The History of Divorce Politics in Norway

Abstract

This article focuses on continuity and change in divorce politics in Norway, with reference to the other Nordic and a number of Western countries. Norway’s divorce law was liberalized in 1909; it built on a modern two-way system – divorce by court decisions and divorce by administrative procedure – and it built on the no-fault principle. It expressed that marriage is a secular institution, and the state should pay attention to individual rights for women and men. The law formalized a practice that had been tried out during the Danish-Norwegian absolutism. Denmark kept the two-way system and the no-fault system working, more or less unchanged, during the 19th century, but Norway did not. This article focuses on the following problems: To what extent was the Danish-Norwegian liberalization of divorce between 1790 and 1814 an experiment in enlightened absolutism? Was Denmark-Norway’s divorce policy in those years in accordance with divorce politics abroad? Why were Norwegian divorce rules and politics reversed after the break with Denmark and again liberalized from 1890?

Keywords:

• Norway
• Sweden
• Denmark
• divorce
• Enlightenment
• 19th century
• legal reform
• marriage reform
• women’s rights

Disclosure statement

No potential conflict of interest was reported by the author.

Unpublished Sources in the Archives

The National Archives of Norway (Riksarkivet i Norge), Danske kanselli indtil 1814, Norske innlegg (ordered by date of Royal decision).

The National Archives of Norway (Riksarkivet i Norge). Civilkontor C 1814-1831, Skovvæsenet, øvrige sager (Under bokstaven Æ): Ægteskab, Forældre og Børn: Litr. E1 Fuldkommen ophævelse af Ægteskab og Tiladelse at indgaa ny Ægteskab.

Notes

1. This article builds on my earlier work: Johansen, Separasjon og skilsmisse.

2. It was translated into Danish by the critic Georg Brandes in 1869, the same year it was published in English. See Svenneby, ‘Innledning’, 25.

3. ‘The woman question’ is a phrase used in the late 19th and early 20th centuries. It reflects the debate that went on in Western societies about women’s suffrage and more broadly of the changing political, economic, and professional roles for women and of women’s social and sexual liberation. See, for example, Quist, Kvinnofrågan i Sverige, 5–15.

4. The Swedish title of Stridberg’s play is Dödsdansen. About Ibsen and Stridberg, see Norsk litteratur i tusen år, 303–38; also see Varnedoe, ‘Northern Light’, 150–3.

5. The artist who dared to paint the nation’s darkest shame was the Norwegian Christian Krogh. Krogh’s painting is entitled ‘Albertine at the Police Doctor’s Waiting Room’ and was produced in 1886. See Northern Light, 152–3.

6. Hagemann, ‘Citizenship and Social Order’, 418–19.

7. Melby and others, Inte ett ord om kärlek, 102–10; Sandstöm, Ready, Willing and Able, 2–3.

8. Sandstöm, Ready, Willing and Able, 2–4; Melby et al., Inte ett ord om kärlek, 9–25.

9. Sweden’s new divorce law was introduced in 1915, followed by a new law in Denmark in 1922. See Tamm, Dansk retshistorie i hovoedpunkter, 86; Nylander, Studier rörande den svenska äktenskapsrättens historia, 9.

10. The term the ‘Nordic Model of Marriage’ is presented in Melby et al., Inte ett ord om kärlek, 9–25. Also see Melby et al., Nordic Model of Marriage and the Welfare State, 13–19, and Bradley, ‘Family Laws and Welfare States’, 39–50.

11. The historical research project ‘The Nordic Marriage Model in a Comparative Perspective’ investigated the regulation of marriage and divorce in the Nordic countries. A theory presented by this project was: in the Nordic countries the state intervention in the family was accepted in order to establish gender equality, social progress, and to protect individual rights before the welfare state was established at the beginning of the 20th century. This viewpoint has been challenged by Bouteillec, Bersbo, and Festy, ‘Freedom to Divorce’.

12. The earlier Norwegian divorce laws and other Scandinavian divorce laws of that time provided that divorce should be granted by court decision only. See Tamm, Dansk retshistorie i hovedpunkter, 84–90; also see Johansen, Separasjon og skilsmisse, 52–6; Knudsen, ‘Separations- og skilsmissesager’; Nylander, Studier rörande den svenska äktenskapsrättens historia, 14–43.

13. Norway was under Danish control for over 400 years, until 1814. In 1660, King Frederik III turned Denmark-Norway into an absolute monarchy, thus Norwegian and Danish law were from then on administered and governed in the same way to a great extent. See Danielsen et al., Norway: A History, 123–5.

