DIVORCE/ REMARRIAGE

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This is a response to the Orthodox claim that the CC permitted divorce in the undivided Church. It is not intended to malign the Orthodox practice of permitting divorce, but the facts presented here will, speaking for themselves, evince the lack of biblical/patristic support it.

First, a reply to Father Ambrose from the “What’s In A Name” thread. Fr A claimed I was “muddying the waters” by making marriage/divorce an issue of Catholic/non-Catholic Christian. Actually, it was Fr A who tried to sensationalize valid applications of the Pauline privilege into a permissive use of divorce/remarriage. Instead of making a distinction between non-Christian/ Christian cases, he generalized it to a distinction between non-Catholic/Catholic cases (see his posts #215, 229, and 234). The term “non-Catholic” applies to both Christians and non-Christians, making it seem as if the Catholic Church utilizes the Pauline privilege in a marriage between Christians (non-Catholics and Catholics). But far from admitting his error after it was exposed, and not providing documentation for his position after requested, he merely reverts to the excuse that his “true” purpose was to show that divorce is in fact allowed in the Catholic Church.

Now some preliminary definitions and considerations:
  1. We make a distinction between the marriage contract and the marriage bond. The marriage contract is acquired when man and woman in the presence of a validly ordained minister of the Church willfully profess their union. The contract is also between the couple and the Church/God. The marriage bond is not achieved until, as Jesus explicitly stated, “the two become one flesh.” Once achieved, no human agency, not even the Pope, can break this bond. It is obvious from the analogies in Ephesians 5 that the union described in Jesus’ exhortation “what God has joined let no man tear asunder” refers to a validly contracted AND consummated marriage.
  2. Matrimony is a divine institution. The CC has always recognized this and reserves to herself the determination of the laws governing it. The Churches of the East (who eventually became the Orthodox Church), on the other hand, allowed it to be subordinated to the dictates of the State. This is the origin of the Orthodox permissiveness on divorce and re-marriage, as she sought to accommodate herself to the secular law, instead of keeping faithful to the divine law, in regards to Marriage (see post#3 below).
  3. Matrimony being a divine institution, it follows that its laws can be mitigated by other factors of divine origin. Thus it is that the universal Church accepts what is known as the Pauline privilege, established under divine inspiration by St. Paul himself. The Pauline privilege can be utilized to dissolve a marriage contract and bond, but only in the circumstance where a marriage is between a Christian and non-Christian (not, as Fr A suggested, between a Catholic and non-Catholic). Marriage being a serious matter, the Pauline privilege is not lightly given, and has several conditions. These need not concern us now (unless someone asks for them).
  4. The Petrine privilege can never dissolve the marriage bond, but it can dissolve the marriage contract. Thus, the Petrine privilege can only be utilized when a marriage has not been consummated. There is one canonical description for its use (the vow to enter the religious life after the marriage contract has been acquired), but it may be utilized in other extreme circumstances. For instance, if, after the marriage contract is acquired, a spouse falls ill or is called to military service for such an indeterminate period of time that the marriage bond cannot be achieved (i.e., consummated), the Pope may dissolve the marriage contract, and allow a second marriage, while provide that the first spouse be taken care of by the other.
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It is not necessary to spend too much time on the indissolubility of a validly contracted and consummated marriage in the first five centuries of the Church. It is amply documented here: http://theology1.tripod.com/readings/fathersofthechurch.htm (a few examples are not clear-cut, but the great majority are)

I also want to add my own research on St. Basil’s view (an excerpt from another thread):

I brought up St. Basil because he represents a development in the history of the Catholic Church on the canonical element of indissoluble marriage. As noted, though in his eyes a husband who has been abandoned by his adulterous wife can remarry, the woman who marries that husband is herself guilty of adultery (Canon 9). This is a canonical - not doctrinal - development. Doctrinally, the husband would also be guilty of adultery - it was just that, as St. Basil admitted, there was no canonical provision for punishing the husband as such (Canon 21).

