INHERITANCE, PROPERTY AND MARRIAGE IN MEDIEVAL NORWAY

Lars Ivar Hansen

This essay will highlight the position, capabilities and options of married wom­en, according to Norwegian medieval law, regarding their control of property.

The position of married women in controlling property will be discussed on the basis of the legal situation drawn up by the first nation-wide law codex en­compassing the whole medieval Norwegian monarchy, which was established by king Magnus the lawmender in 1274. In contrast to the former provincial laws, this National Law Code introduced new principles for women's access to inherit­ance, thus influencing greatly women's options for acquiring control over prop­erty. However, as many of the regulations in this law related to principles that had been introduced into the provincial laws during the two preceding centuries, a short overview of previous developments is needed. This concerns above all the principles and conditions for contracting a valid marriage, the introduction and successive curtailment of marriage prohibitions according to canon law, and the rules regulating property transactions and exchange of gifts by contracting mar­riage. The essay will then discuss the various practices that can be observed during the later Middle Ages, based upon a selection of preserved charters, as well as the later legislative developments.

The Development of Norwegian Marital Law During the Eleventh and Twelfth Centuries

The oldest layers of the provincial law codes seem to reflect a secularly defined marriage, practised before all the ecclesiastical demands and qualifications for a valid marriage had been adopted, and which was primarily conceived as an agreement between two families. The betrothal agreement was considered the legally binding arrangement, and the negotiations focused primarily on finan­cial transactions and obligations and were conducted by the men of both fami­lies. However, some parts of the provincial laws, which may be later amend­ments to the parts specifically dedicated to ecclesiastical and religious matters (so-called �Christian laws'), emphasized that the consent of the spouses - not least the woman - was also needed for contracting a valid marriage.^[19] This may well reflect the greater emphasis on the demand for mutual consent between the spouses that was raised by the church during the later part of the twelfth century.^[20] But at the same time, these later versions of the law upheld the focus on property transactions, as they contained explicit formulas that should be cited by the male spouse in the presence of witnesses, concerning the agree­ment about transactions of dowry and countergift.^[21] The weight on reciprocal consent, and explicit references to �God's law' and the holy church, were further elaborated in the new versions of these Christian laws that were issued during the middle of the thirteenth century.^[22] These more outspoken prescriptions to an explicit stating of the couple's consent, as well as the references to the holy church, were most probably the result of more energetic measures taken by the church, partly after having consulted the Holy See during the 1170s.^[23] The back­ground was the clearer definition of marriage as a sacrament, and the canonists' increasing emphasis on the necessity of consent by the parties involved.^[24]

The canonical prohibitions against marriages within forbidden degrees of con­sanguinity and affinity were introduced in Norway at the establishment of a sepa­rate Norwegian arch-diocese in Nidaros (Trondheim) in 1152-3.

According to the oldest provincial laws, women's right to inheritance was extremely limited or non-existent. The Gulathing's law, valid for the western part of Norway, stipulated that only the three closest female relatives of the de­ceased - daughter, sister and mother - could be entitled to inheritance as such, provided that there were no closer male relatives.^[27] However, both the provincial laws and the later National Law Code of 1274 seem to indicate that the dowry transferred to married women by their families was to a certain degree regarded as their part of the property devolution from their parents, and a kind of parallel to inheritance. At least, the property shares allotted to the married sisters should stand in a fairly proportional relationship to the property that was left for the brothers to inherit.^[28]

In general, the oldest provincial laws seem to reflect a basic tripartite prop­erty system as the economic foundation for the household of the newly wedded spouses. One part was conveyed by the bride's family as dowry. The second part was made up of the indirect dowry or countergift (so called ping^, or �tilgjof) transferred by the man to the bride at the marriage. The third part consisted of the husband's separate property, that is, what was left after his conveyance of the indirect dowry to the wife. These will each be discussed in turn.

Judging from what has been documented in charters from the fourteenth cen­tury, the dowry was most often comprised of transferences of landed estate, but clothes and various household equipment were also common.^[29] However, the Na-

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Married Women and the Law in Premodern Northwest Europe tional Law Code set an upper limit to how great a proportion of the dowry could be given in the form of clothes, namely, one-third of the value.¹² The dowry was considered to be the wife's separate property, both during marriage and after her death.