14. Denmark had been on the losing side in the Napoleonic Wars. The Treaty of Kiel stipulated that Denmark had to cede Norway to Sweden. Norway refused to accept the treaty and instead declared independence and produced a constitution of its own: the liberal and rather democratic 17th of May Constitution. The Norwegians were obliged to give way to pressure from the great powers and the Swedish Crown Prince Carl Johan’s military power. After a very short war and some negotiations, Norway became united with Sweden in a personal union under a single king. The Norwegian constitution was changed to fit the new political situation, but was largely kept intact, allowing for an independent Norwegian state with its own parliament. Norway in union with Sweden also kept its judiciary and executive powers. Foreign relations were handled by the king through the Swedish Ministry of Foreign Affairs. See Danielsen et al., Norway: A History, 204–14.

15. Ibid.

16. Luther and most other reformers taught that divorce should be permitted in accordance with the words of Christ in Matthew 19.8: ‘Jesus replied, “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery”’. For centuries these words of Jesus have been a classic point of interpretation and debate in Christian exegesis and theology. Phillips, Putting Asunder, 48; Nylander, Studier rörande den svenska äktenskapsrättens historia, 11–14.

17. Nellemann, Ægteskabsskilsmisse, 1–9; Gabrielsen, ‘Meddelelser om en Forandring’.

18. Melanchthon limited the grounds to adultery and desertion on the basis of the ‘Pauline privilege’, in which a non-believer could leave his or her marriage if it were with a believer (1 Corinthians 7:10–15). John Calvin only allowed divorce for adultery and for desertion on the grounds of irreconcilable religious differences. The Danish reformer Niels Hemmingsen accepted tyranny (i.e. violence) as a reason for divorce. Phillips, Putting Asunder, 40–62; Tamm, Dansk retshistorie i hovedpunkter, 81–6; see also Johnsen, ‘Luther’s Reformation’.

19. Phillips, Putting Asunder, 45–52.

20. During the Reformation the Danish king took the opportunity to change Norway’s political situation vis- à-vis Denmark. The Norwegian national council was dissolved, together with the other instruments of national sovereignty, including the Archbishopric of Norway. Norway was completely integrated into Denmark and became a Danish province. This was the situation right up to 1814. This explains why the marriage laws and most other laws were actually the same in Norway as in Denmark during the early modern period. Danielsen et al., Norway: A History, 123; also see Oftestad, Rasmussen, and Schumacher, Norsk kirkehistorie, 85–113.

21. Phillips, Putting Asunder, 199–200; also see Hafström, Den svenska familjerättens historia, 69–70; Taussi-Sjöberg, Skiljas, 41–3; Melby et al., Inte ett ord om kärlek, 36–8.

22. Luther considered a runaway spouse unfaithful and guilty in ‘desertion malitiosa’, and a spouse that was impotent or refused to have intercourse was guilty of ‘desertion non localis’, a sort of ‘quasi-desertio’. Tamm, Dansk retshistorie i hovedpunkter, 84–5.

23. Christian V’s Danish Law of 1683 kept identical rules for divorce. Both Danish and Norwegian Law built on Frederik II’s Marriage Ordinance of 1582/1587. Tamm, Dansk retshistorie i hovedpunkter, 85–6; Næss, ‘Intet got oc roligt ecteskab’, 52–3.

24. The Danish-Norwegian Consistory Courts were modelled on German consistories. In many cases the Consistory Courts were located in the building of the main cathedral of each of the dioceses. The Marriage Ordinance of 1582 decided that the Consistory Court should decide on disputes over broken marriage promises, contested marriages, and divorce. They were not supposed to adjudicate in disputes over the outcome of divorce such as how to share the estate and the custody of the children. If these matters were disputed, the couple had to start a new case before a secular court. Also the church courts (‘domkapitlen’) handled the divorce cases in Sweden. In 1734, secular courts took over in Sweden, but both before and after 1734, Swedish law only allowed for divorce on two grounds: adultery and voluntary abandonment. Nonetheless, to a certain degree, the application of the law proved more flexible in some cases. See Le Boutellec, Bersbo, and Festy, ‘Freedom to Divorce’, 192; also see Taussi-Sjöberg, Skiljas, 40–62.

25. The Danish and Norwegian term for district governor (also translated as ‘lord lieutenant’) is ‘lensherre’, from 1660 the title was ‘stiftamtmann’. See, for example, Danielsen et al., Grunntrekk i norsk historie, 149–52; Danielse et al., Norway: A History, 174–5, 196.

