Divorce (in Moral Theology)
See also DIVORCE IN CIVIL JURISPRUDENCE .
The term divorce ( divortium , from divertere, divortere, "to separate") was employed in pagan Rome for the mutual separation of married people. Etymologically the word does not indicate whether this mutual separation included the dissolution of the marriage bond, and in fact the word is used in the Church and in ecclesiastical law in this neutral signification. Hence we distinguish between divortium plenum or perfectum (absolute divorce), which implies the dissolution of the marriage bond, and divortium imperfectum (limited divorce), which leaves the marriage bond intact and implies only the cessation of common life (separation from bed and board, or in addition separation of dwelling-place). In civil law divorce means the dissolution of the marriage bond; divortium imperfectum is called separation ( séparation de corps ).
The Catholic doctrine on divorce may be summed up in the following propositions:
- In Christian marriage, which implies the restoration, by Christ Himself, of marriage to its original indissolubility, there can never be an absolute divorce, at least after the marriage has been consummated;
- Non-Christian marriage can be dissolved by absolute divorce under certain circumstances in favour of the Faith ;
- Christian marriage before consummation can be dissolved by solemn profession in a religious order, or by an act of papal authority;
- Separation from bed and board ( divortium imperfectum ) is allowed for various causes, especially in the case of adultery or lapse into infidelity or heresy on the part of husband or wife.
A. In Christian marriage, which implies the restoration, by Christ Himself, of marriage to its original indissolubility, there can never be an absolute divorce, at least after the marriage has been consummated.
1. The Original Indissolubility of Marriage and Its Restoration by Christ.
The inadmissibility of absolute divorce was ordained by Christ Himself according to the testimony of the Apostles and Evangelists : "Whoever shall put away his wife and marry another, committeth adultery against her. And if the wife shall put away her husband, and be married to another, she committeth adultery " ( Mark 10:11, 12 -- Cf. Matthew 19:9 ; Luke 16:18 ). In like manner, St. Paul : "To them that are married, not I but the Lord commandeth, that the wife depart not from her husband. And if she depart, she remain unmarried, or be reconciled to her husband. And let not the husband put away his wife" ( 1 Corinthians 7:10, 11 ). In these words Christ restored the original indissolubility of marriage as it had been ordained by God in the Creation and was grounded in human nature. This is expressly stated by Him against the Pharisees, who put forward the separation allowed by Moses : "Moses by reason of hardness of your heart permitted you to put away your wives"": but from the beginning it was not so" ( Matthew 19:8 ); "He who made man from the beginning, made them male and female. And he said: For this cause shall a man leave father and mother , and shall cleave to his wife, and they two shall be in one flesh. Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder" ( Matthew 19:4-6 ). The indissolubility of all marriage, not merely of Christian marriage, is here affirmed. The permanence of marriage for the whole human race according to natural law is here confirmed and ratified by a Divine positive ordinance.
No Catholic can doubt that even according to the natural law of marriage is in a certain sense indissoluble. The following proposition is condemned in the Syllabus of Pius IX (Proposition LXVII): "According to the natural law, the bond of marriage is not indissoluble, and in certain cases divorce in the strict sense can be sanctioned by civil authority." The meaning of this condemnation is clear from the document whence it has been taken. This is the papal Brief ("Ad apostolicæ sedis fastigium", 22 August, 1851, in which several works of the Turin professor, J. N. Nuytz, and a series of propositions defended by him were condemned, as is expressly said, "deApostolicæ potestatis plenitudine". A certain dissolubility of marriage whenever contracted must therefore be admitted, even according to the natural law, at least in the sense that marriage, unlike other contracts, may not be dissolved at the pleasure of the contracting parties. Such dissolubility would be in direct contradiction with the essential purpose of marriage, the proper propagation of the human race, and the education of the children. That in exceptional cases, in which continued cohabitation would nullify the essential purpose of marriage, the dissolubility may nevertheless not be permitted, can hardly be proved as postulated by the natural law from the