Divorce and Types of Divorce at the End of Seventeenth-century Bursa

Talâk

In principle, talâk is the termination of a marriage by the husband’s declaration of intention. In the pre-Islamic age of ignorance, the right to get divorced could be used limitlessly. The man could get divorced from his wife and give up talâk before her iddet is over. In this way, the man could damage the woman’s honor by divorcing her several times and giving up talâk each time. ¹⁰ After Islam, the number of divorces was limited, and the people who abuse it and hurt women’s feelings were prevented. The possibility to get divorced (through talâk) is explained in verse 229 of the Quran’s Bakara sura.

Divorce may be (pronounced) twice, then keep (them) in good fellowship or let (them) go with kindness; and it is not lawful for you to take any part of what you have given them, unless both fear that they cannot keep within the limits of Allah; then if you fear that they cannot keep within the limits of Allah, there is no blame on them for what she gives up to become free thereby. These are the limits of Allah, so do not exceed them and whoever exceeds the limits of Allah these it is that are the unjust. ¹¹

When the husband did not get divorced or did not resort to muhâlaa purposefully or because of another reason, although the couple could not get along and continued to fight, the women were left desperate. In these cases, kadi proposed conditional talâk (divorce) to the husband who abused his wife. If the man did not consider this condition, his wife could get divorced. ¹³ The couple had it recorded in the presence of witnesses that if they became involved in certain actions, they would get divorced through talâk-ı bain. In Islamic records, these situations are called “ihbar-ı talâk (announcement of divorce).” ¹⁴ Such situations might be established as part of the marriage contract. ¹⁵

Saliha, a woman who lived on Mizânoğlu Street, stated that her husband promised not to drink alcohol again by saying “if I consume alcohol again, you have the right to divorce me”; after this promise, her husband consumed alcohol three days later; therefore, they divorced. Because she could not afford to care for her children with the subsistence money ¹⁶ that she received from her husband, Saliha demanded more money; after the situation was confirmed by witnesses, the money that she received was changed to five silver coins daily. ¹⁷

Ali Bey, who lived on Debbağlar Street, recorded in front of his wife and other witnesses that if he goes anywhere without telling his wife, they will get divorced through talâk-ı bâin. ¹⁸

The father of Fatma, a woman who lived on Meydancık Street, went to court as his daughter’s deputy and stated that his daughter and son-in-law, Ali Beşe, lived in a house that belonged to him. His son-in-law promised that if he moved to another house, he would divorce his wife through talâk-ı selâse. When the couple moved to another residence, the divorce occurred. Despite this event, Ali Beşe did not give her mehr-i müeccel, which was 10,000 silver coins. When asked about the situation, Ali Beşe stated that although he moved his house and the amount of mehr was 10,000 silver coins, there was no question of conditional divorce. After the witnesses confirmed that Fatma’s father was telling the truth, the court decided that talâk-ı selase was valid and that 10,000 silver coins should be given to Fatma’s father; according to the court, Ali was advised to comply. ¹⁹

The benefit of the written recordings of the matters that were discussed in the courts in this case can be seen because the case was recorded on 13 Cemâziyelâhir 1090 (July 22, 1679) and was on the agenda again on 02 Muharrem 1091 (February 03, 1680). Ali Beşe, who lived on Pınarbaşı Street, stated in the presence of his wife’s father that he wanted to know why his wife, Fatma, showed her hatred and avoided the requirements of marriage. Fatma’s father, in contrast, stated that his daughter and son-in-law lived in a house that belonged to him on Meydancık Street, and his son-in-law stated that if the couple moved to another place, they would divorce through talâk-ı selâse; when the couple moved to another residence, the divorce occurred in the presence of a deputy, Musa Efendi. This document was read before Ali Beşe again, and any further dispute was not allowed. ²⁰

An interesting example of talâk-ı bâin occurred between Emine and her husband Mustafa, who lived on Altıparmak Street. In this case, the mehr-i müeccel (bridewealth), worth 1,000 silver coins, the nafak-ı iddet (the alimony that is given to women in the waiting period to remarry after divorce) and the meunet-i sükna (living expenses), worth 200 silver coins, that is, 1,200 silver coins in total, were exchanged for the 1,200 silver coins that she owed Salih. ²¹

In some divorce cases, the amount of money that was determined as mehr-i müeccel could also be paid as realty. Mehmet was a deputy of Hacı Hüseyin who lived near the Yeni Mosque. Mehmet stated that Hacı Hüseyin’s wife, Ayşe, who was represented by Mehmet Çelebi, was divorced from her husband through talâk-ı bâin; her husband gave her his house in Reyhan Paşa in exchange for her mehr-i müeccel (the money that is promised to a woman’s family in the case of divorce) that were worth twenty-five silver coins. According to Mehmet, Ayşe accepted this offer through the agency of Mehmet Çelebi. ²²

