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Cyclopedia of Biblical, Theological and Ecclesiastical Literature
Divorce, Christian Law of.
Under the term divorce are included several separations of married persons which are quite unlike one another. First, they may have been joined in unlawful wedlock, as when near relationship, was a bar to their union, and the law, on ascertaining this fact, declares that they never were legally married. Such was the case where Henry VIII of England was separated from his first wife by an ecclesiastical court, and was permitted to marry again; or, as it would be more proper to say, was declared never to have been married at all. Cases of this kind are properly not divorces, but annulments of marriage; or declarations of the nullity of the marriage. They occur in all societies, and against them the precepts of Christ are not directed. Only it is a sin of legislation, and a snare to men, if the obstacles to marriage are, as they are in Catholic countries, made too numerous. Secondly, there are separations of persons lawfully married which involve the impossibility for either of them to marry again during the life of the other. These are often called divorces or separations as mensa et thoro, and sometimes separations merely. Finally, there are divorces proper, or separations a vinsculo matrimonii, dissolutions of a marriage originally lawful, with liberty given to one or both parties to contract a new marriage. It is these two last kinds of divorce to which we shall confine ourselves in the present article.
At the time when Christ appeared in the world a very great laxity of divorce prevailed in the nations which have had the greatest influence on the progress of mankind. Among the Jews, as has been seen above, the husband could repudiate his wife for any reason which rendered her society distasteful to him, and was only required by the law to give her a formal notice to withdraw from his house. The wife, it is true, had no such liberty, and yet ladies of the higher classes among the Jews were beginning to act as if they had. Among the Greeks and Romans, both husband and wife had almost unrestricted power of divorce in their hands; not only could they separate by mutual agreement, but either party could loose the marriage bond with little or no formality. Among the Romans, originally severe in observing the laws of family morality, there had been a gradual declension through several centuries until the days of Christ. At that time the emperor Augustus attempted by a system of laws to put a stop to the alarming neglect of marriage, to the freedom of divorce in certain respects, and to the frequency of adultery. Loss of more or less dower, or obligation to pay it back, fell on the culpable author of the divorce, and severe penalties were inflicted on an adulterous wife and her paramour. But Roman manners were too corrupt to be made better by the leges Julice relating to these points. The higher classes practiced divorce and committed adultery almost ad libitum, and the lower lived to a considerable extent in concubinage. The evil remained uncured. The emperor Septimius Severus, as Dion Cassius says (lib. 66, § 16), who had the records in his hands, and was consul under this sovereign, instituted three thousand prosecutions for adultery at the beginning of his reign; but manners were too strong for law, and it all went for nothing.
Meanwhile the commands of Christ in relation to divorce were a slowly- working leaven, thrown into his Church to keep it pure, and, through the Church, destined, more or less, to influence legislation, and to aid those other influences by which the Gospel sought to ennoble family life. These precepts of the Master are contained in Matthew 5:31-32; Matthew 19:3-10; Mark 10:2-12, and Luke 16:18, to which the teaching of Paul in 1 Corinthians 7:10-15, is to be united as an important supplement. We propose to give the substance of the instructions in the New Testament concerning divorce under several heads, but have not space to defend our positions as fully as we could wish.
1. The liberty given to a man by the Mosaic law to put away his wife "because he found some uncleanness" or something offensive in her (Deuteronomy 24:1) was an accommodation to the hardness of the Jewish heart, and did not harmonize with the original declarations concerning the nature of marriage.
2. He, therefore, who puts away his wife, except on the ground of her fornication, and marries another, commits adultery (Matthew 19:9), and he who thus puts her away leads her to commit the same crime (Matthew 5:32).
