[PDF]Marriage, Money And Divorce In Medieval Islamic Society By Yossef Rapoport

Marriage, Money and
Divorce in Medieval
Islamic Society














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Marriage, Money and Divorce in Medieval Islamic Society


High rates of divorce, often taken to be a modern and western phenomenon, were
also typical of medieval Islamic societies. By pitting these high rates of divorce
against the Islamic ideal of marriage, Yossef Rapoport radically challenges the
usual assumptions about the legal inferiority of Muslim women and their economic
dependence on men. He argues that marriages in late medieval Cairo, Damascus
and Jerusalem had little in common with the patriarchal models advocated by jurists
and moralists. The transmission of dowries, women’s access to waged labour, and
the strict separation of property between spouses made divorce easy and normative,
initiated by wives as often as by their husbands. This carefully researched work of
social history is interwoven with intimate accounts of individual medieval lives,
making for a truly compelling read. It will be of interest to scholars of all disciplines
concerned with the history of women and gender in Islam.


YOSSEF RAPOPORT is an associated member of the Faculty of Oriental Studies,
University of Oxford.


Cambridge Studies in Islamic Civilisation


Editorial Board

David Morgan (general editor)

Virginia Aksan, Michael Brett, Michael Cook, Peter Jackson,
Tarif Khalidi, Chase Robinson


Published titles in the series are listed at the back of the book


Marriage, Money and Divorce in
Medieval Islamic Society


YOSSEF RAPOPORT


University of Oxford








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© Yossef Rapoport 2005


This book is in copyright. Subject to statutory exception and to the provision of
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without the written permission of Cambridge University Press.


First published in print format 2005


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To my parents, with love


Contents


Acknowledgments
Glossary
List of abbreviations


Introduction

Marriage, divorce and the gender division of property

Working women, single women and the rise of the female ribat
The monetization of marriage


Divorce, repudiation and settlement


nan kW NY


Repudiation and public power


Conclusion


Bibliography
Index


page x
x1
Xil


111


115
133


1X


Acknowledgments


This book grew out of my doctoral dissertation in the Department of Near Eastern
Studies at Princeton University, and I am grateful to my advisors there, A. L.
Udovitch, Michael Cook and William C. Jordan, for both their criticisms and for
enduring support.

I was also fortunate to be able to draw on the wisdom and knowledge of many
former students at Princeton — more than I could mention here. In particular, I would
like to thank Shahab Ahmed, Nenad Filipovic, Roxani Margariti, Christine Philliou
and Baki Tezcan for their friendship and insights. Adam Sabra first introduced me
to the field of Mamluk studies. His rigorous approach to social history has been
an example I have striven to follow. Tamer el-Leithy shared my fascination with
everything Mamluk, from queer anecdotes to coned hats, and his original and
sensitive mind has been a constant source of inspiration.

Many colleagues offered their help at particular junctures. I would like to
acknowledge the kind advice and assistance I received from Maristella Botticini,
Mark Cohen, Shaun Marmon, Donald Little, Christian Miiller, Giovanni Oppen-
heim, David Powers, Yusuf Ragib, Amy Singer, Daniella Talmon-Heller, Bethany
J. Walker, Michael Winter and Amalia Zomeno. I am obliged to Rifaat Ebou-el-
Hajj for reminding me of the reason for embarking on this project in the first
place.

The Graduate School of Princeton University helped with financial support
throughout the course of my doctoral studies. The Department of Middle Eastern
History at Tel Aviv University provided a timely post-doctoral scholarship during
the later stages of the work. The librarians of the Chester Beatty Collection made
my stay in Dublin both highly enjoyable and extremely useful.

An earlier version of chapter 5 was published as “Ibn Taymiyya on Divorce
Oaths,” in A. Levanoni and M. Winter (eds.), The Mamluks in Egyptian and Syrian
Politics and Society (Leiden: Brill, 2004), 191-217. An earlier version of part of
chapter 4 was published as “Divorce and the Elite Household in Late Medieval
Cairo,” Continuity and Change 16/2 (August 2001), 201-18.

Gilat Levy, truly my better half, saw this book through from its conception. Her
sharp logic and her feminism were as precious to me as her encouragement and
patience. She is also a living testimony to the little we learn from history; despite her
intense involvement with this book and its contents, she still agreed to be my wife.


