Matrimony Chapter II §2: Indissolubility of Christian Marriage

§2: Indissolubility

SECTION i. State of the Question, — In order to explain the Catholic teaching on the indissolubility of the marriage bond, we must draw a distinction. To say that the vinculum, or marriage tie, is intrinsically indissoluble means that it cannot be dissolved by the contracting partners. To say that it is extrinsically indissoluble means that no earthly authority can annul it. a) To this twofold indissolubility corresponds a twofold dissolubility. A contract is intrinsically dissoluble if it can be revoked by those who have made it. “Per quascunque causas res nascitur, per easdem dissolvitur/’ says an ancient legal adage. If the marriage contract were intrinsically dissoluble, husband and wife could separate as freely as they married. In matter of fact, the contract, as we shall see, is intrinsically indissoluble, and consequently cannot be revoked by the contracting parties. It may happen, however, that an intrinsically indissoluble contract can be annulled by a higher law or authority. Such a contract is extrinsically dissoluble. If a marriage is actually dissolved by divine ordinance or by the Pope, we know that this is merely a case of extrinsic *3 MATRIMONY dissolubility, which does not affect the intrinsic indissolubility of the bond.1 b) Before expounding the Catholic teaching on the indissolubility of marriage, we must explain the division of Matrimony into legitimum, ratum, and consummatum. (1) A legitimate marriage (matrimonium legitimum) is any marriage validly contracted between unbaptized persons (Jews, Mohammedans, pagans). Such a marriage is not sacramental. (2) A ratified marriage (matrimonium ratum) is any marriage between Christians, whether consummated or not. It is always sacramental. (3) A consummated marriage (matrimonium consummatum) is any. marriage which has become perfect by conjugal intercourse. 2. Dogmatic Theses. — Marriage between baptized persons, whether consummated or not, is always intrinsically indissoluble, so far as the vinculum is concerned, and after it has been consummated, it is indissoluble also extrinsically, that is to say, no human authority can annul it. Thesis I: Every marriage between baptized persons, whether consummated or not, is intrinsically indissoluble. This proposition may be qualified as “saltern fidei proxima” 1 Cfr. Palmieri, De Matrimonio, pp. 125 sqq. Proof. The meaning is that a valid marriage , between baptized persons cannot be dissolved by the mutual consent of the contracting partners. For either of them to contract another marriage, therefore, would involve adultery. Not even heresy, incompatibility of temper, or desertion would justify either party to dissolve the marriage. The Tridentine Council declares: “If anyone saith that on account of heresy, or irksome cohabitation, or the designed absence of one of the parties the bond of matrimony may be dissolved, let him be anathema/’ 2 This canon, which was directed mainly against Luther and Bucer, does not, of course, forbid “separation from bed and board.” a) That marriage between baptized persons is intrinsically indissoluble appears from the fact that our Divine Lord abolished the Mosaic practice of granting a bill of divorce on the express ground that what God joins together no man should put asunder.3 St. Paul teaches: “To the married I give this charge — nay, not I, but the Lord — that a wife depart not from her husband (but if she have departed, let her remain unmarried, or be reconciled to her husband), and that a husband put not away his wife.” 4 2 Seas. XXIV, can. 5: “Si quis (Denzinger-Bannwart, n. 975). dixerit, propter haeresim out mo- 8 Matth. XIX, 6: Quod ergo Ustam cohabitationem aut affect at am Deus coniunxit, homo non separet. absentiam a coniuge dissolvi posse 4i Cor. VII, 10: ” lis autem qui matrimonii vinculum, anathema sit/’ matrimonio iuncti sunt, praecipio, i86 MATRIMONY This is not merely good advice, but a divine command, which binds under pain of mortal sin.5 Both to the Corinthians and to the Romans the Apostle speaks in general terms and nowhere makes a distinction between consummated and unconsummated marriages. For the teaching of the Fathers see infra, Thesis II. The Church has always enforced the indissolubility of the marriage bond between Christians.8 b) The allied question as to the matrimonial tie among non-baptized persons may be considered in the light both of positive divine law and of the law of nature.

