While we’re watching Canada’s leaders and the US’ black-robed masters fiddle around with marriage law, it might be a good time to talk about the old Irish marriage laws. (These old laws are sometimes referred to as ‘brehon law’, since they were administered by brehons, a sort of lawyer/judge in one. The brehons, like the poets, went to school for many years to learn their art. The similarity behind poet and lawyer schools was no coincidence, since tradition tells us that laying down the law was originally one of the poets’ jobs. It was taken from them by the kings when decisions began to rely too heavily on technicalities and obscure language, so that the people — and the kings, for that matter — could not understand them. Since justice was everybody’s business and the kings’ responsibility, this was obviously a breach of the social contract.)
First, one hears that there were trial marriages of a year and a day under brehon law, after which one could back out if one chose. However, I still haven’t seen any specific references to this from the actual lawbooks. (Of which there are quite a few in existence.) The invaluable Sharon Krossa has looked into the situation in Scotland, and what she finds is that handfasting, ie, betrothal, is being confused with marriage. They weren’t necessarily supposed to be having sex; but it happened. Note that if the couple did have sex and produced a kid, they were instantly considered married and any backing out was null and void.
Next, one hears a great deal about how enlightened medieval Irish marriage law was, and how women were equal partners, etc., etc. Well, in some ways it was better than medieval European law on the subject — and more to the point of the arguers, more just than British law of the late nineteenth century. But the sad truth is that, in the brehon law, women were practically always acting not on their own, but through a ‘guardian’. Before a woman was married, her ‘guardian’ was her father or the male head of her family; afterward, it was her husband or (should she be in conflict with her husband legally) a male member of her family. There were a few cases when women were responsible for their own actions (if her husband was landless or an outsider), but these were special cases, like panels of women chosen to investigate medically whether a man was really impotent or not. (Impotence was a legal reason for a marriage to be dissolved without the woman losing her brideprice.)
The reason a woman maintained the right to her own land and property in the marriage was, I’m afraid, because nobody really owned his or her own land and property. In the really old Irish law, all the land used to belong to the tuath (tribe); equal amounts of land (carefully graded to be equal amounts of arable land, marshland, grazing land, etc.) were given out by lottery every year. The real wealth in the old days was in cattle. Naturally, those with many head of cattle couldn’t possibly maintain them on their own bits o’ land, so those folks would give their cows to others who would raise them during the year. The really poor were something like sharecroppers of cows. Later, as agriculture took a little more hold, people did own their own land. But even then, you couldn’t really sell things very easily. The land was held for those who would inherit it in the future, and selling land was discouraged. Cows were a bit easier. *grin*
The consequence of the Irish focus on marriage as a contract was that, even into the nineteenth century, many Irish marriages were arranged as a business deal between two families. Although women and men both had to freely consent, they often were freely consenting to someone they’d never met before…though just as often, they were marrying someone in the district whom they’d known and been courted by for a long time. However, as this interesting article on John Ford’s The Quiet Man points out, the contract, as well as the property and wealth involved, were really symbolic of the union of families. So it wasn’t just soulless money…but it was also rather constraining for individuals.
Anyway, there were either eight, nine or ten forms of marriage recognized under the law, as laid out in Cain Lanamna. (Irish lawbooks seem to have preserved both older and younger forms of relevant laws, so you sometimes get more than one version.) These were not all “real marriages”; some were considered marriage to give children of such unions a right to support and inheritance both from father and mother (as well as a place in the tuath). Each kind of marriage had different levels of rights for each partner. (This part of my post leans heavily on the helpful but pagan-biased article “Marriage, Separation and Divorce in Ancient Gaelic Culture”, by Alix MacIntyre Hall, but it also leans on my memory of reading some of the same books she did. *grin*)
Lanamnas comthinchuir — union of joint property in which both partners contribute moveable goods into the union. The woman in such a union is called a wife of joint authority. (This is the partnership thing alluded to above; neither person could make a valid contract without the consent of the other.) It seems to have been the most common sort, since this way neither person’s kin feels like they’re getting a bad deal, and the woman’s honor price (the amount in cows you were worth if you were murdered, which also determined how much compensation you got for many other offenses against you or how much you paid for bad stuff you did to others) was not diminished.
Lanamnas mna for ferthinchur — union of a woman on the man’s property, into which the woman contributes little or nothing. The man could make contracts without the woman’s consent, but he couldn’t get rid of necessities like food, clothes, cows, and sheep without her, since that affected her support.
Lanamnas fir for bantinchur — union of a man on the woman’s property, into which the man contributes little or nothing. The woman could make contracts without the man’s consent.
