The purpose of this research project is to analyze the main divorce tendencies in Costa Rica between 1800 and 1950, and to what extent ideals of and attitudes toward marriage, divorce, gender relationships, and domestic violence were modified.
During the colonial period and while the General Law of 1841 was in force (until 1887), only Christian marriage and church-approved or ecclesiastical divorce were legal. For the Catholic Church, marriage is a sacrament, a sacred undissolvable religious contract. Ecclesiastical divorce did not authorize dissolving the bond of matrimony, just separation without cohabiting. By the end of the nineteenth century, with the approval of civil marriage, separation, and divorce in the Civil Code of 1888, there is a secularization of the concept of marriage, conceived as a secular, civil, and temporary contract. As a result, couples that had infelicitous relationships had a legal instrument to dissolve their marriage, and the church lost its exclusive right to regulate the marital institution and sexual and domestic morality.
Regarding the grounds for civil divorce, the following remained: women’s adultery, one spouse’s attempt to kill the other, extreme cruelty, and felony. However, in comparison to the grounds for ecclesiastical divorce established in the Code of 1841, the Civil Code of 1888 added as cause for divorce a “husband’s scandalous concubinage.” Unlike female adultery, masculine adultery was not legally penalized. Therefore, even when it was demonstrated that the husband had been unfaithful, this was not sufficient ground for divorce. It had to be proven beyond doubt that the husband lived with his concubine, being a cause of public scandal, moral misconduct, and family disintegration. The Penal Code of 1941 eliminated female adultery as a felony and reduced sanctions for murders of passion. Finally, the Family Code (1974) introduced no-fault divorce and equality of spouses with respect to adultery as grounds for civil divorce.
In addition, the 1932 law introduced some further changes in the grounds for civil divorce. Although extreme cruelty was still considered grounds for divorce, the law eliminated felonies and added the husband’s attempt to prostitute his wife. Considering extreme cruelty but not serious offenses as grounds for divorce is the result of changes both in jurisprudence and of the fact that gender relationships and domestic violence were perceived as justifications to file for divorce. However, in all of the civil and penal codes, including the present one, a patriarchal gap has remained, since extreme cruelty and domestic violence are considered crimes similar to “injuries.”
It is obvious that there are not enough records to allow us to know with certainty how many couples were unhappy and to what extent they opted for separation. However, the evidence found in the 273 spousal-conflict complaints and in the 1,239 cases of ecclesiastical and civil divorce for the 1800–1950 period strongly suggests that, faced with an unhappy relationship that did not fulfill the expectations of a marriage for love and companionship, couples tended to opt more often to file for divorce to legally dissolve the bond of matrimony.
From 1800 to 1950, there was an increase in divorce suits in the 1840s. 62.2 percent of the total of divorce suits filed during this period—of which couples from San Jose filed 55.5 percent. In the whole Central Valley, the greatest number of cases was reported for the 1830–1850 period, especially in the five years between 1845 and 1850. This ascending rate of divorce took place within the larger expansion of the civil legal apparatus, which made it possible for women to have a legal instrument to denounce their husband’s abuses or to file for divorce. As a result, there was a visible and public sanction of marital conduct, a larger assimilation of the ideal of a loving and harmonious marriage, and an increase in suits due to spousal conflicts and divorce (Rodríguez 2000, 111–153).
Between 1851 and 1889, divorce suits kept ascending, the 1870s being the decade with the largest number of divorces.
Between 1851 and 1889, divorce suits kept ascending, the 1870s being the decade with the largest number of divorces, 40.2 percent out of a total of 281 suits for ecclesiastical divorce. Moreover, the increase in suits practically doubled between the 1860s (fifty-six suits) and the 1870s (131 suits). This upward trend is also corroborated in relation to the number of marriages and divorces filed. In fact, this ratio shifts from one divorce for each 16,104 marriages in the 1860s to one divorce for every 81.7 marriages during the 1870s.
On the other hand, during the 1890–1950 period, there is a dramatic increase in civil divorce suits (98.9 percent out of 923 cases) and a dramatic decrease in ecclesiastical divorce suits (1.1 percent, only ten cases for the 1890–1919 period). This change may be explained, in part, by the serious conflict between the church and the state because of the anticlergy reform, which made it more difficult to present these suits. It could also have been influenced by Monsignor Thiel’s more aggressive policy for spreading the Catholic doctrine, the impact of the 1888 civil marriage, separation, and divorce reforms, and the Church’s propaganda and persecution campaigns against divorce. On the other hand, we find an increase in civil divorces, especially in the 1930s and 1940s (from 24.2 percent to 44.1 percent out of a total of 127 divorces by sentencing by repeal between 1900 and 1950).
Finally, this research questions some historical myths about gender relationships and domestic violence. These myths are: 1) that violence was considered a “natural” part of marriage relationships rather than a practice constructed and transformed historically and in everyday life; 2) that extreme cruelty of wife beating was always accepted by society; 3) that domestic violence was an exclusive practice of men from popular sectors; and 4) that wives were passive victims of patriarchal dominance incapable of resisting and impugning male dominance.
It is argued that the concept of domestic violence was constructed and transformed historically. The ecclesiastical and civil authorities allowed husbands to “correct” their wives with moderate violence if they would not submit. So, it was accepted as a “natural” condition of marriage and in the best interests of the family that wives had to endure verbal, emotional, economic, material and sexual abuse from their husbands. However, since the first half of the nineteenth century, such notions suffered a gradual reconceptualization by legally punishing the extreme cruelty exerted by husbands over their wives and the effects of violence, like injuries causing temporary or permanent physical incapacity to work. So, society has gradually sanctioned domestic violence more stringently. Nevertheless, recent studies have shown that the penal system and the existing regulations in the Penal Code of 1971 still underestimate violence against women, by emphasizing on physical violence. As a result, it could be stated that, as in the past, today a spouse’s abuse is still associated with “serious offenses.” Such restricted definition of domestic violence does not include the infliction of emotional, psychological, sexual and economic/material damage. Thus, most of the main kind of abuse and domestic violence are considered a “natural condition” of marriage.