Page:Catholic Encyclopedia, volume 5.djvu/79

 DIVORCE

55

DIVORCE

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 by the Church and in ecclesiastical law in this neutral signification. Hence we distinguish be- tween divortium plenum or perfectum (absolute di- vorce), which implies the dissolution of the marriage bond, and divortium imperfeclum (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 imperfeclum is called separation (separation de corps).

The Catholic doctrine on divorce may be summed up in the following propositions: 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 ; B. Non-Chris- tian marriage can be dissolved by absolute divorce under certain circumstances in favour of the Faith; C. Christian marriage before consummation can be dis- solved by solemn profession in a religious order, or by an act of papal authority; D. Separation from bed and board {divortium imperfeclum) is allowed for various causes, especially in the case of adultery or lapse into infidelity or heresy on the part of husband or wife. These propositions we shall explain in detail.

A. In Christian marriage, which implies the restor- ation, by Christ Himself, of marriage to its original indissolubility, there can never be an absolute divorce, at least after Die 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: " Whosoever shall put away his wife and marry an- other, committeth adultery against her. And if the wife shall put away her husband, and be married to another, she committeth adultery" (Mark, x, 11, 12. — Cf. Matt., xix, 9; Luke, xvi, 18). In like manner, St. Paul: "To them that are married, not I but the Lord commandeth, tliat the wife depart not from her hus- band. And if she depart, that she remain unmarrietl, or be reconciled to her husband. And let not the husband put away his wife" (I Cor., vii, 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 the hardness of your heart permitted you to put away your wives: but from the beginning it was not so" (Matt., xix, 8); "He who made man from the beginning, made them male and female. .\nd he said : For tliis 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" (Matt., xix, 4-6). The indissolubility of all marriage, not merely of Christian marriage, is here affirmed. The perma- nence 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 marriage is in a certain sense indissoluble. The following proposition is condemned in the Syllabus of Pius IX (Proposition LXVII): "Accord- ing to the natural law, the bond of marriage is not in- dissoluble, and in certain cases y civil authority." The meaning of this condemnation is clear from the docu- ment whence it has been taken. This is the papal Brief ("A-d apostolicse sedis fastigium", 22 August,

18.51, 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, "deApos- tolicEe potestatis plenitudine". A certain indissolu- biUty of marriage whenever contracted must there- fore be admitted, even according to the natural law, at least in the sense that marriage, unlike other con- tracts, 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 excep- tional cases, in which continued cohabitation would nullify the essential purpose of marriage, the dissolu- tion 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 sec- ondary demands of the natural law. In this sense marriage, considered merely according to the natural law, is intrinsically indissoluble. That it is also ex- trinsically indissoluble, i. e. that it cannot be dis- solved 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" (Matt., xix, 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 ac- cording to the purely natural law, because Nuytz, whose doctrine was condemned, asserted that the State had this authority in regard to Christian mar- riages, 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 Israeliles. — In spite of the Divine law of the indissolubility of marriage, in the course of time divorce, in the sense of complete dis- solution of marriage, became prevalent to a greater or less extent among all nations. Moses found this cus- tom even among the people of Israel. As lawgiver, he ordained in the name of God (Deut., xxiv, 1): "If a man take a wife, and have her, and she find not favour in his eyes, for some uncleanne.ss : 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 pas- sage shows that this divorce was understood as justi- fying the wife in her 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. Bona- venture (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 otherwi.se the practice sanctioned in the law would be blameil as sinful in some part of the Old Testament. Moreover, Chri.sl(loc.cit.) seems to have rendered illicit what was illicit in the begiiming, but what hail really been allowed later, even though it was allowed " by reason of the hardness of your heart" (St. Thomas, III, Supplem., (.}. Ixvii, a. 3; Bellarmine, "Controvers. de matrim.", I, xvii; Sanchez, "De matrim.", X, disp. i.