primary purpose of marriage. However, even such dissolubility would not be in accord with the secondary purposes of marriage, and it is therefore regarded by St. Thomas (IV Sent., dist. xxxiii, Q, ii, a. 1) and most Catholic scholars as against the secondary demands of the natural law. In this sense, marriage, considered merely according to the natural law, is intrinsically indissoluble. That it is also extrinsically indissoluble, i.e. that it cannot be dissolved by any authority higher than the contracting parties, cannot be asserted without exception. Civil authority, indeed, even according to the natural law, has no such right of dissolving marriage. The evil consequences which would follow so easily, on account of the might of passion, in case the civil power could dissolve marriage, seem to exclude such a power; it is certainly excluded by the original Divine positive law : "What therefore God hath joined together, let no man put asunder" ( Matthew 19:6 ). However, that part of the proposition condemned by Pius IX, in which it is asserted, "And in certain cases divorce in the strict sense can be sanctioned by civil authority ", need not necessarily be understood of marriage according to the purely natural law, because Nuytz, whose doctrine was condemned, asserted that the State had this authority in regard to Christian marriages, and because the corresponding section of the Syllabus treats of the errors about Christian marriage. (Cf. Schrader, Der Papst und die modernen Ideen, II (Vienna, 1865), p. 77. ]
2. Divorce among the Israelites
In spite of the Divine law of the indissolubility of marriage, in the course of time divorce, in the sense of complete dissolution of marriage, became prevalent to a greater or less extent among all nations. Moses found this custom even among the people of Israel. As lawgiver, he ordained in the name of God ( Deuteronomy 24:1 ): "If a man take a wife, and have her, and she find not favour in his eyes, for some uncleanness: he shall write a bill of divorce, and shall give it in her hand, and send her out of his house." The rest of the passage shows that this divorce was understood as justifying the wife in the marriage with another husband, hence as a complete annulment of the first marriage. Some regard it only as a freedom from penalty, so that in reality the remarriage of the divorced wife was not allowed, and was adultery, because the bond of the first marriage had not been dissolved. This opinion was held by the Master of the Sentences, Peter Lombard (IV Sent., dist. xxxiii, 3), St. Bonaventure (IV Sent., dist. xxxiii, art. 3, Q, I), and others. Others again, however, believe that there was a real permission, a dispensation granted by God, as otherwise the practice sanctioned in the law would be blamed as sinful in some part of the Old Testament. Moreover, Christ (loc. cit.) seems to have rendered illicit what was illicit in the beginning, but what had really been allowed later, even though it was allowed "by reason of the hardness of your heart" (St. Thomas, III, Supplem., Q. lxvii, a. 3; Bellarmine, "Controvers. de matrim.", I, xvii; Sanchez, "De matrim.", X, disp. i. n. 7; Palmieri, "De matrimonio christ.", Rome, 1880, 133 sqq.; Wernz, "Jus decretalium", IV, n. 696, not. 12; etc). This second opinion maintains and must maintain that the expression "for some uncleanness" does not mean any slight cause, but a grievous stain, something shameful directed against the purpose of marriage or marital fidelity. A separation at will, and for slight reasons, at the pleasure of the husband, is against the primary principle of the natural moral law, and is not subject to Divine dispensation in such a way that it could be make licit in every case. It is different with separation in serious cases governed by special laws. This, indeed, does not correspond perfectly with the secondary purposes of marriage, but on that account it is subject to Divine dispensation, since the inconvenience to be feared from such a separation can be corrected or avoided by Divine Providence. In the time of Christ there was an acute controversy between the recent, lax school of Hillel and the strict, conservative school of Schammai about the meaning of the phrase Hebrew phrase. Hence the question with which the Pharisees tempted Our Lord : "Is it lawful. . . for every cause?" The putting-away of the wife for frivolous reasons had been sharply condemned by God through the Prophets Micheas (ii, 9) and Malachias (ii, 14), but in later days it became very prevalent. Christ abolished entirely the permission which Moses had granted, even though this permission was strictly limited; He allowed a cause similar to "uncleanness" as reason for putting away the wife, but not for the dissolution of the marriage bond.
