This subject will be treated here under two distinct heads: I. In Moral Theology; II. In Civil Jurisprudence
Divorce.—This subject will be treated here under two distinct heads: I. IN MORAL THEOLOGY; II. IN CIVIL JURISPRUDENCE.
I. IN MORAL THEOLOGY.—The term divorce (divortium, from divertere, divortere, “to separate”) was employed in pagan Rome for the mutual separation of married people. Etymologically the word does not indicate whether this mutual separation included the dissolution of the marriage bond, and in fact the word is used by the Church and in ecclesiastical law in this neutral signification. Hence we distinguish between divortium plenum or perfectum (absolute divorce), which implies the dissolution of the marriage bond, and divortium imperfectum (limited divorce), which leaves the marriage bond intact and implies only the cessation of common life (separation from bed and board, or in addition separation of dwelling place). In civil law divorce means the dissolution of the marriage bond; divortium imperfectum is called separation (separation de corps).
The Catholic doctrine on divorce may be summed up in the following propositions: A. In Christian marriage, which implies the restoration, by Christ Himself, of marriage to its original indissolubility, there can never be an absolute divorce, at least after the marriage has been consummated; B. Non-Christian marriage can be dissolved by absolute divorce under certain circumstances in favor of the Faith; C. Christian marriage before consummation can be dissolved by solemn profession in a religious order, or by an act of papal authority; D. Separation from bed and board (divortium imperfectum) is allowed for various causes, especially in the case of adultery or lapse into infidelity or heresy on the part of husband or wife. These propositions we shall explain in detail.
A. In Christian marriage, which implies the restoration, by Christ Himself, of marriage to its original indissolubility, there can never be an absolute divorce, at least after the marriage has been consummated.
1. The Original Indissolubility of Marriage and Its Restoration by Christ.—The inadmissibility of absolute divorce was ordained by Christ Himself according to the testimony of the Apostles and Evangelists: “Whosoever shall put away his wife and marry another, committeth adultery against her. And if the wife shall put away her husband, and be married to another, she committeth adultery” (Mark, x, 11, 12.—Cf. Matt., xix, 9; Luke, xvi, 18). In like manner, St. Paul: “To them that are married, not I but the Lord commandeth, that the wife depart not from her husband. And if she depart, that she remain unmarried, or be reconciled to her husband. And let not the husband put away his wife” (I Cor., vii, 10, 11). In these words Christ restored the original indissolubility of marriage as it had been ordained by God in the Creation and was grounded in human nature. This is expressly stated by Him against the Pharisees, who put forward the separation allowed by Moses: “Moses by reason of the hardness of your heart permitted you to put away your wives: but from the beginning it was not so” (Matt., xix, 8); “He who made man from the beginning, made them male and female. And he said: For this cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh. Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder” (Matt., xix, 4-6). The indissolubility of all marriage, not merely of Christian marriage, is here affirmed. The permanence of marriage for the whole human race according to natural law is here confirmed and ratified by a Divine positive ordinance.
No Catholic can doubt that even according to the natural law marriage is in a certain sense indissoluble. The following proposition is condemned in the Syllabus of Pius IX (Proposition LXVII); “According to the natural law, the bond of marriage is not indissoluble, and in certain cases divorce in the strict sense can be sanctioned by civil authority.” The meaning of this condemnation is clear from the document whence it has been taken. This is the papal Brief (“Ad apostolicae sedis fastigium”, August 22, 1851, in which several works of the Turin professor, J. N. Nuytz, and a series of propositions defended by him were condemned, as is expressly said, “de Apostolicae potestatis plenitudine”. A certain indissolubility of marriage whenever contracted must therefore be admitted, even according to the natural law, at least in the sense that marriage, unlike other contracts, may not be dissolved at the pleasure of the contracting parties. Such dissolubility would be in direct contradiction with the essential purpose of marriage, the proper propagation of the human race, and the education of the children. That in exceptional cases, in which continued cohabitation would nullify the essential purpose of marriage, the dissolution may nevertheless not be permitted, can hardly be proved as postulated by the natural law from the primary purpose of marriage. However, even such dissolubility would not be in accord with the secondary purposes of marriage, and it is therefore regarded by St. Thomas (IV Sent., dist. xxxiii, Q. ii, a. 1) and most Catholic scholars as against the secondary demands of the natural law. In this sense marriage, considered merely according to the natural law, is intrinsically indissoluble. That it is also extrinsically indissoluble, i.e. that it cannot be dissolved by any authority higher than the contracting parties, cannot be asserted without exception. Civil authority, indeed, even according to the natural law, has no such right of dissolving marriage. The evil consequences which would follow so easily, on account of the might of passion, in case the civil power could dissolve marriage, seem to exclude such a power; it is certainly excluded by the original Divine positive law: “What therefore God hath joined together, let no man put asunder” (Matt., xix, 6). However, that part of the proposition condemned by Pius IX, in which it is asserted, “And in certain cases divorce in the strict sense can be sanctioned by civil authority”, need not necessarily be understood of marriage according to the purely natural law, because Nuytz, whose doctrine was condemned, asserted that the State had this authority in regard to Christian marriages, and because the corresponding section of the Syllabus treats of the errors about Christian marriage. [Cf. Schrader, Per Papst and die modernen Ideen, II (Vienna, 1865), p. 77.]
2. Divorce among the Israelites.—In spite of the Divine law of the indissolubility of marriage, in the course of time divorce, in the sense of complete dissolution of marriage, became prevalent to a greater or less extent among all nations. Moses found this custom even among the people of Israel. As lawgiver, he ordained in the name of God (Deut., xxiv, 1): “If a man take a wife, and have her, and she find not favor in his eyes, for some uncleanness: he shall write a bill of divorce, and shall give it in her hand, and send her out of his house.” The rest of the passage shows that this divorce was understood as justifying the wife in her marriage with another husband, hence as a complete annulment of the first marriage. Some regard it only as a freedom from penalty, so that in reality the remarriage of the divorced wife was not allowed, and was adultery, because the bond of the first marriage had not been dissolved. This opinion was held by the Master of the Sentences, Peter Lombard (IV Sent., dist. xxxiii, 3), St. Bonaventure (IV Sent., dist. xxxiii, art. 3, Q. i), and others. Others again, however, believe that there was a real permission, a dispensation granted by God, as otherwise the practice sanctioned in the law would be blamed as sinful in some part of the Old Testament. Moreover, Christ (loc. cit.) seems to have rendered illicit what was illicit in the beginning, but what had really been allowed later, even though it was allowed “by reason of the hardness of your heart” (St. Thomas, III, Supplem., Q. lxvii, a. 3; your “Controvers. de matrim.”, I, xvii; Sanchez, “De matrim.”, X, disp. i, n. 7; Palmieri, “De matrimonio christ.”, Rome, 1880, 133 sqq.; Wernz, “Jus decretalium”, IV, n. 696, not. 12; etc.). This second opinion maintains and must maintain that the expression “for some uncleanness” (in Hebrew `RVT DBR) does not mean any slight cause, but a grievous stain, something shameful directed against the purpose of marriage or marital fidelity. A separation at will, and for slight reasons, at the pleasure of the husband, is against the primary principles of the natural moral law, and is not subject to Divine dispensation in such a way that it could be made licit in every case. It is different with separation in serious cases governed by special laws. This, indeed, does not correspond perfectly with the secondary purposes of marriage, but on that account it is subject to Divine dispensation, since the inconvenience to be feared from such a separation can be corrected or avoided by Divine Providence. In the time of Christ there was an acute controversy between the recent, lax school of Hillel and the strict, conservative school of Schammai about the meaning of the phrase `RVT DBR. Hence the question with which the Pharisees tempted Our Lord: “Is it lawful…for every cause?” The putting-away of the wife for frivolous reasons had been sharply condemned by God through the Prophets Micheas (ii, 9) and Malachias (ii, 14), but in later days it became very prevalent. Christ abolished entirely the permission which Moses had granted, even though this permission was strictly limited; He allowed a cause similar to the `RVT DBR as reason for putting away the wife, but not for the dissolution of the marriage bond.
3. The Dogmatic Basis and Practical Application of the Complete Indissolubility of Consummated Marriage within the Catholic Church.—(a) Its Foundation in Scripture.—The complete exclusion of absolute divorce (divortium perfectum) in Christian marriage is expressed in the words quoted above (Mark, x; Luke, xvi; I Cor., vii). The words in St. Matthew’s Gospel (xix, 9), “except it be for fornication”, have, however, given rise to the question whether the putting-away of the wife and the dissolution of the marriage bond were not allowed on account of adultery. The Catholic Church and Catholic theology have always maintained that by such an explanation St. Matthew would be made to contradict Sts. Mark, Luke, and Paul, and the converts instructed by these latter would have been brought into error in regard to the real doctrine of Christ. As this is inconsistent both with the infallibility of the Apostolic teaching and the inerrancy of Sacred Scripture, the clause in Matthew must be explained as the mere dismissal of the unfaithful wife without the dissolution of the marriage bond. Such a dismissal is not excluded by the parallel texts in Mark and Luke, while Paul (I Cor., vii, 11) clearly indicates the possibility of such a dismissal: “And if she depart, that she remain unmarried, or be reconciled to her husband”. Grammatically, the clause in St. Matthew may modify one member of the sentence (that which refers to the putting-away of the wife) without applying to the following member (the remarriage of the other), though we must admit that the construction is a little harsh. If it means, “Whoever shall put away his wife, except it be for fornication, and shall marry another, commiteth adultery”, then, in case of marital infidelity, the wife may be put away; but that, in this case, adultery is not committed by a new marriage cannot be concluded from these words. The following words, “And he that shall marry her that is put away”—therefore also the woman who is dismissed for adultery—”committeth adultery”, say the contrary, since they suppose the permanence of the first marriage. Moreover, the brevity of expression in Matthew, xix, 9, which seems to us harsh, is explicable, because the Evangelist had previously given a distinct explanation of the same subject, and exactly laid down what was justified by the reason of fornication: “Whosoever shall put away his wife, excepting for the cause of fornication, maketh her to commit adultery: and he that shall marry her that is put away, committeth adultery” (Matt., v, 32). Here all excuse for remarriage or for the dissolution of the first marriage is excluded. Even the mere dismissal of the wife, if this is done unjustly, exposes her to the danger of adultery and is thus attributed to the husband who has dismissed her—”he maketh her to commit adultery”. It is only in the case of marital infidelity that complete dismissal is justified—”excepting for the cause of fornication”. In this case not he, but the wife who has been lawfully dismissed, is the occasion, and she will therefore be responsible should she commit further sin. It must also be remarked that even for Matthew, xix, 9, there is a variant reading supported by important codices, which has “maketh her to commit adultery” instead of the expression “coinmitteth adultery”. This reading answers the difficulty more clearly. (Cf. Knabenbauer, “Comment. in Matt.”, II, 144.)