St. Basil fully represents a faithful Catholic (not Orthodox, in this regard). The second marriage spoken of by St. Basil is obviously a marriage after the death of one spouse. The third marriageBasil regards as abhorrent (canon 50), but was allowed by custom (canon 4). If you’ll notice, if you’ve read the Basilian canons, Basil distinguishes between what is canonical and what is merely custom. It was a later Orthodox aberration that allowed third marriages to be canonical. And it is certainly a later Orthodox aberration that divorces are allowed. Note that even for second marriages, to Basil, being the faithful Catholic, the husband does not divorce his first wife even for the cause of the wife’s adultery. It is merely that he is allowed to marry again, though, as likewise noted, the woman who marries him herself would be guilty of adultery (while there was no canonical standard to charge the man in this instance). How indeed can that woman be guilty of adultery if the husband was actually still not married to his first wife in the eyes of God?

Other instances which support the Catholic doctrine include:

A presbyter shall not be a guest at the nuptials of persons contracting a second marriage; for, since that one is worthy of penance, what kind of a presbyter shall he be, who, by being present at the feast, sanctioned the marriage? (Canon 7, Council of Neocaesarea, 315 A.D.) As digamy was allowed in the early Church, it is obvious that this canon refers either to bigamy, or even a second marriage after a spouse has been put away for adultery.

If the wife of a layman has committed adultery and been clearly convicted, such a husband cannot enter the ministry; and if she commit adultery after his ordination, he must put her away. (Canon 8, Council of NeoCaesarea, 315 A.D.) This is relevant when one understands that orders is in fact a real marriage to God. It follows that no second marriage is allowed after one puts a spouse away for adultery.

According to evangelical and apostolical discipline a man who had been put away from his wife, and a woman put away from her husband should not be married to another, but so should remain, or else be reconciled the one to the other. (Canon 102, the African Code, 419 A.D.)

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What about the notion of digamy (distinct from bigamy), which was approved in the early Church? Was digamy (second marriage) the result of the death of a spouse, or the release of divorce? One can gain an understanding from St. Jerome. In one place, he states that he does not disapprove of “digamists, or even trigamists or, if such a thing can be said, octagamists,” yet it is this same Jerome who “commanded that when the first [spouse] is dismissed a second may not be taken while the first lives.” It is obvious that digamy was understood by the early Church to refer to a second marriage after the death of a spouse. It is no use for Orthodox and Protestants to claim that digamy was anything otherwise. Why was there penance, then, for digamy if the spouse was deceased? This was a canonical sanction (not from divine law, but ecclesiastical law) due to a misunderstanding that the marriage contract/bond is perpetuated even after the death of a spouse, a belief which the Eastern Orthodox Church still maintains (though perhaps only as theologoumenon).

So what happened after the first five centuries? What were the causes of the Eastern Church’s departure from divine and patristic law? Did the Western Church ever join the Eastern Church in its permissiveness of divorce? History and Philosophy Prof. E.O. James provides good insight:

As the Church established its position in the Empire, and eventually became the sole authority, it set to work to correct laxity of observance by the exercise of canon law through its matrimonial courts. In the Byzantine East, however, imperial control remained much more firmly entrenched and civil legislation had a stronger hold than in the West. Thus, between the time of Constantine (314) and that of Justinian (527) facilities began to be given not only for the putting away of a wife or husband for adultery (porneia) which was a generally accepted practice in the pre-Constantine period, but for remarriage after divorce, at any rate in the case of the innocent party …the Latin Church on the whole has maintained the most consistent and uncompromising attitude in Christendom to the indissolubilty of marriage . . . How deeply laid in Western Christendom was this conception of indissolubility is shown by the refusal of theologians to grant even to the Pope the right to dissolve a validly contracted and duly consummated marriage between two baptized persons …

In the Byzantine Empire . . . the Church made no attempt to determine the legal aspects of the constitution of marriage. It accepted the existing civil regulations including, as we have seen, the dissolution of the union a vinculo [dissolution of the marriage bond] under certain conditions . . . no conflict has arisen between the canonical legislation of the Orthodox Church and the secular authority since the civil order was reformed by the Byzantine emperors. Even when the decisions of the ecumenical synods, including those of Trullo, have been modified by later secular legislation no opposition has been encountered from the ecclesiastical authorities, so completely has marriage become regarded as subject to State regulation.