In some cases of talâk-ı selâse, the woman did not receive her mehr-i müeccel (bridewealth), nafaka (alimony), and meûnet-i süknâ (living expenses). Şerife Rukiye, who lived on Selçuk Hatun Street, divorced her husband, Ali, through talâk-ı selâse. Her deputy (her brother), Seyyid Hüseyin Efendi, stated that his sister divorced and renounced her 40,000 silver coins that comprised her mehr-i müeccel (bridewealth), alimony, and meûnet-i süknâ (living expenses), and he guaranteed that his sister would not break her promise and demand mehr (bridewealth) or nafaka (alimony) from Ali or sue him. Accordingly, Hüseyin promised that his sister would not demand anything from her former husband. ²³

There are interesting cases of divorce in the Bursa records. In 1492, a man named Pîrî oğlu Ece was taken to court by the people in his neighborhood, and he was told that “loose women have been coming to your house, and your wife has a close relationship with them.” When he asked “Is my wife loose?”, they answered “whoever accepts such women in her house must be loose herself.” As a result, he divorced his wife and said, “I don’t need a loose woman, she should be divorced with three talâk (divorce)”. ²⁴ Here, we observe the effects of the neighbors on family life. It is recognized that a neighborhood’s effect on individuals was significant. A neighborhood also has an important place in Islamic–Ottoman law. ²⁵

The talâk oath is one of the most prominent reasons for divorce in these cases, and it occurred in two ways. In the first way, the man who has the right to divorce swears on his marriage for his own benefit, and the second way occurs in husband and wife relationships. In both cases, the talâk oath makes the conjugal marriage unreliable and fragile for not only the woman but also the man. ²⁶ Mehmet and Ali, who lived on Muradiye Street, sued Hacı Osman, who stated that if he opened the safe when his partner in the bakery, Ömer, was not with him, then his wife should divorce him through talâk-ı bâin. After this oath, he opened the safe and took some silver coins when Ömer was not with him. Mehmet and Ali stated that his wife should divorce him in that case. When Osman was asked regarding the situation, he stated that although he accepted the talâk oath, he did not take any money; when he was asked to swear, he did. As a result, Mehmet and Ali were banned from further testimony. ²⁷

Muhâlaa

In Islamic law, although the right to end the marriage is given to the man, if the woman wanted, she could also have a record concerning her right to end the marriage during the marriage contract. Moreover, the women who were sure that they would not be able to continue the marriage could ask for a divorce in return for a certain price. ²⁸

In the documents involving muhâlaa, the incompatibility between the couples is described with terms such as “not being healthy,” “refraining from coupling,” “avoidance of coming together,” and “having conflicting opinions.” Mulahaa occurs when the woman asks her husband to divorce her and when the husband accepts this request. Although it is rare, there are cases where the husband resorts to this type of divorce. Ömer, who lived on Yeşil İmâret Street, stated that he could not get along with his wife, and he proposed to divorce her in return for her renouncing ten dirham mehr-i müeccel, alimony, and meûnet-i süknâ (living expenses); his wife agreed. ²⁹

Thus, according to Islamic law, in return for a man’s right to divorce his wife when he wanted, the woman gained the right to divorce and end a marriage that she did not want to continue. However, the most prominent characteristic and condition of muhâlaa is that the woman renounces all or some part of her mehr-i müeccel, her iddet and the money that she is going to receive for her accommodation and nutrition (meûnet-i süknâ); her husband must accept this offer. ³⁰ There are also some records of cases where the woman maintained all her bridewealth, alimony, and living expenses. For example, Emine retained all her bridewealth, alimony, and living expenses that were worth 4,000 silver coins, when she got divorced from her husband, Hüseyin Beşe, through muhâlaa. ³¹

In this way, a woman atoned for discarding the bonds of matrimony. This price was called a “hull price” in the documents. Fatma, who lived on Emir Sultan Street, requested a divorce from her husband, Hacı Mehmet, and stated that they could not get along well. By renouncing her 2,000 silver coins of bridewealth, alimony, and living expenses and giving two Esedi kurus, she got a divorce from her husband. ³² A hull price could also be paid by clearing the husbands’ debts. Ayşe, who lived in İncirlice, renounced her 1,000 silver coins of bridewealth, alimony, and living expenses and divorced her husband through muhâlaa by stating that she would also pay her husband’s debt, which was three Esedi kurus. ³³

