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I had recently a silly idea when thinking about alternative ways of splitting property at a divorce time. Imagine a culture (thinking roughly renaissance setting, maybe late medieval, or later, but definitely pre-Victorian), where if you want a divorce, you have to fight your spouse to death in a public duel. It's a rather rare thing, maybe something that happens only once every few years even in a large city, so most people have never actually seen one. However, it's enough of a thing that everybody knows that it happens and it's at least tolerated and possibly regulated (e.g. compensation for missing limbs or women being in general physically weaker) by the authorities.

Now, is it possible? Of course, technically yes. But I don't recall ever hearing about anything even remotely similar from actual human history. Is it likely? Would such society likely follow a different cultural development? Or would they end up where our normal history ended up, with just one more to the 20 weird things you won't believe people used to consider normal list? (and a bit more colourful history behind divorce lawyers)

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    $\begingroup$ The obvious problem is that many cultures considered women unfit to fight, and allowed a champion on judicial duels where those happened. That would give a clear edge to the woman who can hire a professional if such professional duelists exist. $\endgroup$ – o.m. Sep 21 '20 at 16:29
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    $\begingroup$ The question assumes that women have a right to a divorce in their culture, and will be treated fairly when they exercise that right. If true, then what need is there for combat? If false, then any who navigate the system to achieve a contest will discover it rigged anyway. Might be marginally safer and easier to cleverly murder your husband, become a widow, and avoid the rigged system. $\endgroup$ – user535733 Sep 21 '20 at 17:02
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    $\begingroup$ One problem is that you are giving the weaker party (in a fight) an incentive to murder their spouse. $\endgroup$ – NomadMaker Sep 21 '20 at 19:35
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    $\begingroup$ Is "silly" the right word for this idea? At present, in the United States, something like 25% of divorces are precipitated by domestic violence or abuse. I'm confident that in the past and in other places, this rate was higher. In your vision, a person comes to the court and says, "I'm afraid of my violent, abusive spouse. I want a divorce." The court says, "If you want a divorce, you must fight your violent, abusive spouse. Do you still want to get divorced?" That sounds less silly and more sadistic. $\endgroup$ – Juhasz Sep 22 '20 at 0:50
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    $\begingroup$ As someone who has been divorced, I suggest not pursuing this silly idea. I don't intend telling you the details, but I did seriously consider killing her or getting someone to do it; and with how she's parenting our son who she got custody of, I'm frequently not sure that I did the right thing. Another commenter has noted that many women choose divorce after being abused. This isn't a good place to play lightly. $\endgroup$ – Graham Sep 22 '20 at 7:44
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It Happened Historically

... although it was not necessarily common for women to participate in duels, it did happen. In the medieval period before the advent of forensic science, the judicial duel was often used as a way to settle legal disputes where no compelling evidence of a crime could be produced one way or the other.

The idea was two-fold:

1 - A person would generally retract their charges in a legal dispute unless both parties felt adamant enough in their claims to risk their life over it.

2 - Medieval Christian faith led them to believe that God, being just, would favor the righteous combatant over the skilled combatant; so, it was not necessarily seen as unfair for a woman to fight a man in a judicial duel (particularly in the high-medieval period) because if she were honest in her position then God would favor her. As you progress into the late medieval period, it became more common for a combatant to be given a handicap if the difference was seen as too great though. For example, one manuscript mentions a local law where a man would have to stand in a hole waist-high when dueling a woman to make it fair.

To apply this to your setting, in Catholic Europe, there was no such thing as a divorce, but a marriage could be annulled if you could prove that the marriage was made under false pretenses. So, if a man or a woman in your setting wanted a divorce they would have to press criminal charges against their spouse to prove that the marriage was illegally forced on them. In cases where coercion can not be proven, the accuser would be required to prove their point in a judicial duel. Furthermore, many medieval jurisdictions would award the winner of a duel the loser's estate as compensation for the false accusation.

So, the judicial duel was a legally acceptable form of ending a marriage as you've described under medieval law in many places.

Some Side Notes about Judicial Duels:

Judicial duels were often not to the death as opposed to many other solutions here. Yes, one or both combatants often did die, but this was not usually the point. It is hard to make absolute statements here since dueling was typically governed by local laws, but many areas in Europe did dueling to first blood, dueling to submission, shield breaking, etc. In some places, you could actually win the duel and then be executed for murder if you deliberately struck a fatal blow. The point of the judicial duel in most areas was to decide who would be punished/protected under the law, not to kill your opponent.

