealed to the Emperor for a permission to take monastic vows. Emperor Paul I instead raised him to the top military rank of Generalissimo and put him in command of the allied armies in the battles with the French troops.

It must be the tradition of such informal divorces that eventually led to the very common phenomenon of polygamy. One of the reasons must have been neglect on the part of the clergy in gathering the necessary papers on the bride and the bridegroom. In 1776, for example, the management of the Moscow Theological Consistory examined the case of a cadet Filippov who had managed to marry five times within a span of one year. In cases of this kind it was customary to formally recognize the first marriage, but if he deceived and deserted wife disagreed, the husband was doomed to remain single for life.

And what about some situations which did not fit into any of the grounds for divorce, formally recognized by the church and the state? Especially when a new marriage was necessary because of the strong mutual feelings of two lovers. In such cases the parties went into negotiations and decided on a sum of money (or a worthy equivalent) which could make up for the loss. One such case took place in 1812 with Colonel Boris Sokovin. He fell madly in love with a young beauty whom he met at a party. As fate would have it, the beauty was married to an old local landowner with whom she lived in separation. The desperate officer went to the old man to negotiate the terms of a divorce. And the old man agreed to cooperate for 5 thousand rubles in cash. "And I take no promissory notes and you pay for all the expenses!"

Having paid the sum requested by the old man and getting the permission for divorce, the officer sent all the documents to St. Petersburg and also sent letters to his friends in the capital who could help him win his legal case. Time passed and he received no answer, and on the political front in the meantime a war with the French was in the air. On the advice of his military commander the desperate lover appealed to Grand Prince Konstantin Pavlovich with whom he was in favor. The regiment was still on the march when there appeared a messenger with a note from the Grand Prince addressed to the regimental priest. The priest was told to perform the marriage ceremony for the officer without waiting for the arrival of the formal papers from St. Petersburg on the dissolution of the first marriage of the bride.

The impossibility to resolve personal problems often prompted desperate spouses to commit crimes and one such tragedy suggested to Leo Tolstoy the plot for his drama "The Living Corpse" (Zhmitrup).

In 1881 a certain Yekaterina Simon married a certain Grimmer. The husband had been "in love with the bottle" even before and the marriage pushed him off the balance completely: he lost his job, spent nights away from home and often landed in doss-houses as they were called at that time. The desperate wife left her partner for life and moved to a town near Moscow where she met another person whom she liked. In 1894 she submitted a formal petition for the dissolution of her marriage for reasons of the infidelity of her formal husband. The trial formalities continued for a year and a half and the appeal was turned down "for the lack of proofs of the committed adultery".

In these desperate circumstances the young woman decides to commit a crime by staging the suicide of her husband. She even managed to make him write a suicide note which she dictated to him herself. Some time later a corpse was found in the local river and she identified it as the body of her husband. Having no more legal obstacles, the young woman married her new choice. Three months later the "living corpse" was detained in St. Petersburg when he tried to get a new passport. The tragic new couple was put on trial on charges of bigamy. After an appeal exile was replaced by a year in prison. Leo Tolstoy knew the accused personally but turned down all suggestions of magazine editors and theater managers to write a play on the basis of these dramatic events. The reason for that was his promise to the son of the unfortunate woman not to describe the tragedy during his lifetime. And the Russian classic keep his word and "The Living Corpse" was published only after his death. In September 1911 the play was staged in two theaters at the same time: the Moscow MKhAT (Moscow Arts Theater) and in the Alexandrinsky Theater in St. Petersburg. The social tragedy involved was so acute that during the ten months of 1913 the play was staged 9 thousand times in 243 Russian theaters across the land.

Things and public morals changed after the Russian October Revolution of 1917. The Soviet leader Vladimir Lenin declared: "One can not be a democrat and a socialist without demanding at once the full freedom of divorce, because the lack of this freedom is a super oppression of the oppressed sex-the woman..." On December 16 (29) of 1917 a new decree was adopted on the dissolution of marriage. The parties concerned have the right, without waiting for a formal cancellation of the former case, to enter a new request for the dissolution of marriage in keeping with the present Decree".

Since that time marriages can be dissolved at the request of both or only one spouse. And, if only the husband or the wife consents to the divorce, their application is nevertheless considered in a local Department of Registration of Marriages in the twinkling of an eye, to use the expression. The new times bring new family morals, and new legal norms...

Опубликовано 10 сентября 2018 года

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