3. The Dogmatic Basis and Practical Application of The Complete Dissolubility of Consummated Marriage within the Catholic Church
(a) Its Foundation in Scripture -- The complete exclusion of absolute divorce ( divortium perfectum ) in Christian marriage is expressed in the words quoted above ( Mark 10 ; Luke 16 ; 1 Corinthians 7 ). The words in St. Matthew's Gospel (xix, 9), "except it be for fornication", have, however, given rise to the question whether the putting-away of the wife and the dissolution of the marriage bond were not allowed on account of adultery. The Catholic Church and Catholic theology have always maintained that by such an explanation St. Matthew would be made to contradict Sts. Mark, Luke, and Paul, and the converts instructed by these latter would have been brought into error in regard to the real doctrine in Christ. As this is inconsistent both with the infallibility of the Apostolic teaching and the innerancy of Sacred Scripture , the clause in Matthew must be explained as the mere dismissal of the unfaithful wife without the dissolution of the marriage bond. Such a dismissal is not excluded by the parallel texts in mark and Luke, while Paul ( 1 Corinthians 7:11 ) clearly indicates the possibility of such a dismissal: "And if she depart, that she remain unmarried, or be reconciled to her husband". Grammatically, the clause in St. Matthew may modify one member of the sentence (that which refers to the putting-away of the wife) without applying to the following member (the remarriage of the other), though we must admit that the construction is a little harsh. If it means, "Whoever shall put away his wife, except it be for fornication, and shall marry another, commiteth adultery ", then, in case of marital infidelity, the wife may be put away; but that, in this case, adultery is not committed by a new marriage cannot be concluded from these words. The following words, "And he that shall marry her that is put away" -- therefore also the woman who is dismissed for adultery -- "committeth adultery ", say the contrary, since they suppose the permanence of the first marriage. Moreover, the brevity of expression in Matthew, xix, 9, which seems to us harsh, is explicable, because the Evangelist had previously given a distinct explanation of the same subject, and exactly laid down what was justified by the reason of fornication: "Whosoever shall put away his wife, excepting for the causes of fornication, maketh her to commit adultery : and he that shall marry her that is put away, committeth adultery " ( Matthew 5:32 ). Here all excuse for remarriage or for the dissolution of the first marriage is excluded. Even the mere dismissal of the wife, if this is done unjustly, exposes her to the danger of adultery and is thus attributed to the husband who has dismissed her -- "he maketh her commit adultery ". It is only in the case of marital infidelity that complete dismissal is justified -- "excepting for the cause of fornication". In this case not he, but the wife who has been lawfully dismissed, is the occasion, and she will therefore be responsible should she commit further sin. It must also be remarked that even for Matthew, xix, 9, there is a variant reading supported by important codices, which has "maketh her to commit adultery " instead of the expression "comitteth adultery ". This reading answers the difficulty more clearly. (Cf. Knabenbauer, "Comment, in Matt.", II, 144).
Catholic exegesis is unanimous in excluding the permissibility of absolute divorce from Matthew 19, but the exact explanation of the expressions, "except it be for fornication" and "excepting for the cause of fornication", has given rise to various opinions. Does it mean the violation of marital infidelity, or a crime committed before marriage, or a diriment impediment ? (See Palmieri, "De matrim. Christ.", 178 sqq.; Sasse, "De sacramentis", II, 418 sqq.) Some have tried to answer the difficulty by casting doubt on the authenticity of the entire phrase of Matthew 19, but the words are in general fully vouched for by the more reliable codices. Also, the greater number, and the best, have "committeth adultery ". (See Knabenbauer, loc. cit., and Schanz, "Kommentar über das Evang. d. hl. Matth.", 191, 409.) That absolute divorce is never allowable therefore clear from Scripture, but the argument is cogent only for a consummated marriage. For Christ found His law on the words: "They two shall be in one flesh", which are verified only in consummated marriage. How far divorce is excluded, or can be allowed, before the consummation of the marriage must be derived from other source.
(b) Tradition and the Historical Development in Doctrine and Practice -- The doctrine of Scripture about the illicitness of divorce is fully confirmed by the constant tradition of the Church. The testimonies of the Fathers and the councils leave us no room for doubt. In numerous places they lay down the teaching that not even in the case of adultery can the marriage bond be dissolved or the innocent party proceed to a new marriage. They insist rather that the innocent party must remain unmarried after the dismissal of the guilty one, and can only enter upon new marriage in case death intervenes.
