Divorce: Early Church Teaching

The critical difference between Catholicism and Orthodoxy on marriage is that the latter does not consider Christian matrimony indissoluble. Everything in the administration of the sacrament suggests a permanent union, and all the writing on the subject encourages the people to remain steadfast until death. But 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 . . . The Muscovite legislation on divorce was passed by the national synod summoned just before the fall of the Russian Empire in 1917. Actual promulgation took place the following year. The more extensive Byzantine laws grew out of a millennium of practice but they also date, in their present form, from the 20th century . . .

Provisions are made for marriage ceremonies following a divorce. They are much different from the Crowning at a first nuptial, and reflect a clearly penitential note to emphasize that those who enter on a second union have failed to preserve the purity of their intention . . .

It is of more than historical interest to note that the Trullan Synod [692] was rejected by the Syrian Pope St. Sergius I (687-701); that the synod was held in the throne room (trullus) of the Emperor Justinian II; that the meeting is popularly called the Quinisext, or Fifth-Sixth Council to suggest that it completed the task of the previous two ecumenical assemblies; and that the disciplinary decrees of Trulla served to accentuate the growing division between Western and Eastern marital morality . . .

It was at Trulla that . . . the council also permitted husbands whose wives had been faithless to receive Communion in the Church [Mansi, vol. XI, c. 980]. Without expressly saying that divorce with remarriage was sanctioned, it is presumed that in actual practice no objection was raised.

Until recently, the Orthodox attitude toward contraception was strongly prohibitive. It was assumed that the practice was wrong and writers made only passing reference to the Eastern tradition which universally reprobated the practice. Already at Nicaea (325), men who had castrated themselves were not to be ordained or, if ordained, were to cease functioning as priests [Mansi, vol. II, c. 668]. Chrysostom [Homily on Romans, Patrologia Graeca 60, 626-7], Epiphanius [Panarion, 26], and Cyril of Alexandria [Adoration in Spirit and Truth, 15: PG 68, 690] among the Fathers were cited as witnesses of the Church's teaching.

Since the first World War, however, more and more writers defend contraception, with marked differences between the Russian and Greek segments. The Russians tend to be more liberal; the Greeks more strict. Thus the Church of Greece has come out against artificial birth control, and the Greek Archdiocese of North and South America has made a similar pronouncement. But even where the prevalent attitude is restrictive, the tendency is to condone contraception.

The Church is opposed to divorce in principle and sees it as a failure and an evil. However, . . . Jesus did not prohibit all divorces . . . In the year 541 a law was passed by the state (Novel 117) and was later made a ruling of both the Church and the state which recognized several reasons for divorce, all of which presupposed the breakdown of the unity of the couple, corresponding to physical death and adultery. These reasons have since become expanded somewhat, but it is always a sad and sorrowful thing for the Church to acknowledge the end of a marriage.

Certainly Orthodoxy regards the marriage bond as in principle lifelong and indissoluble, and it sees the breakdown of marriage as a tragedy due to human weakness and sin. But while condemning the sin, the Church still desires to help suffering humans and to allow them a second chance. When, therefore, a marriage has entirely ceased to be a reality, the Orthodox Church does not insist on the preservation of a legal fiction. Divorce is seen as an exceptional but unavoidable concession to our human brokenness, living as we do in a fallen world . . . the Orthodox Church knows that a second alliance cannot have exactly the same character as the first; and so in the service for a second marriage several of the joyful ceremonies are omitted, and replaced by penitential prayers. In practice, however, this second marriage service is scarcely ever used.

It was in its nature indissoluble except in case of adultery.

Comment: Schaff may not be taking into account the Pauline privilege, the "separation of bed and board," and the distinction between annulment and divorce; however he regards divorce, he does confirm, however, that only one justification existed, not ten, or twenty-one, as in more modern Orthodox canon law.

Canonical legislation governing Christian marriage gradually became systematized to interpret and apply the divine law on the assumption that the sacramental contract validly made and consummated is dissoluble only by the death of one of the parties . . . . .

[the author cites the presence from the beginning of the "Pauline privilege" in terms basically synonymous with the Catholic notion of annulment - viz., that in such cases the marriage never existed]

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.

In the Latin West, on the other hand, the traditions of the indissolubility of Christian marriage were steadfastly maintained even before matrimonial causes were brought exclusively under spiritual jurisdiction. Papal decisions like those of Gregory II (726) communicated to St. Boniface, or of Alexander III to the bishop of Amiens, could be interpreted as declarations of nullity rather than permissions granted by the popes to the Frankish kings to dissolve a valid marriage.

Do not cite the civil law made by outsiders, which command that a bill be issued and a divorce granted. For it is not according to these laws that the Lord will judge thee on the Last Day, but according to those which He Himself has given.

The Fathers of the first centuries almost all expound the view that in the case of adultery the dismissal of the guilty party is permitted, but that a subsequent re-marriage is forbidden [he cites Justin Martyr, Clement of Alexandria, Origen] . . . St. Basil (Ep. 188 can. 9), St. Epiphanius (Haer. 59, 4) and Ambrosiaster (on 1 Cor 7,11) in view of Mt 5,32 and 19,9, and influenced by the state of legislation, allowed the man the right to the dissolution of the marriage and to marry again in the case of adultery of the woman. A defender of the absolute indissolubility of marriage, even in the case of adultery, is St. Augustine.