So, the battle would be over as soon as the local law was satisfied. If both combatants were still alive at that point, and if the person asking for the divorce won, then the opponent would be prosecuted for coercing the marriage and the winner could receive an annulment. The winner would likely earn the rights to the estate and the loser may be either fined, jailed, flogged, executed, etc. depending on the local laws regarding coercing marriage. If the defendant wins, then it is accepted as proof that the marriage was not coerced and they must remain married.

Also, as is pointed out in comments, the duel would not necessarily even be between the husband and wife. In the later medieval period, trials by combat more and more often became fought by proxies: hired mercenaries, next-of-kin, men-at-arms appointed by the local lord, etc.

† Pun intended

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    $\begingroup$ Boy, it must be an awkward dinner later that night if the defendant wins. "Hey honey, remember that time you publicly declared that I forced you into marriage, and then tried to kill me as proof? I'm glad that's all in the past now." $\endgroup$ – Nuclear Hoagie Sep 22 '20 at 14:11
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    $\begingroup$ LOL! Depends on how the conversation happened leading up to the duel. "I want a divorce!", "Me too!" ... "So, do we just split things up 50/50 how does this work?", "I dunno, let's go down the the magistrate's office in the morning and find out". (24 hours latter at dinner) "Well that got out of hand quickly... sorry I stabbed you in the leg.", "I forgive you, but can you hold the baby while I go change my bandage?" $\endgroup$ – Nosajimiki Sep 22 '20 at 14:34
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    $\begingroup$ I fought in a "Gottesgericht", at least as a carny [i'm a hema fighter] . I want to add to this answere that the believe was "if god knows everything, he'll grant the right combatant victory because [bananas]". that's it, no questions asked. medival law led to some strange implications over this fight. if you ever heard of a so called letter of indulgence, a similar mechanic took root here: somebody challanged to a duel could always hire somebody else to fight in their place, usually till first blood (not death). our grandmaster who passed our fighting style book made a living out of this $\endgroup$ – clockw0rk Sep 22 '20 at 14:43
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    $\begingroup$ @clockw0rk That is a good point. That said, marital duels are complicated by the fact that it was normally the husband who fought in a woman's place or paid for such an indulgence. $\endgroup$ – Nosajimiki Sep 22 '20 at 15:25
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    $\begingroup$ "Pun intended" - how about another one - change "two-fold" to "dual purpose" $\endgroup$ – manassehkatz-Moving 2 Codidact Sep 23 '20 at 15:27
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In Medieval Germany there was a tradition of 'Marital Duels':

Married couples could legally settle their disputes by fighting a Marital Duel. To even the field, the man had to fight from inside a hole with one arm tied behind his back. The woman was free to move and was armed with a sack filled with rocks. The man had three clubs at his disposal. If he touched the side of his hole during combat, he would forfeit one of his clubs. Whoever lost the battle would be put to death. -- Source: Crazy Facts

... so this concept isn't unheard of. But as noted such duels (at least before the invention of firearms) were mismatches, strongly favoring the physical strength of males. I suppose one could make it more fair in a society where women were encouraged to train in light dueling weaponry (rapiers, epees, dueling pistols, etc), but no human society (fantasy fiction notwithstanding) has ever been that egalitarian about arming and training women.

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    $\begingroup$ It was not the strength but expected training that favored the man. Modern HEMA competition results demonstrate that in cases where experience level is more or less comparable sword fighting is actually one of the most fair sports in the world for people of different strength and gender to compete against each other in, but in Medieval Europe only boys were trained to fight. $\endgroup$ – Nosajimiki Sep 21 '20 at 17:26
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    $\begingroup$ That's a very good example! One note though, having female soldiers (or not) is not as much about being egalitarian as about using the expendable men rather than the valuable women as spear/cannon fodder. $\endgroup$ – BIOStheZerg Sep 22 '20 at 8:35
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    $\begingroup$ "no human society has ever been that egalitarian about arming and training women" - correction: no human society has ever been that suicidal about arming and training women. Before industrialization and modern medicine, women had to make as many babies as possible, in order to at least some of them surviving into adulthood. And someone still had to tend to the crops and animals anyway while the husband was away at war. A pre-industrial society which sent a significant portion of their women to fight, would go extinct in a few generations. $\endgroup$ – vsz Sep 22 '20 at 10:13
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    $\begingroup$ @TedWrigley : you are twisting my words around. I wasn't advocating slavery. Men in that time didn't just lounge around, they also did hard labor, and they did most of the more dangerous labor, to protect women. You might see "protecting women" as some kind of an insult if your ideological views make you see it like that, but if you placed yourself into the technological and sociological constraint of those times, you would understand that it was anything but that. Try building a different society with those given constraints, and they will starve or be wiped out by their neighbors. $\endgroup$ – vsz Sep 22 '20 at 10:53
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    $\begingroup$ @TedWrigley Loosing women in war is like paying compounding interest on a debt. If a woman's life is wasted on a war, then you are not just loosing that woman but all of her unborn descendants too. A single woman lost today can cost you a thousand warriors over the course of the next few centuries, but a thousand men killed in a war today may not affect you actual population in a few centuries as long as your culture allows for polygamy (which typically happens after particularly costly wars, even in cultures that did not used to allow it). $\endgroup$ – Nosajimiki Sep 22 '20 at 15:58
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Divorce was heavily discouraged in this time period, so implementing a fight to the death between the two may help limit the number of divorces. Many societies in this period value marriage above life.