3. He who marries a woman that has been divorced commits adultery, and the woman who puts away her husband and marries another man (Mark 10:12) incurs the same kind of guilt, which is a precept that seems to look beyond the Mosaic code, under which no liberty of initiating divorce was conceded to Jewish women, to the practices of heathen lands. We may observe in regard to these passages, first, that Mark and Luke do not record the exception preserved in Matthew, "excepting for the cause of fornication," but the plain reconciliation of the passages must be found in the principle that an exception in a fuller document must explain a briefer one, if this can be done without force. Now, as divorce for that one reason was admitted by all, Mark land Luke might naturally take this for granted without expressing it. Secondly, by fornication is intended a sexual crime since the beginning of the marriage state committed by either of the parties with a third person, i.e., adultery begun or completed. And the exceedingly rare crime of sodomy, or bestiality, as the greater, may be fairly included in the less, adultery. Again, thirdly, the exception is the sole exception. It cannot be said with any honesty that Christ, in saying "except it be for fornication," gives a sample of the causes which may dissolve the marriage union, as one of many which put an end to the state beautifully called one flesh. Plainly but one cause of separation with remarriage is in his thoughts, and that is one in its outward nature and grossness distinct from all others. Nor again, fourthly, can it be said that these precepts were intended to govern individual action, but that, where the law of the state permitted, the individual, acting under public law, might exercise the right of divorce for other reasons. For Christ set aside Jewish law. He says, let not man put asunder, i.e., not the individual man, but man as opposed to God, who established the primeval law of marriage. He gives a rule to his followers, who must follow it, whether the State allows larger liberty or not. Christians may live in a State which feels no obligation to conform its law to Christ's views in this respect, but they will, if they have influence, necessarily change legislation regarded by them as injuring society like that which opens a wide path for divorce.
We come now to the supplemental precepts of Paul, who had to guide churches gathered amid the heathen, infected by heathenish views of marriage, some of whose members, by their conversion, were brought into the trying condition of having heathen partners. The apostle contemplates two cases: the first where both partners are believers, the other where one is not (1 Corinthians 7). In the former case he repeats the Lord's rule against separation, with the additional injunction that if a woman should be separated from her husband, she must remain unmarried, or be reconciled to him. Here, then, the possibility of separation a mensa et thoro alone, without liberty of remarriage, is contemplated; and this passage has had a vast influence on ecclesiastical legislation. Most interpreters suppose that the apostle here is thinking of withdrawal from the marriage union for comparatively slight grounds, such as do not involve unfaithfulness — and this view alone seems to reconcile what Christ says with the supplementary precepts of Paul — but Augustine strives, with great pains and ingenuity (de conjugiis adulteriis), to show that divorce for adultery is intended, and applies the interpretation to our Lord's words. Hence adultery can be condoned by the innocent partner, and can only involve separation, without liberty to either party to enter into second nuptials. This view became prevalent, and had a great effect on subsequent opinion. In the other case, where one of the partners is an unbeliever, the apostle enjoins on the believer to be passive, to take no active steps for the purpose of dissolving the marriage because it is a union with a heathen, for it is a marriage after all. If the unbeliever wishes to retain the tie, the believer must not leave him or her. But if the unbeliever depart, "let him depart." A Christian "is not in bondage" in circumstances like these. Here the question arises, What does "not in bondage" mean? The fathers, at least to some extent, the Catholic and older Protestant interpreters, understood it to mean not in bondage to keep up the marriage connection, and hence at liberty to contract a new one. This interpretation has had wide effects. In the canonical law a believing partner was allowed, if thrust away by an infidel one, to marry again; and as the early Protestant theologians extended the rule, by analogy, to malicious desertion in Christian lands, an entrance- wedge was here driven into the older ecclesiastical laws, and much of the shocking facility of divorce in some Protestant countries has flowed from this source. But we reject the interpretation. We hold with Tholuck (Bergpred. ed. 4, page 253), with Neander, De Wette, Meyer, and Stanley (commentaries on 1 Corinthians), that the apostle means "not in bondage" to keep company with the unbeliever at all events, without having the thought of remarriage in his mind. This must be regarded, we think, as settled by the soundest modern exegesis.