26. Earlier studies show that the Norwegian Consistory Courts dealt with different kinds of marriage cases, with disputes over broken marriage promises, contested marriages, and divorce. The divorce cases far outnumbered other categories of marriage cases. Johansen, ‘Marriage Trouble’, 175; also see Johansen, ‘Ekteskap, erstatning eller avvisning?’, 10.

27. This conclusion adds nuance to the argument in an article in Encyclopedia of European Social History from 1350 to 2000, Vol. 4, 157: ‘Divorce in Protestant areas of Europe came under the jurisdiction of a secular tribunal rather than the clergy. Lutheran clergy could advise the court, but they neither made marriage laws nor judged marital litigation’.

28. Johansen, Separasjon og skilsmisse, 10.

29. Phillips, Putting Asunder, 199–200; also see Hafström, Den svenska familjerättens historia, 69–70; Taussi-Sjöberg, Skiljas, 41–3; Melby et al., Inte ett ord om kärlek, 36–8.

30. Taussi-Sjöberg, ‘Giftas och skiljas’, 67.

31. According to Bonderup, the first marked decrease happened just when Christian V’s Danish Law was introduced in 1663 and again when Christian VI became king in Denmark-Norway in 1730. His pietistic views were very strong and influenced his ecclesiastical policies. Bonderup, ‘Skilsmisser i Århus’, 496; also see Schultz, ‘Tamperretsprotokollerne’, 287–8; Phillips, Putting Asunder, 200.

32. Johansen, ‘Marriage Trouble’, 176–8; Næss, ‘“Intet got oc roligt ecteskab at foruente”’, 55–6.

33. The judges saw an opportunity to teach people godly behaviour in marriage. The Consistory Courts, until about 1660, acted as if they were responsible for social order and morality in the cathedral cities in which they operated. Johansen, ‘Marriage Trouble’.

34. By modern standards, the 18th-century absolutism and its system of justice seems arbitrary and even brutal. People were criminalized for minor offences and many criminals were threatened with the death penalty. The laws were strict and orthodox. The criminal code was organized to reflect Mosaic Law. Each chapter in the Criminal Code of Christian V’s Danish and Norwegian Law of 1683/1687 resembled one of the Ten Commandments, so that Chapter 6, for example, dealt with sexual offences, incest, etc. To fight ‘fornication’ was to maintain social stability and to support the power of the state. Tamm, Dansk retshistorie i hovedpunkter, 40–4.

35. Bregnsbo, Folk skriver til kongen, 17–26; Phillips, Putting Asunder, 200; Tamm, Dansk retshistorie i hovedpunkter, 86.

36. Johansen, Separasjon og skilsmisse, 33–7; also see Johansen, ‘Marriage Trouble’, 175–6.

37. To study the development of the divorce rate in Norway in the 20th century, see Store norske leksikon, ‘Skilsmissehyppighet’, https://snl.no/skilsmisse_-_hyppighet (accessed 2 March 2017).

38. 106 couples were divorced in Sweden between 1831 and 1840, 121 in the 1850s, and 538 in the 1890s. The divorce rate, meaning divorces per 1,000 of the population, developed in the following way in Sweden: Between 1901 and 1910 it was 0.09 and over the next decades it was 0.16, 0.30, and 0.45 in the 1930s. See Rheinstein ‘Marriage Stability’, 135. His sources are Statistisk årbok för Sverige, 1951, Table 49; 1955, Table 45; 1969, Table 40. Swedish divorces increased at a rather constant rate from about 1910 to 1921. 1,325 Swedish couples were divorced in 1920 and 1,265 in 1921. See Philllips, Putting Asunder, 517; Segerstedt and Weintraub, ‘Marriage and Divorce in Sweden’, 192.

39. See Melby et al, Inte ett ord om kärlek, 102. Also see Le Bouteillec, Bersebo, and Fest, ‘Freedom to Divorce’, 196.

40. Melby et al., Inte ett ord om kärlek, 102.

41. Studies of Scandinavian Consistory Courts and their dealings with marriage cases in the early modern period: for Denmark, see Bonderup, ‘Skilsmisser i Århus’; for Sweden, see Lennartsson, ‘Verksamhet i Växjö stifts domkapitel’; for Norway, see Næss, ‘“Intet got oc roligt ecteskab at forunete,”’; Johansen, ‘Marriage or Money?’; Johansen, ‘Marriage Trouble’.