We read in Hermas (about the year 150), "Pastor", mand. IV, I, 6: "Let him put her (the adulterous wife) away and let the husband abide alone; but if after putting away his wife he shall marry another, he likewise committeth adultery (ed. Funk, 1901). The expression in verse 8, "For the sake of her repentance, therefore, the husband ought not to marry", does not weaken the absolute command, but it gives the supposed reason of this great command. St. Justine Martyr (d. 176) says (Apolog., I, xv, P.G., VI, 349), plainly and without exception: "He that marrieth her that has been put away by another man committeth adultery." In like manner Athenagoras (about 177) in his "Legatio pro christ.", xxxiii (P.G., VI, 965): "For whosoever shall put away his wife and shall marry another, committed adultery "; Tertullian (d. 247), "De monogamiâ", c, ix (P.L., II, 991): "They enter into adulterous unions even when they do not put away their wives, we are not allowed to even marry although we put our wives away"; Clement of Alexandria (d. 217), "Strom.", II, xxiii (P.G., VIII, 1096), mentions the ordinance of Holy Scripture in the following words; "You shall not put away your wife except for fornication, and [ Holy Scripture ] considers as adultery a remarriage while the other of the separated persons survives." Similar expressions are found in the course of the following centuries both in the Latin and in the Greek Fathers, e.g. St. Basil of Cæsarea, "Epist. can.", ii, "Ad Amphilochium", can. xlviii (P.G., XXXII, 732); St. John Chrysostom, "De libello repud." (P.G., LI, 218); Theodoretus, on I Cor., vii, 39, 40 (P.G., LXXXII, 275); St. Ambrose , "in Luc.", VIII, v, 18 sqq. (P.L., XV, 1855); St. Jerome, Epist, lx (ad Amand.), n. 3 (P.L., XXII, 562); St. Augustine, "De adulterinis conjugiis", II, iv (P.L., XL, 473), etc., etc. The occurrences of passages in some Fathers, even among those just quoted, which treat the husband more mildly in case of adultery, or seem to allow him a new marriage after the infidelity of his spouse, does not prove that these expressions are to be understood of the permissibility of a new marriage, but of the lesser canonical penance and of exemption from punishment by civil law. Or if they refer to a command on the part of the Church, the new marriage is supposed to take place after the death of the wife who was dismissed. This permission was mentioned, not without reason, as a concession for the innocent party, because at some periods the Church's laws in regard to the guilty party forbade forever any further marriage (cf. can. vii of the Council of Compiègne, 757). It is well known that the civil law, even of the Christian emperors, permitted in several cases a new marriage after the separation of the wife. Hence, without contradicting himself, St. Basil could say of the husband, "He is not condemned", and "He is considered excusable" (ep. clxxxviii, can. ix, and Ep. cxcix, can. xxi, in P.G., XXXII, 678, 721), because he is speaking distinctly of the milder treatment of the husband than of the wife with regard to the canonical penance imposed for adultery. St. Epiphanius, who is especially reproached with teaching that the husband who had put away his wife because of adultery or another crime was allowed by Divine law to marry another (Hæres, lix, 4, in P.G., XLI, 1024), is speaking in reality of a second marriage after the death of the divorced wife, and whilst he declares in general that such a second marriage is allowed, but is less honourable, still he makes the exception in regard to this last part in favour of one who had long been separate from his first wife. The other Fathers of the following centuries, in whose works ambiguous or obscure expressions may be found, are to be explained in like manner.
The practice of the faithful was not indeed always in perfect accord with the doctrine of the Church. On account of defective morality, there are to be found regulations of particular synods which permitted unjustifiable concessions. However, the synods of all centuries, and more clearly still the decrees of the popes, have constantly declared that divorce which annulled the marriage and permitted remarriage was never allowed. The Synod of Elvira (A.D. 300) maintains without the least ambiguity the permanence of the marriage bond, even in the case of adultery. Canon ix decreed : "A faithful woman who has left an adulterous husband and is marrying another who is faithful, let her be prohibited from marrying; if she has married, let her not receive communion until the man she has left shall have departed this life, unless illness should make this an imperative necessity " (Labbe, "Concilia", II, 7). The Synod of Arles (314) speaks indeed of counseling as far as possible, that the young men who had dismissed their wives for adultery should take no second wife" ( ut, in quantum possil, consilium eis detur ); but it declares at the same time the illicit character of such a second marriage, because it says of these husbands, "They are forbidden to marry" ( prohibentur nubere , Labbe, II, 472). The same declaration is to be found in the Second Council of Mileve (416), canon xvii (Labbe, IV, 331); the Council of Hereford (673), canon x (Labbe, VII, 554); the Council of Friuli (Forum Julii), in northern Italy (791), canon x (Labbe, IX, 46); all of these teach distinctly that the marriage bond remains even in case of dismissal for adultery, and that new marriage is therefore forbidden.
The following decisions of the popes on this subject deserve special mention: Innocent I, "Epist. ad Exsuper.", c. vi, n. 12 (P.L., XX, 500): "Your diligence has asked concerning those, also, who, by means of a deed of separation, have contracted another marriage. It is manifest that they are adulterers on both sides." Compare also with "Epist. ad Vict. Rothom.", xiii, 15, (P.L., XX, 479): "In respect to all cases the rule is kept that whoever marries another man, while her husband is still alive, must be held to be an adulteress, and must be granted no leave to do penance unless one of the men shall have died." The impossibility of absolute divorce during the entire life of married people could not be expressed more forcibly than by declaring that the permission to perform public penance must be refused to women who remarried, as to a public sinner, because this penance presupposed the cessation of sin, and to remain in a second marriage was to continue in sin.