The indirect dowry or countergift, transferred by the man to the bride at the mar­riage, was a sort of reciprocal yield for the endowment from the wife's family. The provincial laws contain various regulations as to what kind of proportion should be stipulated between the dowry and the countergift. While the Gulathing's law held that they should match each other, the Frostathing's law stated that the countergift should amount to only half of the dowry. Consequently, it was called â€?priSjungsauke, or â€?third's increase’.¹⁴ The later National Law Code seems to have opted for a more realistic evaluation of the economic capabilities of the two families, and did not stipulate a certain proportion between the two.¹⁵ Conspicuously enough, however, the man's family is nowhere mentioned explicitly in connection with the countergift in the same way as the woman's is in relation to the dowry. This may indicate that the lawmakers assumed that the male spouse might already control his inheritance, or that he may have been granted permission to make an offer within certain limits.¹⁶ In addition to these two basic contributions, the wedding transactions could also include other more specific â€?bridal gifts' from the husband to his wife-to-be, like the so-called â€?bench gift', â€?betrothal gift' and â€?linen goods', of which the latter was spe­cifically determined for virgins.¹⁷ Within the total conjugal property, the countergift formed a sort of flexible property-in-between. In the case that one of the spouses died, it was disposed by the survivor, and might possibly be inherited by his or her heirs. At a possible divorce or annulment of the marriage, the destination of the indirect dowry was dependent on whose fault the dissolution was.¹⁸

Upon the death of one of the spouses the husband's separate property - what was left after his conveyance of the indirect dowry to the wife - was subject to sim-

probably conceived as more advantageous for the future property management of the couple, than clothes and household equipment, which were not renewable and might be perceived as less negotiable.

¹² National Law Code V, 1, Taranger, ed., Magnus Lagab0ters Landslov, pp. 72-3; Orm0y, ^cKvinner og eiendom, p. 11.

¹³ Orm0y, â€?Kvinner og eiendom, p. 60.

¹⁴ The Gulathing's law 54, Robberstad, ed., Gulatingslovi, pp. 75-6; cf. Andersen, Kvinnas 0kono- miske rettsstode, pp. 89-90; the Frostathing's law XI, 8, 14-16, cf. III, 6, 17, Hagland and Sandnes, eds, Frostatingslova, pp. 135, 41 and 45.

¹⁵ National Law Code V, 1, Taranger, ed., Magnus Lagab0ters Landslov, pp. 72-3; Orm0y, â€?Kvinner og eiendom', pp. 29-32.

¹⁶ Andersen, â€?Kvinnas 0konomiske rettsstode i norsk mellomalder, Kvinnans ekonomiska stallning, p. 84.

¹⁷ Cf. R. Frimannslund, â€?Benkegave, Kulturhistorisk leksikon for nordisk middelalder (Copenhagen, 1956), cols 461-2.

¹⁸ I. 0ye, â€?Kvinner, Kj0nn og samfunn. Fra vikingtid til reformasjon, Med kj0nnsperspektiv pa norsk historie. Fra vikingtid til 2000-arsskiftet, ed. I. Blom and S. Sogner (Oslo, 1999), p. 66.

ilar procedures to those prescribed for the dowry. If the wife died, this part was kept by the husband. In the opposite situation, the husband's property was passed on to the children as direct descendants. If they were of minor age, the property would be taken care of by guardians from the husband's kin. If the husband did not have any legitimate children - neither from earlier marriages, nor from the recently ended one - his separate property was probably returned to other mem­bers of his kin group, according to the sequence of potential heirs.^[30] These three parts - the separate property of the spouses and the indirect dowry - were not necessarily of equal size.

This picture must be understood as a default description, that is, as a summary of the prevailing conditions if the standard regulations laid down by inheritance and marriage law were being followed straightforwardly, without any modifica­tions. But from an early date - even according to the oldest provincial laws - there existed the possibility of making special agreements about �joint property' or �property in community' between the spouses, in particular on the initiative of the husband.

The Development of Women's Inheritance Rights

In Nordic medieval law there was a basic division between two legal traditions re­garding succession, in which the relatives of the deceased were ascribed the status of potential heirs. While the provincial law codes of Denmark and eastern Sweden predominantly followed the so-called �parentela principle’, the western Nordic laws applied the �gradual principle'.^[32] According to the parentela principle - which is the one applied by modern inheritance law - the children and grandchildren of the de­ceased make up a first class, or parentela, which is given priority. Thereafter follows a second class, consisting of the parents of the deceased, as well as their descendants (siblings and nephews/nieces of the deceased), and then a third class, defined as the grandparents together with their descendants (uncles, aunts and first cousins of the deceased). At each stage, the next parentela in the priority order only comes into consideration when it is ascertained that no living heir still exists within the preced­ing one. Thus, the existence of a living heir within any given parentela precludes that

Married Women and the Law in Premodern Northwest Europe any member of the next should inherit. According to this principle, both male and female kin of the same relative distance from the deceased hold inheritance rights.

The gradual system, for its part, was based on an individual calculation of kin­ship distance from the deceased, expressed in terms of degrees or links. However, this calculation might adopt certain special principles of priority. For instance, descendants might be given priority over ascendants that technically were equally distant, and a certain priority might also be adopted according to gender: male in­dividuals could be preferred to females of same distance, and kin members whose relations were mediated through male links might be given priority over those whose connections were mediated through female links. The oldest Norwegian inheritance laws - those of the Gulathings and Frostathings laws - applied the gradual system in this way.

