Abstract
According to Islamic law which is the basis of the Ottoman law of domestic relations, the right to get divorced, in principle, belonged to the man. It was sufficient for the man to verbally announce that he was divorcing his wife by his own declaration of intention. It was not necessary to have the court record the situation. However, the number of divorce documents that we encountered in court records shows that the divorce cases in the Ottoman society were recorded. This situation was crucial to protect the rights of the two parties after divorce. The termination of a marriage, which was recorded in the religious records by the kadi (Muslim judge) in the Ottoman courts, was possible in three different ways: talâk, a man’s unilateral declaration of will (bâin or ric’î); muhâlaa, generally realized by the woman renouncing her rights such as mehir (bridewealth) and iddet nafakası (the alimony given to women in the waiting period to remarry after divorce); and tefrik, which was realized through the verdict of the judge. Talâk was completely the man’s decision, whereas the woman’s request could be considered in muhâlaa and tefrik. This study examines all of the divorce documents from 1670 to 1698 in the Bursa Shari’a Court Records.
Introduction
Family, which is started with a marriage contract and is the basis of society, comes to an end with divorce. In Islamic law, divorce is expressed with the word “talâk” and includes divorce that is realized through the intention of one party, divorce that is realized through both parties’ will, and divorce by the decision of the court. Although the ways to divorce are different from one another, all three types of divorce have common clauses. In the past, talâk meant the divorce that occurred by a unilateral declaration of intention. A termination of marriage that was caused by the woman paying a certain amount of money or by renouncing her monetary rights was called hull or muhâlaa, whereas a divorce that was caused by the decision of the court was called tefrik. 1
The right to get divorced with one party’s declaration of intention belonged to the man. When this right was given to the man, his obligation of paying mehr (the money to be paid to a woman’s family in case of divorce) was regarded “as an obstacle,” in addition to his psychological characteristics, and the necessary precautions were taken to avoid his abuse of this right. The people were reminded that Allah did not like people to get divorced, and a divorce was invalid when the husband was angry and furious. They checked if the divorce occurred when the woman was in her most attractive condition. For example, it was discussed if the divorce could be valid when the woman was menstruating. Despite these obstacles and precautions, if the husband decided to get divorced, there had to be a situation that prevented the couple from getting along and living together. In this situation, there was also no need for a court because trying to prevent or postpone the divorce was useless. 2
In the cases, where the woman, not the man, wanted to end the marriage, there were several opportunities for her to do so, although these opportunities were limited. Accordingly, the woman could stipulate in the marriage contract that she has the right to end the marriage. In addition, the woman could end the marriage by resorting to the court in some situations. 3 However, because there were serious differences in perspectives of different religious sects for such cases, different people who lived in the same society could give different verdicts. 4
The first and real result of divorce was the end of the conjugal life that was started by a marriage contract, which could occur immediately; however, the marriage could also continue until the iddet 5 was over. The immediate ending of a marriage is possible by bâin (irremediable) divorce, and the delayed ending of a marriage is possible by ric’î (remediable) divorce. The rights and responsibilities that accompany marriage come to an end with divorce, and new rights and responsibilities begin. Regardless of how the marriage is terminated, by canceling the marriage contract, the rights and responsibilities that are given to the couple upon marriage lose their validity. 6
The Quran commands that if a couple does not get along and if there is danger in the couple’s separation, other members of the family can act as referees to solve the problem. This ordinance in the verse 35 of Quran’s Nisa sura states that “And if you fear a breach between the two, then appoint judge from his people and a judge from her people; if they both desire agreement, Allah will effect harmony between them, surely Allah is Knowing, Aware.” 7
This contribution of the family is called the consolidation procedure and is based on good faith and trust. This procedure is important concerning domestic relations because it is reliable, confidential, and practical. 8
The use of the consolidation procedure contributed to the rapid operation of a judicial order, which did not adequately operate because of the large number of cases and physical inadequacy. The referees were selected among the people who the parties trust, and they had an opportunity to reflect on the situation, not through documents or witnesses, but through their personal impressions and knowledge. These factors show the importance of this procedure to the law of domestic relations. 9
Types of Divorce
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
The husband must be using his first or second talâk right.