Catholic exegesis is unanimous in excluding the permissibility of absolute divorce from Matthew, xix, but the exact explanation of the expressions, “except it be for fornication” and “excepting for the cause of fornication”, has given rise to various opinions. Does it mean the violation of marital fidelity, or a crime committed before marriage, or a diriment impediment? (See Palmieri, “De matrim. christ.”, 178 sqq.; Sasse, “De sacramentis”, II, 418 sqq.) Some have tried to answer the difficulty by casting doubt on the authenticity of the entire phrase of Matthew, xix, but the words are in general fully vouched for by the most reliable codices. Also, the greater number, and the best, have “committeth adultery”. (See Knabenbauer, loc. cit., and Schanz, “Kommentar fiber das Evang. d. hl. Matth.”, 191, 409.) That absolute divorce is never allowable is therefore clear from Scripture, but the argument is cogent only for a consummated marriage. For Christ founds His law on the words: “They two shall be in one flesh”, which are verified only in consummated marriage. How far divorce is excluded, or can be allowed, before the consummation of the marriage must be derived from other sources.
(b) Tradition and the Historical Development in Doctrine and Practice.—The doctrine of Scripture about the illicitness of divorce is fully confirmed by the constant tradition of the Church. The testimonies of the Fathers and of the councils leave us no room for doubt. In numerous places they lay down the teaching that not even in the case of adultery can the marriage bond be dissolved or the innocent party proceed to a new marriage. They insist rather that the innocent party must remain unmarried after the dismissal of the guilty one, and can only enter upon a new marriage in case death intervenes.
We read in Hermas (about the year 150), “Pastor”, mand. IV, i, 6: “Let him put her [the adulterous wife] away and let the husband abide alone; but if after putting away his wife he shall marry another, he likewise committeth adultery” (ed. Funk, 1901). The expression in verse 8, “For the sake of her repentance, therefore, the husband ought not to marry”, does not weaken the absolute command, but it gives the supposed reason of this great command. St. Justin Martyr (d. 176) says (Apolog., I, xv, in P.G., VI, 349), plainly and without exception: “He that marrieth her that has been put away by another man committeth adultery.” In like manner Athenagoras (about 177) in his “Legatio pro christ.”, xxxiii (P.G., VI, 965): “For whosoever shall put away his wife and shall marry another, committeth adultery”; Tertullian (d. 247), “De monogamic”, c. ix (P.L., II, 991): “They enter into adulterous unions even when they do not put away their wives; we are not allowed even to marry, although we put our wives away”; Clement of Alexandria (d. 217), “Strom.”, II, 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 Greek Fathers, e.g. St. Basil of Caesarea, “Epist. can.”, ii, “Ad Amphilochium”, can. xlviii (P.G., XXXII, 732); St. John Chrysostom, “De libello repud.” (P.G., LI, 218); 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 marriage, but of the lesser canonical penance and of exemption 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 cf. can. vii of the Council of Compiegne, 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 contradicting himself, St. Basil could say of the husband “He is not condemned”, and “He is considered excusable” (Ep. clxxxviii, can. ix, and Ep. cxcix, can. xx i, in P.G., XXXII, 678, 721), because he is speaking listinctly of the milder treatment of the husband than of the wife 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 another crime was allowed by Divine law to marry another (nacres., lix, 4, in P.G., XLI, 1024), is speaking 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 honorable, still he makes the exception in regard to this last part in favor of one who had long been separated from his first wife. The other Fathers of the following centuries, in whose works ambiguous or obscure expressions 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 Church. On account of defective morality, there are to be found regulations of particular synods which permitted unjustifiable 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 permanence of the marriage bond, even in the case of adultery. 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, unless illness should make this an imperative necessity” (Labbe, “Concilia”, II, 7). The Synod of Arles (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” (ut, in quantum 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 xvii (Labbe, IV, 331); the Council of Hereford (673), canon x (Labbe, VII, 554); the Council of Friuli (Forum Julii), in northern Italy (791), canon x (Labbe, IX, 46); all of these teach distinctly that the marriage bond remains even in case of dismissal for adultery, and that new marriage is therefore forbidden.
The following decisions of the popes on this subject deserve special mention: Innocent I, “Epist. ad Exsuper.”, c. vi, n. 12 (P.L., XX, 500): “Your diligence has asked concerning those, also, who, by 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 Viet. 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 he granted no leave to do penance unless one of the men shall have died.” The impossibility of absolute 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 prisoner of war, or the choice of religious life by one of the spouses. In these cases, also, the popes pronounced decidedly for the indissolubility of marriage, e.g. Innocent 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, 833, and “Epist. ad Hadrian. notar.”, in P.L., LXXVII, 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 dissolved, 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 indicated by Pope Zacharias in his letter of January 5, 747, to Pepin and the Frankish bishops, for in chapter vii he ordains “by Apostolic authority”, in answer to the questions that had been proposed to him: “If any layman 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., III: Epist. Merovingici et Karolini aevi, 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 Frankish 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 ix 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 contrast to the blameworthy woman, a second marriage is allowed to the husband: “If he has no hope of returning 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 people engraven in their hearts that it was believed allowance should be made for it to some degree. Canon v seems also to grant the unauthorized permission for a second marriage. It treats of the case in which the wife, with the help of other men, seeks to murder her husband, and he escapes from the plot by killing her accomplices in self-defense. Such a husband is allowed to take another wife: “That husband can put away that wife, and, if he will, let him take another. But let that woman who made the plot undergo a penance and remain without hope of marriage.” Some explain this canon to mean that the husband might marry again after the death of his first wife, but that the criminal wife was forbidden forever to marry. This last is in agreement with the penitential discipline of the age, because the crime in question was punished by life-long canonical penance, and hence by permanent exclusion from married life.
In its thirteenth canon (according to Labbe, VIII, 452; others call it the sixteenth), the Council of Compiegne gives a somewhat ambiguous decision and may seem to allow absolute divorce. It says that a man who has dismissed his wife in order that she might choose the religious life, or take the veil, can marry a second wife when the first has carried out her resolution. Nevertheless, the intended choice of the state of Christian perfection seems to imply that this canon must be limited to a marriage that has not been consummated. Hence it gives the correct Catholic doctrine, of which we shall speak below. This must also be the meaning of canon xvi (Labbe, VIII, 453; others, canon xix), which allows the dissolution of a marriage between a leper and a healthy woman, so that the woman is authorized to enter upon a new marriage, unless we suppose that here there is question of the diriment impediment of impotence. If these canons were really intended in any other sense, then they are contrary to the general doctrine of the Church. Other canons, in which separation and second marriage are allowed, refer undoubtedly to the diriment impediments of affinity and spiritual relationship, or to a marriage contracted in error by persons one of whom is free and the other not free. Hence they have no reference to actual divorce, and cannot be interpreted as a lax concession to popular morals or to passion. It is true that several of the Penitential Books composed about this time in the Frankish regions contain the cases mentioned by these two synods and add others in which the real dissolution of the marriage bond and a new marriage with another wife might be allowed. The following cases are mentioned in several of these Penitential Books: adultery, slavery as punishment for crime, imprisonment in war, willful desertion without hope of reunion, etc. (Schmitz, “Bussbucher”, II, 129 sqq.). These Penitential Books had indeed no official character, but they influenced for a time the ecclesiastical practice in these countries. However, their influence did not last long. In the first decades of the ninth century, the Church began to proceed energetically against them (cf. the Synod of Chalons, in the year 813, canon xxxviii; Labbe, IX, 367). They were not completely suppressed at once, especially as a general decay of Christian morality took place in the tenth and early part of the eleventh century. Towards the end of the eleventh century, however, every concession to the laxer practice as regards divorce had been corrected. The complete indissolubility of Christian marriage had become so firmly fixed in the juridical conscience that the authentic collections of church laws, the Decretals of the twelfth century, do not even see the necessity of expressly declaring it, but simply suppose it, in other juridical decisions, as a matter of course and beyond discussion. This is Shown in the entire series of cases in IV Decretal., xix. In all cases, whether the cause be criminal plotting, adultery, loss of faith, or anything else, the bond of marriage is regarded as absolutely indissoluble and entrance upon a second marriage as impossible.
Dogmatic Decision on the Indissolubility of Marriage.—The Council of Trent was the first to make a dogmatic decision on this question. This took place in Session XXIV, canon v: “If anyone shall say that the bond of matrimony can be dissolved for the cause of heresy, or of injury due to cohabitation, or of willful desertion; let him be anathema”, and in canon vii: “If anyone shall say that the Church has erred in having taught, and in teaching that, according to the teaching of the Gospel and the Apostles, the bond of matrimony cannot be dissolved, and that neither party—not even the innocent, who has given no cause by adultery—can contract another marriage while the other lives, and that he, or she, commits adultery who puts away an adulterous wife, or husband, and marries another; let him be anathema.” The decree defines directly the infallibility of the church doctrine in regard to the indissolubility of marriage, even in the case of adultery, but indirectly the decree defines the indissolubility of marriage. Doubts have been expressed here and there about the dogmatic character of this definition (cf. Sasse, “De Sacramentis”, II, 426). But Leo XIII, in his Encyclical “Arcanum”, February 10, 1880, calls the doctrine on divorce condemned by the Council of Trent “the baneful heresy” (hoeresim deterrimam). The acceptance of this indissolubility of marriage as an article of faith defined by the Council of Trent is demanded in the creed by which Orientals must make their profession of faith when reunited to the Roman Church. The formula prescribed by Urban VIII contains the following section: “Also, that the bond of the Sacrament of Matrimony is indissoluble; and that, although a separation tori et cohabitationis can be made between the parties, for adultery, heresy, or other causes, yet it is not lawful for them to contract another marriage.” Exactly the same declaration in regard to marriage was made in the short profession of faith approved by the Holy Office in the year 1890 (Collectanea S. Congr. de Prop. Fide, Rome, 1893, pp. 639, 640). The milder indirect form in which the Council of Trent pronounced its anathema was chosen expressly out of regard for the Greeks of that period, who would have been very much offended, according to the testimony of the Venetian ambassadors, if the anathema had been directed against them, whereas they would find it easier to accept the decree that the Roman Church was not guilty of error in her stricter interpretation of the law (Pallavicini, “Hist. Conc. Trid.”, XXII, iv).
Development of the Doctrine on Divorce outside of the Catholic Church.—In the Greek Church, and the other Oriental Churches in general, the practice, and finally even the doctrine, of the indissolubility of the marriage bond became more and more lax. Zhishman (Das Eherecht der orientalischen Kirchen, 729 sqq.) testifies that the Greek and Oriental Churches separated from Rome permit in their official ecclesiastical documents the dissolution of marriage, not merely on account of adultery, but also “of those occasions and actions the effect of which on married life might be regarded as similar to natural death or to adultery, or which justify the dissolution of the marriage bond in consequence of a well-founded supposition of death or adultery”. Such reasons are, first, high treason; second, criminal attacks on life; third, frivolous conduct giving rise to suspicion of adultery; fourth, intentional abortion; fifth, acting as sponsor for one’s own child in baptism; sixth, prolonged disappearance; seventh, incurable lunacy rendering cohabitation impossible; eighth, entrance of one party into a religious order with the permission of the other party.