to give a trill of divorce and to put away? ” Jesus said : ” In the beginning it was not so,” 10 thereby giving them to understand that marriage is by divine right both monogamic and intrinsically indissoluble.11 If marriage is intrinsically indissoluble by divine right, then only God Himself, or some one commissioned by Him for this purpose, can permit divorce. The Mosaic command to which the Pharisees referred was clearly a divine dispensation. Cfr. Deut XXIV, 1: “If a man take a wife, and have her, and she find not favor in his eyes for some uncleanness {propter aliquant foeditc/tem), he shall write a bill of divorce (libellum repudii), and shall give it in her hand, and send her out of his house (ditnittet) ” This text has been variously interpreted. Peter Lombard, St. Bonaventure, Dominicus Soto, Estius, Sylvius, and other writers think that the libellus repudii merely implied a separation from bed and board. Bellarmine, Maldonatus, and the great majority, including practically all modern theologians, on the contrary hold that it meant a true divorce. They base their opinion on three principal grounds.12 (1) Our Lord Himself testifies that Moses permitted the Jews to put away their wives because of ” the hardness of their hearts.” 18 (2) The Bible takes for granted that under the Old .Law a wife who was put away by her husband in virtue loMatth. XIX, 8: * Ab initio (dir’ dpxvs) autem non ‘fuit tic.* 11 In this sense Pope Pins VI wrote Jnly xi, 1789: “In tali matrimonii) [inHdelium], siquidem verum est matrimonium, perstare debet omninoque perstat perpetuus Me nexus, qui a prima origine dir vino iure matrimonio ita adhaeret, ut nulli subsit civili potestati.” {Bp. ad Episc. Angriae, quoted by Roskov&ny, Matrim. in Eccles. CatK, Vol. I, p. 291). 12 Cfr. St. Thomas, Summa Theol, Supplem., qu. 67, art. 3. isMatth. XIX, 8: Moyses ad duritiam cordis vestri permisit (Mrpe\f/ev) vobis dimistefe uxores vestras i88 MATRIMONY of a UbeUus repudii could remarry, as well as the husband. (3) Had the libellus repudii not been a real divorce, how explain the Mosaic law which forbade a discharged wife to return to her first husband after having been repudiated by the second, or after his death? 14 What was the ” aliqua foeditas ” on account of which a man could put away his wife? The meaning of this phrase is not quite clear. The Hebrew term 1?inny , which the Septuagint renders by oox^ov vpayyua no doubt denoted something with which the Old Testament Jews were perfectly familiar. That it meant any reason whatever, e. g. inability to cook, as Rabbi Hillel and his school maintained, is highly improbable. Shamai’s theory that the law referred to a violation of conjugal fidelity, is far more likely. P) There remains the purely philosophical question whether the matrimonial bond is indissoluble under the law of nature. It stands to reason that marriage, whether consummated or not, cannot be dissolved by the contracting parties at pleasure. The law of nature inculcates order and virtue no less rigorously than the positive divine law. Pope Pius IX in his famous Syllabus condemned the proposition that “The bond of matrimony is not indissoluble by the law of nature, and in certain cases divorce, in the strict sense of the term, may be sanctioned by civil authority.* 15 Our doctrine is more easily demonstrable of mar14 Dcut XXIV, 2 sqq. proprie dictum auctoritate eivili tanIB Prop. 67: Jure naturae ma- ciri potest. (Denzinger-Bannwart, trimonii vinculum uon est indissolu n> 1767), W* it in voriii casibus dwtrtiun riages blessed with children than of such as have proved sterile. The bodily and spiritual care of children demands a home and life-long parental cooperation. One cannot advocate divorce without admitting all those serious inconveniences that flow from the principle of ” free love,” thereby reducing the human race to the level of the poultry-yard. The voice of reason is confirmed by experience. History teaches that all pure and strong nations have upheld the sanctity and indissolubility of the marriage tie, whereas the introduction of divorce has always signalized decay. Ancient Rome in its early days and under the emperors affords a good example for both assertions. Unfruitful