He should have entered the nuptial chamber with his wife.
He must be getting divorced in return for the money his wife paid him. 12
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’s illness or impotence (İnnîn)
The woman whose husband was impotent could ask for a cancelation of the marriage by resorting to the court if she no longer wanted to live with her husband. After a woman states such a demand, if the husband acknowledges that he is impotent, he is given a period of one year by the kadi. 50 Emine, who lived on Abdal Mehmed Street, stated that her husband Mehmet, who she married seven months previously, could not have sexual intercourse because he was impotent. The court stated that their marriage remained valid, and Emine had to wait one year; therefore, the case was suspended. 51 The fact that women went to the courts for these situations is remarkable.
An example of a divorce caused by illness occurred in 1587. Raziye was married to a man named Mehmet. Eventually, she went to the court and stated that some Muslim people told her that Mehmet had a contagious disease called frenk zahmeti. Mehmet refused this claim and said that if “I have such an illness and if it appears after we get married, Raziye should have the right to divorce me with three wordings of divorce.” When his illness appeared after marriage, Raziye claimed that they should be divorced, but Mehmet rejected this claim. When doctors such as head doctor Ataullah Çelebi (son of Sunullah) and Ahmet (son of head surgeon Bayezid) examined Mehmet, they stated that he had an illness that is called frenk zahmeti in public or Karha-i Habis in medicine. Although Mehmet denied the claim of talâk-ı selâse, because Raziye could prove her claim in the presence of witnesses, they were divorced. 52
In Ottoman society, when the couple is married, not being a virgin was a shame to the woman and her family, which was similar to the shame of a man to be impotent on the wedding night. There are no documents that show if there were any medical or cultural solutions for these cases. However, a woman could not complain about her husband’s impotence until at least one year after marriage. Some families felt such social pressure that they dispensed with this shame by resorting to unnatural methods. An example of this situation is seen in research that was conducted by Abdülmecit Mutaf concerning Balıkesir. Rukiye was sued because she took Halime’s (her daughter-in-law) virginity by breaking her hymen with her finger; she defended herself by saying that “when my son Mustafa said that he could not deflower her I had to do that myself.” 53
In the records regarding divorce cases, we encounter some situations where divorce occurred before the couple had a sexual relationship, which is called “duhul (entering).” When Havva, who lived on Selçuk Hatun Street, requested a divorce through muhâlaa from her husband, Aldulkerim Çelebi, she stated that they divorced without having any sexual relationship. 54 In contrast, Hatice, who lived on Kara Mazak Street, asked for a divorce and stated that although she and her husband had a sexual relationship, they divorced because of disagreements and conflicts between them. 55
Difference in religion
Although a Muslim man could marry a non-Muslim woman, a Muslim woman could not marry a non-Muslim man, which was also a religious obligation. 56
Fatma, a woman who lived on Tatarlar Street, stated that she divorced because although she adopted Islam, her husband did not. Moreover, when she demanded substance money for her daughter, Ayşe, the money to be paid was determined by the court to be four silver coins daily. When this amount was concluded to be insufficient for Fatma and Ayşe, it was changed to six silver coins daily with the addition of two silver coins. 57
Fatma, a Müslim woman who lived on Selçuk Hatun Street, requested permission to marry another man when her husband Erakir did not adopt Islam. The court canceled the marriage when Erakir did not agree to adopt Islam after the court asked him to, and the court decided to have their five-year-old son and seven-year-old daughter adopt Islam and allow Fatma to marry another man. 58
Bülûğ muhayyerliği (“Hiyarü’l-Bülûğ,” choice after puberty)
According to Islamic law, to protect girls, children who did not reach puberty could marry only when the people who are appointed to represent them by the court (protector) allowed them to marry regardless of their age. Although there is no consensus among lawyers concerning whether this contract is valid, it is generally identified as valid. 59 However, the child has the right to cancel this contract when she reaches puberty, but this right must be used immediately after she reaches puberty or else she loses this right. 60 For the contract to be canceled, the protector of the child must be someone other than her father or grandfather. If the protector is the father or grandfather, it was not possible to cancel this marriage contract.