Xx


Glossary


awlad al-nas


Jaskh

fatwa, pl. fatawa
hilf bil-talaq
iqta‘

jihaz


khanqah
khul*


mamluk
muftt


muta
nuzil


gad
qasama


ribat
sadaq


tahlil
talaq
ta wid


zawiya


collective term for the children of the mamlik military elite.
judicial divorce, or annulment of marriage, by an Islamic
court.

legal opinion issued by a mufti, often as a result of a
petition or enquiry.

oath on pain of repudiation; divorce oath.

a right to land revenue held in return for military service.
dowry or trousseau, the property brought by the bride into a
marriage.

a Sufi lodge, often associated with prayers for the dead.
consensual separation, in which a husband grants a divorce
in return for monetary compensation.

a slave, member of the military elite.

a jurisconsult, a learned man who delivers legal responsa
(fatawa).

compensation sometimes paid to a divorcée following
unilateral repudiation.

the practice of handing down an office or position, usually
from father to son.

a judge in an Islamic court.

a sworn undertaking registered in court at the instigation of
the authorities.

a Sufi lodge, often reserved for female mystics.

dower; the groom’s marriage gift, usually divided into
advance and deferred payments. Also called mahr.

making permissible; marriage with the intention of
permitting the bride to a husband from a previous marriage.
divorce achieved through unilateral repudiation by the
husband.

compensation for a widow in lieu of a deferred marriage
gift.

a Sufi lodge, often associated with male followers of a
mystical order.


xi


Abbreviations


Al
BSOAS
EP
IJMES
ILS
JAOS
JESHO
MSR
SI


Xil


Annales Islamologiques

Bulletin of the School of Oriental and African Studies
Encyclopedia of Islam, 2nd edition (Leiden, 1960)
International Journal of Middle Eastern Studies

Islamic Law and Society

Journal of the American Oriental Society

Journal of the Economic and Social History of the Orient
Mamluk Studies Review

Studia Islamica


Introduction


Shihab al-Din Ahmad Ibn Tawa, a notary in late fifteenth-century Damascus, liked
to keep a detailed record of his transactions and other memorable events. This is
what he wrote in his diary on Safar 19, 890 (March 7, 1485):


Monday the 19th. In the last few days the weather was very windy. The gusts broke in
half an almond tree in the garden, one of the big ones. The tree fell on a heavy pear tree
and trimmed its upper half. Many trees were lost. Let us seek refuge in Allah from the
wickedness of our souls and our evil deeds.

I divorced my wife at her request, by mutual consent, after being accused of repudi-
ating her and for doing things and not doing others. The witnesses were Ibn Nur al-Din
al-Khattabr and his colleague Ibn al-Dayri. She became unlawful to me.

In the afternoon we witnessed the remarriage of Yisuf ibn Khalid and his divorcee,
the manumitted slave-girl of Amat Sultan, in the Mosque of Manjak. The marriage gift
was 10 Ashrafi gold coins, which remain a due debt upon the groom. The witnesses were
the writer of these lines and Ibn Nir al-Din al-Khattabi. Shaykh Muhanna presided, and
Ibn al-Dayri accepted the marriage on behalf of the groom.!


Divorce was pervasive in late medieval Damascus. As a notary, Ibn Tawq made
his living out of witnessing the divorce deeds and the subsequent marriages of
other Damascene couples, many of which he then recorded in his diary. Squeezed
between the storm that swept through his backyard and his afternoon business in
the mosque, Ibn Tawq’s own divorce has an almost casual air to it. The reasons for
the divorce remain obscure. The relations between the long-time spouses appear to
have been good. The only mention of a row came three years earlier, when the two
quarreled over the bracelets worn by their daughter Fatima, and Ibn Tawg threat-
ened to divorce his wife if she let Fatima wear them again.” More recently, there
was some domestic tension on account of the slave maid, whom Ibn Tawq felt
showed him disrespect. He even records beating the slave-girl with a stick, some-
thing for which he felt deeply ashamed.* There was also the matter of Ibn Tawq’s


1 Shihab al-Din Ahmad Ibn Tawg, Al-Ta lig. Yawmiyyat Shihab al-Din Ahmad Ibn Tawg (834/1430-
915/1509): Mudhakkirat Kutibat bi-Dimashq fi Awakhir al-‘Ahd al-Mamliki, 885/1480-908/1502,
ed. Ja‘far al-Muhajir, vol. I (885/1480-890/1485) (Damascus: Institut Frangais de Damas, 2000),
449.

2 Ibid., 153. 3 Ibid., 431.


2 Marriage, Money and Divorce in Medieval Islamic Society


outstanding debt to a textile merchant called Zayn al-Din. At the beginning of the
month Ibn Tawq swore to repudiate his wife three times if he were to ask Zayn
al-Din for another loan as long as the existing debt was not paid.* While the diary
has no mention of a remarriage, two-and-a-half months later Ibn Tawq’s wife gave
birth to their third child, a daughter called ‘A’isha.° Only then do we learn that she
was in her seventh month when the consensual divorce took place.