Among the sects that arose at the time of the Reformation in the sixteenth century, there can hardly be question of any development of church law about divorce. Jurisdiction in matrimonial affairs was relegated, on principle, to the civil law, and only the blessing of marriage was assigned to the Church. It is true that the interpretation of the so-called ecclesiastical officials, their approbation or disapprobation of the civil marriage laws, might find expression in certain cases should they refuse to bless an intended marriage of people who had been divorced when the reason for the divorce seemed to them to be too much opposed to Scripture. It is not surprising that in this respect the tendency should have been downwards, when we remember that in the various sects of Protestantism the growth of liberalism has advanced even to the denial of Christ [Dr. F. Albert, Verbrechen and Strafen als Ehescheidungsgrund nach evangel. Kirchenrecht (in Stutz, Kirchenr. Abhandlungen, Stuttgart,1903), I, IV].
4. Declaration of Nullity.—The declaration of nullity must be carefully distinguished from divorce proper. It can be called divorce only in a very improper sense, because it presupposes that there is and has been no marriage. However, as there is question of an alleged marriage and of a union which is considered by the public as a true marriage, we can understand why a previous ecclesiastical judgment should be required, declaring the presence of a diriment impediment and the consequent invalidity of a supposed marriage, before the persons in question might be free to separate or to enter upon a new marriage. It is only when the invalidity of a marriage becomes publicly known, and further cohabitation gives scandal, or when other important reasons render a prompt separation of domicile necessary or advisable, that such a separation should take place at once, to be made definitive by a later judicial sentence. When the invalidity of a marriage is publicly known, official procedure is necessary, and the ecclesiastical process of nullification must be introduced. In the case of impediments which refer exclusively to the rights of the husband and wife, and which can be removed by their consent, only the one of the supposed spouses whose right is in question is permitted to impugn the marriage by complaint before the ecclesiastical court, provided it is desired to maintain this right. Such cases are the impediments of fear or violence, of essential error, of impotence on the part of the other not fully established, and failure to comply with some fixed condition. In cases of the other possible impediments, every Catholic, even a stranger, may enter a complaint of nullity if he can bring proofs of such nullity. The only plaintiffs excluded are those who, on account of private advantage, were unwilling to declare the invalidity of the marriage before its dissolution by death, or who knew the impediment when the banns of marriage were proclaimed and culpably kept silence. Of course it is allowed to the married parties to disprove the reasons alleged by strangers against their marriage (Wernz, “Jus decretalium”, IV, n. 743).
That separation and remarriage of the separated parties may not take place merely on account of private convictions of the invalidity of a supposed marriage, but only in consequence of an ecclesiastical judgment was taught by Alexander III and Innocent III in IV Decretal., xix, 3, and II Decretal., xiii, 13. In the earlier centuries the summary decision of the bishops sufficed; at present the Constitution of Benedict XIV, “Dei miseratione”, November 3, 1741, must be followed. This prescribes that in matrimonial cases a “defender of the matrimonial tie” (defensor matrimonii) must be appointed. If the decision is for the validity of the marriage, there need be no appeal in the second instance. The parties can be satisfied with the first decision and continue in married life. If the decision is for the invalidity of the marriage, an appeal must be entered, and sometimes even a second appeal to the court of third instance, so that it is only after two concordant decisions on the invalidity of the marriage in question that it can be regarded as invalid, and the parties are allowed to proceed to another marriage. (Cf. III Conc. plen. Baltim., App. 262 sqq.; Conc. Americ. latin., II, n. 16; Laurentius, “Instit. iuris eccl.”, 2nd ed., n. 696 sqq.; Wernz, “Jus decretal.”, IV, n. 744 sqq.) Sometimes, however, in missionary countries, Apostolic prefects are permitted to give summary decision of cases in which two concordant opinions of approved theologians or canonists pronounce the invalidity of the marriage to be beyond doubt. Moreover, in cases of evident nullity, because of a manifest impediment of blood-relationship or affinity, of previous marriage, of the absence of form, of lack of baptism on the part of one party, a second sentence of nullity is no longer demanded (Deer. of the Holy Office, June 5, 1889, and June 16, 1894. Cf. Acta S. Sedis, XXVII, 141; also Deer. of the Holy Office, March 27, 1901, Acta S. Sedis, XXXIII, 756). The court of first instance in the process of nullification is the episcopal court of the diocese, of second instance the metropolitan court, of third instance the Roman See. Sometimes, however, Rome designates for the third instance a metropolitan see of the country in question (Laurentius, above, 697, not. 6). No one, however, is prohibited from immediate application in the first instance to the Holy See. Custom reserves to the Holy See matrimonial cases of reigning princes.
In the Decretals the declaration of nullity is treated under the title “De Divortiis”. But it is important that these matters should be carefully distinguished from one another. The lack of exact distinction between the expressions “declaration of invalidity” and “divorce”, and the different treatment of invalid marriages at different periods, may lead to incorrect judgments of ecclesiastical decisions. Decisions of particular Churches are too easily regarded as dissolutions of valid marriages, where in fact they were only declarations of nullity; and even papal decisions, like those of Gregory II communicated to St. Boniface and of Alexander III to the Bishop of Amiens, are looked on by some writers as permissions granted by the popes to the Frankish Churches to dissolve a valid marriage in certain cases. The decision of Gregory II, in the year 726, was embodied in the collection of Gratian (C. xxxii, Q. vii, c. xviii), and is printed in “Mon. Germ. Hist.”, III: Epist. (Epist. Merovingici et Karolini ievi I), p. 276; the decision of Alexander III is given in the Decretals as pars decisa, i. e., a part of the papal letter (IV Decretal., xv, 2) left out in the Decretal itself. In both cases there was question of a declaration of the invalidity of a marriage which was invalid from the very beginning because of antecedent impotence. A certain concession to the Frankish Churches was, however, made in these cases. According to Roman custom such supposed husband and wife were not separated, but were bound to live together as brother and sister. In the Frankish Churches, however, a separation was pronounced and permission to contract another marriage was allowed to the one not afflicted with absolute impotence. This custom Alexander III granted to the Frankish Churches for the future. If, therefore, the union in question is spoken of as a legitima conjunctio, or even as a legitimum matrimonium, this is done only on account of the external form of the marriage contract. That in such cases a diriment impediment according to the natural law was present, and an actual marriage was impossible, was well understood by the pope. He says this expressly in the part of his letter that has been embodied in the Decretals (IV Decretal., xv, 2. Cf. Sagmuller, “Die Ehe Heinrichs II” in the Tubingen “Theol. Quartalschr.”, LXXXVII, 1905, 84 sqq.). That in similar cases decision has been given sometimes for separation and sometimes against it, need excite no surprise, for even at the present day the ecclesiastical idea of impotence on the part of the woman is not fully settled (cf. controversy in “The American Eccl. Review”, XXVIII, 51 sqq.).
B. Non-Christian Marriage Can Be Dissolved by Absolute Divorce under Certain Circumstances in Favor of the Faith.
1. The Pauline Privilege.—The Magna Charta in favor of Christian faith is contained in the words of the Apostle, I Cor., vii, 12-15: “If any brother hath a wife that believeth not, and she consent to dwell with him, let him not put her away. And if any woman hath a husband that believeth not, and he consent to dwell with her, let her not put away her husband. For the unbelieving husband is sanctified by the believing wife, and the unbelieving wife is sanctified by the believing husband: otherwise your children should be unclean; but now they are holy. But if the unbeliever depart, let him depart. For a brother or sister is not under servitude in such cases. But God hath called us in peace.” (On the interpretation of these words see Cornely on I Cor., 175 sqq.) The exegetical controversy, as to whether these words are dependent on the preceding sentence, “For to the rest I speak, not the Lord”, or whether that sentence refers to the one preceding it, is of no importance in this question. In the first supposition, we should seem to have here an ordinance which is not immediately Divine, but was established by the Apostle through the power of Christ. In the second supposition, it may be an immediately Divine ordinance.
These words of the Apostle tell us that in all cases when one of the married parties has received the Christian Faith, and the other remains an infidel and is not willing to live in peace with the Christian, the believer is not bound but is free. The Apostle does not indeed say expressly and formally that the marriage bond has been dissolved, but if it were not at least in the power of the Christian to dissolve the previous bond and to enter upon another marriage, the words would not have their full truth. Hence the Church has understood the words in this sense, and at the same time has fixed more exactly how and under what conditions this so-called Pauline privilege may be exercised. Innocent III declares authoritatively (IV Decretal., xix, 7, in cap. “Quanto”) that the convert is justified in entering upon another marriage if he will, provided the non-Christian is unwilling either to live with the other or such cohabitation would cause the blasphemy of the Divine name or be an incentive to mortal sin: “Si enim alter infidelium conjugum ad fidem convertatur, altero vel nullo modo, vel non sine blasphemies divini nominis, vel ut eum pertrahat ad mortale peccatum ei cohabitare volente: qui relinquitur, ad secunda, si voluerit, vota transibit: et in hoc casu intelligimus quod ait Apostolus: Si infidelis discedit, etc., et canonem etiam in quo dicitur: Contumelia creatoris solvit jus matrimonii circa eum qui relinquitur.” According to the Church’s interpretation and practice, the dissolution of the marriage that was contracted before conversion is not effected by the separation of the married parties, but only when a new marriage is contracted by the Christian party because of this privilege. The Holy Office says this expressly in the decree of August 5, 1759, ad 2: “Then only may the yoke of the matrimonial bond with an infidel be understood to be loosed when the convert spouse…proceeds to another marriage with a believer” (Collectan. S. Congr. de Prop. F., n. 1312). The manner of obtaining this right to enter upon a new marriage is fixed by the Church under penalty of invalidity, and consists in a demand (interpellatio) made of the non-Christian party whether he or she be willing to live with the other in peace or not. If this interpellation is not possible, an Apostolic dispensation ab interpellatione must be obtained (Collectanea, n. 1323). If the spouse that remains in infidelity agrees to live in peace, but later on acts contrary to this agreement by abusing the Christian religion, or tempting the Christian to infidelity, or preventing the children from being educated in the Christian Faith, or becomes a temptation for the Christian to commit any mortal sin, the latter regains the right to proceed to a new marriage after any lapse of time. This consequence which follows from the very nature of the privilege was expressly declared by the Holy Office in the decree of September 27, 1848, and was confirmed by Pius IX (Collectan., n. 1337; Ballerini-Palmieri, “Opus theol. Mor.”, 3d ed., VI, n. 468). If, however, the non-Christian party refuses to continue further in married life, not from hatred of the Faith or for other sinful reasons, but because the Christian, by sinful conduct (for instance by adultery), has given just reason for separation, the Christian would not be justified in entering upon a new marriage. The privilege, however, would still be his if the non-Christian party wished to maintain as reason for separation adultery committed before the time of conversion. (Collectan., n. 1312, 1318, 1322.) The interpellation of the non-Christian party, which must take place before the remarriage of the Christian, must as a general rule be about living together in peace or not, but as peaceful cohabitation can only be imagined in a case where there are no serious dangers, and such dangers may arise in certain circumstances from continued living with the non-Christian party, it is readily understood that the Holy See is justified in making the interpellation mean, whether the non-Christian party be willing to accept the Christian Faith; and in case the non-Christian refuses after careful deliberation, then, as a result of this refusal, permission may be granted to the Christian party to enter upon a new marriage and thereby to dissolve the previous one. This procedure, allowed by Sixtus V, received new confirmation and direction under Leo XIII by the decree of the Holy Office, November 29, 1882 (Collectan., n. 1358, ad 3).