During the twelfth and early thirteenth centuries, there seem to have been several competing tendencies at work in Norwegian society, trying to influence inherit­ance law, and possibly reflecting various strategies. Among others, the traditional, landowning aristocracy may have reacted against the new policies of the monar­chy and the church, and wished to strengthen those aspects of inheritance law that would serve to concentrate property within the patrilineage.^[33] On the other hand, newer regulations incorporated both patrilineal and more bilateral, cognatic ways of enumerating possible heirs into the Gulathings and Frostathings law, and evi­dently sought to supplement the older regulations, which only enumerated male heirs, with corresponding lists of potential female heirs.^[34]

Nevertheless, any profound change regarding women's inheritance rights did not occur until the introduction of the National Law Code established by Magnus the lawmender in 1274. In the inheritance section of this law, which was valid until 1687, a greater number of female relatives were acknowledged as potential heirs.^[35] The specification of possible female inheritors went as far as the second canonical degree, including for instance the daughters of children, brothers and sisters to the deceased, as well as sisters of the mother of the deceased. In general, the specification of potential female heirs extended just as far as the enumerated male heirs. But in the detailed ranking of possible heirs, a certain priority was given to men. The daughters of brothers of the deceased and the sisters of his father were for instance listed among the seventh rank of inheritance succession, while the corresponding males (sons of brothers and father’s brethren) were of the fourth rank. But among the heirs in the first rank - the children of the deceased

- both daughters and sons were entitled to inheritance. However, the daughters were allotted shares only half as great as those of their brothers.^[36] This principle of unequal sharing was made valid for all cases where male and female relatives ap­peared in the same rank of inheritance succession, such as the mother's brothers and sisters (fifth rank), and daughter's sons and daughters (second rank).

As a whole, the inheritance succession in the National Law Code seems to be structured according to a combination of calculation of distance (the gradual principle), gender, and lineal consideration. To a certain extent, male relatives were given priority before female ones, and patrilineal relatives before matrilineal ones. But compared to the provincial laws of Gulathing and Frostathing, descend­ants seem to have been given a clearer priority over ascendants. This might indi­cate some influence from the parentela system of kinship reckoning.

By including a wide number of female relatives in the ranked inheritance suc­cession in a more integrated way, where some women had priority over some male relatives, the National Law Code of 1274 established a completely new situation for women's capacity to acquire property. Even if married women earlier had been allotted a dowry which was in proportion with the expected inheritance of their male coheirs, they were now regularly receiving both dowry and an inheritance share. But still women had to marry in accordance with the advice of their parents or relatives; otherwise they would be disinherited.^[37] Nevertheless, the new inher­itance rules had substantial consequences for the property that a woman might bring into the matrimonial cohabitation, and thus accentuated the question of what kind of property dispositions could be made during marriage.

Women's Control of Property During and After Marriage

Women's disposal and control over property during marriage were conditioned and influenced by a series of factors pertaining to legal regulations of different kinds, as well as various sets of interests, related to the relationship between the conjugal couple and their relatives on both sides. In the first place, there was the standard legislation which regulated the rights to disposal and inheritance of the dowry, the countergift (indirect dowry) and the man's separate property. Second­ly, both the older provincial laws and the later National Law Code established that it was the man who should be in charge of the total conjugal property during the marriage. But it is explicitly stated that he must act to the benefit of them both, and not jeopardize any of his wife's property. By no means was he allowed to take his wife's property abroad.^[38] Thirdly, the special set of legislative measures concern­ing the options for establishing the �community of property' or �joint ownership' during marriage came to have ever greater importance during the later medi­eval and early modern periods. The conditions for making such specific marriage contracts, and the following consequences, changed considerably throughout the period due to altered legislation.^[39] In all, these terms reflected both divergent in­terests as to how property should be managed during the lifetime of the couple, and - not least - how property should be transferred to the next generation upon the death of one or both of the spouses. At the same time, they formed the frame­work or �field' within which the divergent interests and strategies were played out against each other. And the new legislative measures laid down new conditions to be taken into consideration.

Most of the issues at stake became clearly manifest and accentuated at the end of marriage, in connection with inheritance procedures and the division of property among the heirs. A certain tension and potential conflict of inter­ests existed between the conjugal couple as such - with their common children as directly descendant heirs - and their kin relatives on both sides who might come under consideration as heirs in special circumstances. The two spouses had their origins in two different kin lines, and were to a great extent dependent on them in many matters, but at the same time they formed a new, amalgamat­ed union of the two lines, which could represent a continuation of both lines. Nevertheless, the kin relatives on each side had their interests to take care of, through various measures, in case the couple did not produce any children or in case the children died before either of the parents. Of central importance were such questions as, in the case that one of the spouses died before the other: what inheritance procedures must be undertaken immediately, and what should be postponed until after the other spouse's death? How much of the property and what parts of it could be kept by the surviving spouse for her or his lifetime? And how should the property of the spouse who died first be divided? Should it pass on to the children in its entirety, in the case that the couple had legitimate progeny? Or might other members of the deceased's kindred come into consid­eration, even if the couple had legitimate children? In the case that the children who were entitled to inherit were of minor age, who should be their guardian(s) and in charge of the property management? These were some of the questions the legislation had to deal with.

