Divorce in the Code of Hammurabi

Babylonia was one of the earliest civilizations of recorded history. Many inscriptions date as far back as 4000 B.C. The ancient Code of Hammurabi, King of Babylon, about 2300 to 2250 B.C. was discovered by M. de Morgan at Susa in 1901, and is probably the oldest law code in existence. It shows how, at this early date, the subject of marriage and divorce already had become matters of regulation by the state. From this code we learn that the family organization, as was the case in practically all early civilizations, was patriarchal. Marriage, it appears, was a modified form of purchase, arranged with little respect for the wishes of the bride. It consisted in the exchange of gifts, a form found among many primitive races, in which presents were made both to the bride and to her father and in turn the father settled a dowry upon his daughter.

Similar "commercial transactions" appeared in respect to divorce. While the husband could divorce his wife at will without assigning cause, a wife and even a concubine had certain pecuniary guarantees against arbitrary dismissal. Thus: "If a man set his face to put away a concubine who has borne him children, or a wife who has presented him with children, he shall return to that woman her dowry and shall give to her the income of field, garden, and goods and she shall bring up her children . . . and the man of her choice may marry her."

The presence or absence of certain stipulated causes such as barrenness, disloyalty, neglect, or disease determines the status of the divorced wife, settles the question of compensation, and, if required, fixes the amount.

"If a man would put away his wife who has not borne him children, he shall give her money to the amount of her marriage settlement, and he shall make good to her the dowry which she brought from her father's house and then he may put her away." . . . "If there were no marriage settlement, he shall give to her one mana of silver for a divorce." . . . "If he be a freeman, he shall give her one-third mana of silver." . . . "If the wife of a man who is living in his house, set her face to go out and play the part of a fool, neglect her house, belittle her husband, they shall call her to account; if her husband say, 'I have put her away,' he shall let her go. On her departure nothing shall be given to her for her divorce. If her husband say: 'I have not put her away,' her husband may take another woman. The first woman shall dwell in the house of her husband as a maid servant." . . . "If a man take a wife and she becomes afflicted with disease and if he set his face to take another, he may. His wife who is afflicted with disease, he shall not put away. She shall remain in the house which he has built and he shall maintain her as long as she lives." . . . "If that woman do not elect to remain in her husband's house, he shall make good to her the dowry which she brought from her father's house and she may go." Adultery on the part of the wife does not seem to be a cause for divorce but is subject to severer penalty. "If the wife of a man be taken in lying with another man, they shall bind them and throw them into the water."

This treatment is carried out unless the king pardons his "servant" or the "owner" his wife.
The wife does not "put away" her husband but she has the equivalent right of leaving him for sufficient reasons and of demanding that he divorce her with the return of her dowry. In such cases, however, the husband is protected against blackmail by the requirement that the wife must be of good character: "If a woman hate her husband, and say: 'Thou shalt not have me,' they shall inquire into her antecedents for her defects; and if she have been a careful mistress and be without reproach and her husband have been going about and greatly belittling her, that woman has no blame. She shall receive her dowry and shall go to her father's house" . . . If she have not been a careful mistress, have gadded about, have neglected her house and have belittled her husband, they shall throw that woman into the water.

As to the probable frequency of divorce Professor George A. Barton says: "Among the Babylonians the frequency of divorce is not so easy to trace . . . Nevertheless, in the few marriage contracts and records of Babylonian divorce which have been studied, a sufficient number of instances appear to make it clear that divorce was not uncommon . . . The fact too, that provisions for divorce were usually introduced into the marriage contracts of those women who married without a dowry, is clear proof that divorce was so common in Babylonia that women were compelled to protect themselves against it in the marriage contract. Where the woman carried to the husband a dower, this was not necessary, since in Babylonian law the dowry was always hers, so that in case the husband divorced her he would lose it. In such cases the self interest of the husband was thought to be a sufficient protection to the wife."

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