This paper explores extramarital affair as a ground for civil divorce in the practice of
courts of the Duchy of Warsaw. In 1808 the Napoleonic Code was enforced on this
territory. Under the rules of the Code Civil a couple could petition for a divorce with
mutual consent (article 233). There were also three grounds entitling one of spouses to
demand a divorce, when it was possible to attribute fault to the second party. In the case
of the husband’s infidelity, the wife could demand a divorce only when he brought his
concubine into their common residence (article 230). On the other hand, the husband
could demand a divorce as a result of every act of his wife’s adultery (article 229).
Moreover, each spouse could demand a divorce for outrageous conduct, ill-usage or
grievous injuries exercised by the second spouse (article 231). Condemnation of one of
the married parties to infamous punishment was also a ground for a divorce to the
second party (article 232).
In spite of discrimination of women in the case of adultery, more than 75% of divorce
judgments were issued as a result of actions filed by wives. It was caused by the Polish
Courts which gave a broad interpretation to the article 230 in their jurisprudence. Each
act of husbands’ adultery in a common residence was treated as a ground for a divorce,
although, according to article the 230, a wife had to prove that her husband lived with
his concubine in conjugal house.
The husbands’ adultery can be easily distinguished from the wives’ kind. Generally,
men committed adultery because of lust. Female infidelity was usually connected with
leaving a husband. Husbands often committed adultery with maids, whereas wives –
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