Matters were further complicated and accentuated by the institution of â€?al­lodial property', or odelsjord, which entitled certain members of a kin group to the right of pre-emption and redemption of inherited lands, similar to the French retrait lignager.² Such rights were known in all the Nordic countries (except Iceland) during medieval times, but had different names. In Swedish, it was called b∂rdsratt, or â€?birth's right', while the Danish term Iovbydelse, or â€?offer by law', referred to the obligation resting upon a person wishing to sell allodial land to offer it to the next of kin at the same price as strangers would pay.^{[40] [41] To qualify as â€?allodium', landed property had to have been owned by mem­bers of the same kindred for a specified number of generations, or - according to later legislation - for a minimum amount of time. The Gulathing's law laid down six generations as a minimum, while that of Frostathing prescribed four generations. According to the National Law Code of 1274, the minimum time required was only sixty years.[42] Allodial estates which had come into the posses­sion of non-kin (by sale, mortgaging or inheritance) could be redeemed by lin­eal relatives of the last allodial possessor, according to detailed provisions. The National Law Code extended the period during which a prospective redeemer could postpone the take-over, provided that he repeatedly declared at the public assembly that he was the right â€?odal heir', but that he temporarily lacked money. As we shall see, the special legal position of allodial estate led to even further considerations regarding the tactics and planning of property devolution be­tween the generations, among other things through the conscious application of marriage contracts concerning property matters. The legitimate children of a couple represented a continuation of the two kin lines in question and were, as such, entitled to inherit allodial land. Nevertheless, special precautions were taken in many marriage contracts, in order to secure the allodial property for other members of the kin line, in the case that the couple's common children died before either of the parents.}

The legal situation of married women regarding control and disposal of prop­erty was heavily influenced by this legislation concerning allodial property and the various measures taken by different actors who were able to influence the terms of the marriage agreement. We shall, therefore, take a look at the legislative developments, and at the same time draw attention to some of the marriage con­tracts and court cases which may highlight to what extent the various regulations were followed in practice, and to which outcome disputes about these matters led.

Notwithstanding the provision that the husband should be in charge of the spouses' total property, women seem to have had a fair degree of control over the dowry and countergift during marriage.^[43] The National Law Code repeated the regulation prescribing that the husband should be in charge of the whole conju­gal property during marriage, but that he should make his disposals to the ben­efit of both.^[44] However, practice may have revealed that this formulation was not adequate, since two successive amendments (of 1280 and 1313) underline that the husband needed to have his wife's consent if he sold any of her estates or the property which they owned together. In case a dispute arose, he or his heirs had to be able to produce two witnesses who could confirm that the sale had taken place with the consent of the wife.^[45] Otherwise, the wife could announce that it had been contrary to her will, within a time limit of five years after being informed about the sale. According to the later charters, these regulations also seem to have been followed.^[46] Apparently, the clause about the wife's consent being necessary for the husband's dispositions over his wife's property was no empty phrase.

Many late medieval charters testify that wives actually were questioned in ad­vance of transactions and even played an active role by being present and expressing their views. According to a charter of 1345, a certain Gunnbjorn acknowledged that he had sold a share of a farm belonging to the dowry of his wife, Rannveig Gun- narsdaughter, to the canons of the chapter in Stavanger. Rannveig had been present at the transaction, had agreed to the sale, and confirmed that she and her husband had received full payment.^[47] Negligence in acquiring the wife's consent might also have later judicial consequences. By a verdict issued some time between 1280 and 1299, lady Gudrun, who was the widow of the magnate Ivar Lodinsson, was award­ed one-third of their total conjugal property, while Ivar's sister Ingegerd, who acted as his heir, got two-thirds. Gudrun's third included some landed property which Ivar - without her knowledge - had sold to the Munkeliv monastery in Bergen. This property was therefore to be returned to the widow, and the monastery had to be compensated with some other property of corresponding value among the two- thirds that had been allotted to Ivar's heir.^[48] Further, the indirect dowry (counter­gift) could not be freely disposed by husbands. A sales letter from 1342 documents that Sigurd Brynjulvsson and his wife, Gyda, two years earlier had sold a share in the middle part of the farm, Kvale, in the Valdres valley, which originally had been given to her as indirect dowry. At the sale, she publicly renounced her rights to the property share, and both husband and wife acted as sellers.^[49]

This general framework of property distribution was, however, made even more complicated, due to the specific rights and provisions concerning allodial property. By inheritance, male heirs had a certain priority to allodial property. In case a de­ceased man left both allodial and other property to be inherited by his children of both sexes, the National Law Code of 1274 prescribed that the sons should be assigned the allodial lands while the daughters should get �out-lands' (landed prop­erty without specific allodial status) and moveables.^[50] Nevertheless, if the deceased did not have any sons or grandsons, some of the women who were nearest in kin were entitled to take over the allodial property. Both the Gulathing's provincial law and the National Law Code specified further a group of female relatives who could receive allodial estates after the deceased: his daughter, his sister, his father's sister, his brother's daughter and his son's daughter. There also existed specific provisions as to how women in possession of inherited allodial land should offer it for sale to relatives (male or female) having rights of pre-emption.^[51]

