RELIGIOUS ENCYCLOPEDIA
Divorce
letter of Matthew's text, for this offense would allow the man, but not the woman, the right of repudiation, with violating the great principles of Christian teaching by disregarding the equality of the wedded pair.
These views were adopted by the Eleventh Synod of Carthage in 407 (canon viii.; Hefele, Cmciliengeschichte, ii. 101), which thus anticipated the final settlement of the canon law. 3. The Before that settlement, however, cen- Canon Law. turies of compromise intervened. Theory From Constantino to Justinian the and divorce legislation of the Christian
Practise, emperors was practically untouched by the essential doctrines of the Church; while in dealing with the newly converted Teutonic peoples the rigid Augustinian rules were relaxed in diverse ways. In England and in Gaul, as proved in the most convincing way by the penitentials, full divorce with remarriage was allowed on various grounds. Authority had to yield perforce to social expediency. Not until 1164, in the fourth book of Peter Lombard's " Sentences," is found the first clear recognition of the " seven sacraments," including that of marriage. The theory of the sacramental nature of wedlock had two consequences which involved the whole medieval problem of separation and divorce. First was the dogma of the indissolubility of the marriage bond, and, second, the exclusive jurisdiction of the Church in matrimonal causes. Accordingly, in theory, divorce proper is entirely eliminated from the mature law of the Western Church. Inconsistently, however, in the canons the word " divorce " is used in two senses, neither of which harmonizes with its ancient and right meaning as a complete dissolution of the bond of true wedlock. First the term divortium a mensa et thoro means a separation of husband and wife which does not touch the marriage tie. Secondly, the term divortium a vinculo matrimonii is commonly employed to designate, not the dissolution of a valid union, but the judicial declaration of nullity of a spurious marriage which on account of some impediment is void, or at least voidable, from the beginning. There was another inconsistency far more important in its consequences. In effect absolute divorce was tolerated by the canon law, as that law existed on the eve of the Reformation. Theological subtlety had devised two exceptions to the rule that a genuine marriage can not be dissolved. First is the casus apostoli or privHegium Paulinum, by which the Christian convert, if abandoned by his infidel spouse, is permitted to contract a new marriage. By the second exception, the Church violated the theory, sanctioned since Peter Lombard, that a contract de prcesenti, or in words of the present tense, constitutes a valid marriage whether followed by actual wedded life or not; for the mature doctrine of the canon law, still obeyed by the Roman Church, allows the vmconsummate marriage de prcesenti to be dissolved through papal dispensation or ipso facto by taking holy orders.
Thus, accepting the Church's own definition of marriage, divorce a vinculo did not quite disappear from the canon law; and in effect there was a far
more prolific source of full divorce. In reality when rationally considered, the decree of nullity was a divorce proper. By this means a wide liberty of divorce existed in the Middle Ages although it existed mainly for those who were able to pay the ecclesiastical lawyers and courts for finding a way through the tortuous maze of forbidden degrees and other impediments. Abundant opportunity for this was afforded in a characteristic way by theological refinement. By persistently sustaining the validity, though not the legality, of clandestine precontracts de prcesenti— contracts formed without witnesses, parental consent, official celebrant, or record— the Church invited social anarchy. In a divorce procedure masquerading under the guise of an action to nullify spurious marriages lurked the germs of perjury and fraud. Before the Reformation the voidance of alleged false wedlock on the ground of precontract or forbidden degrees of affinity, spiritual relationship, consanguinity, or some other canonical pretext had become an intolerable scandal in Christendom.
By the leaders of the Reformation the mother Church was accused of fostering vice by professing a doctrine too severe; and at the same 4. Prot- time she was bitterly reproached with estant a scandalous abuse of her jurisdiction Doctrine, through which in effect the forbidden The Rise degrees had become an open door to of Civil divorce for the use of the rich and Divorce, powerful. With the rejection of the sacramental theory of marriage it was inevitable that a more liberal interpretation of the Scriptural precepts should be accepted; while ultimately the rise of civil divorce was assured. A great impulse was then given to the development of social control through the State. The Protestant doctrine of divorce, like the Protestant conception of the form and nature of wedlock, was shaped mainly by the thought of Martin Luther. In his dictum, " marriage is a worldly thing," lay the germs of future civil marriage and of its counterpart, civil divorce. Liberty of divorce is the fruit of the Reformation; and from the start it has been especially favored by the more extreme Beets. While Luther and some other Reformers sanctioned temporary separations, there was a strong tendency at first entirely to reject perpetual divorce a mensa et thoro as being a " modern invention " unknown to the primitive Church; but eventually this was allowed. On the other hand, two causes of full divorce — adultery and mahcious desertion — were admitted by Luther and his immediate followers. Rather than further multiply the number of permissible grounds of absolute dissolution of wedlock, an effort was made by hard logic to broaden the definition of desertion so as to give to it a wide range without seeming to transgress the letter of the Scriptural authority. In this way, for instance, saevitia, or cruelty, was included; as also was "refusal of conjugal duty," thus eventually giving rise to the doctrine of " quasidesertion." More extreme theologians, like Lambert of Avignon and Martin Butzer, Milton's teacher, went almost as far as the modern
Divorce