Page:Catholic Encyclopedia, volume 5.djvu/81

 DIVORCE

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DIVORCE

we are not allowed even to marry, although we put our wives away"; Clement of Alexandria (d. 217), "Strom.", 11, 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 Greeli Fathers, e. g. St. Basil of Ciesarea, "Epist. can.", ii, "Ad Amphilochium", can. xlviii (P. G., XXXII, 7.32); St. Jolm Chrysostom, "De libello repud." (P. G., LI, 21S); 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. Iv (ad Amand.), n. 3 (P. L., XXII, 562); St. Augustine, "De adulterinis conjugiis", II, iv (P. L., XL, 473), etc., etc. The occurrence 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 mar- riage, but of the lesser canonical penance and of ex- emption 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 ,'of. can. vii of the Council of Com- piegne, 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 cont'"adicting liimself, St. Basil could say of the husban ■., " He is not condemned ", and " He is considered excusable" (Ep. clxxxviii, can. ix, and Ep. cxcix, can. X3i i, in P. G ., XXXII , 678, 72 1 ) , because lie is speaking jistinctly of the milder treatment of the lius- band than of the wdfe 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 an- other crime was allowed by Divine law to marry an- other (Hajres., lix, 4, in P. G., XLI, 1024), is speak- ing 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 honour- able, still he makes the exception in regard to this last part in favour of one who had long been separated from his first wife. The other Fathers of the following centuries, in whose works amliiguous or obscure ex- pressions 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 Chiu'cli. On account of defective morality, there are to be found regulations of particular synods which permitted un- justifialile 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 perma- nence of the marriage bond, even in the case of adul- tery. 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, un- less illness should make this an imperative necessity " (Labbe, "Concilia", II, 7). The Synod of Aries (314) speaks indeed of counselling, as far as possible, that the young men who had dismissed their wives for adultery should take no second wife "_(«(, in quan- tum possit, 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 x\ii (Labbe, IV, 331); the Council of Hereford (67:^), canon x (Labbe, VII, 554); the Council of Friuli (Forum Juhi), in northern Italy (791), canon x CLabbe, IX, 46); all of these teach distinctly (hat the marriage bond remains even in case of dismissal for adultery, and that new marriage is therefore forbid- den.

The following decisions of the popes on this subject deserve special mention: Innocent I, "Epist. ad Ex- super.", c. vi, n. 12 (P. L., XX, 500): "Your diligence has asked concerning those, also, who, liy 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 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 ab- solute 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 pris- oner of war, or the choice of religious life by one of the spouses. In these cases, also, the popes pronounced decidedly for the intlissolubility of marriage, e. g. In- nocent 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, S3.?, and " Epist. ad Hadrian, notar.", in P. L., LXX\TI, 1169. This last passage, which is found in the " Decretum " of Gratian (C. xxvii, Q. ii, c. xxi), 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 dis- solved, though either of the parties be unwilling, yet the Divine law does, not permit it to be done." That the indissolubility of marriage admits of no exception is imlicated by Pope Zacharias in his letter of 5 Janu- ary, 747, to Pepin and the Prankish bishops, for in chap- ter vii he ordains "by Apostolic authority", in an- swer to the questions that had been proposed to him: " If any layrnan 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., Ill: Epist. Merovingici et Karolini sevi, 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 Prankish synods of the eighth century which allowed it in certain acute cases. In this regard the Councils of Verberie (752) and Compiegne (757) erred especially. Canon Lx 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 con- trast to the blameworthy woman, a second marriage is allowed to the husband: "If he has no hope of re- turning 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 |icople engraven in their hearts that it was believed allowance s-houUl be