Beware of this being insensitive to domestic violence in this story. You're basically encouraging family violence here. This is an interesting story line and I believe it to be historically plausible, but care should be taken to avoid glamorising spousal abuse.

There will be a trauma exacted on the townspeople watching their neighbours mr. and mrs. Smith kill each other. This will give their children PTSD. Perhaps in a very large city where everyone doesn't know everyone this can work as entertainment, but in a small town this is going to be traumatic.

But the fight is not going to be fair anyway. Assuming these people were Christians; divorce is adultery for the woman:

Matthew 5:32

But I say to you, whoever divorces his wife (unless the marriage is unlawful) causes her to commit adultery, and whoever marries a divorced woman commits adultery.

... and adulterous women get put to death:

Leviticus 20:10

And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death.

So the fight to the death may kill the woman, if she survives, she has committed the sin of divorce, she is killed by the state for adultery.

Were I a woman in this period I'd just put arsenic in his dinner. Much safer.

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  • $\begingroup$ .... divorce was discouraged at least in Western Culture. Although the question specifies a rough cultural equivalent, it does not necessarily require that it actually be, say Renaissance Italy. Aside from that, you're reading those two verses wrong; note that Jesus's use of "unlawful" refers to a wife that was already adulterous. He's also not referring to adultery in the legal sense, but a moral sense (that is, she may still consider herself married to him).... $\endgroup$ – Clockwork-Muse Sep 21 '20 at 17:35
  • $\begingroup$ This where it is important to cite what translation you are using since most Bibles are clear that adultery is a condition you are forcing on your wife. This context is especially understood in pre-modern civilizations were women did not have the rights to work; so, divorcing her would be seen as the man's sin for not giving her the option to live without sin. This is the condition that Jesus put on divorce saying when divorce would be seen as the sin of the man or the woman. $\endgroup$ – Nosajimiki Sep 21 '20 at 17:38
  • $\begingroup$ ... Note that divorce was a legal separation for the Jews (the preceding Matthew verse mentions certificates of divorce), and the Leviticus verse would not apply. Further, "the state" did not lay such charges - it could be brought by the husband, who could impose it as a punishment; some equivalent passages elsewhere allow him to impose a fine instead. Take into account the prophet Amos, who was commanded to take an adulterous wife. $\endgroup$ – Clockwork-Muse Sep 21 '20 at 17:41
  • $\begingroup$ I'm not a student of history, so I'm not sure whether adultery was generally recognized as a capital crime in historical Europe. The more notable instances are usually due to the woman being royalty, which brings a much larger set of factors in. $\endgroup$ – Clockwork-Muse Sep 21 '20 at 17:43
  • $\begingroup$ @Clockwork-Muse Jesus openly opposed Jewish certificates of divorce. While they were legal under Jewish Law, they were not legal under Papal Law. At the height of the Catholic Church's power in Europe, you could be excommunicated for divorcing your wife which was a punishment widely considered a fate worse than execution. Not only were you damned to eternal suffering, but you lost your "Rights of Christendom" which basically meant you could no longer own things or legally do most kinds of work or claim any protections under the law. $\endgroup$ – Nosajimiki Sep 21 '20 at 22:14
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Possibly

Culturally I can't think of any example where it happened. Still, I can imagine a world where marriage is much more respected or worshipped, while life is regarded lower than marriage.

In this world, to prove your marriage is really stranded, you must prove it with a duel to the death. If one of them is emotionally able to kill their partner, then it shows that the marriage was truly a mistake. Otherwise you'll be destined to continue living together.