The Pauline privilege is said to be in favor of the Christian Faith, but the meaning of the privilege and the right in such cases to absolute divorce is not exactly defined thereby. Doubt might arise in regard to catechumens, and also in regard to such as join a Christian denomination but do not belong to the Roman Catholic Church. The solution of these doubts is contained in the following proposition: the Pauline privilege is attached to baptism. That the privilege is granted to nobody before the actual reception of baptism is beyond question from the decree of the Sacred Congregation of Propaganda, January 16, 1803 (Collectan., n. 1319), and also from the decree of the Holy Office, March 13, 1901 (Acta S. Sedis, XXXIII, 550). Even the interpellation of the non-Christian party ought to be postponed until after the baptism of the other. It requires a papal dispensation to proceed to such an interpellation validly before baptism (Cf. Instructio S. Officii, under the authorization of Pius IX, June 3, 1874, in Collectan., n. 1357). It is also certain that the dissolubility here in question is not limited to the marriages of pagans, but to all marriages of unbaptized persons, even though they should belong to some non-Catholic Christian denomination (Acta S. Sedis, loc. cit.). Whether, however, the privilege is so joined to baptism that it belongs to Christian adherents of a non-Catholic denomination when they profess the Christian Faith by the reception of baptism is a question disputed by theologians. Some theologians of repute assert that the privilege is granted in this case, and that a practical decision to this effect has been made by a Roman Congregation, according to the testimony of Konings, “Theol. mor.”, II, 394 (New York, 1878). (Cf. Palmieri, “De matrim. christ.”, th. xxvii, p. 224; Tarquini in “Archiv fur kath. Kirchenrecht”, L, 224 sqq.; Wernz, “Jus decretal.”, IV, n. 702, not. 59; Gasparri, “De matrim.”, II, n. 1331; Ballerini-Palmieri, “Opus theol. mor.”, 3d ed., VI, 457 sqq.) Even in the early ages, the Venerable Bede and St. Augustine seem to have understood the passage from St. Paul (I Cor.) in this sense.
2. The Papal Authority to Dissolve a Non-Christian Marriage.—From the ecclesiastical decisions that have been already quoted, it is clear that the Church has at least the authority of explaining the Pauline infidelity privilege, of limiting, and extending it. This would give rise to no difficulties if the Pauline privilege, as expressed in I Cor., vii, 15, were an immediate Apostolic ordinance and only mediately Divine, inasmuch as Christ would have granted the power in general in a case of necessity to dissolve in favor of the Faith a marriage contracted in infidelity. For the entire Apostolic power passed to the supreme head of the Church, and as the Apostle could determine fixed rules and conditions for the dissolution of the marriages in question, the pope would have precisely the same authority. Yet on this point there is a diversity of opinion among theologians, and the Church has not settled the dispute. For, even if the privilege as promulgated by St. Paul was of immediate Divine right, the Church’s power to make at least modifications in case of necessity can readily be explained because such power belongs to her without a doubt in other matters that are of Divine right. The first opinion seems to have been held in the fourteenth century by eminent scholars like P. de Palude and de Tudeschis, and in the fifteenth century by St. Antoninus; in recent times it is defended by Gasparri, Rossi, Fahrner, and others. The second opinion is held by Th. Sanchez, Benedict XIV, St. Alphonsus, Perrone, Billet, Wernz, and others. The instruction of the Holy Office, July 11, 1866 (Collectan., n. 1353), calls the privilege a Divine privilege “promulgated by the Apostle”. However, in spite of the disagreement in regard to the Pauline privilege, the defenders of both opinions agree that there is another method for the dissolution of the marriage of infidels when one of the parties receives baptism, namely, by papal authority. This power is indeed not admitted by all theologians. Even Lambertini (who later became Pope Benedict XIV) doubted it when he was secretary of the Sacred Congregation of the Council, in the year 1726. But earlier papal decisions, as well as the actual decision in this very case, leave no room doubt that the popes attribute to themselves this power and act accordingly.
If the Pauline privilege alone be applied, it will follow that when a pagan is converted who has been living in polygamy, he can be permitted to choose any of his wives who may be willing to receive baptism, provided his first wife is unwilling to live with him in peace or, under the circumstances, to be converted to the Faith. Hence it is that the answers of Roman Congregations based on the Pauline privilege always include the phrase nisi prima voluerit converti. Now several of the popes have at times granted permission to whole nations to choose any one of the several wives, without adding the clause “unless the first be willing to be converted”. This was done for India by St. Pius V, August 2, 1571, in the Constitution “Romani Pontificis”. Urban VIII, October 20, 1626, and September 17, 1627, did the same for the South American nations, and expressly declares: “Considering that such pagan marriages are not so firm that in case of necessity they cannot be dissolved”; similarly, Gregory XIII, January 25, 1585 (cf. Ballerini-Palmieri, “Opus theol. mor.”, 3d ed., VI, nn. 444, 451, 452). The theological proof of this papal authority is easy for those who, as has been said, regard the Pauline privilege as an immediate Apostolic ordinance. For it is then expressly testified by Holy Scripture that the Apostolic authority, hence also the papal authority, can allow in favor of the Faith the dissolution of marriage contracted in infidelity. The method of procedure and the precise application in various cases would naturally be committed to the bearer of the Apostolic authority. Those who consider that the Pauline privilege is an immediate Divine determination of the case in which marriage may be dissolved, prove the papal authority in another way. Since it follows from I Cor., vii, 15, that marriage contracted in infidelity is not absolutely indissoluble according to Divine right, it follows from the general power of loosing which was granted to the successor of St. Peter, Matt., xvi, 19—”Whatsoever thou shalt loose on earth, it shall be loosed also in heaven”—that this power extends also to our present matter. Moreover, the successors of St. Peter are themselves the best interpreters of their power. Whenever the exercise of an authority that has not hitherto been clearly recognized occurs, not merely on one occasion but frequently, there can be no more doubt that such authority is rightfully exercised. Now this is precisely what took place in the grants of Pius V, Gregory XIII, and Urban VIII for the vast territories of India, the West Indies, etc.
3. The Dissolution of Marriage Contracted in Infidelity by Profession in a Religious Order.—When the doctrine explained above, which now is practically admitted beyond doubt, has been established, the question, whether a marriage contracted in infidelity can be dissolved by the religious profession of the converted party, is not very important. It is so to be understood that he baptized party may choose the religious life, even against the will of the one still unbaptized, and, in consequence of this, the other may enter upon a new marriage. According to the doctrine we have just explained, it is clear that the pope, at least in single cases, can permit this. Whether, according to a general law, and by immediate Divine ordinance, without the intervention of the pope, this privilege belongs to the baptized party, is somewhat connected with another question, viz., for what reason Christian (i.e. sacramental) matrimony, not yet consummated, can be dissolved by religious profession. This leads us to the third proposition about this subject of divorce.
C. Christian Marriage before Consummation Can Be Dissolved by Solemn Profession in a Religious Order, or by an Act of Papal Authority.
1. Dissolution by Solemn Profession.—The fact that religious profession causes the dissolution of the marriage bond, provided the marriage has not been consummated, is distinctly taught in the Extrav. Joan. XXII (tit. VI, cap. unic.), and was solemnly defined by the Council of Trent (Sess. XXIV, can. vi). The reason why this dissolution takes place is a theological question. The definition reads: “If anyone shall say that a marriage contracted, but not consummated, is not dissolved by the solemn religious profession of either one of the parties to the marriage, let him be anathema.” The expression, by the solemn profession, is important. Neither the mere entrance into religious order, nor life in the novitiate, nor the so-called profession of simple vows, even though they be for life, as is customary in modern congregations, is capable of dissolving a previous marriage which has been contracted and not yet consummated, though they cause a diriment impediment in regard to any future marriage. The question as to how and for what reason such marriage is dissolved by solemn religious profession is answered by some by pointing to an immediate Divine right, as if God himself had so ordained immediately. Others, however, ascribe it to the power which the Church has received from God, and to its ordinance. The first opinion is defended by Dominic Soto, Th. Sanchez, Benedict XIV, Perrone, Rosset, Palmieri, and others; the second by Henry de Segusia (commonly called Hostiensis), Suarez, Laymann, Kugler, the Wurzburg theologians, Wernz, Gasparri, Laurentius, Fahrner, and others. The tradition of the Christian Church for centuries bears witness that Christian marriage before consummation has not the same indissolubility as a consummated marriage. Scholars, however, are not unanimous about the limits of its dissolubility. Many facts from the lives of the saints, of St. Thecla, St. Cecilia, St. Alexius, and others, such for example as are narrated by Gregory the Great (III Dialog., xiv, in P.L., XXXIII) and by the Venerable Bede (Hist Angl., xix, in P.L., XCV, 201 sqq.), are proof of the universal Christian conviction that, even after marriage had been contracted, it was free for either of the married parties to separate from the other in order to choose a life of evangelical perfection. Now this would be a violation of the right of the other spouse if in such circumstances the marriage bond were not dissolved, or at least could not easily be dissolved under certain conditions, and thereby the right granted to the other to enter upon another marriage. The precise conditions under which this dissolution of the marriage bond actually took place, and still takes place, can only be decided with certainty by the authentic declaration of the Church. Such a declaration was made by Alexander III, according to III Decretal., xxxii, 2: “After a lawfully accorded consent affecting the present, it is allowed to one of the parties, even against the will of the other, to choose a monastery (just as certain saints have been called from marriage), provided that carnal intercourse shall not have taken place between them; and it is allowed to the one who is left to proceed to a second marriage.” A similar declaration was made by Innocent III, op. cit., cap. xiv. From this latter declaration we learn that religious profession alone has this effect, and that therefore those who wished to practice a life of higher perfection in any other manner could be obliged by the other spouse either actually to choose the religious state or else to consummate the marriage. Under earlier ecclesiastical conditions, no long delay was imposed upon the other party before entering upon another marriage, because religious profession might be made without a long novitiate. The introduction of a novitiate of at least one year by the Council of Trent, and the time of three years prescribed by Pius IX and Leo XIII for simple vows before the solemn profession, and the general restriction of solemn profession by the establishment of simple profession, which does not dissolve the marriage bond, have rendered difficult the dissolution of unconsummated marriage by religious profession. So that now it seems practically necessary that if one of the married parties should choose the state of evangelical perfection before the consummation of the marriage, the marriage bond should be dissolved by papal authority.