Roman law adhered, on the whole, to its fatal facility of granting divorces for very slight reasons so long as the Western empire lasted; and even the Eastern empire, after it became Christian, did not move wholly in a new track. Meanwhile, opinion within the Church, and ecclesiastical law, took an opposite course. Owing to the interpretations of Scripture mentioned above, to new views of the sanctity of marriage, and at length to the developed doctrine of the sacrament of marriage, divorce with remarriage was excluded from Christian practice, with the single very rare exception of the case where an infidel or a Jew had deserted a believer; and separation a mensa et thoro remained as the only kind of divorce permissible. The law of all Christian states in the West until the Reformation, and of Roman Catholic states since, has been shaped by canon law, which knows no divorce with remarriage even for the cause of adultery. After the Reformation, when the Protestants had abandoned the doctrine of the sacramental character of marriage, and the Protestant interpreters generally held that malicious desertion, according to the apostle Paul, released the innocent party from the marriage bond altogether, many ecclesiastical ordinances in Protestant Germany permitted divorce with remarriage on this account, as well as in cases of adultery. Thus the Geneva "ordonnances ecclusiastiques" of 1541 declare that "if any one maketh a business of abandoning his wife to stroll through the country, and continueth unamended, it be provided that the wife be no longer bound to such a man, who will keep neither faith with her nor company." And in the ordinance of Braunschweig-Grubenhagen for 1581 it is said that divorce shall be granted only for the two reasons which Christ and Paul in the Gospel declare to be sufficient, of which the second is "malicious desertion, running away, and abandonment, whereof St. Paul speaketh, 1 Corinthians 7." Still another ordinance, that of Lower Saxony of 1585, says that "whatever other grounds besides these two (adultery and desertion) are alleged by certain emperors, as Theodosius, Valentinian, Leo, Justinian, cannot be sufficient for divorce." Some few, it is true, of the earlier Church regulations limit divorce to cases of adultery, but a few others extend its operation beyond the two grounds already mentioned.
The Prussian consistorial ordinance of 1584 permits it in cases of plotting to take the life of a consort. A Zurich ordinance of 1525 goes further still, so much so as to desert the principles of Scripture entirely. Not only does it allow divorce in cases of adultery, desertion, and attempt on life, but considers these as examples, and leaves it to the judge to decide what other grounds he will add to them, among which it mentions as possible cases not only cruelty, but insanity and eruptive disease, as leprosy. For the most part only adultery and desertion were, through the 17th and into the 18th century; held to be valid grounds for divorce. But in more recent times the civil law of some German states goes far beyond these limits. We confine ourselves to the Prussian code, where plotting against the life of a consort, grave transgressions against third persons, cruelty, refusal of connubial duties, insanity, impotence, or other incurable bodily disease commencing after marriage, incompatibility of temper and permanent variance, mutual consent without discord when the marriage is childless, are allowed to put an end to the marriage tie. The laws in Baden, and for non-Romanists in Austria, come near to these. It is impossible not to see in such legislation a disregard of the religious character of marriage, a tendency to look at it on the outside and as a civil contract, to consider it as a means to gain certain earthly ends. It has forgotten the religious side of life, and thus falls under the influence of Roman law, and looks at purely secular results.
An important chapter in the modern history of divorce would treat of French legislation on that subject. A law passed September 20, 1792, at the opening of the National Convention, overthrew the ancient law which followed the Roman Catholic doctrine of marriage, and opened the way for divorce on three grounds. These are, 1, mutual consent; 2, incompatibility of temper on complaint of either consort; 3, certain determinate causes or motives derived from the condition or conduct of either of the married parties, viz. derangement of reason, condemnation to an infamous crime, crimes, cruelties, or grave injuries committed by either party against the other, notorious licentiousness of morals, desertion for at least two years, absence for at least five without sending news, and emigration from France in certain cases, which was naturally a temporary provision. Separation of body, or a mensa et thoro, was thereafter to be abolished. The divorced parties could marry one another de novo, and could marry other persons after certain short intervals. To a good degree, these enactments follow the Roman law, but one peculiarity of this statute was that the family relatives were to act in the first instance as a kind of court of conciliation, when the parties, or one of them, desired divorce without allegation of crime. Divorces were now exceedingly frequent in France, but became much more easy after the acts of 1793 and 1794, permitting a man to marry at once, and a woman ten months after divorce was granted; and, what was far worse, making separation in fact of a married pair for six months cause for pronouncing them divorced without delay, if one of them demanded it. These laws belong to the worst times of the Revolution, and were suspended in August, 1795. The original law of 1792 gave place in 1803 to the new divorce law of the Code Civil, or Code Napoleon, which continued in force until the restoration of the Bourbons. The divorce law of the Code, although, in the main, agreeing with the law of 1792 on the causes of divorce, does away with its family council, restores for the sake of Catholics the separation a mensa et thor — which, however, may afterward be converted into a full divorce on the demand of the innocent married partner — provides for the punishment of the unfaithful wife, and in its minute, tedious processes in the preparatory steps, seems intended to make the obtaining of divorces by mutual consent, and on the ground of incompatibility of temper, very difficult, as well as to leave room for change of mind. Moreover, the limits within which divorce by mutual consent are confined is an observable step in the right direction. The courts, and several distinguished lawyers who were consulted on the articles of the Code, were against granting divorce for incompatibility of temper, i.e., on the ground of mutual consent in any cases, but they could not carry their point. After the restoration of the Bourbons, this title of the Code was abrogated, and France returned to the old system, to which it has adhered, if we are not mistaken, until the present time.