Besides the adultery of one of the married parties, the laws of the empire recognized other reasons for which marriage might be dissolved, and remarriage permitted, for instance, protracted absence as a prisoner of war, or the choice of religious life by one of the spouses. In these cases, also, the popes pronounced decidedly for the indissolubility of marriage, e.g. Innocent I, "Epist. ad Probum", in P.L. XX, 602; Leo I, "Epist. ad Nicetam Aquil.", in P.L., LIV, 1136; Gregory I, "Epist. ad Urbicum Abb.", in P.L., LXXVII, 833, and "Epist. ad Hadrian. notar.", in P.L., LXXVII, 1169. This last passage, which is found in the "Decretum" of Gratian (C. xxvii, Q, ii, c. xxii), is as follows: "Although the civil law provides that, for the sake of conversion (i.e., for the purpose of choosing the religious life ), a marriage may be dissolved, though either of parties be unwilling, yet the Divine law does not permit it to be done." That the indissolubility of marriage admits of no exception is indicated by Pope Zacharias in his letter of 5 January, 747, to Pepin and the Frankish bishops, for in chapter vii he ordains "by Apostolic authority", in answer to the questions that had been proposed to him: "If any layman shall put away his own wife and marry another, or if he shall marry a woman who has been put away by another man, let him be deprived of communion" [Monum. Germ. Hist.: Epist., III:Epist. Merovingici et Karolini ævi, I (Berlin, 1892), 482]
(c) Laxer Admissions and their Correction -- Whilst the popes constantly rejected absolute divorce in all cases, we find some of the Frankish synods of the eighth century which allowed it in certain acute cases. In this regard the Council of Verberie (752) and Compiègne (757) erred especially. Canon ix of the first council is undoubtedly erroneous (Labbe, VIII, 407). In this canon it is laid down that if a man must go abroad, and his wife, out of attachment to home and relatives, will not go with him, she must remain unmarried so long as the husband is alive whom she refused to follow; on the other hand, in contrast to the blameworthy woman, a second marriage is allowed to the husband: "If he has no hope of returning to his own country, if he cannot abstain, he can receive another wife with a penance." So deeply was the pre-Christian custom of the people engraven in their hearts that is was believed allowance should be made for it to some degree. Canon v seems also to grant the unauthorized permission for a second marriage. It treats of the case in which the wife, with the help of other men, seeks to murder her husband, and he escapes from the plot by killing her accomplices in self-defence. Such a husband is allowed to take another wife: "That husband can put away that wife, and, if he will, let him take another. But let that woman who made the plot undergo a penance and remain without hope of marriage." Some explain this canon to mean that the husband might marry again after the death of his first wife, but that the criminal wife was forbidden forever to marry. This last is in agreement with the penitential discipline of the age, because the crime in question was punished by life-long canonical penance, and hence by permanent exclusion from married life.
In its thirteenth canon (according to Labbe, VIII, 452; others call it the sixteenth), the Council of Compiègne gives a somewhat ambiguous decision and may seem to allow absolute divorce. It says that a man who has dismissed his wife in order that she might choose the religious life, or take the veil, can marry a second wife when the first has carried out the resolution. Nevertheless, the intended choice of the state of Christian perfection seems to imply that this canon must be limited to a marriage that has not been consummated. Hence it gives the correct Catholic doctrine, of which we shall speak below. This must also be the meaning of canon xvi (Labbe, VIII, 453; others, canon xix), which allows the dissolution of a marriage between a leper and a healthy woman, so that the woman is authorized to enter upon a new marriage, unless we supose that here there is a question of the diriment impediment of impotence. If these canons were really intended in any other sense, then they are contrary to the general doctrine of the Church. Other canons, in which separation and second marriage are allowed, refer undoubtedly to the diriment impediments of affinity and spiritual relationship, or to a marriage contracted in error by persons one of whom is free and the other not free. Hence they have no reference to actual divorce, and cannot be interpreted as a lax concession to popular morals or to passion. It is true that several of the Penitential Books composed about this time in the Frankish regions contain the cases mentioned by these two synods and add others in which the real dissolution of the marriage bond and a new marriage with another wife might be allowed. The following cases are mentioned in several of these Penitential Books: adultery, slavery as punishment for crime, imprisonment in war, wilful desertion without hope of reunion, etc. (Schmitz, "Bussbücher", II, 129 sqq.). These Penitential Books had indeed no official character, but they influenced for a time the ecclesiastical practice in these countries. However, their influence did not last long. In the first decades of the ninth century, the church began to proceed energetically against them (cf. the Synod of Châlons, in the year 813, canon xxxviii; Labbe, IX, 367). They were not completely suppressed at once, especially as a general decay of Christian morality took place in the tenth and early part of the eleventh century. Towards the end of the eleventh century, however, every concession to the laxer practice as regards divorce had been corrected. The complete indissolubility of Christian marriage had become so firmly fixed in the juridical conscience that the authentic collections of church laws the Decretals of the twelfth century, do not even see the necessity of expressly declaring it, but simply suppose it, in other juridical decisions, as a matter of course and beyond discussion. This is shown in the entire series of cases in IV Decretal., xix. In all cases, whether the cause be criminal plotting, adultery, loss of faith, or anything else, the bond of marriage is regarded as absolutely indissoluble and entrance upon a second marriage as impossible.
