Review of Fergus Kelly (ed.) Marriage Disputes. A Fragmentary Old Irish Law-Text, Dublin, by Dr. Diane Urquhart, University of Liverpool

F4.6 Marriage Disputes. A Fragmentary Old Irish Law-Text,

Fergus Kelly (ed.)

Dublin: School of Celtic Studies and Dublin Institute for Advanced Studies, Early Irish Law Series, volume VI, 2014.

€35.00 ISBN 978-1-85500-227-2

 Marriage Disputes, based on an estimated 36 citations from c.7th-century Old Irish texts and extensive c. 12th-century Middle Irish commentary, reveals the complexity of early Irish marriage and its associated legal disputes. As Kelly notes in a lengthy and instructive instruction which does not presume knowledge, this material is collated from fragmentary texts and has significant challenges of interpretation. However, the breadth of topics covered is wide: the contract of marriage; the production of clothing and blankets; magic; spousal illness; fosterage; the household economy and sexual relations. Some areas, including the requirement for a wife to cover her face or back of her head in public at night, the injury of a wife at the hands of her in-laws, wifely interference in her husband’s food with the aim to cause harm or deliberately starving his dog, are unique to these texts. But it is not only life which is detailed, burial rites and post-passing feasts are also described.

It is clear that marriage should be lawful, arranged by families of equal rank, with girls as young as 14 years marrying as an alternative to convent life. Less is said of a man’s appropriate age for marriage, but an increased emphasis on his economic position led to later marriage at an age of approximately 20 years. Being duped of a woman’s virginal state would likely forfeit a marriage before it occurred and although the breaking of a hymen by non-sexual means was acknowledged, a morning gift given to the bride on the day of her marriage would still have to be returned. A bride-price, paid by a future husband to his prospective father-in-law, might suggest a lack of female agency, but ‘a wife who fulfils her legal obligations in relation to the marriage contract can expect to gain possession of part or all of the bride-price’ after a period of three years (p. 3). The law-texts also recommended monogamy within marriage, but the existence of  primary wives (cétmuinter),  lower-status secondary wives (adaltrach) and a strata of concubines suggests a reality far removed from this ideal. Primary wives could demand a divorce from an errant husband or the bride-price paid for a secondary spouse. The legally endorsed physical assault by a primary wife on a secondary wife, although only warranted for three days and limited in severity, curtailed secondary wives’ retaliatory powers and suggests less tolerance than might be expected in a polygamous society where a man could take more than one wife.

Marital disharmony was caused by a myriad of issues including adultery, poor or unscrupulous housekeeping, illness, sexual neglect, the deliberate avoidance of intercourse, impotency or being tricked into marriage. Such conflicts met a complex and graded system of fines, usually based on the bride-price, with both husbands and wives paying the full bride-price for serious offences. Lesser offences, including being too hospitable to household visitors, beating children or depriving them of food, met lesser penalties. Fines were also determined by social rank and the form of payment varied from livestock to shares of land and labour. For more serious issues like infertility, divorce with the ability to remarry was an option for both spouses. Indeed, ‘The law really expects her [a wife] to remain in the marriage only on her terms’ (p. 5). Divorce was available in both fault-based and no-fault forms. The latter, referred to as blameless divorce, would much vex later legal commentators, but under old Irish law it was, for example, available to those with an undiagnosed illness at the time of their marriage.

The medical aspects of the texts and commentary provide some of the most fascinating insights. Intercourse during menstruation was deemed harmful, deigned to cause male sterility, leprosy and cankers as well as epilepsy and leprosy in a child thus conceived. The female ‘incurable stone’ (p. 33) preventing intercourse might refer to the rare gynaecological condition of vaginal stones, but with the young age of female marriage one wonders if this might refer to girls who were physically underdeveloped for sex. Such a term might also possibly be used as a generic cover for impotency, especially as the bride-price would be returned to a former wife if she had intercourse with another husband and her former husband failed to have sex with a new wife.

There are also hints of the sexual double standard which would later take centre stage: female evidence was generally considered invalid, accepted only in certain instances such as giving oaths as to suitable times for conception; there was no male equivalent for husbands being attacked by their in-laws (nor was this unique to Ireland) or concern for men’s virginal state on marriage. Moreover, although the marriage contract was ‘reciprocal…each owes to the other sexual relations and the performance of his or her respective work’ (p.57), these roles were distinct. That the domestic realm was a woman’s domain is indicated in her being punished for not proving a ‘bed blanket’ on marriage, being too hospitable to visitors or insufficiently providing for a visiting physician. Perhaps most pressingly, polyandry, where a woman could have more than one husband, was not permitted.

Marriage Disputes includes a glossary and illustrative plates of texts from the Bodleian Library, Oxford and Trinity College, Dublin. The text and translations appear side by side, with the text clearly demarcated from the legal commentary and extensive notes compare Ireland to the Jewish, Christian, Welsh, Moroccan Berber and Muslim traditions. Although more contextual information on the role of lawyer advocates in determining fines would be a welcome addition, this is a valuable volume that exposes marriage as a very public affair, its conflicts settled not only by a married couple, extended familial and kin networks but also physicians, lawyer advocates and multiple witnesses.

Dr Diane Urquhart, Institute of Irish Studies, University of Liverpool

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