Divorce in Classical Athenian Society

32 Pages·2008·1.54 MB·English

Divorce in Classical Athenian Society:
Law, Practice and Power
Carlos E NorencT
ABSTRACT: The practice ofdivorce in classical Athens sheds
lightonrelationshipswhicharefundamentaltoourunderstanding
ofAthenian society: betweenhusband andwife, between separate
households, andbetween household and state. The power which
informs these relationships, as illuminated by divorce, can be
measured not only injuridicalterms, but in social and economic
termsaswell.Themainprimarysourcesforthestudyofdivorcein
classicalAthensaretheforensicspeechesoftheAtticorators.These
speechesshowthatwhereasitwaseasy,legally,toobtainadivorce,
it was often complicated in actual practice. Divorce, in fact, was
often avoided—even when the state intervened to mandate the
dissolutionofamarriage—andIarguethatthepracticeofdivorce,
asopposedtothelawsgoverningit,revealsanunexpectedbalance
ofpowerbetweentheconstituentstoanAthenianmarriage.
Divorce in classical Athens is a complex phenomenon.
Evidence for the practice is slim and often difficult to
interpret.Nevertheless, carefulexaminationoftheknown
casesofdivorceisquiterevealing. Thepracticeofdivorce
atAthenssheds lightsonanumberofrelationshipswhich
arefundamentaltoourunderstandingofAtheniansociety:
the relationships between husband and wife, between
separate households, and between the household and the
state. The power which informs these relationships, as
illuminated by divorce and its effects, can be measured
not only in juridical terms—until recently the only
barometer of power in modern surveys of classical
Athens—but in social and economicterms as well.
Despitetheimportanceofdivorceforourunderstanding
of the family in classical Athens, most legal and social
historians have given divorce only cursory treatment in
their discussions ofAthenianlaw or the Athenian family.
PastImperfect, Vol. 7, 1998, pp.3-34
4 PastImperfect
In her recent monograph Families in Classical and
HellenisticGreece, forexample, SarahPomeroylimitsher
treatment ofdivorce to a couple ofisolated comments.1
This lacunawas finally filled in 1995 withthe publication
of Louis Cohn-HafVs article on divorce in classical
Athens.2 Although thorough, Cohn-Haft's work is very
conservative and traditional in its approach, focusing
almost entirely on the legal rules of divorce. Social
historians increasinglyhavecometo recognize, however,
thatthelawcannotbestudiedinisolationfromsocialand
economic reality.3 We must consider not only the rules
which governed divorce, but also its actual practice in
everydaylife.4 This articleis an effort inthat direction.
Anoteonsourcesandmethod:themostimportantbody
ofevidencefordivorceinclassicalAthens isprovided by
theforensicspeechesoftheAtticorators. Thesespeeches,
ofwhichwepossessoveronehundredspanningtheperiod
c.420-c.320B.C.,provideexplicitandincidentalevidence
on a wide range ofquestions pertaining to all aspects of
legal, social, economic and political history.3 But this
evidencemustbeusedwithcaution. Wemustalwayskeep
in mind that these are law-court speeches, designed to
convince, ifnot deceive, thejurors, and thedetails ofany
giventransactionarealwayspotentiallysubjecttothemost
shameless rhetorical manipulation by the speaker.6 In
addition, thevastmajorityofthesespeecheswerewritten
by and for the elite: a small farmer from the countryside
could never procure the services ofa famous orator like
Demosthenesifhebecameinvolvedinalegalquarrelwith
hisneighbor.7 Tothis secondpoint it shouldbeaddedthat
these cases were heard byjuries drawn mainly from the
poorer segments of the population, to whom these
speeches, howeverrhetoricalandhoweverconditionedby
elite discourse, had to be intelligible.8
The long period covered bythe speeches ofthe Attic
orators also raises the question ofcontinuity and change
DivorceinAthens 5
in the practice ofdivorce. The answerto this question is
straightforward: there is no evidence ofany change over
timeintheclassicalperiodintherulesorpracticeofdivorce
atAthens. Thisstudy, therefore, likemuchrecentworkin
Athenian social history, is synchronic.9
Divorce at Athens meant the dissolution ofthe socially
recognized marital union between husband and wife. In
ordertounderstandthepracticeofdivorceitself,wemust
briefly consider the nature of marriage at Athens.10
Athenianmarriageinvolvedthetransferofawomanfrom
her natal oikos, or household, to the oikos of her new
husband. Thistransferwaseffectedbythewoman'sfather
(or, ifhehad died, byhernearest adult male relative) and
themantowhomshewasbeinggiveninmarriage. Because
an Athenian woman had to be represented in all legal
transactionsbyamalerelativeactingasguardian,orkurios,
one important result ofthis transfer was a change in the
legalguardianship(kurieia)ofthewoman(i.e. shepassed
from her natal kurios to her new marital kurios)." The
processnormallyincludedaprivatebetrothal (engue)and
a public celebration ofthe new marriage (gamos), but
neitherceremonywasaformalrequirementforamarriage:
whatwasimportantwassimplythatthenewmaritalunion
berecognizedaslegitimate.12 Theconditionwhichresulted
fromthistransactionismostoftendescribedintheprimary
sources as sunoikein, "the setting up of a household
together." Onespeakerinaforensiccaseprovidesuswith
adefinition oftheterm: "forthisiswhatsunoikeinmeans
—whensomeoneproduceschildrenandintroduceshissons
tophratryanddeme(toregisterthemasAtheniancitizens)
and gives his daughters to their husbands as his own."13
The marital union, then, was seen primarily as a vehicle
for the production oflegitimate offspring.