2. Dissolution by the Pope of Marriage not yet Consummated.—The pope’s authority as supreme head of the Church to dissolve Christian marriage not yet consummated is proved on the one hand from the words of Christ to Peter, Matt., xvi, 19 (see above, under B 2), and on the other, from the dissolubility of such a marriage by religious profession, inasmuch as this profession must be solemn, for according to the declaration of Boniface VIII (III Sexti Decretal., xv, c. unic.), solemn vows as such depend entirely upon the ordinance of the Church—”voti solemnitas ex sola constitutione Ecclesi a est inventa”. Hence it follows without a doubt that the dissolution of a marriage by solemn profession could never take place without the exercise of the Church’s authority. Now if the Church can cause such a dissolution according to a general law, a fortiori she can do this in single cases—not indeed arbitrarily, but for grave reasons—because this power has been granted by God to dispense in matters of Divine right, and a delegated authority may not be exercised without a sufficient reason (cf. Wernz, “Jus decretal.”, IV, n. 698, not. 39). The actual exercise of this power on the part of the popes, which has become constant and general, is a further proof of its propriety and its actual existence. Clear instances occur during the pontificates of Martin (1417-31) and Eugene IV (1431-47). St. Antoninus tells us that he had seen several Bulls of these popes which granted such a dispensation or a dissolution of a marriage that had not been consummated, so that thereafter they might proceed to a new marriage (Summa theol., III, tit. i, c. xxi). We can find traces of such a practice even in much earlier times. A decretal of Alexander III, namely, IV Decretal., xiii, 2, seems, according to a probable interpretation, to refer to a possible concession of such a dissolution. Perhaps the decision of Gregory II to St. Boniface, in 726 (see above under A. 4), might possibly be explained in the same sense, though it is very uncertain, or it seems to refer neither to the dissolution of a consummated marriage, as some supposed, nor to the dissolution of a real marriage that had not been consummated, but rather to a declaration of invalidity. For several centuries the exercise of this power of dissolving such marriages has belonged to the ordinary functions of the Holy See, and is exclusively papal, for the work of the Roman Congregations in such cases is only preparatory. However, exceptional instances occur when it has been delegated to bishops (Wernz, op. cit., n. 698, not. 41). The judicial procedure in such cases was exactly prescribed by Benedict XIV in his Bull of Judicial procedure (“Dei miseratione”, November 3, 1741 (section 15), obligatory on the whole Latin Church. Any uncertainty about this ecclesiastical power (cf. Fahrner, Geschichte des Unaufloslichkeitsprincips, p. 170 sqq.) was removed by this Bull; for if this power did not belong to the Church, then the Bull in question would have approved and originated an institution against all good morals. It is, however, inconceivable that the pope could issue a general prescription that would contain an attack on morality and could formally sanction bigamy in certain cases. Several of the older canonists, especially those of Bologna, brought forward some special reasons which are supposed to justify the dissolution of a marriage before consummation. If thereby they wish to assert the right of dissolution by private authority, then they erred. If they intended to speak of a dissolution that could be granted by the Church, that is, by its supreme head, and the permission for a new marriage, then they had merely collected the cases in which such a dissolution might take place in virtue of the papal authority just spoken of, but they had not given a new title to such dissolution. Some held the erroneous opinion of private dissolubility, because they regarded such a union as no real marriage, but simply as a betrothal, and therefore they treated it according to the juridical principles in regard to betrothal. This theory of marriage, however, was not often defended, and has long disappeared from theological schools; neither does it deserve any consideration at present, because it is in conflict with established Catholic dogmas.
D. Limited Divorce, or Separation from Bed and Board (Divortium Imperfectum) is allowed for various causes, especially in the case of adultery or lapse into infidelity or heresy on the part of husband or wife.
A separation of married parties leaving the marriage bond intact is mentioned by St. Paul, I Cor., vii, 11: “If she depart, that she remain unmarried, or be reconciled to her husband.” From the very nature of the case it follows that occasions may arise in which further cohabitation is unadvisable or even unseemly and morally impossible. If such circumstances do not bring about a dissolution of the marriage bond, at least a cessation of married life must be permitted. Hence it is that the Council of Trent, immediately after its definition of the indissolubility of the marriage bond, even in case of adultery, added another canon (Sess. XXIV, can. viii): “If anyone shall say that the Church errs when she, for many causes, decrees a separation of husband and wife in respect to bed and dwelling-place for a definite or an indefinite period; let him be anathema.” The cessation of married life in common may have different degrees. There can be the mere cessation of married life (separatio quoad torum), or a complete separation as regards dwelling-place (separatio quoad cohabitationem). Each of these may be permanent or temporary. Temporary abstinence from married life, or separatio a toro, may take place by mutual private consent from higher religious motives, not, however, if such continence be the occasion of moral danger to either of the parties. Should such danger threaten either, it would become their duty to resume married life. The Apostle speaks of this in I Cor., vii, 5: “Defraud not one another, except, perhaps, by consent, for a time, that you may give yourselves to prayer; and return together again, lest Satan tempt you for your incontinency.”
The Choice of Evangelical Perfection.—For a permanent separation on account of entrance into the state of Christian perfection, i.e. entrance into religious life on the part of the wife or of the husband, or by the reception of Holy orders on the part of the husband, there is required not only mutual consent, but also some arrangement on the part of ecclesiastical authority, according to the laws about such cases. This holds in regard to the reception of the major orders immediately after the contraction of marriage, even before it is consummated. In regard to the choice of religious life, it holds only after consummated marriage. For, as we have said above, by the religious life marriage which has not yet been consummated can be dissolved, and on that account newly-married parties have the right to a delay of two months to consider the choice of the state of perfection, and during which the consummation of the marriage may be refused (St. Alphonsus, “Theol. mor.”, VI, n. 958). In case the marriage is not dissolved, the reception of Holy orders or religious profession cannot take place before provision has been made for a continent life on the part of the other party. In accordance with the judgment of the diocesan bishop, he or she must either enter a religious order, or, if age and other circumstances remove all suspicion and all danger of incontinency, at least take a private vow of perpetual Chastity. In no case can it ever be allowed that the husband who should receive Holy orders might dwell in the same house with the wife bound only by a private vow (cf. Laurentius, “Instit. jur. eccl.”, 2nd ed., n. 694
Adultery of One of the Parties.—Cause for the cessation of complete community of life, which in itself is perpetual, is given to the innocent party by adultery of the spouse. In order, however, that this right may exist, the adultery must be, first, proven; second, not attributable to the other spouse either entirely or as accomplice; third, not already condoned; fourth, not, as it were, compensated by the adultery of the other party (cf. IV Decretal., xiii, 6, and xix, 4, 5; Wernz, “Jus decret.”, IV, n. 707 sq.; St. Alphonsus, VI, n. 960). If the innocent party is certain of the sin of the other, he or she has a right immediately to refuse the continuation of married life. If the crime is manifest, then the innocent party is justified in leaving at once the guilty one, or in dismissing him or her from the house. If, however, the crime is not known, or not proved with certainty, then complete separation can follow only after a judicial investigation and a judicial decision, which must be made by ecclesiastical authority (IV Decretal., xix, 4, 5; i, 9; Wernz, “Jus decretal.”, IV, n. 711). All sexual intercourse outside of married life is regarded as equivalent to adultery in justifying complete separation, even the unnatural sins of sodomy and bestiality. As proof of one the crime may be alleged what are called suspicions vehementes. In the first centuries of the Church there was often a commandment, and the duty was imposed on the innocent party, to separate from the party guilty of adultery. There never, however, was any such general legislation. The duty, however, of separation was founded partly on the canonical penance imposed for adultery that was publicly known (and this penance was incompatible with marital life), and partly on the duty of avoiding scandal, as continued living with a husband or wife addicted to adultery might seem to be a scandalous approval of this criminal life. For this latter reason, even nowadays, circumstances may arise making the dismissal of the guilty party a duty (cf. St. Alphonsus, VI, n. 963 sqq.). Commonly, however, at least for a single violation, there is no duty of separation,; still less is there any duty of permanent separation; in fact, charity may in certain cases demand that after a temporary separation the contrite party might be invited or admitted to a renewal of the married life. There is, however, never any obligation of justice to receive again the guilty party. The most that some theologians recognize is an obligation of justice when the party originally innocent has meanwhile become guilty of the same crime. The innocent party always retains the right in justice to recall or to demand the return of the guilty party. If the innocent husband or wife wishes to give up this right forever, then he or she can enter a religious order, or he may receive Holy orders, without any further obligation being imposed upon this party (III Decretal., xxxii, 15, 16). The guilty party can, however, proceed to the religious life or to the reception of Holy orders only with the consent of the innocent. This consent must either be granted expressly or be deduced with certainty from the constant refusal to be reconciled. It is the business of ecclesiastical authority to decide in any case, whether such certainty exists or not. A further obligation, such as the vow of perpetual chastity, is not imposed upon the innocent party, but the freedom to remarry is allowed after the death of the other spouse (cf. III Decretal., xxxii, 19; Wernz, op, cit., n. 710, not. 126; St. Alphonsus, VI, n. 969).
Heresy or Defection from the Faith.—Next to adultery, a reason for separation almost equivalent to it is defection from the Faith, whether by the rejection of Christianity or by heresy (IV Decretal., xix, 6, 7). However, there are some important differences to be noted:—
In the case of adultery, a single action, if proven, is enough for permanent separation, but in the case of infidelity or heresy, a certain persistence in the sin is required (cf. St. Thomas, IV Sent., dist. xxxv, Q. i, a. 1), such for example as adhesion to a non-Catholic denomination.
An ecclesiastical sentence is necessary in this case for the right of permanent separation. If this has not been obtained, the innocent party is bound to receive the guilty party after conversion and reconciliation with the Church. This is expressly decided by IV Decretal., xix, 6. When, however, the right to permanent separation has been granted, the innocent party can proceed at once to the religious life or receive Holy orders, and thereby render it impossible to return to married life. It need hardly be mentioned that infidelity or heresy, as such, gives no just cause for separation of any kind, if it existed before the marriage was contracted, and if a dispensation from the impediment of disparity of worship between a baptized and a non-baptized person has been granted, or if a valid marriage, even without ecclesiastical dispensation, has taken place between a Catholic and a baptized non-Catholic. In such cases, passage from one denomination to another does not give a reason for separation.