(d) Dogmatic Decision on the Indissolubility of Marriage -- The Council of Trent was the first to make a dogmatic decision on this question. This took place in Session XXIV, canon v: "If anyone shall say that the bond of matrimony can be dissolved for the cause of hersy, or of injury due to cohabitation, or of wilful desertion ; let him be anathema ", and in canon vii: "If anyone shall say that the Church has erred in having taught, and in teaching that, according to the teaching of the Gospel and the Apostles, the bond of matrimony cannot be dissolved, and that neither party -- not even the innocent, who has given no cause by adultery -- can contract another marriage while the other lives, and that he, or she, commits adultery who puts away an adulterous wife, or husband, and marries another; let him be anathema." The decree defines directly the infallibility of the church doctrine in regard to indissolubility of marriage, even in the case of adultery, but indirectly the decree defines the indissolubility of marriage. Doubts have been expressed here and there about the dogmatic character of this definition (cf. Sasse, "De Sacramentis", II, 426). But Leo XIII , in his Encyclical "Arcanum", 10 February, 1880; calls the doctrine on divorce condemned by the Council of Trent "the baneful heresy " ( hoeresim deterrimam ). The acceptance of this indissolubility of marriage as an article of faith defined by the Council of Trent is demanded in the creed by which Orientals must make their profession of faith when reunited to the Roman Church. The formula prescribed by Urban VIII contains the following section: "Also, that the bond of the Sacrament of Matrimony is indissoluble; and that, although a separation tori et cohabitationis can be made between the parties, for adultery, heresy, or other causes, yet it is not lawful for them to contract another marriage." Exactly the same declaration in regard to marriage was made in the short profession of faith aproved by the Holy Office in the year 1890 (Collectanea S. Congr. de Prop. Fide, Rome, 1893, pp. 639, 640). The milder indirect form in which the Council of Trent pronounced its anathema was chosen expressly out of regard for the Greeks of that period, who would have been very much offended, according to the testimony of the Venetian ambassadors, if the anathema had been directed against them, whereas they would find it easier to accept the decree that the Roman Church was not guilty of error in her stricter interpretation of the law (Pallavicini, "Hist. Conc. Trid.", XXII, iv).
(e) Development of the Doctrine on Divorce outside of the Catholic Church -- In the Greek Church , and the other Oriental Churches in general, the practice, and finally even the doctrine, of the indissolubility of the marriage bond became more and more lax. Zhishman (Das Eberecht der orientalischen Kirchen, 729 sqq.) testifies that the Greek and Oriental Churches separated from Rome permit in their official ecclesiastical documents the dissolution of marriage, not merely on account of adultery, but also "of those occasions and actions the effect of which on married life might be regarded as similar to natural death or to adultery, or which justify the dissolution of the marriage bond in consequence of a well-founded supposition of death or adultery ". Such reasons are, first, high treason ; second, criminal attacks on life; third, frivolous conduct giving rise to suspicion of adultery ; fourth, intentional abortion; fifth, acting as sponsor for one's own child in baptism ; sixth, prolonged dissapearance; seventh, incurable lunacy rendering cohabitation impossible; eight, entrance of one party into a religious order with the permission of the other party.
Among the sects that arose at the time of Reformation in the sixteenth century, there can hardly be question of any development of church law about divorce. Jurisdiction in matrimonial affairs was relegated, on principle, to the civil law, and only the blessing of marriage was assigned to the Church. It is true that the interpretation of the so-called ecclesiastical officials, their approbaton or disapprobation of the civil marriage laws might find expression in certain cases should they refuse to bless an intended marriage of people who had been divorced when the reason for the divorce seemed to them to be too much opposed to Scripture. It is not surprising that in this respect the tendency should have been downwards, when we remember that, in the various sects of Xrotestanism the growth of liberalism has advanced even to the denial of Christ [Dr. F. Albert, Verbrechen und Strafen als Ehescheidungsgrund nach evangel, Kirchenrecht (in Stutz, Kirchenr. Abhandlungen, Stuttgart, 1903), I, IV].