There was no one word which by itselfdenoted what
we call "marriage." The Athenians also did not have a
6 PastImperfect
technicalterm which singly covered all forms ofdivorce.
This is important. The vocabulary employed by the
Athenians to describe what we call "divorce" betrays a
distinctlyAthenianconcept ofmarriage and family. From
themultiplicity ofGreektermswhichcanbetranslated as
"divorce" itisclearthattheAthenianswerequitesensitive
to the party (or parties) which initiated the divorce
proceedings. Boththehusbandandthewifecouldinitiate
divorce, andtheycoulddosounilaterallyorbyconsensual
agreement. Itseemsthatthewife'sfathercouldalsoeffect
the dissolution ofhis daughter's marriage. In the public
sphere, there is evidence that the state could, in certain
specificcontexts, requireahusbandandwifetoterminate
theirmaritalunion.Thesedistinctformsofdivorceinvolved
differentproceduresandgaverisetoawiderangeofterms
which the Athenians themselves employed to denote the
dissolution of a marriage. In light of these separate
categories ofdivorce, each shall be treated inturn.
First, divorce initiated by the husband. The husband
whowishedtodivorcehiswife, accordingtotheprevailing
view,wasrequiredtodonothingmorethansendheraway
from his oikos.14 This process is known inthe secondary
literature as apopempsis (an abstract noun fromthe verb
apopempein, lit. "tosendoff'or"away").15 Theprocedure
isnormallythoughttohavebeenaprivateactionbetween
husband andwife, not subjectto stateinterference.'6 The
whole question may be more complicated.
ConsiderasensationalAtheniancourt speechfromthe
late 340s, a prosecution of a former prostitute, Neaira,
who is charged with living in marriage illegally with an
Athenian citizen. The prosecutor Apollodoros mentions
twocasesofahusbanddivorcinghiswife,thesamewoman
inbothcases.17 Inbothinstanceswelearnthatthehusband
immediatelyterminated hismarriagewithPhanowhenhe
discovered that she was the illegitimate daughter ofthe
prostituteNeaira.ThefirstcaseinvolvesPhrastor,towhom
DivorceinAthens 7
Stephanos had given Phano in marriage, falsely claiming
her to be his own daughter by a citizen wife.18 When
Phrastorlearnedthat hehad beendeceivedby Stephanos,
he became enraged and threw Phano out ofhis oikos.19
The terms used by Apollodoros are instructive. The verb
which Apollodoros uses to describe Phrastor's action is
not apopempein, but rather ekballein (lit. "to throw" or
"cast out of" a place). Apollodoros does go on to say,
however, that since Phrastor withheld the dowry,
Stephanosbrought asuit againsthimunderthelawwhich
requiredthehusband,uponejectinghiswifefromhisoikos,
to return the dowry.20 In this passage Apollodoros does
use the verb apopempein.
Thesecondcaseinvolvesthechiefreligiousmagistrate
at Athens, the archon basileus Theogenes. We learn that
theAreopagos Council, atraditionally conservativebody
composed ofex-archons, proposed to punish Theogenes
afterithadascertainedthetrueidentityofhiswifePhano.2'
Theogenes begs and pleads with the Council and finally
promisesthathewilldismissPhanofromhisoikos.21 Here
Apollodorosusestheverbapopempein,butwhenhelater
reports that Theogenes complied with his promise, he
returnsto theverb ekballein?*
Apollodoros's free use ofthe verbs apopempein and
ekballein requires attention. In a legal context, two
separate terms, even if seemingly synonymous, might
convey slightlydifferent meanings. It is also possible that
Apollodoros's language should not be understood as
technical, butmerelyasrepresentativeofpopularusage.24
Ineithercase, relianceonthetermapopempsistoreferto
divorce initiatedbythe husband ispotentiallymisleading.