With the public nature of many executions, like stoning, beheading or hanging, it will likely be a public event.

There are some examples , like from king Henry the 8th, of people killing their wives through official channels. "Until death do us part" can be taken very literal here. A culture wanting to do this officially and publicly according to some rules might not be a stretch.

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Reverse Solomon (Warning contains allusions to self-harm)

Here is a way to solve the strength disparity.


I can suggest a rather macabre way that could work. It's sort of the opposite of when Solomon suggested cutting a disputed baby in half to see who the real mother was. Judgment of Solomon

Instead of this you could find out who wants the divorce most as follows:

If you really want to divorce and get all the property, you have to prove your seriousness by cutting bits off yourself.

Let's say one spouse chops one of their own toes off. The other spouse must do something equivalent or they will lose.

They continue this way until someone refuses to cut any more bits off themself at which point they are declared the loser and the other spouse is entitled to the assets of the marriage.

Notes

  1. Just as in Solomon's judgement, no-one actually has to die although if someone is willing to cut their own head off in order to dispossess their spouse, then they win and whoever is in their will gets the property.

  2. If they both refuse to cut any bits off (or it ends in a draw) then they must continue with the marriage.

  3. It could be that the combatants start small, e.g. by pulling out hairs one-by-one. There could even be a rule that the first one to be completely bald is the winner. However this could cause problems if one spouse is already bald or has a beard, so some handicap system would have to be imposed.

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I HATE YOU THIS MUCH...

As an alternative to duels, I am reminded of this question where every gun shot backwards equally often as they shot forwards. One of the uses for such a gun was to equal the playing field between men and women.

Rather than have a duel, have something like Solomon's solution for the women fighting over the child. Any spouse can take their wife or husband to court, and a coin toss settles who wins. The loser dies, OR they both die, if you prefer. If your conflict is SO overwhelming that you can't stand the other person and are willing to place you own life on the line to prove your point, make it clear that death is preferable to continuing the state of affairs as-is.

This would have several repercussions. People might think through if they really want to marry someone knowing they might face death as an alternative. People might reconsider arguments as their relationships began to deteriorate. A crazy enough spouse could keep threatening this as an option ("I won't live without you..."). Probably you want easier divorces before thing get this far. A waiting period where people settle up their estates would give people pause about how the world would look after such fights. But if your spouse is unpleasant enough, and your grievance great enough, then and unhappy marriage ends in a court-appointed death.

If you want real drama, have both spouses lay their heads on chopping blocks with death hoods. The loser never even knows they lost.

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  • $\begingroup$ While I think the thought is amusing (in an oddly creepy kind of way), I object to the last sentence. Consciousness in decapitated rats persists for several seconds (3 to 6, according to wikipedia), and there's no reason to think it would be otherwise in humans. $\endgroup$ – João Mendes Sep 22 '20 at 15:08
  • $\begingroup$ @João Mendes Admittedly, there is mixed evidence in studies of people killed by decapitation. An alternative is a gun, most of which would be effective in this time period, especially at point-blank range. $\endgroup$ – DWKraus Sep 22 '20 at 21:15
  • $\begingroup$ "People might think through if they really want to marry someone knowing they might face death as an alternative." I don't think things would be much different from today. A lot of possessive relationships do end up in death. $\endgroup$ – The Square-Cube Law Sep 23 '20 at 14:08
  • $\begingroup$ @ Renan True enough. interesting cultural practices would evolve from the practice, making what is often murder now into legalized marital killing; just a little more equitable. $\endgroup$ – DWKraus Sep 23 '20 at 20:54
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In a sense, it happens all the time. A lot of cultures disaprove of divorces, ranging from stigmatizing divorced people up to outright banning divorces.

That's why we are used to the idea of the "divorce Italian style" type plots (I know of at least two movies with exactly this title).

Women being weaker at fight is compensated (at least in plots) by them being better at poisons and intrigues.

Making the whole thing public is a matter of local culture. At most.

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    $\begingroup$ "disprove divorces" -> do you mean "disapprove of divorces"? $\endgroup$ – Erik Sep 22 '20 at 12:26
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First reaction: "That just sounds like murder with extra steps."

Imagine a culture [...] where if you want a divorce, you have to fight your spouse to [the] death in a public duel.

First of all, you'll need some powerful third party (such as the Church) to say "We regulate who's allowed to get a divorce, and we say you can't get a divorce unless you kill your partner in a public duel." Historically of course there's no problem with this; the Church did (and in many cases still does) regulate divorces.