More detail from Fr. John Hardon:

The history of Orthodoxy shows that divorce with the right to remarry goes back to at least the sixth century when the Eastern Emperors passed marriage laws without the approval of Rome.

The most significant early legislation is that of Novel XXII in 536 A.D. and Novel CXVII promulgated by Justinian I in 542 A.D. As a matter of record, Justinian accused Pope Vigilius of heresy and asserted that, as emperor, he could pass judgment even on matters of doctrine. Gradually ecclesiastics accepted the civil legislation. The first patriarch to give express canonical sanction to divorce and remarriage seems to have been Alexius, who held office in Constantinople from 1025 to 1043 A.D. Adultery was the only grounds recognized.

Since the fall of Constantinople (1453) a wide range of reasons is available. We get some idea of its scope from the currently acceptable grounds for complete divorce, with the right to remarry, as found in the patriarchates of Constantinople and Moscow - the two largest bodies in Orthodoxy. Twenty-one distinct grounds are listed in Byzantine canon law . . .In the Moscow Patriarchate there are ten canonical reasons for dissolving the marriage bond

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Depending on one’s perspective, one may or may not render moral culpability to the Eastern Church (which eventually became the Orthodox Church) for acquiescing to the worldly authority in regards to a divine matter, but it is simply a fact that it did occur.

Now, I want to treat of objections I have read here and elsewhere from Orthodox (and Protestants) regarding this issue:
  1. Orthodox divorce is the same as Catholic nullification of marriage.
Response: Though the social effects may be identical, the spiritual ramifications are wholly distinct. Only the Catholic form preserves the true intent of the divine law on marriage (i.e., what God has put together, let no man tear asunder), while the Orthodox ultimately disregards it.
  1. The grounds for granting Catholic nullification are more extensive than the grounds for Orthodox divorce.
Response: It is irresponsible and dishonest to make this claim. In an old thread, Fr A offered this objection while citing several instances of mental instability accepted by the Catholic Church as grounds for nullification. In fact, the Orthodox also allow mental reasons as cause for divorce; it is just that they are not so specific as the Catholic Church in listing these mental reasons. Given this, it is actually the Orthodox who have more extensive grounds for divorce than Catholics have for nullification, given that the Orthodox allow divorce for reasons that the Catholic Church does not accept (e.g., imprisonment, crime, adultery, abandonment, etc., etc., etc.). But this is not really the issue (though it needed to be refuted because some apparently believe it is). The cause of mental problems to obtain nullification is valid only to determine if a spouse was able to give a volitional consent for the marriage contract (i.e., during the marriage ceremony). In contrast, the Orthodox Church would allow a spouse to abandon the other if after the marriage bond has been established, one spouse might eventually become mentally ill. And imagine permitting divorce due to the imprisonment of a spouse. How heartless is that for the one in prison who may be there wrongfully, or who may be repentant but forced to serve an interminably long sentence anyway? Given this, Orthodox have the gall to claim that their position on marriage is more “spiritual” than the Catholic position (see #4 below)?
  1. Orthodox really only grant one divorce and three marriages, not three divorces.
Response: Regardless of how many (or few) divorces are granted, how can a self-proclaimed Christian Church suffer any of her members to wallow in the sin of adultery? Give them a good penance and let them continue in their sin? Sorry, doesn’t cut it in the divine plan of salvation.
  1. Catholic marriage is legalistic, while Orthodox marriage is spiritual.
Response: This is a patently false statement, insofar as it presents a false dichotomy. In fact, the Orthodox themselves have a set of legalities they have to maintain in order to consider a marriage valid, just as the Catholic Church does. The reality is that both Catholic and Orthodox marriages are legalistic and spiritual. In fact, the early Church often rendered marriages INVALID when it was discovered after the fact that there was an impediment to the marriage (for instance, if the marriage was between relatives, if a priest married after his ordination, if the marriage was done under duress, etc., etc., etc.) The Catholic practice of declaring nullity is enshrined in the laws of the undivided Church. The Orthodox practice of granting divorce and remarriage is both unscriptural and against Sacred Tradition.