The speech against Neaira shows that other verbs could
beused to describe thistype ofdivorce, andthe repeated
use of the term apopempsis in the modern literature
imputesatechnicalvocabularytotheAthenianswhichmay
not have existed.25
8 PastImperfect
Thenotionthatadivorceinitiated bythe husbandwas
awhollyprivate matteris also problematic. For example,
in one forensic speech we are told that before expelling
his wife from his oikos, a certainHipponikos summoned
to his presence alargegroup ofwitnesses.26 The speaker
doesnot reportthatthis act ofsummoningwitnesseswas
a formal requirement ofthe divorce proceedings, but its
inclusioninthefast-movingnarrativeisconspicuous. The
presence of witnesses suggests the possibility that
Hipponikosintendedtomakeknownpubliclyhisdecision
tocast hiswifefromhisoikos. Becausethespeakerinthe
case does not comment on the summoning of these
witnesses(noteworthyinitself—suchasummonsmayhave
been seen as a matter ofcourse), the purpose oftheir
presence cannot be determined without resort to
speculation. But the fact that Hipponikos summoned
witnessesatallunderminesthetheorythatahusbandwho
wished to divorce his wife was required to do nothing
more than send her away from his oikos. In a society in
which practices such as marriage and divorce were not
formallyamatterofpublicrecord, thepresenceofagroup
ofwitnesses at the moment ofthe wife's departure from
the oikos might be the only evidence that a divorce had
indeedtakenplace. Andwe doknowfromotherspeeches
that the veracity ofa divorce could be disputed, so such
evidence might prove useful.27 In this sense, then, the
divorceinitiatedbyHipponikoswasin somesensepublic,
preciselybecausetheabsenceofaformalsphere ofpublic
recordsmayhavepromptedHipponikosto makeapublic
displayoftheexpulsionofhiswifefromhisoikos. Again,
thereisnoevidencehereofalegalrequirementtosummon
witnesses to a divorce, but it may have been a common
practice.
Terminology and procedure aside, the sources do
confirm that it was in fact easy, legally, for a husband to
divorcehiswife.Therealitymayhavebeendifferent. There
DivorceinAthens 9
wasonekeyprovisionintherulesgoverningdivorcewhich
placedaseriouscheckonthehusband'spower: thedowry.
As we have seen in the case against Neaira, the dowry
wentwiththewomanupondivorce.28 Theruleisconfirmed
byothersources, anditisclearthatthedowrysafeguarded
womenagainstfrivolous divorce.29 Thevery existence of
the dowry and its functionin the case ofdivorce, namely
its explicit attachment to the wife, created a balance of
power between husband and wife. So while the sources
give every indication that the lawper se did not place
obstacles inthe way ofa husband who sought a divorce,
thedowryitselfsurelylimitedthehusband'spower, inreal
terms, to divorce his wife atwill.
Whereas scholars seem to agree that divorce for a
husband was an easy process, there is less consensus on
the question ofa divorce initiated by the husband's wife,
knowninthe secondaryliterature asapoleipsis(fromthe
verbapokipein, lit. "toleavebehind").30 Thedistinguishing
featureofadivorceinitiatedbythewifewasthestipulation
thatsheregisterherintentiontoleaveherhusband'soikos
with an archon (a public magistrate).31 The purpose and
effects of this stipulation have provoked widespread
debate.32 At issue is the question ofthe wife's relative
freedom to act independently and without male support.
The most famous example of a woman attempting to
initiate a divorce is the case ofHipparete, who sought a
divorce fromthe flamboyant Athenian general, politician
and playboy Alcibiades. In a court speech from the late
fifthcenturywelearnthatAlcibiades,throughhisrepeated
useofprostitutes, drovehiswifeHipparetetothe archon
to seek a divorce.33 But as Hipparete made her public
appearanceinthemarket-place, Alcibiadesseized herand
forcibly carried her back home.34 The two authors who
narratethisepisodecharacterizeAlcibiades' publicdisplay
of power in quite different terms. The speaker in the
forensicspeechclaimsthatAlcibiades,throughhisactions,
10 PastImperfect
"made it clear to everyone that he despised the archons,
the laws and the other citizens."35 The Greek biographer
and philosopher Plutarch, however, writing in the early
secondcenturyA.D., providesaninterpretationofthelaw
which apparently accounts for Alcibiades' seizure ofhis
wife: "Foritseemsthatthelawwhichrequiresthewoman
seekingadivorcetopresentherselfinpublicwasdesigned
sothatthehusbandcouldmeethiswifeandrestrainher."36
Scholars remain divided in their interpretations of
Alcibiades' actions and the purpose ofthe stipulation
requiringawomanwhosoughtadivorcetoappearbefore
the archon.37
It should be noted that both Plutarch and Andokides
reportthat Alcibiadeswenttothearchonkatatonnomon
(lit. "inaccordancewiththelaw"). Thequestionmayrest
on our interpretation ofthis phrase. We must determine
whether kata ton nomon means that Hipparete went to
the archon "as the law entitled her," or, conversely, that
shewenttothearchon"asprescribedbylaw."Hipparete's
appearance before the archon, in other words, must be
understood eitheras aprivilege orahindrance. Themost
literal translation ofkatatonnomon, "inaccordancewith
the law," in my mind connotes requirement.38 In lieu of
further evidence, then, I think we must assume that the
stipulation requiring a woman to present herself to the
archonwas intended more as an obstacle to divorce than
as alegal privilege conceded to thewife. The example of
Alcibiades and Hipparete, even ifanecdotal, shows how
serious this obstacle could be perceived to be.