4. Declaration of Nullity
The declaration of nullity must be carefuly distinguished from divorce proper. It can be called divorce only in a very improper sense, because it presupposes that there is and has been no marriage. However, as there is question of an alleged marriage and of a union which is considered by the public as a true marriage, we can understand why a previous ecclesiastical judgement should be required, declaring the presence of a diriment impediment and the consequent invalidity of a supposed marriage, before the persons in question might be free to separate or to enter upon a new marriage. It is only when the invalidity of a marriage becomes publicly known and further cohabitation gives scandal, or when other important reasons render a prompt separation of domicile necessary or adivisable, that such a separation should take place at once, to be made definitive by a later judicial sentence. When the invalidity of a marriage is publicly known, official procedure is necessary, and ecclesiastical process of nullification must be introduced. In the case of impediments which refer exclusively to the rights of the husband and wife, and which can be removed by their consent, only the one of the supposed spouses whose right is in question is permitted to impugn the marriage by complaint before the ecclesiastical court, provided it is desired to maintain this right. Such cases are the impediments of fear or violence, of essential error of impotence on the part of the other not fully established, and failure to comply with some fixed condition. In cases of the other possible impediments, every Catholic, even a stranger, may enter a complaint of nullity if he can bring proofs of such nullity. The only plaintiffs excluded are those who, on account of private advantage, were unwilling to declare the invalidity of the marriage before its dissolution by death, or who knew the impediment when the banns or marriage were proclaimed and culpably kept silence. Of course it is allowed to the married parties to disprove the reasons alleged by strangers against their marriage (Wernz, "Jus decretalium", IV, n. 743).
That separation and remarriage of the separated parties may not take place merely on account of private convictions of the invalidity of a supposed marriage, but only in consequence of an ecclesiastical judgement was taught by Alexander III and Innocent III in IV Decretal., xix, 3 and II Decretal., xiii, 13. In earlier centuries the summary decision of the bishops sufficed; at present the Constitution of Benedict XIV, "Dei miseratione", 3 November, 1741, must be followed. This prescribes that in matrimonial cases a "defender of the matrimonial tie" (defensor matrimonii) must be appointed. If the decision is for the validity of the marriage, there need be no appeal in the second instance. The parties can be satisfied with the first decision and continued in married life. If the decision is for the invalidity of the marriage, an appeal must be entered, and sometimes even a second appeal to the court of third instance, so that it is only after two concordant decisions on the invalidity of marriage in question that itcan be regarded as invalid, and the parties are allowed to proceed to another marriage. (Cf. III Conc. plen. Baltim., App. 262 sqq.; Conc. Americ. latin., II, n. 16; Laurentius, "Instit. iuris eccl.", 2nd ed., n. 696 sqq.; Wernz, "Jusdecretal.", IV, n. 744 sqq.) Sometimes, however, in missionary countries, Apostolic prefects are permitted to give summary decision of cases in which two concordant opinions of approved theologians or canonists pronounce the invalidity of the marriage to be beyond doubt. Moreover, in cases of evident nullity, because of a manifest impediment of blood-relationship or affinity, of previous marriage, of the absence of form, of lack of baptism on the part of one party, a second sentence of nullity is no longer demanded (Decr. of the Holy Office, 5 June, 1889, and 16 June, 1894. Cf. Acta S. Sedis, XXVII, 141; also Decr. of the Holy Office, 27 March, 1901, Acta S. Sedis, XXXIII, 765). The court of first instance in the process of nullication is the episcopal court of the diocese, of second instance the metropolitan court, of third instance the Roman See. Sometimes, however, Rome designates for the third instance a metropolitan see of the country in question (Laurentius, above, 697, not. 6). No one, however, is prohibited from immediate application in the first instance to the Holy See. Custom reserves to the Holy See matrimonial cases of reigning princes.