But wait, what does it even mean to "get a divorce" from a dead person? In our universe, AFAIK, the Church permits widow(er)s to remarry. If your universe is similar, then anyone wanting a divorce won't have to engage in a public duel if they don't want to: if they want to stop-being-married badly enough to actually kill their spouse in public, then certainly they want it badly enough to kill their spouse in private. Alice could fight Carol in a public duel to the death, or Alice could just put some strychnine in Carol's tea. The end result is the same, right?

...Unless of course your judicial system also imposes worse penalties for regular murder than for death-by-judicial-duel, which I'm sure it ought to. Then Alice might prefer to run the risk of a duel (where there's just a one-time risk of death-from-Carol), rather than attempt a murder (where the risk of detection and punishment never goes away, and has the manpower of the state behind it).

So that's the calculus from Alice's point of view.


The main problem with this idea, to me, is that a "duel to the death" really only works if you have two parties who are both willing either to kill, or to die.

  • Suppose Alice wants a divorce and Carol doesn't — Carol wants to stay married to Alice. In that case, Carol certainly doesn't want to kill Alice; she wants to keep Alice alive so they can stay married. (Maybe get some couples therapy or antidepressants, maybe just lock her in the basement, but not kill her.) If the duel's only possible outcomes are "Carol dies and the marriage is dissolved" or "Alice dies and the marriage is dissolved," then none of the outcomes are going to be satisfactory to Carol.

  • Suppose Alice wants a divorce and Carol also wants a divorce. They have already agreed that a divorce is in their best interests, and want to part amicably. But the Church (or whoever your third-party power is) won't let them; it insists that they can't divorce until one or the other of them is dead. (Again, this is the historical position of the Catholic Church on divorce, so it's quite realistic even if it doesn't seem very sensible by modern standards.)

In the latter case, we simply have "the Church disallows divorce" with extra steps. In the former case, your Church will have to decide which party has more power here: Alice, who wants the divorce badly enough to duel for it? or Carol, who wants the status quo? Can Alice force Carol to duel? Or can Carol force Alice not to duel?


In any case, if duel-to-the-death is the only way to get a divorce, I think the ramifications will be pretty much the same as the historical "no divorce ever" policy.

But there's plenty of room for legalistic loopholes here! Is there some way for Alice and/or Carol to exploit the public-duel law to get a divorce while both of them remain alive?

  • Bribe the examining physician to declare Alice dead. The divorce is granted, and then when Alice mysteriously comes back to life a week or a minute later, some form of "double jeopardy" kicks in and the two remain divorced although alive.

  • Have Alice and Carol both nominate champions to fight in their place. Whichever champion dies doesn't really matter; the divorce is granted either way. This reduces the law from its original moral purpose to what I would call a "circus tax" on divorce. Want a divorce? Okay, but you have to sponsor an expensive gladiator duel for the public benefit.

  • Have Alice nominate a "champion" to fight in her place, but make it someone expendable, like a household slave. Carol kills the slave and the divorce is granted.

This third option actually seems the most dramatically interesting to me. (Recall that Alice is the one who wants the divorce; Carol is the one Alice is trying to escape from.) Alice must want out badly enough to send a slave to certain death. Carol is forced by Alice to commit what could feel subjectively like murder. Alternatively, Carol could display too much ruthlessness in the slaughter, thus (in the court of public opinion) proving that Alice was right to want to escape. Either way, stigma attaches to Carol... or to Alice? Both roles seem distasteful to the modern reader. So you, the writer, have the freedom to decide what your society thinks about this, and either way might end up surprising the reader with what happens.


(Assume a spherical marriage: I used "Alice and Carol" throughout in order to sidestep the implication of one party being physically stronger than the other, and to simplify the case analysis. With a heterosexual marriage, you'd have to consider whether to apply the same legal rules for "Alice wants a divorce and Bob doesn't" as for "Bob wants a divorce and Alice doesn't.")

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I think the idea of divorce assumes the survival of both parties. If one dies, the other becomes a widow or widower instead of a divorcee. I can imagine a concept of a divorce fight that ends when either party surrenders. In this case, death of one or even both parties would be a possible outcome.

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  • $\begingroup$ Well, yeah, that's the whole premise of the question: You can't get divorced, but you can kill your spouse semi-legally instead, maybe good enough? $\endgroup$ – BIOStheZerg Sep 25 '20 at 10:14

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