The speakers in the other two court cases commonly
cited as evidence for divorce initiated by a wife are both
trying to establish that no legitimate divorce has taken
place.39 Clearlywecanonlyusethisevidencewithextreme
caution.40 Still, important procedural pointsemergefrom
the two speeches. In the first speech, the famous orator
Demosthenesattemptstoconvinceajurythatthedivorce
Divorce inAthens 11
claimed by his opponents Aphobos and Onetoris a sham
since Aphobos and his wife, Onetor's sister, continue to
live together in marriage.41 At one point in the speech
Demosthenescallsforthwitnessestocorroboratehisclaim
that, inanillegalattempttocoverupmoneyandproperty,
the putative divorce was registered with the archon only
afterhehadinstitutedalawsuit:"AfterIbroughtalawsuit
these persons Qtoutoi) registered an apoleipsis with the
archon."42 Theplural pronounhoutoiisthesalientfeature
ofthe passage. This form is ambiguous with regard to
gender, so we cannot know whether Demosthenes was
referring to Aphobos and Onetor, in an attempt to show
collusion, or to Aphobos and his wife. Because
Demosthenes is in fact attempting to demonstrate
collusion, the use ofthe plural here might be a rhetorical
trick, and should not betaken as evidencethat a husband
participatedwithhiswifeinregisteringanapoleipsisbefore
thearchon.43 ButtherhetoricofDemosthenes, no matter
howexaggerated, stillhadtobeintelligibletoanAthenian
jury: ifDemosthenes was referring to Aphobos and his
wife—apossibilitywhichtheambiguityoftheGreekleaves
perfectlyopen—this passagemaybe evidencethat awife
who sought a divorce could not procure it without her
husband's acquiescence. The lexical ambiguity permits
other interpretations. If Demosthenes was in fact
referringto AphobosandOnetor, wemightthentakethe
passage as evidencethatapoleipsisrequired not only the
compliance ofthe wife's husband, but ofher natal kurios
aswell (in this case Onetor). Andbecause a woman who
leftherhusband'soikosreturneddirectlytohernataloikos,
where her father (or natal kurios) would have been
expectedtomaintainher, thisscenarioisquiteplausible.44
Beyond the issue of the wife's power to act
independently in the case ofapoleipsis, the requirement
that she appear before the archon raises other equally
problematic questions. It is difficult to determine, for
12 PastImperfect
example, whether the woman went to the archon merely
to make a public announcement ofher intention to leave
herhusband'soikos, orwhethershepresentedhercaseto
thearchonforadjudication.45 Inthe second caseinwhich
anattemptismadetoshowthatnodivorcehastakenplace,
the speaker makes his point by asking rhetorically, "To
which archon did this married woman go when she left
behind her husband and his oikos?'46 This question, of
course, stresses thepublicaspect ofthe requirement, and
thecase ofHippareteand Alcibiadesindeed suggeststhat
it was the action ofthe wife, and not the decision ofthe
archon,whichcausedthedissolutionofthemarriage. But
we should not dismiss the role played by the archon.
Althoughthereisnothinginthesourcesto suggestthat a
womanwho presented herselfto the archon hadto show
cause, the fact that this provision applied to the wife and
not to the husband highlights the complex relationship
betweenthe stateand theoikos. As Iwill argue, the state
had an interest inthe status ofthe individual oikoi, and a
woman'sdecisiontoleaveherhusband'soikosnecessarily
jeopardized that status.47 Because a husband presumably
would have acted with the interests ofhis own oikos in
mind, thiswould not bethe case ofa divorceproceeding
fromthe husband's initiative. Thismayexplainthe state's
limited, or supervisory, role inapoleipsis.
Just as a husbandwho divorced his wife sacrificed his
controloverthedowry, sotoodidhelosethedowrywhen
his wife abandoned his oikos.4* Andjust as the dowry
servedasasafeguardforthewifeagainstfrivolousdivorce,
it also provided herwitha"practical source ofpower."49
Because the dowry went with the wife upon divorce,
regardlessofwhohadinitiatedtheproceedings, awoman's
threat to leavetheoikosofherhusband had an economic
dimension as well as a social one. The dowry, in other
words, was a major factor in the marital relationship at
Athens. Before exploring other forms ofdivorce, I will