In the Decretals the declaration of nullity is treated under the title "De Divortiis". But it is important that these matters should be carefully distinguished from one another. The lack of exact distinction between the expressions "declaration of invalidity" and "divorce", and the different treatment of invalid marriages at different periods, may lead to incorrect judgements of ecclesiastical decisions. Decisions of particular Churches are too easily regarded as dissolutions of valid marriages, where in fact they were only declarations of nullity; and even papal decisions, like those of Gregory II communicated to St. Boniface and of Alexander III to Bishop of Amiens, are looked on by some writers as permissions granted by the popes to Frankish Churches to dissolve a valid marriage in certain cases. The decision of Gregory II, in the year 726, was embodied in the collection of Gratian (C. xxxii, Q. vii, c. xviii), and is printed in "Mon. Germ. Hist.", III: Epist. (Epist. Merovingici et Karolini ævi I), p. 276; the decision of Alexander III is given in the Decretals as pars decisa , i.e., a part of the papal letter (IV Decretal., xv, 2) left out in the Decretal itself. In both cases there was question of a declaration of the invalidity of a marriage which was invalid from the very beginning because of antecedent impotence. A certain concession to Frankish Churches was, however, made in these cases. Accoding to Roman custom such supposed husband and wife were not separated, but were bound to live together as brother and sister. In Frankish Churches, however, a separation was pronouced and permission to contract another marriage was allowed to the one not afflicted with absolute impotence. This custom Alexander III granted to the Frankish Churches for the future. If therefore, the union in question is spoken of a legitima conjunctio , or even as a legitimum matrimonium , this is done only on account of the external form of the marriage contract. That in such cases a diriment impediment according to the natural law was present, and an actual marriage was impossible, was well understod by the pope. He says this expressly in the part of his letter that has been embodied in the Decretals (IV Decretal., xv, 2. Cf. Sägmüller, "Die Ehe Heinrichs II" in the Tübingen "Theol. Quartalschr.", LXXXVII, 1905, 84 sqq.). That in similar cases decision has been given sometimes for separation and sometimes against it, need excite no surprise, for even at the present day the ecclesiastical idea of impotence on the part of the woman is not fully settled (cf. controversy in "The American Eccl. Review", XXVIII, 51 sqq.).
B. Non-Christian Marriage Can be Dissolved by Absolute Divorce under Certain Circumstances in Favour of the Faith.
1. The Pauline Privilege
The Magna Charta in favour of Christian faith is contained in the words of the Apostle, I Cor., vii, 12-15: "If any brother hath a wife that believeth not, and she consent to dwell with him, let him not put her away. And if any woman hath a husband that believeth not, and he consent to dwell with her, let her not put away her husband. For the unbelieving husband is sanctified by the believing wife, and the unbelieving wife is sanctified by the believing husband: otherwise your children should be unclean; but now they are holy. But if the unbeliever depart, let him depart. For a brother or sister is not under servitude in such cases. But God hath called us in peace. " (On the interpretation of these words see Cornely on I Cor., 175 sqq.). The exegetical controversy, as to whether these words are dependent on the proceeding sentence, "For to the rest I speak, not the Lord", or whether that sentence refers to the one preceding it, is of no importance in this question. In the first supposition, we should seem to have here an ordinance which is not immediately Divine, but was established by the Apostle through the power of Christ. In the second supposition, it may be an immediately Divine ordinance.
These words of the Apostle tell us that in all cases when one of the married parties have received the Christian Faith, and the other remains an infidel and is not willing to live in peace with the Christian, the believer is not bound but is free . The Apostle does not indeed say expressly and formally that the marriage bond has been dissolved, but if it were not at least in the power of the Christian to dissolve the previous bond and to enter upon another marriage, the words would not have their full truth. Hence the Church has understood the words in this sense, and at the same time has fixed more exactly how and under what conditions this so-called Pauline privilege may be exercised. Innocent III declares authoritatively (IV Decretal., xix, 7, in cap."Quanto") that the convert is justified in entering upon another marriage if he will, provided the non-Christian is unwilling either to live with the other or such cohabitation would cause the blasphemy of the Divine name or be an incentive to moral sin : "Si enim alter infidelium conjugum ad fidem convertatur, altero vel nullo modo, vel non sine blasphemiâ divini nominis, vel ut eum pertrahat ad mortale peccatum ei cohabitare volente: qui relinquitur, ad secunda, si voluerit, vota transibit: et in hoc casu intelligimus quod ait Apostolus: Si infidelis discedit , etc., et canonem etiam in quo dicitur: Contumelia creatoris solvit jus matrimonii circa eum qui relinquitur. " According to the Church's interpretation and practice, the dissolution of marriage that was contractd before the conversion is not effected by the separation of the married parties, but only when a new marriage is contracted by the Christian party because of this privilege. The Holy Office says this expressly in the decree of 5 August, 1759, ad 2: "Then only may the yoke of the matrimonial bond with an infidel be understood to be loosed when the convert spouse. . . proceeds to another marriage with a believer" (Collectan. S. Congr. de Prop. F., n. 1312). The manner of obtaining this right to enter upon a new marriage is fixed by the Church under penalty of invalidity, and consists in a demand ( interpellatio ) made of the non-Christian party wh
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