42. Rates of illegal desertions must have been unknown and could not be recorded.

43. Husbands were usually referred to as workers, craftsmen, seamen, shopkeepers, and small-scale peasants or crofters. The law made it possible for poor people to take their case to the Consistory Court because they could apply for free legal assistance through the forma pauperis procedure. Poor people could also have letters of separation and divorce for free without paying the otherwise obligatory ‘stamped paper’ fee. People living relatively close to the cathedral cities and the courts were overrepresented. They could almost observe the activity of the Consistory Court in their own neighbourhood and could easily get in touch with the judges. Johansen, Separasjon og skilsmisse, 30–4, 160–7.

44. Divorce by administrative procedure in Norway, 1790–1831: sources from the National Archives of Norway: Danske Kanselli indtil 1814: Norske Innlegg 1790–1799 (microfilm): 3. Departement, Justis-og politissager for Norge: Kanselliinnlegg 1800–1814 and Ekstraktportokoller 1800–1814: 2. Departement for justissaker 1814–1818, Referatprotokoller 1815–1818; Justis-og politidepartementet from 1819, Sekretariat A Referatportokoller 1819–1831, Civilkontor C 1814 – 1831. Referatregister 1814 – 1831, Skovvæsenet, øvrige saker (capial Æ – ‘Ægteskab’). For the use of these sources, see Johansen, Separasjon og skilsmisse, 160–209, 350–1.

45. From 1796, the Danish-Norwegian king delegated the right to give separation letters to local or regional secular authorities. This made divorce following a separation order more available to people all over the country. Johansen, ‘Marriage Trouble’, 178–9. Also see Næss, ‘“Intet got oc roligt egteskab at foruente”’.

46. Phillips explains in detail how the Enlightenment and the French Revolution influenced divorce politics in Europe, Scandinavia included. Phillips, Putting Asunder, 208–26.

47. There are no statistics for the number of divorces during the Revolution of 1790–1803. An estimate says that in urban France, circa 20,000 couples were divorced during those years. Phillips, Putting Asunder, 257.

48. Phillips, Putting Asunder, 241–77.

49. Leneman, ‘Disregarding the Matrimonial Vows’, 479–80.

50. Common people and women’s divorce rights were extended. England was an exception: before a marriage law reform in 1857, divorce was largely open only to men and had to be granted by an Act of Parliament, which was hugely expensive and therefore was also open only to the rich. See Phillips, Putting Asunder, 202–10, 227–78.

51. In addition, the family household as a place of production was weakened during this period. An increasing part of production was moving out of the household sphere. More couples could free themselves from an unhappy marriage without fear of loosing their livelihood. This argument is mentioned by Leneman, ‘Disregarding the Matrimonial Vows’, 476.

52. Jansson, ‘Marriage, Family and Gender in Swedish Political Language’.

53. Jansson gives an interesting analysis on how political language in Sweden, influenced by the Enlightenment, made use of the analogy between family and state to defend liberal divorce and the right of women to run businesses. Janssson, ‘Marriage, Family and Gender in Swedish Political Language’; also see Phillips, Putting Asunder, 202.

54. Cited by Phillips, Putting Asunder, 213–14.

55. Ibid.

56. For Holberg’s writings in Natural Law, see Tamm, Dansk retshistorie i hovedpunkter, 146; Tamm, Dansk retshistorie, 195–6, 201. For Holberg the poet, see Billeskov-Jansen, ‘Innledning’.

57. Oftestad, Rasmussen, and Schumacher, Norsk kirkehistorie, 169–73.

58. Lawyers had a strong and increasing influence in the royal bureaucracy in Denmark-Norway in the 18th century. The king favoured them when he needed advice, even in moral questions. They were partly external advisers with positions at the Faculty of Law at Copenhagen University or they were employed as the king’s servants, Danske kanselli, etc. See Tamm, Dansk retshistorie i hovedpunkter, 65–6.

59. The farmer Knut and his wife, Gjertrud, from Elverum, Norway, wrote in their petition to the king: ‘De ville ikke røbe hinanden […] Da Feil paa begge Sider har stiftet Uoverensstemmelse’, The National Archives of Norway (Riksarkivet i Norge), Danske kanselli indtil 1814, Norske innlegg. Date of Royal decision: 4 October 1796. For more details see Johansen, Separasjon og Skilsmisse, 198.

60. Johansen, Separasjon og skilsmisse, 228–31.

61. The National Archives of Norway (Riksarkivet i Norge), Danske kanselli, Norske innlegg, kongl. res. 20. September 1793. This marriage case involved a couple from the rural parish of Hedrum, the County of Larvik. For further details, see Johansen, Skilsmisse og separasjon, 230.