The dramatic increase in the rates of divorce over the past several decades has
changed the fabric of Western societies: it is associated with breaking away from
traditional meanings of family and marriage, of gender relations, and of religion.
Most of all, divorce is associated, for good and for bad, with modernity. The rise of
divorce is attributed to diverse facets of modern life: decline in belief, breakdown
in family values, unadulterated individualism and pursuit of self-interest, rising
expectations about marriage, rising life expectancy, increasing economic inde-
pendence of women and the empowering effect of feminism. The link between
modernity and soaring divorce rates has led many to question the future viability
of marriage as a social institution.°

This has been a Eurocentric debate if there ever was one. The outpouring of
scholarly and popular works dealing with the rise of divorce in the West all but
disregards the historical examples of past societies in which divorce rates have
been consistently high. Two major examples are pre-modern Japan and Islamic
Southeast Asia. In nineteenth-century Japan at least one in eight marriages ended
in divorce.’ In West Java and the Malay Peninsula divorce rates were even higher,
reaching 70 percent in some villages, as late as the middle of the twentieth century.®
In these societies divorce was part and parcel of tradition; it was frequent and
normative, and did not involve any stigma that would hinder the remarriage of
divorced persons. In direct opposition to developments in the West, modernity
brought with it greater stability in marriage and a sharp decline in divorce rates.”

The pre-modern Middle East was another traditional society that had consis-
tently high rates of divorce over long periods of time. Despite some current misgiv-
ings over the imminent disintegration of the Muslim family as a result of frequent
divorces, the fact is that divorce rates were higher in Ottoman or medieval Muslim
societies than they are today.!° A decade of research on the history of Ottoman fam-
ilies, mostly drawing on the abundant court registers, has shown that divorce was a


4 Tbid.,442. > Ibid., 472.

® On divorce in Western societies, see R. Phillips, Untying the Knot. A Short History of Divorce
(Cambridge: Cambridge University Press, 1991); L. Stone. Road to Divorce: England 1530-1987
(Oxford: Clarendon Press, 1990).

7 Laurel L. Cornell, “Peasant Women and Divorce in Pre-industrial J apan,” Signs 15 (1990), 710-32.

8 Gavin W. Jones, “Modernization and Divorce: Contrasting Trends in Islamic Southeast Asia and
the West,” Population and Development Review 23 (1997), 95-114.

® William J. Goode, World Changes in Divorce Patterns (New Haven: Yale University Press, 1993),
214-49.

10 On the current debate on divorce in the Middle East, see M. Zilfi, “‘We Don’t Get Along’: Women
and Hul Divorce in the Eighteenth Century,” in M. Zilfi (ed.), Women in the Ottoman Empire: Middle
Eastern Women in the Early Modern Era (Leiden: E. J. Brill, 1997), 264-5. On the current rates of
divorce in Middle Eastern countries, see Goode, World Changes, 270.


Introduction 3


common feature of family life. In eighteenth-century Aleppo divorce was a “fairly
common occurrence,” with at least 300 divorces registered annually, and many
more going on unregistered.'! The court of Ottoman Nablus recorded as many
marriages as divorces, which shows “relatively high rates of divorce.”!* A similar
picture of high divorce rates and a normative attitude to divorce emerges from
studies of Ottoman court records in Istanbul, Cairo, Cyprus, Sofia and ‘Ayntab. |!
Divorce in medieval Middle East societies appears to have been just as com-
mon. Due to the general absence of pre-Ottoman court records, the evidence tends
to be qualitative rather than quantitative, but several studies based on legal opin-
ions (fatwas) from medieval North Africa and al-Andalus give the impression of
a pattern of frequent and normative divorce.'* The prevalence of divorce among
the non-Muslim minorities in medieval Islam is an indirect testimony to the fre-
quency of divorce among the Muslim majority. In the thirteenth century the Coptic
Church of Egypt, which originally regarded marriage as a holy and unbreakable
sacrament, was forced to legalize limited forms of divorce. This legal change
allowed the ecclesiastical law to follow the practice of the Coptic community,
undoubtedly influenced by its Muslim neighbors.'° Similarly, the papers of the
Cairo Geniza, relating to the Jewish community of medieval Cairo, show that


11 A. Marcus, The Middle East on the Eve of Modernity: Aleppo in the Eighteenth Century (New York:
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