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  1. Scripture allows for divorce by virtue of adultery or abandonment.
Response: Absolutely false. Twisting Scripture does nothing to support an unscriptural practice. Scripture does NOT state that one can grant a divorce, except for the cause of adultery. It states that one can do so for the cause of fornication. One needs to understand that the source of this statement is the Gospel of Matthew. This exception to the rule is found nowhere else in the Bible, and this is significant because Matthew was written for a Jewish audience. In order to understand the relevance of the use of the term “fornication” instead of “adultery,” one has to understand the marriage beliefs of the Jewish people. In Judaism, the marriage actually begins at the betrothal ceremony. After that point, a man and woman are considered husband and wife. The FORMAL marriage begins at the actual marriage ceremony which is immediately consummated. Infidelity before the FORMAL marriage would be regarded as FORNICATION; infidelity after the formal marriage (when consummation takes place) would be regarded as ADULTERY. Thus, one sees that Scripture only permits divorce (be put away) BEFORE CONSUMMATION TAKES PLACE. This is the basis for the Petrine prerogative discussed above. There are no grounds for the Orthodox and Protestant belief that one can dissolve the marriage bond after the consummation of a marriage.

Likewise, the cause of “abandonment” is nowhere found in Scripture. The only case is in relation to the Pauline prerogative, where a non-Christian spouse chooses to abandon the Christian partner. Orthodox generalize this into a concession for “abandonment” between Christian partners, when in fact it really only relates to Christian/non-Christian couples.
  1. Since the Pope was the head of the undivided Church, then the laws enacted in the East permitting divorce/remarriage must have been done with his approval.
Fr A, who proposed this argument (I think), was really just being a smart Alec. He doesn’t even offer any proof that the Pope at any time approved of divorce/remarriage. The statement is based on a misconception of the papal prerogative, and a disregard for historical facts. Since he views the papacy as a dictatorship, then any particular act of the Church must have been done, could only be done, with his approval. But history demonstrates that the Eastern Church at times did things without the approval of the Pope – which he cannot deny. Thus, Fr A cannot realistically and honestly claim that the Catholic Church enacted laws permitting divorce/remarriage. Those laws were enacted without papal approval and thus, by definition, were performed outside the purview of the Catholic Church. It should be noted that two local synods of France in the 8th century enacted laws which could be interpreted as allowing divorce. But these occurred in a time when papal decrees rejecting divorce/remarriage had existed (not as laws, but private communications).

God bless,

Greg
 
Haven’t read all the above. Not enough time at the moment because it is the eve of Old Christmas and there is a lot to prepare.

But I would just like to bring it back to basics. The Roman Catholic Church allows divorce and remarriage in some instances.

They are:

**The Pauline Privilege ** permits a divorce and a second marriage to the one who converts to Christianity, if the partner does not.

The Petrine Privilege allows the Pope to dissolve a marriage between a Catholic and a non-Catholic when (a) the Catholic wishes to marry a Catholic or (b) when the non-Catholic wishes to become a Catholic and remarry.

Btw, Greg, it caught my eye that you are slagging me off with ad hominems… I saw “Fr A, who proposed this argument (I think), was really just being a smart Alec.”

Please be cognisant of the fact that personal attacks of this nature are contrary to the Regulations of the Catholic Answers Forum.
 
ya, no personal attacks, though I think GAssissi makes some excellent points.
 
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GAssisi:
The grounds for granting Catholic nullification are more extensive than the grounds for Orthodox divorce
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This is indeed true.

Here are the specifics of grounds for divorce in the Russian Church:

"In 1918, in its Decision on the Grounds for the Dissolution of the Marriage Sanctified by the Church, the Local Council of the Russian Orthodox Church, recognised as valid:

adultery and a new marriage of one of the parties,
a spouse’s falling away from Orthodoxy,
perversion,
impotence which had set in before marriage or was self-inflicted,
contraction of leprosy or syphilis,
prolonged disappearance,
conviction with disfranchisement,
encroachment on the life or health of the spouse,
love affair with a daughter in law,
profiting from marriage, profiting by the spouse’s indecencies,
incurable mental disease
malevolent abandonment of the spouse.

At present, added to this list of the grounds for divorce are

chronic alcoholism or drug-addiction
abortion."

As we saw on another thread, grounds for an annulment and the subsequent right to a second marriage in the Catholic Church are much wider and take into account our modern knowledge of psychology.