62. Leneman, ‘Disregarding the Matrimonial Vows’, 479.

63. Johansen, Separasjon og skilsmisse, 98–110.

64. About Nællemann’s publication, ‘Ægteskabsskilsmisse’, see Dansk Biografisk Leksikon,bd. XII (Internett): J. Nellemann (Johannes Magnus Valdemar Nellemann).

65. Ibid., 94–5.

66. The marriage law current at the time was to be found in Christian V’s Norwegian law of 1687, and stated that the only reasons for divorce were adultery, impotence, and unlawful desertion. This law only mentioned divorce through the courts. See the Introdution of this article.

67. Beck, ‘Ægteskabsret og samfundsudvikling’, 174–80.

68. See Johansen, ‘Separasjon og skilsmisse’, 99–100.

69. This viewpoint is mentioned by Johansen, ‘Separasjon og skilsmisse’, 126.

70. Karl Johan was born in France. His French name was Jean-Baptiste-Jules Bernadotte. He was appointed as a Marshal of France by Napoleon, but in 1810 he was elected the heir-presumptive to the Swedish throne because there would be no heirs to the Swedish throne upon the death of King Charles XIII. See, for example, Danielsen et al., Norway: A History, 217–19.

71. During the first decade of the 20th century, an average of only 474 couples of the total married population of circa 1.75 million individuals divorced in Sweden each year. Before 1915, a quick and easy divorce was possible if one could afford a trip to Denmark. People of the Swedish upper class went on a so-called ‘Copenhagen trip’. This was to arrange ‘an abandonment’ abroad and a ‘valid’ reason for divorce. Norwegian researchers have not mentioned if this system was in use in Norway. Sandström, ‘Socio-economic Determinants’, 292–5; also see Sjöberg, Skiljas, 157; Sjöberg, ‘Giftas och skiljas’.

72. Both movements wanted to reform the Lutheran State Church. They wanted to strengthen the church and work against secularization. Oftestad, Rasmussen, and Schumacher, Norsk kirkehistorie, 226–7; also see Odelstingsproposisjon (Ot. prp.) nr. 8, 1909, 11–15. This is a government document used to help prepare the Norwegian 1909 law reform in the Storting.

73. Sverdrup did not want to strengthen the political power of the church. He argued: ‘Stortinget maa bevare sin Magtfuldkommenhed til at bestemme Nationens Skjæbne’. Cited in Wilhelmsen, Historiske forutsetninger, 38.

74. Furre, Vårt hundreår, 492.

75. Sandstöm, Ready, Willing and Able, 2–3.

76. The Norwegian Association for Women’s Rights (Norsk Kvinnesaksforening, NKF) was founded in 1884. Agerholt, Norsk kvindebevegelse, 207–68; see also Mohr, Katti Anker Møller, 35–40.

77. It recommended formalization of the liberal divorce practice through dispensations that were prevalent in Denmark-Norway between 1790 and 1814 (1831).

78. Wilhelmsen, ‘Historiske forutsetninger’, 68–93. This study is based on archive material from the Norwegian Law Department.

79. Ibid.

80. Gabrielsen, ‘Meddelelser’.

81. Ibid.

82. This Supreme Court decision from 3 February 2006 was published in Norsk Retstidende 1906, 40–414.

83. In Norwegian history, Castberg is especially famous for the so-called ‘Castberg’s Children’s Laws of 1915’; laws that supported the rights of illegitimate children and their mothers. His famous sister-in-law, Katti Anker Møller, was instrumental in getting the ‘Children’s Laws’ adopted by the Storting, but also supported Castberg in his struggle to liberalize the divorce laws. Mohr, Katti Anker Møller.; also see Bjørnson and Haavet, Langsomt ble landet et velferdssamfunn, 111–14.

84. For Denmark see Tamm, Dansk retshistorie i hovedpunkter, 86, and for Sweden, see Nylander, Studier rörande den svenska äktenskapsrättens historia, 9.

85. Phillips, Putting Asunder, 373, 516–18; Leneman, ‘Disregarding the Matrimonial Vows’.

86. See, for example, Moxnes, Kjernesprengning i familien?, 5–20.

Additional information

Notes on contributors

Hanne Marie Johansen

Hanne Marie Johansen, born in 1956, is associate professor at the University of Bergen, Norway. Her main research interest is family, women, and gender history from legal, political, and social perspectives. Address: University of Bergen, Centre for Women’s and Gender Research (SKOK), PB 7805, 5020 Bergen, Norway. [email: [email protected]]