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124 Chapter 2
If a woman (or a man, but it was more likely to be a woman)
had diculty in getting a legal separation, she could even go to the
pope: there was a routine mechanism, probably necessary only in
cases where local ecclesiastics were not trusted—for instance, if the
husband was a friend of the bishop. A formulary of the Audientia
litterarum contradictarum, the oce through which routine litigation
at the papal curia passed, gives an interesting example of a
papal letter setting in motion the proceedings towards a legal separation.
It is clearly based on a real case, for the husband is named
as a knight called Antonio de Luna of Zaragoza. The complaint
had been made by his wife Alienor. Antonio had been a persistent
adulterer and had apparently also treated her cruelly, so she was in
physical danger living with him. She asks for a legal separation, divortium
quoad thorum et mutuam servitutem. Furthermore, and this
is important, she wants her dowry to be returned, together with
anything else assigned to Antony as part of the marriage settlement.
Thus property was involved. It was not just a matter of the
couple splitting up and living apart: a legal settlement could hardly
be avoided if Alienor wanted everything back, and the other side of
the case would in fairness have to be heard. The pope—or rather
the administrators acting with his authority—appoints the bishops
of Barcelona and Vich as judges delegate, suspending the canonlaw
rules designed to make sure that judges and parties were not
too far apart geographically. One suspects that the husband was
powerful locally and that judges from some distance away were
appointed to ensure that the trial was fair to the wife.
Even with the possibility of legal separation, the medieval Church
was asking more of married couples than most cultures and religions
have done, since it did not permit remarriage so long as the
first marriage was deemed to be genuine. This was clearly a demanding
doctrine. The obverse was that the Church demanded a
high level of freedom at the point of entry into marriage, so that
any pressure that would frighten a reasonable person was enough
to invalidate a marriage.
Indissolubility and free consent
Marriage was an unbreakable bond but it had to be accepted freely
in the first place. In the Church’s ocial thinking marriage was a
Herde, Audientia litterarum contradictarum, 308–9.
See ibid. 309 nn. 2 and 3.