As far as allodial lands inherited directly from a father without any closer male heirs were concerned, women therefore had quite strong rights to possession. The same went for allodial property that was part of a wife's dowry. But the case with allodial lands conveyed as part of the indirect dowry was quite different. The Na­tional Law Code stated explicitly that allodial land that had come into the posses­sion of a woman as part of her countergift, or by being inherited backwards from dead children, could not acquire allodial status by prescription (hevd) through the woman's line. That is, the widow might keep it for some limited time, but as soon as the nearest one of the deceased husband's male relatives raised an interest in it, he could sue her, and redeem the property after a closer value assessment.^[52] The Gulathing's law contains quite elaborate provisions for the value assessment and payments, and concludes laconically: �So he shall take care of his allodium, and she of the money.'^[53]

A royal amendment of 1313 reinforced the regulations of the National Law Code concerning �backward' inheritance by one of the parents from children who already had inherited from the other parent but had then died without leaving any direct heirs of their own. In such cases, the longest-living parent should only dis­pose of moveables which the children had inherited. Landed property could only be kept by the longest-living parent for his or her lifetime and should then be re­turned to the kin group from which it had originated.^[54] A charter from 1317 gives

Married Women and the Law in Premodern Northwest Europe an example of this practice. A share of allodial land in the farm Rogne, assessed at a value of 140 marks of silver, was then redeemed from the widow Gudrid Aud- finnsdaughter by the brother and sister of her deceased husband, on behalf of the couple's sons who were of minor age.^[55] The purchase price was to make up for the claims Gudrid had in Rogne, corresponding to her indirect dowry, some debt of her dead husband that she had paid, as well as some other gift. From two charters of 1339, concerning landed property in Voss, we learn that a property share in the farm Hylle, which made up half of the indirect dowry of Ingegerd Torgautsdaugh- ter, widow after Orm Kavle, was redeemed by her two stepsons.^[56]

The Role of Joint Ownership

This picture of general conditions, which was drawn up by the standard or �de­fault' legislation governing inheritance succession and the division of property in the aftermath of an ended marriage, was further influenced by the option of combining the property of the two spouses into �joint ownership' or �community of property'. In Norwegian medieval law this institution was called felag, a com­pound term made up by combining fe (n.), which could mean �cattle', �goods' or �property', and �lag’ (n.), meaning �community' or �in common'. Thus the term felag refers to �property held in common' or �joint ownership'.^[57]

The institution of matrimonial felag was mentioned in the oldest provincial laws, but only referring to the basic content and conditions for establishing such a combination of the spouses' property. However, from the National Law Code of 1274 and onwards, the legislation became more concerned with detailed prescrip­tions - evidently in response to many doubts and questions as to what were the correct procedures and conclusions to be drawn. The legislators of the monarchy were also probably influenced by the church's conception of marriage. Between 1280 and 1348, four royal amendments gave more detailed instructions concern­ing how joint property between spouses should be understood and practised. The last comprehensive legislative measure came with a decree issued in 1557 by a meeting of members of the Council of the Realm and noblemen in Bergen.^[58]

In the first place, such joint ownership arrangements regulated the range of dispositive capabilities which were available to the spouses during marriage, re­garding the various gifts and property that had been exchanged at the contraction of marriage. At the same time, the joint property practice also had repercussions for inheritance procedures and the way the conjugal property should be divided upon the end of the marriage, and led, in part, to other solutions than those pre­scribed in the standard legislation. One of the main features was that it guaranteed

Inheritance, Property and Marriage in Medieval Norway the longest-living spouse the right to dispose of a certain share of the common property for her or his lifetime, so that the preliminary inheritance procedure only concerned the remaining share. Thus, the joint property arrangement might serve to guarantee a subsistence basis of support for the longest-living spouse, in a way that transgressed what would have been the case if the customary dividing principles concerning dowry, indirect dowry and separate property of the hus­band had been followed.

