Property Consequences of Sexual Relationships
Sexual relationships, marital and nonmarital, often had property consequences that concerned both ecclesiastical and secular courts. Canonists claimed that the jurisdiction of the Church’s tribunals reached beyond questions of separation or nullity and included the right to determine the division of property between spouses when a marriage broke up.
Both the decretals themselves and also the canonistic commentaries on them attempted to accommodate the principles of ecclesiastical law to variations in local custom and law in different parts of the Western world. In northern France, where marital property law was undergoing basic change during this period, the Church’s courts treated the spouses as joint tenants of property acquired during their marriage (acquest property) and required that such property be divided equally when the marriage ended. In England, Normandy, Flanders, and much of southern France, however, where local law gave preference to the husband and eldest son in the division of acquests, canonical tribunals adopted the customary usage of the region.[1816] Beaumanoir pointed out, however, that men were often unwilling to make provision for their former wives and dependents, despite the requirements of the law, and the courts often had to intervene in order to protect disadvantaged women and children. Canonists and civilians alike held that Iius- bands incurred a continuing obligation to maintain their wives, not only during marriage, but also after its termination. This principle found expression in provisions for alimony support, although the sums alloted were often quite small and could be terminated altogether if the separated wife became a prostitute or led a disorderly life.3’3Dowry property that the wife brought to the marriage presented further problems for the courts.
Canonists held that when a marriage was annulled the wife was entitled to restitution of her dowry. If the couple were separated because of desertion by the wife or because she was guilty of adultery, however, she forfeited her right to the dowry, which remained in the hands of her husband. Even in these circumstances, however, the husband had some residual obligations toward her. He was at least expected to see to it that she did not starve to death, for as Beaumanoir said, “It would be too great an act of cruelty to allow her to die of hunger.”[1817] [1818]Child support was another continuing obligation, and the decretals required parents to furnish the necessities of life to all of their children, whether born in wedlock or outside of it. Common usage dictated that minor children remain with their mother when the marriage ended, but their father was obliged to contribute to their support within his means. The same principle applied to illegitimate children and Church courts asserted wide-ranging judicial discretion in framing child support orders so as to take account of individual circumstances. Court records do not suggest that judges were overly generous in providing for the maintenance of minor children. Support orders tended to be small, but even so judges often had to intervene with both moral suasion and penal sanctions in order to secure payment as ordered.[1819]
Inheritance and succession laws invariably disadvantaged illegitimate children. Customary law usually barred them altogether from succession, although civilians and canonists both maintained that small bequests could properly be left to illegitimate offspring in a will. A mistress or concubine could likewise receive gifts and legacies, although she had little chance of enforcing promises made to her, should her lover change his mind. Property conveyed to a mistress, however, was deemed to be validly transferred and legal writers argued that the courts should protect whatever property she received.[1820]