Danger to Body or Soul.—Besides these special cases of separation founded on ecclesiastical law, many other cases may arise, which, of their nature, justify temporary separation. They are summed up under the general notion of “danger to body or soul” (periculum corporis aut animoe). There must, of course, be question of an approximate danger of great harm, because this very important right of the other party may not be set aside, or even partially limited, for trivial reasons. The reasons for a temporary separation are as various as the evils which may be inflicted. To judge the gravity correctly, reasonable consideration is demanded of all the circumstances. Danger to the soul, which is given as a reason for separation, almost always supposes a crime on the part of the other party. It consists in temptation to some mortal sin, either to the denial of the Catholic Faith, or the neglect of the proper education of the children, or to some other grievous sin and violation of the moral law. Dangerous solicitation, or pressure, or intimidation, or threats inflicted either by, or with the consent of, one party, or silent approbation to induce the other to a grievous violation of duty would give justification—and even the obligation, if the danger were great—to proceed to separation, which should last as long as the danger exists. Such a reason as this might later on justify a separation in the case of a mixed marriage. Danger to the body, which is a further reason for a separation, means any great danger to life or health, as well as other intolerable conditions. Such are, without doubt, plotting against one’s life, ill-treatment which in the circumstances should be regarded as gross, well-grounded fear dangerous contagion, insanity, serious and constant quarrelling, etc. It is to be noted that in every case there must be a very serious evil to justify separation for any length of time. Other inconveniences must be borne with Christian patience. Great crimes of one party, provided they are not against marital fidelity, or do not include any incentive to sin on the part of the other, do not, according to Catholic law, of themselves give any right to separation; neither do punishments that might be inflicted on the guilty party in consequence of such crimes, even when this punishment be joined with dishonor. The Catholic view of this matter is directly opposed to the non-Catholic, which, as we have seen above under A. 3. (e), permits in such cases the dissolution of the marriage bond.
By private authority, i.e. without previous application to an ecclesiastical court and its decision, a temporary separation may take place when delay would bring danger. The church law does not allow a separation in other cases (Wernz, “Jus Decret.”, IV, n. 714; St. Alphonsus, “Theol. mor.”, VI, n. 971), although, where there are evident and public reasons for separation, the non-observance of the Church’s regulations can more easily be overlooked. Separation because of the mere decision of a civil judge is never allowed to Catholics. (Cf. III Conc. plen. Baltim., tit. IV, c. ii.)
II. IN CIVIL JURISPRUDENCE.—Divorce is defined in civil jurisprudence as “the dissolution or partial suspension by law of the marriage relation” (Bouvier’s Law Dictionary). Strictly speaking, there is but one form of absolute divorce, known, under the name derived from the civil and canon law, as divorce a vinculo matrimonii, i.e. from the marriage tie. In the states where it is administered this form of divorce puts an end legally to the marriage relation. There is, however, a limited form of divorce which is, more accurately speaking, a suspension, either for a time or indefinitely, of the marriage relation, and is known as divorce a mensa et toro, or from bed and board. In addition, in some states courts grant decrees declaring marriages absolutely void, ab initio, i.e. from the beginning. Such marriages never having been valid, the parties cannot be said to have been divorced; however, proceedings for nullity are frequently provided for under divorce statutes.
Pre-Christian Divorce Legislation among the Hebrews, Greeks, and Romans.—Before the adoption of Christianity as the state religion of the Roman Empire, it would appear that divorce in some form existed among all ancient peoples from whom European civilization is derived. Among the Hebrews no precedent for divorce can be found prior to the Mosaic Law. It became frequent afterwards, though it would seem that the husband alone possessed the power, at least until the reign of Herod. Divorce was prevalent among the Greeks, especially in Athens, but the party suing had to appeal to the magistrate, state the grounds of complaint, and submit to his judgment; if the wife was the prosecutor, she was obliged to appear in person. The lax customs of the Spartans made divorce rare. Among the Romans the law of Romulus permitted divorce to men, but refused it to women. Adultery, poisoning of children, and falsification or counterfeiting of keys, were sufficient grounds. While divorce was so far free that there was no one authorized by the civil power to oppose it, this freedom was restrained by the moral feeling of the people and their respect for the marriage bond. It was necessary to consult the family council and there was fear of the authority of the censors. There were three forms of marriage among the Romans: the confarreatio, which was celebrated with certain highly religious ceremonies peculiar to that form of wedding; the conventio in manum, effected by a simulated purchase (coemptio), a much more simple ceremony; and the usus or prescription, where, after living with her husband for one year without being absent for three days, the woman came, as in the other forms of marriage, in manum mariti, that is to say, under the control of her husband. No instance of divorce is known before A. U. C. 520 or 523. It is thought by many that this was the first instance of divorce under the Roman Republic, but it would seem probable that it was the first divorce for the special purpose of retaining the wife’s dower (dos). This is the suggestion of Becker, who points out that the divorce of Antonius took place in A. U. C. 447, and states that other proof exists that in much earlier times divorce was properly established and strictly ordained by laws. He quotes also from Cicero (Phil., ii, 28) where he says jokingly of Antonius, who had dismissed his wife Cytherius under the same formalities as those of divorce, “that he commanded her to have her own property according to the Twelve Tables; he took away her keys and drove her out.”
The causes for divorce on the part of the woman were capital offense, adultery, and drinking. After the Punic wars the number of divorces reached scandalous proportions. Sulla, Caesar, Pompey, Cicero, Antony, Augustus, and Tiberius all put away their wives. Under Augustus an effort was made to curb the licence of divorce. In the interest of publicity, that emperor made it necessary for the party seeking a divorce to make his declaration in the presence of seven witnesses, all Roman citizens of full age. Divorce remained, however, a private legal act. Women could obtain divorce without any fault of their husbands. Under the Roman law of the early imperial period, there was a separation pronounced, first, between parties whose marriage engagement was not legally contracted; second, where parties were separated when the contract of espousals had been made but not consummated by actual marriage. This was known as repudium. Divortium was a separation of persons already married, and included divorce a mensa et toro and a vinculo matrimonii.
Imperial Christian Legislation.—In 331 Constantine the Great restricted the causes for divorce to three on the part of the man, viz., if he was a murderer, a poisoner, or a robber of graves; and three on the part of the woman, viz., if she was an adulteress, a poisoner, or a corrupter of youth. Among soldiers an absence of four years was sufficient to entitle the petitioner to a divorce. This edict was ratified by Theodosius the Great and Honorius. Under Justinian several reasons for divorce were added, and liberty of divorce by mutual consent was restored by his nephew Justin (565-78). No change was now made were in the Roman law until after a lapse of 340 years, when Leo the Philosopher (886-912) made a collection of laws known as the “Libri Basilici”, from which he excluded the edicts of Justin.
English Legislation.—According as Catholic doctrine penetrated more profoundly the medieval life, the laws of European nations were gradually accommodated to its demands. In this way, for example, the teaching of the Council of Trent (1563), which anathematized the error that matrimony could so far be dissolved by divorce that it was lawful to marry again, was universally accepted among the nations adhering to the Catholic Church. This council, however, introduced thereby no essential change in the divorce law of the Church. Originally, under the common law of England, there was no jurisdiction on the subject of divorce excepting in the ecclesiastical courts, they having jurisdiction in all matters relating to marriage and divorce, the restitution of conjugal rights, suits for limited divorce and for annulment of marriage. This followed from the Catholic doctrine that marriage, being a sacrament, could not be dissolved; for the same reason any question relative to its validity or to a suspension of conjugal relations must necessarily pertain to the ecclesiastical courts. The ecclesiastical law of England, though originating differently from the other branches of the common law and distinguished by special rules, was part of the unwritten law of the State, just as what are technically called the common law, the law of admiralty, and equity.
The Protestant Reformers rejected the sacramental theory of marriage, and agreed that absolute divorce should be granted for adultery and for malicious desertion, and that the innocent party might then remarry. As they also rejected the jurisdiction of the ecclesiastical courts it was for some time a question among them whether marriage was dissolved ipso facto by the commission of one of these offenses, or whether it was necessary to have the dissolution declared by public authority. Luther recommended the parish priest as the proper tribunal. Appeals were sometimes taken to the prince or sovereign. Gradually “consistorium courts” were created, of both lay and ecclesiastical members, under sanction of the civil power. In England under Henry VIII, after his separation from the Catholic Church, the law relative to divorce remained practically unchanged. An effort was made in the time of Edward VI to secure the adoption of a new code of ecclesiastical laws, drafted mainly by Cranmer, under which separation a mensa et toro was not recognized and complete divorce was granted in cases of extreme conjugal faithlessness; in cases of conjugal desertion or cruelty; in cases where a husband not guilty of desertion of his wife, had been several years absent from her, provided there were reason to believe him dead; and in cases of such violent hatred as rendered it in the highest degree improbable that the husband and wife would survive their animosities and again love one another. Divorce was denied when both parties were guilty of unfaithfulness, and when only one was guilty the innocent party might marry again. The ecclesiastical court was to decide all questions concerning these causes. It is said by Howard (Hist. of Matrim. Institutions, p. 80) that the principles of this code, known as the “Reformatio Legum”, were carried out in practice, though no enacted into law. He adds that “according to the ancient form of judgment divorce was probably still pronounced only a mensa et thoro; but whatever the shape of the decrees, there is strong evidence that from about 1548 to 1602, except for the short period of Mary’s reign, ‘the community, in cases of adultery, relied upon them as justifying a second act of matrimony'”. He says also that throughout nearly the whole of Elizabeth’s reign new marriages were freely contracted after obtaining divorce from unfaithful partners. However, in 1602 the Star Chamber pronounced a marriage invalid which had been contracted after separation from bed and board by the decree of an ecclesiastical judge (Foljambe’s case, 3 Salk. 138).
Following this decision the canon law was administered in the English spiritual courts with such rigour that it required an Act of Parliament to permit a remarriage after divorce. In the tenth year of James I (1613) an Act was passed to restrain remarriage by one party while the other was alive, excepting, however, cases where sentences of divorce had been pronounced by ecclesiastical courts. There were some cases where, after sentences had been pronounced by an ecclesiastical court, a second marriage was upheld, but the decisions are generally to the effect that a perfect marriage cannot be dissolved excepting by death. Oughton says (tit. 215) “that the marriage tie once perfected cannot be dissolved by man, but only by natural death. The parties may be separated, but they remain man and wife”. The Puritans of England strongly advocated the right of divorce, but without effect, and until 1857 there was no English statute which permitted the granting of a decree of absolute divorce by any court, the only jurisdiction being vested in Parliament. Precedents of divorce by Parliament strictly so called are not found earlier than 1698, but it came to be understood that if a divorce a mensa had been granted by the spiritual court, a divorce would be granted by Parliament absolutely dissolving the marriage, though only for the cause of adultery on the part of the wife. By the Act of 1857 the entire jurisdiction in matrimonial questions was transferred to a new civil court for divorce and matrimonial causes, and since the judicature Act of 1873 this jurisdiction has been vested in the probate, divorce, and admiralty division of the High Court of Justice. Its power is restricted, however, to England alone. The principles upon which divorce legislation may be based and which may be traced in the legislation of those countries that permit divorce, are stated by Bishop (Marriage, Divorce and Separation, §46, ed. of 1891) as follows:—
“Matrimony is a natural right, to be forfeited only by some wrongful act. Therefore the government should permit every suitable person to be the husband or wife of another, who will substantially perform the duties of the matrimonial relation; and when it is in good faith entered into, and one of the parties without the other’s fault so far fails in those duties as practically to frustrate its ends, the government should provide some means whereby, the failure being established and shown to be permanent, the innocent party may be freed from the mere legal bond of what has in fact ceased to be marriage, and left at liberty to form another alliance. The guilty party would have no claim to be protected in a second marriage; and whether it should be permitted to him or not is a question, not of right with him, but of public expediency, upon which there is considerable diversity of opinion.