Still, there were several significant distinctions as to how joint property should be established, which parties had the decisive authority and could conclude settle­ments about community of property and which proportional division should be applied at the end of marriage. All these points were subject to changes, according to new developments in legislation. Both the provincial laws and the National Law Code distinguished between a felagby law and an arranged felag. Joint ownership �by law' was established automatically, after the spouses had been married for a certain number of years, while the arranged felag was established by an actual agreement or marriage contract. However, the oldest provincial laws set various conditions for a joint ownership to be established automatically, concerning the duration of marriage. The Frostathings law required only one year of marital co­habitation, while the Gulathings law required twenty years, and the older Bor- garthing's law thirty years.^[59]

Secondly, there was the question of who could claim the property to be joined by a so-called arranged felag, and whose consent was necessary. The old provin­cial laws seem to recognize the husband as the prime initiator of arranged forms of joint property. Both the Gulathings law and the National Law Code contain clauses stating that the wife cannot deny her husband felag, but the Gulathings law required the consent of the wife's nearest heirs, unless the couple had com­mon children:

The wife cannot deny her husband felag. When a man marries a girl, they cannot join their property without the consent of their closest heirs. But if they have children to inherit them, they may join their property (make felag) as they want. (The Gulathings law 53)^[60]

This tension, between the interests of potential heirs on both sides and the in­terests of the couple in question, became an ever-recurring topic in the succes­sive legislation. The National Law Code stated that the spouses should have the capability of joining their properties themselves, according to their own will - without any other consent being necessary - provided that they followed certain prescribed rules. Attention was given, in particular, to the relative size and value

of the separate portions of property that had been joined together at the making of the marriage, and the consequences of a possible differential increase or loss in the value of those portions during marriage. However, later royal amend­ments strengthened the position of kin relatives to some extent, and underlined that the consent or advice of �legal heirs and relatives’ was necessary. Without any further reservations, this was ascertained in two amendments from c.1297 and 1358, issued respectively by Hakon V Magnusson acting as a duke, and by the later king Hakon VI Magnusson. But some time between 1299 and 1306, when Hakon V Magnusson was reigning king, he issued an amendment with some more specific qualifications. Provided that the wife had been married with the consent of her relatives, and on the condition that she had received an in­direct dowry from her husband, the couple should be free to join property, as soon as they had children of their own. But if the spouses had children from earlier marriages, who were of minor age, consent was needed from the nearest kin relatives, that is, those who were nearest in line to inherit. In other words, consent from relatives was now restricted to those cases where at least one of the spouses had children from before.

A third distinction concerned the theoretical shares that husband and wife were supposed to own in the joint property and the way the property should be divided upon the death of one of the spouses. Here, there existed two forms: the so-called priSjungsfelag, or �one-third-joint-property’, and the helmingsfelag, that is, �half-share-’ or �bipartite joint property’. These notions specified how the joint property was held and how it should be split up when one of the spouses died. With a priSjungsfelag, all that was not held aside as separate estate should be di­vided according to �thirds’, with two thirds going to the husband or his heirs and one third passing to the wife or her heirs. With the helmingsfelag, everything that was put into the joint property should be divided equally between the surviv­ing spouse and the other heirs, either their children or other relatives. The old­est provincial laws knew only the �one-third-joint-property’, which was used as a standard for both the automatically established felag by law, and the arranged forms offelag:

If the couple has been together for twenty years or more, the law joins their estates, if it was not done before [...] then she owns one third of the estate and he two thirds of it. If they had made a felag, but not made it public before twenty years had gone, it is like it was never done. (The Gulathing’s law 53)^[61]

But if the wife looses her husband and they have been living to­gether for at least twelve months, the wife owns a third of the estate and all moveables, and her clothes in addition. (The Frostathing’s law XI, 6)^[62]

The National Law Code, for its part, introduced the concept of �bipartite joint property', but prescribed a combined application of property division into halves and thirds. In so far as the amount and value of property at the end of marriage corresponded to what had been put into the joint ownership, a bipartite division should take place, between the surviving spouse and the heirs of the deceased spouse. The only exception was in the case where one of the spouses had put in more than the other at the conclusion of the felag settlement. Then a correspond­ing surplus part should be taken out first. But if the amount of property had in­creased during marriage, this increase should be divided according to thirds. The husband or his heirs should have two thirds, while the wife and her heirs were entitled to one third of the property increase.

1. His wife’s estate shall no man take out of the country, unless she wants. He is to govern for all of their estates, to their benefit... 2. No wife shall deny her husband felag... And this is the way they shall make felag between themselves: Each of them shall put into the felag what they own and what they are going to own, either by inheritance or by other means... But the one of the spouses who put the most into the felag, shall take most out of it, or alterna­tively his or her heirs, (only) then shall the estate be divided in two halves, even if the value has been reduced. But if the value of the estate has grown, the husband or his heirs should have two thirds of the profit, the wife or her heirs should have one third. They do not have to ask anyone of permission to make this kind offelag⁵

The position of the â€?bipartite jointure’ was further strengthened through later royal amendments. In the great amendment given by king Hakon V Magnusson some time between 1299 and 1306 (About joint property between spouses’), it was explicitly stated that the kind of joint ownership which the spouses were en­titled to conclude by themselves should be a bipartite one. The amendment of the later king, Hakon VI, can be read as a confirmation of this principle. The final, decisive step in favour of this principle of bipartite division came with the above-mentioned decree from the â€?nobility assembly’ in Bergen in 1557.⁵³ Here the bipartite form of joint property was established as standard legislation, which should govern all divisions of property taking place after the death of one or both spouses, without any exceptions. In other words, bipartite jointure was established as the default form by law. But, in addition, the decree repeated certain procedures

estate together.’ Hagland and Sandnes, eds, Frostatingslova, pp. 172-3.