**"The Catholic Church grants annulments but not divorces. An annulment is an official declaration that the marriage never existed in the first place. Reasons for an annulment can include:
**
  • lack of initial discretion re the marriage commitment;
  • no partnership in conjugal life;
  • no conjugal love;
  • psychopathic personality;
  • schizophrenia;
  • affective immaturity;
  • psychic incompetence;
  • sociopathic personality;
  • moral impotence; and
  • lack of interpersonal communication."
The above is from
"Divorce and Remarriage: A Challenge to the Christian Tradition"
mcauley.acu.edu.au/~yuri/ethics/Divorce.html
 
I didn’t know “smart Alec” was a derogatory term! Isn’t a “smart Alec” someone who jokes around a lot? Are some people being overly sensitive?

God bless,

Greg
 
BTW, Father, your definition of the Petrine prerogative is grossly in error. You are confusing the Petrine and Pauline prerogatives. Can you please provide documentation aside from an interpretation given by some author? Provide primary sources.

Also, I don’t know why you bother with your post#8. You simply validated my previous refutation of your claim (that you repeat in post#8) – namely, “In fact, the Orthodox also allow mental reasons as cause for divorce; it is just that they are not so specific as the Catholic Church in listing these mental reasons.” I am sure if your Church was more specific about what constitutes “incurable mental disease,” the permissiveness of the Orthodox position would become strikingly more evident.

Granting divorce on the basis of contracting leprosy and syphilis? That is unbelievably un-Christian!!! If anyone wants to use the standard of the “narrow path” as a basis of their discernment whether to join the Catholic or Orthodox Church, I must say the Orthodox Church becomes disqualified. I’ve read your lament about Western Christians’ lack of understanding of the Orthodox mindset on the matter, but Western Christian would rather put on the mind of Christ, rather than the mind of the Orthodox in this matter of divorce/remarriage.

God bless,

Greg
 
Yes, Greg, the Catholic Church follows the narrow path in regards to both divorce and contraception. It’s unfortunate that others have officially caved in on these crucial moral issues.

Tom
 
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GAssisi:
I didn’t know “smart Alec” was a derogatory term! Isn’t a “smart Alec” someone who jokes around a lot? Are some people being overly sensitive?

God bless,

Greg
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Yes, of course. I am being over sensitive. It is better if I stop engaging you in discussions until I have had counselling about this over sensitivity.

Btw, I think that your understanding of “smart Alec” is way off the mark.
 
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GAssisi:
Then I claim invincible ignorance.
God bless,

Greg
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Well, if you wish to claim invincible ignorance, who am I to argue. May the Lord of Light lighten your darkness and dispell your ignorance and render what is invincible vincible.
 
Excellente, GAssisi! You nailed it down. Once I discussed this marriage-divorce issue with FR. A in another forum, but he still considers Catholic annulment as something similar to divorce=in short, making the Orthodox divorce acceptable, and therefore within the bounds of morality. For them, it’s okay to commit adultery as long as the Orthodox Church grants them “license” to do such thing thru divorce-remarriage. I kept on explaining the big difference.

And by the way, you might as well discuss the issue about contraception in another thread and why the Orthodox Church caved in on the issue.

Pio
 
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GAssisi:
I also want to add my own research on St. Basil’s view (an excerpt from another thread):

I brought up St. Basil because he represents a development in the history of the Catholic Church on the canonical element of indissoluble marriage. As noted, though in his eyes a husband who has been abandoned by his adulterous wife can remarry, the woman who marries that husband is herself guilty of adultery (Canon 9). This is a canonical - not doctrinal - development. Doctrinally, the husband would also be guilty of adultery - it was just that, as St. Basil admitted, there was no canonical provision for punishing the husband as such (Canon 21).

St. Basil fully represents a faithful Catholic (not Orthodox, in this regard). The second marriage spoken of by St. Basil is obviously a marriage after the death of one spouse. The third marriageBasil regards as abhorrent (canon 50), but was allowed by custom (canon 4).
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What have become known as the Canons of Saint Basil are highly interesting, and not withstanding the fact that they were incorporated in the Canons by the Quinisixt Council (do Catholics accept this Council?) many of them are disregarded today.