A woman who renounced her material rights agreed to look after her children for the sake of getting divorced, although the children were the father’s responsibility, which continued until the girls were seven and the boys were nine years old. Rahime, a woman who lived on Hazreti Emir Street, proceeded against her husband, Süleyman, who wanted custody of his son when his son turned nine years old. Rahime said that she wanted repayment for her son’s expenses because she had raised him until that day, and she demanded 2,500 silver coins. Upon this demand, Süleyman gave her a house in Yenişehir and 15 Esedi kurus for the custody of his son. ³⁴

When there was more than one child in this type of divorce, although the mother could care for one child by herself, she could demand subsistence money for the other children. Saime, who lived on Altıparmak Street, renounced her rights to have 1,200 silver coins of bridewealth, alimony, and living expenses. In exchange, Saime stated that she would care for her daughter without demanding any subsistence money. However, Saime stated that her husband, İsmail, had to care for her son. ³⁵

In these records, the mother could indicate the time until when she would care for her child by saying “until he/she grows up.” When she divorced her husband, Abdullah Çelebi, through muhâlaa by renouncing her material rights of bridewealth, alimony, and living expenses, Asiye, who lived on Hamza Bey Street, stated that she could care for her young daughter and meet her expenses until her daughter was old enough to care for herself. ³⁶

Although similar to talâk, muhâlaa did not require any court record as did tefrik. In some instances of muhâlaa, the couple went to court and had their divorce recorded or the decisions that were made by the husband and wife outside of court were carefully recorded. The principal reason for these records was the husband’s wish to prevent his wife from demanding her mehr or iddet. ³⁷ However, mostly women recorded their hull. The same situation is also seen in Balikesir. In seventeenth-century Balıkesir, forty-one of forty-six muhâlaa records belong to women. ³⁸

The records also show that women were forced into muhâlaa. Saliha, who lived on Mücellidi Street, stated that by beating her, her husband forced her to obtain a divorce through muhâlaa and renounce her monetary rights of 1,000 silver coins of bridewealth, alimony, and living expenses. Saliha also stated that because the divorce was not valid, she could demand from her husband her mehr-i müeccel, which was 1,000 silver coins; however, he did not provide it. When her husband was asked regarding the situation, he stated that they divorced at the request of Sabiha, and he did not beat her. When he was asked to swear that he was telling the truth, he did so; therefore, Sabiha’s demands were rejected. ³⁹ Another woman, Cemile, stated that her husband forced her to divorce by beating her. She stated that her husband, Kasım, gave her 1,800 silver coins of her bridewealth four days prior and forced her to renounce the rest of her bridewealth, alimony, and living expenses. Moreover, she stated that he did not give her the subsistence money that was determined by the court to be given for her two children. When she could not prove her claims, and Kasım swore that he had not beaten his wife, Cemile was prevented from any further dispute. ⁴⁰

Ümmihan, who lived in Dâye Hatun, stated that her husband forced her to divorce by beating her and saying that he would kill her. Ümmihan demanded her thirty silver coins of mehr-i müeccel. When her husband was asked about the situation, he not only denied that the amount that they decided for mehr-i müeccel was thirty silver coins but also stated that their divorce was realized through his wife’s choice. When his wife could not prove that she was telling the truth, he was asked to swear; because he swore, Ümmihan was not allowed further dispute. ⁴¹

One disagreement that appeared after a muhâlaa divorce was whether the mehr was endowed to the husband. Saliha, who lived on Kassab Hüseyin Street in İstanbul, sued her husband, who she divorced one year before, by appointing her brother, İbrahim, as her deputy. Because she gave away her 5,000 silver coins of bridewealth and alimony when she was very young, Saliha claimed that her decision was invalid, and she demanded this mehr from her husband, Veli Beşe. When Veli Beşe was asked regarding the situation, he stated that the amount of mehr that was previously determined was 2,000, not 5,000, silver coins; he also stated that when this decision was made, Saliha was old and wise enough because she had reached puberty. Because Veli Beşe could prove his claims with witnesses, Saliha was prohibited from any further dispute. ⁴²

In these situations where the women stated that muhâlaa occurred with their husbands’ force or without their will, and in the divorce situations where the woman stated that she was facing injustice and muhâlaa was not the case, none of the women could prove that they were right. The main reason why these women went to the court knowing that they could not prove that they were right must be the economic difficulties that they faced. There have been several cases where a woman withdrew the case before the witnesses were questioned, even when the woman could not receive the bridewealth that they deserved because of talâk-ı bâin. Ümmühan, who lived in Hasan Paşa stated that her husband, Osman, did not give her 5,000 silver coins of bridewealth, although they divorced through talâk-ı bâin. Her husband stated that because of his wife’s request, they divorced through muhâlaa. Before the witnesses were questioned, Ümmühan withdrew the case by acknowledging that her husband was telling the truth. ⁴³

In the cases where the husband did not want to divorce, the woman had to be under a significant material burden. Men forced their wives into muhâlaa by not divorcing them because they wanted to save themselves from paying the amounts that they promised, and they were obliged to pay their wives bridewealth, alimony, and living expenses in talâk.