In England, until after the Reformation, divorce on sentence of nullity, and divorce a mensa et thoro on the ground of adultery, were within the cognizance of the ecclesiastical court, and no divorce a vinculo was known to the law. Henry VIII was separated from Catharine by the ecclesiastical court on the plea that a marriage with a brother's wife was void ab initio, and therefore no marriage; Anna Boleyn and Catharine Howard were convicted of adultery, and executed on attainder of treason; and Anne of Cleves was only nominally married. There was a project under Edward VI to allow the innocent party, after sentence of divorce, to marry again, but it was never sanctioned. Still, since many, especially among the more puritanical clergy and laity, held such marriage to be lawful, it was more or less practiced. Men divorced on sentence of a court from adulterous wives sometimes married again (although the marriage was null and void), because there was no civil law to forbid it. In the first year of James I a statute made remarriage in the lifetime of a former husband or wife a felony, yet with the provision that the act should not extend to persons divorced or to be divorced by sentence of an ecclesiastical court. The matter was still at loose ends, but several canons were passed in the same year with the intention of putting a stop to the practice, by one of which it was ordained that a sentence of divorce should not be pronounced until the parties should have given sufficient security to the court that they would not, each during the other's life, contract matrimony with any other person. This canon was violated in a most scandalous way in 1605, soon after its enactment, when lady Rich, after being divorced from her husband on the ground of her adultery, was, married to her paramour, baron Mountjoy, afterwards duke of Devonshire, by his chaplain, Laud, who afterwards professed to repent of it. From the time of James, and, indeed, since the Reformation, only a special act of Parliament could authorize divorce a vinculo until the passage of a new general act in 1857.
By this act a new court is established, having exclusive jurisdiction in cases of marriage, with the power of issuing sentences of separation — equivalent to divorce a mensa et thoro — which may be obtained either by the husband or the wife on the ground of adultery, or cruelty or desertion without cause for two years and upwards; and with the power of dissolving marriage in cases of adultery. But the two parties are not exactly on a level with respect to their crime. On the wife's part, simple adultery can have this effect, or the husband's "incestuous adultery, bigamy with adultery, rape, sodomy, or bestiality, or adultery coupled with such cruelty as, without adultery, would have entitled her to a divorce a mensa et thoro, or adultery coupled with desertion for two years and upwards." In the case of separation, the court can restore the parties, on their consent and petition, to the exercise of conjugal rights. In the case of dissolution, after final decision on appeal to the House of Lords, if such appeal should be made, the parties are allowed to marry again, both the innocent and the guilty party, the latter, so far as appears, to the partner in crime — a provision, in our judgment, much to be condemned. Nor is there any civil penalty for adultery. The innocent husband may, as before this act, get damages from the offenders, but the former action for criminal conversation is to cease. We forbear to go further into the act, only adding that collusion, condonation of adultery, adultery, cruelty, or desertion, on the part of the petitioning party, and unreasonable delay in presenting the petition for dissolution of marriage, free the-court from the obligation to pronounce a decree of dissolution.
In the United States, the divorce laws, in different states, run along from the strictness of English law almost to the looseness of that of Rome and revolutionary France. The tendency is towards increased looseness, as is shown by the revised laws of the older states, and the laws of some of the new states. Of looser legislation, Connecticut and Indiana furnish examples. We confine ourselves to the legislation of the former state. The colonial laws allowed the court to grant divorce for adultery, fraudulent contract, willful desertion for three years, or seven years providential absence without being heard of after due inquiry made and certified, and in all these cases the aggrieved party might marry again. This legislation remained almost unchanged for nearly two hundred years, yet not without strong remonstrances on the part of some of the clergy, who complained more especially of the loose administration of the law by the courts. In 1843 two new causes of divorce were added to the old, namely, "habitual intemperance" and "intolerable cruelty;" and five or six years afterwards the legislation on this subject reached its climax by the further addition to the causes of divorce of "imprisonment for life," "infamous crime," and any such "misconduct as permanently destroys the happiness of the petitioner, and defeats the purposes of the marriage relation." Now first a vague subjective indeterminate cause was added to the determinate causes of former legislation, and the looseness in hearing and determining cases of divorce is so great that the worst legislation of the French Revolution could not be much more opposed to the true interests of society.