What we have seen so far is more than adequate to establish that the Catholic Church alone maintains the Tradition of the early undivided Church in the first five centuries with regard to marriage and divorce. Eastern Christendom, laboring (as is so often the case) under the false notion of caesaropapism, beginning in the 6th century, introduced innovations and corruptions of the biblical and patristic understanding of the indissolubility of the marriage bond. The Orthodox legatees of the Eastern Christian Tradition have unfortunately continued this unbiblical and untraditional practice, and expanded it - now allowing many more reasons than adultery for the dissolution of a validly-consummated marriage. The same thing holds for contraception, as briefly mentioned by Fr. Hardon above. These are two reasons why I am Catholic rather than Orthodox, because I want the entire and uncompromised teaching of the Bible and the Apostles.

Shepherd of Hermas

(The Shepherd 4:1:6 [A.D. 80]).

Ignatius of Antioch

{To Polycarp, 5 (A.D. 110), in ANF, I:100}

Justin Martyr

(First Apology 15 [A.D. 151]).

Clement of Alexandria

{Stromata, 2:24 (A.D. 202), in ANF, II:379}

Tertullian

{To My Wife, 2,8:4 (A.D. 206), in ANF, IV:48}

Origen

{Commentary on Matthew, 14:16 (post A.D. 244), in ANF,X:506}

"Just as a woman is an adulteress, even though she seem to be married to a man, while a former husband yet lives, so also the man who seems to marry her who has been divorced does not marry her, but, according to the declaration of our Savior, he commits adultery with her"

(Commentaries on Matthew 14:24 [A.D. 248]).

Council of Elvira

(canon 8 [A.D. 300]).

"Likewise, a woman of the faith [i.e., a baptized person] who has left an adulterous husband of the faith and marries another, her marrying in this manner is prohibited. If she has so married, she may not at any more receive communion--unless he that she has left has since departed from this world"

(ibid., canon 9).

"If she whom a catechumen [an upbaptized person studying the faith] has left shall have married a husband, she is able to be admitted to the fountain of baptism. This shall also be observed in the instance where it is the woman who is the catechumen. But if a woman of the faithful is taken in marriage by a man who left an innocent wife, and if she knew that he had a wife whom he had left without cause, it is determined that communion is not to be given to her even at death"

(ibid., canon 10)

Epiphanius

{Panarion (Against All Heresies), 51:30 (A.D. 370), in JUR, II:72-73}

John Chrysostom

{On Matthew, 62:1 (A.D. 370), in NPNF1,X:382}

Basil the Great

(Second Canonical Letter to Amphilochius 199:37 [A.D. 375]).

Ambrosiaster

{In Ephesians 5:31 (ante A.D. 384), in JUR, II:178-179}

Ambrose

{To Vigilius, Letter 19:7 (A.D. 385), in FC, XXVI:176}

"No one is permitted to know a woman other than his wife. The marital right is given you for this reason: lest you fall into the snare and sin with a strange woman. 'If you are bound to a wife do not seek a divorce'; for you are not permitted, while your wife lives, to marry another."

(Abraham 1:7:59 [A.D. 387]).

"We do not say that marriage was not sanctified by Christ,since the Word of God says: 'The two shall become one flesh' and one spirit.But we are born before we are brought to our final goal,and the mystery of God's operation is more excellent than the remedy for human weakness. Quite rightly is a good wife praised,but a pious virgin is more rightly preferred."

{To Sircius, Letter 42:3 (A.D. 389), in FC, XXVI:225226}

"You dismiss your wife, therefore, as if by right and without being charged with wrongdoing; and you suppose it is proper for you to do so because no human law forbids it; but divine law forbids it. Anyone who obeys men ought to stand in awe of God. Hear the law of the Lord, which even they who propose our laws must obey: 'What God has joined together let no man put asunder"'

(Commentary on Luke 8:5 [A.D. 389]).

Pacian

{Sermon on Baptism, 6 (ante A.D. 392), in JUR, II:144}

Jerome

(Letters 55:3 [A.D. 396]).

"Wherever there is fornication and a suspicion of fornication a wife is freely dismissed. Because it is always possible that someone may calumniate the innocent and, for the sake of a second joining in marriage, act in criminal fashion against the first, it is commanded that when the first wife is dismissed a second may not be taken while the first lives"

(Commentaries on Matthew 3:19:9 [A.D. 398]).

Pope Innocent I

(Letters 2:13:15 [A.D. 408]).

Augustine

(Adulterous Marriages 1:9:9 [A.D. 419]).

"A woman begins to be the wife of no later husband unless she has ceased to be the wife of a former one. She will cease to be the wife of a former one, however, if that husband should die, not if he commit fornication. A spouse, therefore, is lawfully dismissed for cause of fornication; but the bond of chastity remains. That is why a man is guilty of adultery if he marries a woman who has been dismissed even for this very reason of fornication"

(ibid., 2:4:4).

"It is certainly not fecundity only, the fruit of which consists of offspring, nor chastity only, whose bond is fidelity, but also a certain sacramental bond in marriage which is recommended to believers in wedlock. Accordingly it is en-joined by the apostle: 'Husbands, love your wives, even as Christ also loved the Church.' Of this bond the substance undoubtedly is this, that the man and the woman who are joined together in matrimony should remain inseparable as long as they live..."

{On Marriage and Concupiscence, 1,10 [11] (A.D. 420), in NPNF1,V:268}

"In marriage, however, let the blessings of marriage be loved: offspring, fidelity, and the sacramental bond. Offspring, not so much because it may be born, but because it can be reborn; for it is born to punishment unless it be reborn to life. Fidelity, but not such as even the unbelievers have among themselves, ardent as they are for the flesh. . . . The sacramental bond, which they lose neither through separation nor through adultery, this the -spouses should guard chastely and harmoniously"

(ibid., 1:17:19).

Cyril of Alexandria

{Commentary on John, 2:1 (A.D. 429), in JUR, III:222}

Pope Leo the Great

{To Rusticus, Epistle 167:4 (A.D. 459), in NPNF2, XII:110}