In the cases where divorce was inevitable, men preferred muhâlaa. Fatma, who lived in At Bazar, received a letter from her husband, Ataullah, which stated that “if you give away your bridewealth and alimony, I will divorce you.” ⁴⁴

Although generally, the woman gave away her bridewealth, alimony, and living expenses in muhâlaa, varying characteristics could be observed in different documents. For example, although Rabia, who lived on Kepezler Street, gave her 2,000 silver coins of bridewealth, she obtained muhâlaa by receiving 100 silver coins in exchange for her alimony and living expenses. ⁴⁵

After divorce, significant efforts were undertaken to help the woman continue to live without her husband’s interference. Fatma, who lived on İmâret-i İsâ Bey Street, stated that her husband, Recep, disturbed her and hurt her feelings. After Recep was asked concerning the situation, he confirmed that they divorced, and he was warned that he should not disturb his former wife, Fatma. ⁴⁶ The neighbors of Lalezar (Abdullah’s Daughter), who lived on Mücellidi Street, went to the authorities in 1582 and stated that Lalezar was a loose woman; they did not want her to live in their neighborhood, and they complained about her former husband still visiting her. ⁴⁷ This example clearly shows that the couples were seen as total strangers to one another after they divorced.

Tefrik

Except for the situations where she obtained authorization from her husband during the marriage contract or later, a woman did not have the right to divorce her husband; this position contrasted with the man who had the right to divorce his wife through one word that he pronounced (talâk). However, the laws made it possible for a woman to request a divorce or cancel the marriage contract in certain situations. In this procedure, called judicial divorce or tefrik, divorce could not be realized through a woman’s unilateral declaration of intention. A judge’s verdict was required for a divorce to be realized. These situations involved conditions concerning the husband such as his illness or impotence, his being lost or abusing his wife. ⁴⁸

Ümmügülsüm, who lived on Veled-i Yâniç Street, stated that her husband, Hacı Hasan, attempted to divorce her through tatlik (canceling the marriage through words) and kicked her out, even though he was an old man who needed elderly care. Her husband, however, stated that he was sufficiently rational and healthy to care for himself and perform his own work. After the neighbors were asked regarding the situation, they confirmed that he was telling the truth. Therefore, the court decided that Hacı Hasan could divorce Ümmügülsüm and she should receive her 1,000 silver coins of bridewealth. ⁴⁹

Husband being lost

For a woman to divorce her husband, she had to prove that her husband had left town without leaving a sufficient amount of money for her to care for herself and that she had received no news concerning whether he was alive or dead. Women in this situation did not have the right to divorce in the Hanafi sect; however, to prevent women’s victimhood, a wife of a man who is lost for a period of four years had the right to divorce (considering the Shafii point of view) in the sixteenth century. ⁶⁴ Otherwise, if a woman could not prove that her husband was dead, she had to wait for a much longer period of time before she could remarry according to the Hanafis and for four years according to the Malikis. ⁶⁵ In these situations, the loss of the husband is confirmed by the testimony of the people who knew that he died or where he went, and a document that showed this testimony was used by these women to remarry.

Ümmühani, who lived on Reyhan Paşa Street, searched for her husband by deploying her mother, Ümmügülsüm. Ümmügülsüm asked the people around her daughter’s husband, Murat Beşe, to confirm that he had died in Rumelia eight months previously, and Ömer Beşe and Ali Beşe confirmed that they knew that the man was dead. As a result, Ümmühani received permission to marry another man with the statement “… müvekkile-i mezbure Ümmühani hatuna zevc-i ahara tezvice izin virilüb ….” ⁶⁶

When we examine the divorce rates by types, we observe that muhâlaa is most common, with a rate of 91 percent; talâk-ı bâin is second, with a rate of 5 percent; and tatlik is third, with a rate of 2 percent. Talâk-ı selâse and tefrik are the least common divorce types, both with a rate of 1 percent. The large percentage of muhâlaa shows that women had sufficient economic power because the women who chose to divorce their husbands in this way renounced their economic rights such as mehr (bridewealth) and nafaka (subsistence money; see Figure 1).

OPEN IN VIEWER

Figure 1.

Types and rates of divorce from 1670 to 1698.