The law knows no separation a mensa et thoro, allows immediate remarriage, does not forbid an adulterer or adulteress to be united after divorce to a partner in guilt, nor divorced persons to be remarried to one another. Divorces have, as might be expected, greatly increased with the new legislation, especially since the omnibus clause. as it is called, was annexed to the law. In one year, according to a recent report, they bore to marriages the ratio of one to eleven. Now, as nearly one seventh of the population are Roman Catholics, who rarely apply for divorces, and as in a certain grade of society, embracing perhaps half the people, divorces are almost unknown, it may, we think, be safely said that one quarter or one fifth of the marriages of each year, in the lower stratum of Protestant society, if we may so call it, are dissolved by act of the courts. Without question, the family life and morals of a community once most religious, and even now retaining much of steady habit, must be gradually undermined and poisoned by such a social evil (see H. Loomis, "Divorce Legislation in Connecticut," New Englander, July, 1866).
Our limits preclude us from adding more than a word or two in regard to the right legislation on this subject, and the duty of the Church when cases of divorce come before those to whom its discipline is intrusted.
1. A Christian legislator will strive to realize in law what he conceives to be the true conception of marriage, and the law of Christ in the Gospel. Only on this subject does Christ legislate; here he sets aside the law of Moses, and this he does in regard to an institution of life concerning which the law must speak. If the Christian legislator does not carry out Christ's principles in regard to divorce, it will be not because they are moral rather than jural, but because "the hardness of men's hearts" prevents the introduction of a perfect rule. He will consent with a good conscience to a less perfect law, for the law of divorce permits, and does not require, so that it need bring no Christian man into disobedience to the Gospel.
2. Among the outlines of good legislation in regard to divorce, we suggest the following: the recognition of the two kinds of divorce, mere separation and that a vinculo, with the reservation of the latter for graver crimes of one party against the other; punishment of the offending party by imprisonment, or deprivation of alimony, or both; prohibition of speedy marriage when it is allowed, of all marriage between one of the parties and a partner in guilt, of all remarriage after full divorce on the ground of adultery; a careful, deliberate process, perhaps before a special court, leaving room for reconciliation, preventing collusion as far as possible, and making it no slight matter to dissolve the relation.
3. When the state law is not accordant with the law of Christ as commonly received in the churches, what is their duty? One thing is clear, that a clergyman ought not to be compelled to unite in marriage to a new wife or husband a person whom he considers to be unlawfully divorced. The English law expressly relieves the ministers of the Established Church from this necessity; the Prussian, if we are not misinformed, is harsh and intolerant in this respect; the French law requires a civil marriage, and leaves it to the consciences of parties and of clergymen to go through with the religious ceremonies or not, as they see fit. On the other hand, no clergyman can with a good conscience join in marriage those whom Christ's law, according to his interpretation of it, keeps apart, as, for instance, a woman, separated from her husband for incompatibility of temper, and another man. They are not those whom God has joined together, and the woman man has unlawfully parted from her husband, so that she commits adultery in her new marriage. Again, there are questions of discipline growing out of divorces, as when a member of the Church contracts a marriage not forbidden by state law, but forbidden by Christ. Here the rule is tolerably clear. Christ's law must be maintained, whatever the state requires or allows, and maintained in this case by discipline. Only thus can the Church be a witness on the side of Christian morality. Only thus can it guard the sanctities of family life. There is no more reason for omitting discipline for unlawful divorce permitted by the state than for drunkenness, if no state law exists against this sin. But there are cases of another sort which present serious difficulty, as when a person, having violated Christ's rule of divorce in contracting marriage, becomes a sincere Christian years afterwards, and desires to unite with the Church. Shall such a person be required to separate from his or her consort before being received into communion? The act would not have been committed with the present disposition, and state law tempted to its performance. We think that in such a case as this, at least in extreme cases of this kind, the communion may be opened to a penitent without conditions.
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McClintock, John. Strong, James. Entry for 'Divorce, Christian Law of.'. Cyclopedia of Biblical, Theological and Ecclesiastical Literature. https://www.studylight.org/encyclopedias/eng/tce/d/divorce-christian-law-of.html. Harper & Brothers. New York. 1870.