⁵² National Law Code V, 3, 1, Keyser, Munch et al., Norges gamle Love, II, p. 76, Taranger, ed., Mag­nus Lagab0ters Landslov, p. 74.

⁵³ Winge, ed., Lover og forordninger, pp. 59-60; A. Taranger, Udsigt over Den norske rets historie, vol. IV: Privatrettens historie (Christiania, 1907), pp. 330-1, 396. After the establishment of the union between Denmark and Norway, and after the abolition of the separate Norwegian Council of the Realm in 1536, selected members of the Danish Council of the Realm acted periodically as a High Court commission in Norway, also having legislative and administrative functions. to be followed at the division of inheritance - about the paying of debts, et cetera - partly coinciding with the instructions in the National Law Code.

The gradually more dominant position of the bipartite form of joint owner­ship and the greater capabilities of the spouses to make agreements about joint property by themselves, without having to seek the advice or consent of their rela­tives, seem to have laid down new conditions for property devolution between the generations and, consequently, also for property strategies among the landowning segments of society. In particular the new law regulations must have had impli­cations for the transference of allodial estate. As we have seen, the National Law Code contained quite elaborate instructions about the procedures that should be followed, in the cases where �that land comes under a woman, which men have the right to redeem from her’.^[63] But the institution of joint property influenced these matters, so they got more complicated than in the �default’ cases, where no settle­ments had been made, and the total marital property was divided into the three clear-cut parts of dowry, indirect dowry and the husband’s separate property.

The varying use of different kinds of marital property arrangements through­out late medieval times has been studied by Kathrine Gr≈sdal, on the basis of 103 preserved charters from the period 1300-1565. The charter material comprises testimonies about marriage contracts, actual marriage contracts, letters specifically referring to earlier concluded contracts and letters concerning inheritance proce­dures which seem to reflect that such agreements or contracts must have existed.^[64] On the basis of this evidence, the following tendencies can be observed (see Figure 1.1). Although keeping the property of the spouses separate may have been stand­ard procedure earlier, the use of marriage contracts explicitly establishing this kind of property relationship seems to decrease substantially, and almost vanish. Docu­mentary evidence of contracts establishing separate property decreases from ten during the first half of the fourteenth century, to four in the following fifty-year period. While separate property agreements are no longer used, the contracts es­tablishing joint property become completely dominating, though one has to take into consideration that a certain number of the referred marriage settlements are of an uncertain kind, which cannot be determined precisely. What is more, of the two possible forms of joint ownership, the bipartite jointure is the prevailing one, while the â€?one-third-jointure’ (priSjungsfelag) is also discarded. In all, only four cases of this latter kind of contractual agreement are found, all stemming from the first two fifty-year intervals. The last known jointure of this kind was documented in 1398. In general, the number of bipartite jointure contracts rises markedly during the four­teenth century and reaches a maximum during the fifteenth century, but then drops to an insignificant number throughout the first half of the sixteenth century. A pos­sible explanation for the last development may be that the practice of joint property arrangements was by then so established that it did not cause the same number of conflicts, and therefore is less liable to be reflected in the documentary evidence.^[65]

Figure 1.1 Norwegian Marriage Contracts, 1300-1565

* 1/3 - jointure ■ Bipart. Joint. ^a Unspec. Joint. ■ Uncertain

Source: Gresdal,..Legge i felaget alt det som de da eier og kommer til a eie'.

A peculiar feature which should be noticed, however, is that the bipartite join­ture, to an increasing degree, is combined with separate property in such a way that the agreements stipulate that some parts of the spouses' property should be included in the joint ownership, while other parts should remain separate property. About one-third of the contracts covering bipartite jointure in the period 1330-1430 were made up of combined contracts which also stipulated separate ownership for some parts of the property. In a Nordic context, this kind of combined contract appears rather particular to Norway. In contrast, the landowning elite in Iceland - who also applied both bipartite jointure and separate ownership - did so at different times and presumably with different strategic aims depending on the socio-economic situation. Such combined contracts are not known from Iceland.^[66]

The respective roles played by joint and separate ownership in combined marriage settlements could be defined in different ways. One way was to let the property which each spouse owned at the making of the marriage be defined as separate property, while the property they acquired together, during wedlock, should be subject to joint ownership.^[67] Another way of dividing the property was to include the disposal of moveables in the joint property, while the landed property possessed by each spouse at the time of the wedding should remain separate property.^[68] But there were even more elaborate ways of dealing with

Married Women and the Law in Premodern Northwest Europe the division, such as having the allodial estates from each kin group defined as separate property, while other forms of landed property which had recently been bought or taken by mortgage became the subject of joint ownership. All in all, the fairly new procedure with bipartite jointure, combined with reservations of separate property, opened up a new flexibility and diverse adaptations.

