The Celtic law of divorce, treated in the women in Celtic society cluster within the broader Celtic society, law, and governance survey, is one of the most revealing features of the legal standing of the Celtic wife. The early Irish law texts of the Cáin Lánamna set out six specific grounds on which a marriage could be dissolved, and they set out the property consequences of the dissolution in minute detail. The Welsh Cyfraith Hywel provides for the dissolution of unequal marriages and for the protection of the wife’s property. The Breton Très Ancienne Coutume preserves similar provisions. The Celtic law of divorce is a working legal order in which the wife has a recognised legal standing, and the rules are some of the most distinctive features of the Celtic legal tradition.
The Six Grounds for Divorce in Irish Law
The Cáin Lánamna, the principal Irish law text on marriage, sets out six grounds on which a marriage could be dissolved. The first is the failure of the husband to provide for his wife, and the second is the failure of the wife to perform her household duties. The third is the adultery of the husband, and the fourth is the adultery of the wife. The fifth is the barrenness of the wife, and the sixth is the practice of homosexual relations by the husband. The six grounds are not symmetrically applied: the adultery of the wife is treated more seriously than the adultery of the husband, and the failure of the wife to perform her household duties is treated as a more serious matter than the failure of the husband to provide.
The six grounds are set out in the Cáin Lánamna in some detail, and the text distinguishes between the cúiltech or adultery of the wife, which was treated as a serious offence, and the adulthóir or adultery of the husband, which was treated more lightly. The Irish law texts do not impose a single punishment for adultery, and the consequences of adultery were worked out by reference to the property rules of the marriage. The result is a system in which the dissolution of the marriage was a formal legal act, with its own rules and its own consequences, rather than a private matter left to the discretion of the parties.
The six grounds for divorce in Irish law are, a remarkable document. The list is short, the grounds are specific, and the consequences are carefully articulated. The list is also remarkably modern in some respects — the inclusion of barrenness as a ground for divorce, for example, has no real parallel in the contemporary Germanic and Roman legal traditions — and the list shows a legal system that was willing to recognise the practical reasons for which a marriage might break down. The history of the Celtic civilization is, in part, the history of a legal system that took the practical business of marriage and divorce seriously.
The Divorce Settlement and the Return of Property
The most important part of the Irish law of divorce is the divorce settlement, the rules that determined what was to happen to the property of the couple on the dissolution of the marriage. The Cáin Lánamna sets out the rules in considerable detail, and the rules depend on the form of the marriage and on the ground for the divorce. In the lánamnas comthinchuir or equal marriage, the property of each party was returned to each party on the dissolution, with the innocent party entitled to compensation for the loss of the marriage. In the lánamnas for ferthinchur or marriage in which the wife brought more, the property of the wife was returned to the wife, with the husband entitled to a smaller share.
The divorce settlement also took account of the household goods, the livestock, and the improvements to the land. The wife was entitled to keep her own clothing, her own jewellery, and the household goods that she had brought to the marriage. The husband was entitled to keep his own property, his own clothing, and the livestock that he had brought to the marriage. The result is a system in which the property consequences of divorce were carefully articulated, and in which the innocent party was protected against the loss of the marriage.
The Welsh Cyfraith Hywel had a similar set of rules. The Welsh law texts distinguish between the ysgar or divorce, the gwahanu or separation, and the torri priodas or breaking of the marriage, and the rules of property vary with the form. The Welsh law gives the wife a recognised claim to her own property, and the Welsh law texts set out the formal requirements for the dissolution of the marriage.
The Protection of the Wife and the Comparison with Continental Europe
The Irish and Welsh law of divorce contains a striking number of provisions designed to protect the wife against an unjust husband. The Cáin Lánamna allows the wife to divorce the husband for failure to provide for her, for adultery, for homosexual relations, and for a number of other causes, and the law texts make it clear that the wife has a right to the dissolution of the marriage and to the return of her property. The Welsh Cyfraith Hywel distinguishes between the ysgar or divorce, the formal dissolution of the marriage, and the gwahanu or separation, a less formal arrangement in which the parties continue to be technically married but live apart. The gwahanu gave the wife the right to live apart from her husband, to retain her own property, and to receive a maintenance allowance from her husband.
The protection of the wife against an unjust husband distinctive features of the Celtic legal tradition, and it has no real parallel in the contemporary Germanic and Roman legal traditions. The English common law, in particular, was based on the doctrine of coverture, in which the legal personality of the wife was merged with that of the husband, and the English common law did not recognise the right of the wife to divorce the husband. The Celtic law, by contrast, recognised the right of the wife to divorce the husband, and the law texts set out the rules in detail. The Brehon law and the Welsh Cyfraith Hywel are, in effect, charters of the legal standing of the Celtic wife.
The Celtic law of divorce compares favourably with the law of divorce in contemporary continental Europe. The Roman law of the late Empire did not recognise the right of divorce by mutual consent, and the Roman law of marriage was based on the principle of consent rather than on the formal dissolution of the marriage. The Germanic law of the early medieval period was more permissive than the Roman law, but it did not give the wife the right to divorce the husband on the same grounds that the husband could divorce the wife. The English common law, as it developed after the Norman Conquest, was based on the doctrine of coverture and gave the wife no right of divorce at all. The Celtic law, by contrast, was remarkably even-handed. The wife had the right to divorce the husband on six specific grounds, and the husband had the right to divorce the wife on the same six grounds, with the consequences of the divorce worked out by reference to the property rules of the marriage. The Celtic law of divorce distinctive features of the Celtic legal tradition, and it is one of the elements of the Celtic past that has had the widest modern resonance.
Related Topics
- The women in Celtic society cluster examines the position of women in Celtic law, politics, and religion.
- The Celtic law and the Brehon tradition cluster sets out the legal framework within which the law of divorce was administered.
- The Celtic tribal organization cluster examines the political units within which the family was the basic unit of social life.
- The history of the Celtic civilization pillar provides the chronological and political context of the law of divorce.
- The Celtic legacy today pillar examines the modern reception of the Celtic law of divorce.