For example, the Canon to which you are referring and which you mistakenly take to mean that these are cases when a man experiences the death of multiple wives, reads thus:

CANON IV
They that marry a second time, used to be under penance a year or two. They that marry a third time, three or four years. But we have a custom, that he who marries a third time be under penance five years, not by canon, but tradition. Half of this time they are to be hearers, afterwards Co-standers[they stand at the back of thje church with the penitents]; but to abstain from the communion of the Good Thing, when they have shewed some fruit of repentance.
CANON VII.

They who have committed sodomy with men or brutes, murderers, wizards, adulterers, and idolaters, have been thought worthy of the same punishment; therefore observe the same method with these which you do with others. We ought not to make any doubt of receiving those who have repented thirty years for the uncleanness which they committed through ignorance; for their ignorance pleads their pardon, and their willingness in confessing it; therefore command them to be forthwith received, especially if they have tears to prevail on your tenderness, and have [since their lapse] led such a life as to deserve your compassion.

We no longer excluse these sinners from reception for 30 years.
And this is the doozy from the point of view of Roman Catholics 😃 Saint Basil approves of fornication -of people continuing to live in fornication if, by insisting on their separation and sexual purity, there is a risk that they will look for other outlets, for other lovers…

CANON XXVI.

Fornication is neither marriage, nor the beginning of marriage. If it may be, it is better that they who have committed fornication together be parted; but if they be passionate lovers, let them not separate, for fear of what is worse.
And another Canon which I have no idea how you would reconcile with modern RC understandings of the nature of the Sacrament of Matrimony. Marriage without paternal consent is actually fornication.

CANON XLII.

Slaves marrying without the consent of their masters, or children without consent of their fathers, it is not matrimony but fornication, till they ratify it by consenting.
 
Dear Pio,

I have already tackled the contraception issue here: http://forums.catholic-questions.org/showthread.php?t=17071

I got a couple of PM’s thanking me for the arguments. I’d be glad to hear your critique of it.

As to WHY the Orthodox now allow artificial contraception, your guess is as good as mine. I can guess that since the Orthodox have let the State involve itself legislatively in one area of morality, it would be natural to allow them to interfere in another area.

God bless,

Greg
 
Dear Father,

I appreciate the humor. Thanks for posting the text of Canon 4. It helps prove my point. You must really read things in context. Try reading the other canons to which I refer, and tell me honestly if you can deny that St. Basil regarded a second marriage - while the spouse that was put away was still alive - as adultery. Once again, I must repeat my statement: how a self-professed Christian Church could allow its members to wallow in the sin of adultery is beyond all reasonable bounds of Christ’s law. It is well known that Church canonical law had its origins in Roman civil legislation. Father, think about the purpose of such laws with its attendant punishments (for the present as well as the past). It seems to me such canons were intended to prevent second/third marriages as a warning of the consequences, not to be interpreted as permission to engage in the practice. Imagine this: a law states that stealing will result in at least 5 years in jail. According to the Orthodox mentality, this means, “yes, go ahead and steal, all you will get is five years in jail. After that, if you can’t resist the impulse, go ahead and steal again.” No father, these canons are not meant to be permissive, but prohibitive and preventative.

And your point about Canon 26? This was funny as well. Are you saying that the Orthodox allow people to continue in fornication as well as adultery (wouldn’t doubt it! JUST KIDDING!!!)? Are you saying that St. Basil did (never let such a thought impugn the dignity of this Doctor of the Church!)? This is the problem with the Orthodox (and Protestant) approach on things. You guys simply keep reading things out of context. Do you suppose that when Basil wrote this Canon, he did it with the intention of neglecting St. Paul’s exhortation that such people should marry? As I suggested in the previous paragraph, you really must read things in context. That means going beyond a sentence or two, and even the entire text if necessary in order to obtain the real spirit of what is being said.

Your citation of Canon 42 was the funniest of all. It really had me rolling! I guess you didn’t notice that the Canon states that children must obtain the consent of their parents. Marriage in the past was allowed for much earlier ages than they are today. In fact, this is well-enshrined in current (as well as past) Catholic Canon Law.

Once again, thanks for the comic relief.

God bless,

Greg
 
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