Modern European Legislation.—A full collection of laws and statistics relating to marriage and divorce in European countries will be found in the report of the United States Commissioner of Labor, Carroll D. Wright, for 1889. It is therein stated that “prior to 1868 the ecclesiastical courts had in most of the countries named more or less complete jurisdiction over matrimonial causes, but the civil courts have now exclusive jurisdiction over such matters in all of them”. In Austria-Hungary absolute divorce is not allowed to members of the Catholic Church. Prior to January 1, 1876, all the cantons of Switzerland had their own peculiar laws of divorce, but subsequent to that date a general law governing the subject took effect. In Germany perpetual separation equivalent to limited divorce was abolished throughout the empire, and the causes for such separation were made causes for absolute divorce. In Hungary divorce has been legal for Protestants since 1786 and for Hebrews since 1863. The laws of their respective churches apply to Latin Catholics, Greek Catholics, and Orthodox all Greeks. Questions of divorce or validity of marriage among Protestants are subject to the jurisdiction of the civil courts. Excepting for Protestants and Hebrews, the ecclesiastical courts of other bodies have jurisdiction. In case of mixed marriage the court of the defendant’s confession has jurisdiction. In Italy, Spain, and Portugal, still Catholic countries, no absolute divorce is permitted. In Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, Mexico, and Cuba, limited divorce alone is permitted.
The following causes in Austria and in Hungary for absolute divorce are typical: in Austria, adultery; commission of a crime punishable by five years imprisonment; malicious abandonment or non-appearance after one year’s solicitation where the absentee’s residence is known; assault endangering life or health; repeated cruelty; unconquerable aversion, on account of which both parties demand a divorce. In the last case a limited divorce or separation from bed and board must first be obtained. In Belgium, where the husband is at least twenty-five years of age and the wife twenty-one, and the parties have been married two years or longer, divorce may be obtained by mutual consent on certain terms and conditions, but must be approved by the courts. In France divorce was introduced by the law of 1792. This law was modified in 1798 and in 1803 (Code Napoleon), was subsequently abrogated in 1816, and reintroduced in 1884; the grounds of divorce being adultery of either party; excesses, cruelty, grave injury inflicted by one spouse on the other; condemnation to infamous penalty of either of the spouses; mutual and persevering agreement of the wedded to separate, if said consent is expressed and established as prescribed. By recent legislation, after the lapse of a fixed period of time, a decree of separation can be changed into a judgment of divorce on the application of either of the parties. (Civil Code, Sec. 307.) In the German Empire perpetual judicial separations have been abolished, and all subjects of the empire, without regard to their religious status may avail themselves of the laws of divorce which exist in their respective states. In Prussia there are seven causes known as major causes for divorce and six as minor causes. Among the major causes are: false accusations of serious crimes preferred by one of the parties against the other, and endangering the life, honor, or office of the other spouse; among the minor causes are: insanity, disorderly conduct or mode of living, refusal of maintenance or support by the husband. It may be noted that in the divorce laws of European states there exists much similarity as regards the causes for divorce. In Scotland divorce is granted for adultery and malicious desertion; the former since 1560; the latter since 1573. The injured party has the right to choose either a judicial separation or an absolute divorce. In Ireland the civil courts have no jurisdiction to grant decrees of absolute divorce. In Canada exclusive authority was conferred upon the Parliament by the British North America Act of 1867 (Sec. 91). At that time courts of divorce existed in Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia, and they still continue to exercise their functions. Excepting in Prince Edward Island, the divorce courts appear to have been modeled upon the English court of divorce and matrimonial causes. A court of divorce and alimony was established in Prince Edward Island as early as 1836. In the other provinces of Canada no divorce court has ever been constituted and divorces are granted only by special Act of Federal Parliament. The courts of Quebec, however, can grant separation de corps under the English divorce court practice and annul marriage on the ground of impotence.
In Australia, at the time of the formation of the Federal Commonwealth, there were divorce courts in all or almost all of the constituent states. Under the Constitution (Act 63-64, Vict., ch. xii, part V, Sec. 51), power was granted to the Parliament of the Commonwealth of Australia, comprising the states of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia, with respect to divorce and matrimonial causes and in relation to parental rights and the custody and guardianship of infants. The object of this subsection is stated to have been to avoid “the great mistake made by the framers of the Constitution of the United States of America, who left the question to the states to deal with as they respectively thought proper” and “to provide for uniformity in the law of divorce” (Quick and Garran, Aust. Const., pp. 262-609). The local statutes in the various states still prevail, however, with the right of appeal to the High Court with respect to judgments of the Supreme Court of a state (Act of 1903, 2 Com. Stat., p. 148). In New Zealand, which does not form a part of the Australian Commonwealth, divorce is allowed for adultery on the part of the wife, and adultery with certain aggravating circumstances, or with cruelty, on the part of the husband. (New Zealand Statutes, Vol. I, p. 229)
Divorce in the United States.—Colonial Period (1607-1787).—At the time of the settlement of the various colonies which subsequently declared their independence of Great Britain, there were no ecclesiastical courts; as in England, therefore, the practice of special acts of legislatures obtained. Sometimes it was in the form of a private statute directly dissolving the marriage; sometimes the court was empowered to investigate the cause and grant the divorce if the complaint was sustained. There are many instances of legislative divorces granted in the New England colonies, all being divorces a vinculo. Adultery and desertion were sufficient reasons, though male adultery would require additional circumstances. In the Southern colonies there was no court having jurisdiction to grant divorce, though in some of them an appeal for alimony would be considered in a court of equity. Under the Dutch government of New York divorce jurisdiction was exercised by the courts for absolute, as well as for limited, separation, but when the English took possession of the colony, this jurisdiction was no longer recognized. In Pennsylvania under “The Great Law of 1682” divorce was authorized for adultery. The legislature also granted divorces. In New Jersey there was no divorce jurisdiction granted the courts. It may be said, therefore, that outside of New England during the colonial period there was no such thing as a judicial divorce.
From 1787-1906.—The Constitution of the United States does not grant the Federal Government any power over the subject of divorce. In this matter, therefore, Congress can legislate only for the District of Columbia and for the territories. The organic acts creating the territories give power to their legislatures over all “rightful subjects of legislation not inconsistent with the constitution of the laws of the United States”; special and general divorce laws are, therefore, within the power of territorial legislatures, but by the Act of July 30, 1886, all special divorce acts have been expressly forbidden. The various states of the Union succeeded to the full sovereign rights exercised by the Parliament of England over all subjects relating to marriage and divorce, but in the absence of special divorce statutes, there being no tribunal having jurisdiction, the law would remain the same as in the colonies prior to the Revolution. However, all states of the Union have adopted divorce statutes, excepting South Carolina, and have clothed the courts with full jurisdiction to administer relief. In most of the states and territories divorces a vinculo and a mensa et toro are provided for, and in some of the states courts of equity take jurisdiction over special proceedings for a decree of nullity of marriage. In some states, however, decrees a mensa are expressly forbidden. The causes for which a decree may be granted vary from the single cause of adultery on the part of either husband or wife (law of New York and the District of Columbia) to nine separate causes in the State of Washington, the last being known as the “omnibus provision”, which permits a divorce for any other cause deemed by the court sufficient, provided that the court shall be satisfied that the parties can no longer live together. In most of the states there is no restriction upon the parties remarrying after divorce, though in some, as in New York, the court may forbid the guilty party to remarry during the lifetime of the innocent, and in others, as in Pennsylvania, marriage of the guilty party with a paramour during the lifetime of the innocent party is null and void.
Great uncertainty as to the effect of the divorce statutes of the different states has arisen where relief has been sought by a party whose husband or wife was resident of a different state from that in which the proceeding was brought. While it is a fundamental principle that the courts of any state have entire control over the citizens of that state in divorce proceedings, a different question arises where the husband is a resident of one state and the wife of another. The English doctrine that the domicile of the husband is that of the wife, irrespective of where she may actually be living during coverture, does not prevail in the United States. For the purposes of a divorce proceeding the wife may have a domicile separate from that of her husband. In consequence of this rule of American law it has frequently happened that actions for divorce have been initiated and carried to a conclusion without the respondent receiving any actual notice of the proceeding. This is made possible by provisions in the state statutes providing for service of notice by publication, where actual service cannot be had upon a respondent by reason of absence from the state. While decrees granted in accordance with the statutes of any particular state are valid in that state, there is no power to enforce a recognition of their validity in other states, and in consequence it frequently happens that a divorce may be valid in one state and invalid in another; the children of a second marriage legitimate in one state and illegitimate in another; the property rights of the former husband and wife terminated in one state and in full force in another. The Constitution of the United States (Art. IV, Sec. I) provides that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” This provision, however, does not require the recognition of a divorce where one of the parties is not a citizen of the state that has granted the decree. Thus in a case where a husband abandoned his wife without justifiable cause, and removed to another state and acquired a domicile therein, and the wife remained in the matrimonial domicile, since her domicile did not follow that of her husband when he sued for a divorce in the state of his new domicile, and a decree was rendered upon a merely constructive service of process, it was held by the Supreme Court of the United States that the court of the husband’s domicile did not acquire such jurisdiction over the wife as would entitle a decree to obligatory enforcement in the state of her domicile, though the state in which the decree was rendered had power to enforce it within its borders, and the state of the wife’s domicile had the power to give the decree efficacy if it saw fit to do so. (Haddock vs. Haddock, 201, U.S., 562) While the courts of the states called upon to administer divorce statutes receive their jurisdiction by reason of the theory adopted by the legislatures representing the actually predominant sentiment of the various communities that marriage results from a civil contract bringing about a civil status with certain rights and duties appertaining to husband and wife, they by no means accept the theory that it is such a relation or status that the parties by their own agreement can dissolve it. The difference between the marriage relation and that of a contract is set out by Bishop in the following language:—”Because the parties cannot mutually dissolve it; because an act of God incapacitating one to discharge its duties will not release it; because there is no accepted performance that will end it; because a minor of marriageable age can no more recede from it than an adult; because it is not dissolved by failure of the original consideration; because no suit for damages will lie for the non-fulfillment of its duties; because legislation may annul it at pleasure; and because none of its other elements are those of contract but are all of status.” (I, Marriage and Divorce, § 46.)