Can Zeyd marry that woman?
Yes, if the protector is not her father or grandfather. Or else, cancelation is possible after she reaches puberty. 61
According to the Hanafis, the reason for this situation is because the opinions of the father and grandfather are absolute, and their affection and compassion are significant; the contract that they make requires much more deference. However, if these protectors are notorious because of their carelessness, greed, and fast living, if they are drunk during the contract’s formation or if they tend to risk the well-being of the people in their custody and have them marry people who are not their match, this contract loses its validity. 62
This type of divorce was seen on Câmi-i Kal’a Street. Fatma sued her husband, Ahmet Efendi, in court. Fatma stated that because she was not old enough, they had her marry Ahmet Efendi against her will. She provided the exact date of her first menstruation and said she wanted a divorce. Fatma demanded that her contract be canceled, and she rejected it. When the witnesses were asked about the situation, they said Fatma told them that she wanted a divorce the moment when she first menstruated, and when the witnesses confirmed that she was telling the truth, the court allowed the divorce. 63
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).

Types and rates of divorce from 1670 to 1698.
Conclusion
Religions and law have considered different perspectives on divorce. Some religions and laws have completely banished divorce, and in some religions and laws, divorce was completely according to the public will. In some systems, divorce was only allowed for one party, and in other systems, divorce was permitted for both parties; some systems allowed the interference of judges and arbiters. Although the maintenance of an established family was essential in Islamic–Ottoman law, it was possible to end a marriage when living together became unbearable for the couple. There were various ways of ending a marriage. These ways were talâk-ı bâbâinin, which was the man’s declaration of intention, muhâlaa, which was generally realized by a woman renouncing her material rights such as bridewealth and alimony, and tefrik, which was realized through the verdict of a judge. According to Ottoman domestic law, the parties who divorced did not have to go to court to record the situation. However, the couples considered it necessary to go to court to preserve their rights.

Bursa Shari’a Court Records B 112 26a.

Bursa Shari’a Court Records B 112 48b.
For society, divorce was possible if one or both parties concluded that the marriage could not be continued despite all efforts. When the couple faced divorce because they did not get along with one another, other family members and society tried to solve the problems first; if the problems were not solved, the marriage was ended. In Ottoman society, divorce was perceived as normal, not taboo, because for the women who thought that living with their spouse was unbearable, it was always possible to resort to muhâlaa. Because of the trust in the Ottoman courts, there were examples of non-Muslims who resorted to the kadi courts.
Just as marriage provides a man and woman with certain rights and duties, divorce also creates some rights and responsibilities. The most important rights were iddet (waiting to remarry after divorce) and the right to get married again. İddet, which is accepted by all legal systems and is present in every society, is the first and most important religious and judicial responsibility of a woman whose marriage has ended. This duty is to protect the lineage. The parties who reflect on their divorce during this period of delay may remarry one another again if they regret their decision or they can marry another person if they are sure about ending their marriage.
In the period between 1670 and 1698, which is in the scope of our research, 91 percent of the Bursa Şer’irre records involved muhâlaa. The large percentage of these divorce cases shows that women had sufficient economic power. The fact that men force women into this type of divorce should not be forgotten because the women who chose to divorce their husbands in this way renounce their economic rights, such as mehr (brideprice) and nafaka (subsistence money). The promotion and reduction of this subsistence money occurred through a court.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