According to a charter of 1337, the two sons of Ingebj0rg, the surviving wid­ow of Reidar Ogmundsson, sued the woman Arnbj0rg, heir of Reidar, claiming that their mother had not got what she was entitled to concerning her dowry and the previous agreement between her and her deceased husband. They pre­sented witnesses who could testify that an arrangement had been made at the wedding, according to which each spouse should preserve what they owned at the betrothal as separate property, but that property acquired later should be held in jointure. During their marriage, Reidar had inherited the whole farm Spikdalen from his father, Ogmund, and it was now decided that Ingebj0rg was entitled to half of the farm.^[69]

Settlements combining jointure and separate property seem also to have made it easier to safeguard women's allodial property. A charter from 1366 is a testimony of two witnesses who were present at the making of a joint ownership agreement between Jon Torleivsson and his wife, Gjertrud. At this event, she excluded from the jointure shares in the following farms: Tveit, Oppsal, Hold- hus, Haugen and Gj0n (situated in Fusa county in the western part of Norway), as well as some textiles, some silver buckles and a brooch. But, thereafter, they made a joint property agreement, encompassing the remaining property.^[70] In a similar document from 1400, two witnesses testified under oath that they had been present when Andres Palsson and his wife, Ingegjerd Arnfinnsdaughter, made a jointure agreement. But Ingegjerd had insisted that her property in the farms His0y, Halse and Ime in Mandal (in the county of East Agder) should be kept outside of it. At the same time, she gave the farm Halse, as a token of ap­preciation, to her relative and sole legitimate heir, Eiliv Brynjolvsson, because he had consented to the joint property agreement. Two other witnesses testified to the fact that Eiliv, after the death of Ingegjerd, also had received the farm His0y and considerable other property.^[71] According to a testifying charter of 1401, from the region east of the Oslofjord, three witnesses gave proof in a case concerning the property relationships of the late Tord Gautesson and his wife, Asa. They all swore that they had been present at the deathbed of Tord and had heard him declare, in his full senses, that the farm Voll was not included in the joint property settlement between him and his wife. Asa confirmed this, and added that Voll was her allodial property.^[72]

Conclusion

Thus, the institution of joint ownership - and in particular the bipartite jointure which prevailed throughout the late Middle Ages in Norway - created a new �space of action', compared to the old, established �standard' inheritance system. New options were laid down for the unfolding of more flexible property strate­gies on the part of the kin groups, on the part of the married couples, and on the part of individuals, including women.^[73] As we have seen, the position of the spouses in relation to that of the kin relatives on both sides was strengthened, at least in cases where they had their own children. This gave them a greater freedom for establishing agreements about joint ownership at their own will, of­fering several possible options as to what kind of property should be included in the jointure, and what might be excluded, as separate property, for each of them. It is highly probable that this increased focus on the decisions of the spouses themselves was due to the monarchy becoming ever more influenced by the ecclesiastical view of marriage as an independent, binding union between the spouses, in the presence of God.^[74]

Nevertheless, the continued influence of the kin groups should not be underes­timated, and the legislation from the early years of the fourteenth century displays a certain variation in how far it went in strengthening the rights of the couple. The spouses were still dependent on their kin relatives for many matters, and could - certainly in relation to the management of property - have common interests with them. Nor do the kin groups seem to have been too closely attached to the stand­ard procedures of property transference, as defined by the laws, with a priority for men and male links. If it might serve the interests of the kin group in the long run, and ensure that property stemming from one kin line might, in the future, be transferred to heirs that were acceptable, they seem to have been willing to let property pass through an intermediary female link.

Relative freedom in defining what kind of property might, or might not, be included in the joint ownership seems to have opened up complex strategies. The jointure institution was predominantly used by those segments of society which disposed landed property in some quantity. A fair hypothesis might be that the kin groups of these strata primarily saw the bipartite jointure as a suitable mecha­nism for getting a better hold on landed property that had been acquired succes­sively and recently - through buying, mortgage loans and exchange - and which did not yet qualify as allodial lands in their line. One possibility is, therefore, that the practice of combining jointure and separate property in marriage contracts re­flected a double objective: to ensure that well-defined allodial property should be inherited primarily by lineal descendants of the original kin line through which it had been established - possibly by the new couple's children, who represented a new, affinally united line - but otherwise by other lineal kin members. Property acquired by the individual spouses through their lifetime could also preferably be passed on through the same direct descendants so that it, in time, would acquire allodial status. This would represent a combination of thinking in terms of line­ally defined kin groups, and consideration of the affinal connections established through the institution of marriage. Both concerns would probably serve as in­centives for strategically contracting marriages with a conscious deliberation of which other (bilaterally defined) kin groups would offer the best conditions for the establishment of a new, common line of descendants who, in turn, could take care of the allodial property in the best way. In some cases, such strategies appear to have been followed for several generations.