Keeping this distinction in mind, it will be perceived that a suit for divorce is not an action on a contract, but is a proceeding sui generis founded on the violation of duty enjoined by law and resembling more an action of tort than of contract. The law looks upon marriage as a permanent status, to be ended only by the death of one of the parties, a promise of competent persons to marry at their pleasure requiring a marriage licence merely to attest their competency. To change this status by divorce it is necessary to satisfy the court that the purpose of the marriage relation has been ended by the fault of the guilty party, and that greater evil will follow from maintaining the marriage status than from terminating it. Therefore, in theory, the divorce statutes embrace only such causes as are recognized as being of such a nature as to defeat the ends for which the marriage was entered into. In the great majority of the United States six causes are included in this category: (I) adultery, (2) bigamy, (3) conviction of crime in certain classes of cases, (4) intolerable cruelty, (5) willful desertion for two years, (6) habitual drunkenness. There are recognized as just causes, either for absolute divorce or for divorce a mensa. The following causes are also considered such impediments to a lawful marriage that upon their being made to appear, the courts will decree such marriages null and void, in some jurisdictions under a separate proceeding for nullity, and in others under the form of a proceeding for divorce. These causes are (I) impotence, (2) consanguinity and affinity properly limited, (3) existing marriage, (4) fraud, force, or coercion, (5) insanity unknown to the other party.
The growth of divorce in the United States under the general divorce laws has been unprecedented, and exceeds in number those of any other modern nation, excepting Japan. An analysis of the statistics prepared by Carroll D. Wright, Commissioner of Labor, in 1889, showed the total number of divorces for a period of twenty years, from 1867 to 1887, to be 328,716, an increase of 157 per cent, while the increase in population for the same period was 60 per cent. The Census Bulletin upon marriage and divorce in the United States, issued by the Department of Labor and Commerce under authority of an Act of Congress, in 1908, shows that the total number of divorces for the entire country from 1887 to 1906 inclusive was 945,625. For the earlier investigation covering the twenty years, from 1867 to 1886 inclusive, the number reported was 328,716, or hardly more than one-third of the number reported in the second twenty years.
At the beginning of the forty-year period covered by the two investigations, divorces occurred at the rate of 10,000 a year. At the end of that period the annual number was about 66,000. This increase, however, must be considered in connection with the increase in population. An increase of 30 per cent in population between the years 1870 to 1880, was accompanied by an increase of 79 per cent in the number of divorces granted. In the next decade, 1880 to 1890, the population increased 25 per cent and divorces 70 per cent. In the following decade, 1890 to 1900, an increase of 21 per cent in population was accompanied by an increase of 66 per cent in the number of divorces. In the six years from 1900 to 1906, population, as estimated, increased 10.5 per cent and divorces 29.3 per cent. It thus appears at the end of the forty-year period that divorces were increasing about three times as fast as the population, while in the first decade, 1870 to 1880, they increased only about two and two-thirds as fast.
The divorce rate per 100,000 population increased from 29 in 1870 to 82 in 1905. In the former year there was one divorce for every 3441 persons and in the latter year one for every 1218. The rate per 100,000 married population was 81 in the year 1870 and 200 in the year 1900. This comparison indicates that divorce is at present two and one-half times as common, compared with married population, as it was forty years ago. Divorce rates appear to be much higher in the United States than in any of the foreign countries for which statistics relating to this subject have been obtained. Two-thirds of the total number of divorces granted in the twenty-year period covered by this investigation were granted to the wife. The most common single ground for divorce is desertion. This accounts for 38.9 per cent of all divorces (period 1887 to 1906), 49.4 per cent or almost one-half of those granted to the husband, and 33.5 per cent or one-third of those granted to the wife. The next most important ground of divorce is, for husbands, adultery, and for wives, cruelty. Of the divorces granted to husbands (1887 to 1906), 28.8 per cent were for adultery, and of those granted to wives 27.5 per cent were for cruelty. Only 10 per cent of the divorces granted to wives were for adultery of the husband, and 10.5 per cent of divorces granted to husbands were for cruelty on the part of the wife. Drunkenness was the ground for divorce in 5.3 per cent of the cases for which the wife brought suit, and in 1.1 per cent of the cases in which the suit was brought by the husband. Intemperance was reported as an indirect or contributory cause for divorce in 5 per cent of the divorces granted to the husband, and in 18 per cent of the divorces granted to the wife, and appeared as a direct or indirect cause in 19.5 per cent of all divorces, and 26.3 per cent of those granted to wives, and 6.1 per cent of those granted to husbands. Only 15 per cent of the divorces were returned as contested and probably in many of these cases the contesting was hardly more than a formality. Alimony was demanded in 18 per cent of the divorces granted to the wife and was granted in 12.7 per cent. The proportion of husbands who asked for alimony was 2.8 per cent and proportion obtaining it was 2 per cent. The average duration of marriages terminated by divorce is about ten years. Sixty per cent or three-fifths last less than ten years and forty per cent last longer. Of the divorced couples known to have been married in the United States 88.5 per cent were married in the same state in which they were divorced. Of the divorced couples known to have been married in foreign countries 36.9 per cent were married in Canada, 12.7 per cent in England, 16.1 per cent in Germany and 1.9 per cent in Ireland. Children were reported in 39.8 per cent of the total number of divorced cases. The proportion is much larger for divorces granted to the wife than for divorces granted to the husband; children being present in 46.8 per cent of the former class of divorces and 26 per cent of the latter. A reason suggested for this is that the children are usually assigned by the court to the mothers, and to her, therefore, divorce does not imply separation from her children, while to the husband it involves a severance of the parental as well as the marital relation. In Canada during 1900 there were eleven divorces; in 1901 nineteen. In England there were 284 in 1902, as compared with 177 in 1901. In Germany at the same time there were about 10,000 annually, and in France 21,939, with a tendency towards a rapid increase. Among the Japanese there are about 100,000 divorces per annum. It is estimated that about fifty percent of divorced couples have children, and it is urged “that consideration for the children of divorced people should be a first concern in stimulating restrictive legislation”. It has been stated that three-quarters of the boys in two reformatories, one in Ohio and one in Illinois, come from families broken up by death or divorce, “mainly by divorce” (The Divorce Question in New Hampshire, Rev. W. Stanley Emery).
Divorce Congress of 1906.—A well concerted effort was made in 1906, upon the initiative of the State of Pennsylvania, to secure uniform legislation by the various states and territories of the Union so as to eliminate as far as possible fraudulent proceedings for divorce. It resulted in the meeting of a Divorce Congress in the City of Washington, where all of the states, excepting Nevada, Mississippi, and South Carolina, were represented, in addition to the District of Columbia and the territory of New Mexico. The outcome of this congress was the adoption of a form of statute designed to overcome flagrant evils arising from lack of uniformity, and also from inherent objections to various existing methods of procedure. A summary of these points will show how far the existing statutes were considered to need amendment. Having in mind the evils that have arisen from migratory divorce (that is, where the plaintiff has left his or her own state to obtain a residence for the purpose of divorce in another) the congress recommended that all suits for divorce should be brought and prosecuted only in the state where one of the parties has a bona fide residence; that when the courts are given cognizance of suits where the plaintiff was domiciled in a foreign jurisdiction at the time the cause of complaint arose, relief should not be granted unless the cause be included among those recognized in the foreign domicile, and the same rule should apply in the case of the defendant. At least two years residence should be required of one of the parties before jurisdiction should be assumed. The defendant should be given every opportunity to appear and make defense, and one accused as co-respondent should be permitted to defend in the same suit. Hearings and trials should always be before the court and not before a delegated representative of it, and in all uncontested cases, and in any other case where in the judgment of the court it is wise, a disinterested attorney should be assigned to defend the cause. No decree should be granted on affirmative proof aside from the admission of the respondent. A decree dissolving marriage so as to permit remarriage of either party should not become operative until the lapse of a reasonable time after hearing or trial upon the merits of the case. If an inhabitant of one state should go into another state or territory to obtain a divorce for a cause which occurred in the matrimonial domicile, or for a cause which would not authorize a divorce by the dissolved laws of that domicile, such divorce should have no force or effect in the state of the domicile. Fraud or collusion in obtaining or attempting to obtain divorces should be made a statutory crime. The legitimacy of children born during coverture, except in the case of bigamous marriages, should not be affected by divorce of the parents. On the subject of causes each state should legislate for its own citizens and the common sentiment of that state should be properly expressed by the enumeration of causes in its own statute. Those heretofore given are recognized as representing the view of the great majority as covering offenses against the marriage contract of so serious a character as to defeat the purpose of the marital relation. The congress expressed the hope that the number of causes for divorce would be reduced rather than increased and declared its opinion that in such jurisdictions as New York and the District of Columbia, where the only cause is adultery, no change is called for. It was recommended that where conviction of crime is made a cause, it must be followed by imprisonment for two years, but no absolute divorce should be granted for insanity, and that desertion should not be a cause unless persisted in for at least two years. Practically the same causes for divorce a mensa et toro were enumerated. The provisions of this statute have already been adopted in Delaware and New Jersey and are under consideration (1908) in other states. While the reforms thus suggested will not put an end to what is known as the divorce evil, it is believed that they will have the effect of safeguarding trials and abating fraud upon the courts.
Philosophical thinkers recognize the fact that the prevalence of divorce in the United States arises from two causes. The first of these causes is the gradual change in the attitude of society towards women in the recognition of their individual rights to their own property, and of their capacity to earn their own living in many vocations heretofore closed to them. The legal fiction that the identity of the woman was merged in that of her husband has given place to a recognition of her individuality in all relations of life. This has weakened the dependence of women upon their husbands for support and has affected the concept of the family relation. The theory of the Protestant leaders of the sixteenth century, that marriage is but a civil contract, devoid of sacramental character, has been strengthened by the vicissitudes of modern life, while the facility with which divorces can be obtained has tended to a constant increase of their number. Marriage, not being accounted a sacrament by non-Catholic Christians, is entered into with greater ease than a contract of far less moment affecting property alone. The knowledge that in case of disagreement the parties may obtain a divorce no doubt has its effect. The second cause is the gradual increase and development of irreligion and materialism among non-Catholic members of the community. Leaders of the Protestant Churches in the United States have become alarmed at the progress of divorce, and have been endeavoring in their various denominations to adopt such regulations as would restrict it to flagrant cases or abolish it entirely. It is evident that the prevalence of divorce is an indication of an unsound condition of society. Those who now endeavor to reform the civil statute in the interest of honest trials, may succeed in abating some of the evils flowing from lax methods of administering the divorce statutes in some of the states, and in obtaining restrictive legislation in all of them, but it is not probable that the demoralization will be stopped until the majority of the people of the civilized nations return to the belief in the supernatural sanction of marriage and “that it is a sacramental union, productive of the graces necessary to bear with one another’s shortcomings; an indissoluble union as that of soul and body, which can be dissolved only in death. This means a return to the Catholic view of marriage, and this return alone can remove the national evil of divorce”. (See Marriage; Woman; Parents; also the articles on the various states and countries for divorce legislation.)
WALTER GEORGE SMITH