Lanamnas fir thathigtheo — union of a man visiting, which signifies a less formal union in which the man visits the woman in her home with her kin’s consent. (Even into the nineteenth century, there were many people who were old enough to marry who didn’t have a separate home or resources to support a wife. This is a marriage of two people so poor they’re both still living in their parents’ basements, in other words.)
Lanamnas foxail: union in which a woman goes away openly with a man without the consent of her kin. Also, a union in which the woman allows herself to be abducted without the consent of her kin. (The second version was actually known to happen in Ireland occasionally in the nineteenth century. When two families have to agree, sometimes two kids get a tad bit impatient.)
Lanamnas taidi — union in which a woman is secretly visited without knowledge of her kin. (And as we all know from the old ballads, it’s never a good idea….)
Lanamnas eicne no sleithe — a union or mating by forcible rape or stealth. (Stealth in this case also means trickery and deceit, or the use of drugs or magical potions.) Rape was a crime, as was sexual assault. As I pointed out earlier, this is a legal definition for purposes of inheritance and legal rights.
Lanamnas fir mir — the union of two insane persons. (Insane or feebleminded persons were not responsible for their own actions under the law, and didn’t really have much in the way of honor prices. Their kin were responsible for them, or whoever was with them when they did things.)
Here’s another list of marriage forms. It’s similar but sorted by degrees.
A first degree union takes place between partners of equal rank and property.
A second degree union in which a woman has less property than the man and is supported by him.
A third degree union in which a man has less property than the woman and has to agree to management of the woman’s cattle and fields by someone from her family.
A fourth degree union is the marriage of the loved one in which no property rights changed hands, though children’s rights are safeguarded.
A fifth degree union is the mutual consent of the man and woman to share their bodies, but live under separate roofs.
A sixth degree union in which a defeated enemy’s wife is abducted. This marriage was valid only as long as the man could keep the woman with him.
A seventh degree union is called a soldier’s marriage and is a temporary, primarily sexual union.
An eighth degree union occurs when a man seduces a woman through lying, deception or taking advantage of her intoxication.
A ninth degree union is a union by rape.
A tenth degree union occurs between feeble-minded or insane people.
Polygamy did occur. Without the consent of the primary wife, other wives or concubines could not be given the full status of the first kind of wife. (It was effectively taking another partner into the family business. Getting three people’s consent to a contract would’ve been a real pain….)
All children were equally heirs and both parents responsible for a child’s support, except in certain cases. If one parent died, the other parent took sole responsibility. If the mother was a known prostitute, only she was responsible for the child; it was the one of the costs of doing business. No professional satirist, male or female, could be held responsible for raising a child; this could have been because they were considered bad parents or, more likely, because an unwilling satirist would make life hell for everyone else, diminishing their honor prices in the bargain. The father (or his kin) was solely responsible for the child in cases of rape. A sane person who impregnated or bore a child to a feeble-minded person was solely responsible for the child. A child produced by a marriage between feeble-minded or insane people was the responsibility of the guardian who was legally responsible for allowing the marriage.
Divorce was contract-breaking and heavily penalized, unless there were grounds. If there were grounds, the party who provided them was fined and the fine given to the other partner. Grounds for a husband to divorce a wife and keep her brideprice included: unfaithfulness, persistent thieving, inducing abortion, bringing shame on his honor (and thus reducing not only his own honor price but his wife’s), smothering a child, and being without milk through sickness. Wives could divorce and get their brideprice back for: infidelity, failure to provide support, spreading false stories about her, making a satire on her, being a big mouth (“it is not right for a man who talks of bed to be under the blankets”), claiming she wasn’t actually a woman, impotence, too obese to fulfill his marital duties, homosexuality, sterility, her husband giving her a blow that caused a blemish, and finding out he was in holy orders. A marriage could be dissolved without penalty if one partner wanted to go off and join the clergy or go on a pilgrimage or very long visit; death also dissolved the marriage without fault. (Lawyers!) If the marriage was infertile and they didn’t want to divorce, each had the right to separate temporarily and “seek a child” with someone else, but the biological mother and father would be responsible for the kid, and his/her inheritance would depend on them.
I’m not even going to go into the brideprice/dowry stuff. There were four different kinds, for goodness’ sake!
The thing about Irish marriage law was that it tended to protect the rights of the tuath, one’s kindred, and one’s children over the actual persons getting married. It was just in its fashion, but it certainly wasn’t easy and simple. Now, the Irish liked things complicated…but then, they had a lot of long winters back then and law was a spectator sport. We have other things to do with our time. So maybe we ought to be a bit cautious about experimenting, unless we really want to be sitting around asking each other what kind of marriage Alice and Bob have and in what degree.