marriages, too, are indissoluble: first, because Matrimony by its very nature implies permanent and undivided community of life, and second, because the knowledge that a divorce can be had for the asking seriously imperils the family and the State.16 As the domestic and social evils of divorce can be greatly lessened by legal control, we have still to answer the question whether the natural law does not empower the State in exceptional cases (sterility, incurable insanity, adultery) to grant a divorce to unbaptized persons. Theologians are at variance on this point. Some17 concede this power to the State, whereas others hold with St. Thomas 18 that no purely human authority can dissolve the marriage bond because the common good of society is superior to the individual welfare of its memleCfr. the magnificent Encyclical revised edition, London 19 12, pp. Arcanum divinae ” of Leo XIII, 41-46. — See also Jos. Rickaby, S. J., issued Feb. 10, x88o, and contained Moral Philosophy, pp. 276 sq. in an excellent English translation in it E. g. Bellarmine, De MatriThe Pope and the People, a collec- monio, c. 4, and Sanchez, De Matri’ tion of select letters and addresses monio, 1. II, disp. 13, n. 4. by Leo XIII, published by the Eng- is Summa Thtol., Suppl, qu. 67, lish Catholic Truth Society, new and art 1. MATRIMONY bers, and the natural law cannot take into consideration accidental evils, but must aim at that which is substantially good and safe.18 Hence, if a marriage were to be dissolved hi a State governed under the pure law of nature, it could be done only by the highest authority, i. e. God, and He would have to exercise this power, dot by a general permission, — because this would open the door to license and anarchy,— but individually in each case in which, for weighty reasons, He is willing to dispense from the secondary demands of the natural law.20 Thesis II: No cause, not even adultery, can justify the innocent, and much less the guilty partner in proceeding to a new marriage. This is fidei proximum. Proof • We have here merely an application of our first thesis. Most Protestants regard adultery as a sufficient ground for divorce.1 This error is shared by the “Orthodox,” and to some extent even by the Uniate Greeks. Among Latin theologians’ it was defended by Cajetan, Ambrose Catharinus, and Launoy. The official teaching of the CathoKc Church is clearly set forth by the Tridentine Council: “If anyone saith that the Church has erred in that she taught, and doth teach, in accordance with the evangelical and Apostolic doctrine, that the bond of matrimony cannot be dissolved on account of 19 Cfr. Billuart, De Matrimonio, marriage is well treated by Palmieri, dws. 5, art. 2, f 1. De Matrimonio, the. 23. o The indissolubility of Christian 31 Cfr. Luther, Von Ehwchtn, INDISSOLUBILITY 19% the adultery of one of the married parties, … and that he is guilty of adultery who, having put away the adulteress, shall take another wife, as also she who, having put away the adulterer, shall take another husband, let him be anathema.” 82 Though the above-quoted canon, strictly speaking, defines nothing more than that the Church is infallible in her teaching on this point, that teaching itself is so clearly set down as of faith that it cannot be denied without a dangerous approach to hetesy. PaUavicini relates that in formulating this canon the Council chose the milder among two proposed phrases at the suggestion of certain prelates who thought it would be unwise to brand the Greeks as heretics.28 Separation from bed and board, on the other hand, is permitted for good reasons. Eugene IV says in his famous Decretum pro Armenis: “Though it be permitted, because of fornication, to obtain a separation a tore, it is not allowed to contract a new marriage, because the bond of legitimate wedlock is perpetual.,, 34 This teaching can be proved from Scripture and Tradition. 1530; Calvin, lustii., IV, 19 37- m sit.” (Dcnzingcr-Bannwart, n. 22 Sea*. XXIV, can. 7: “Si qnis 977). dixerit, Eeclesiatn err are, quum do- 23 Pallavtcfoi, Hist. Concil. TH4„ cuit et docet iuxta evangelism st XXU» 4» 27 «W* apostolicam doctrinam propter adnt- S4 ” Quamvis autem ex causa forterium aHerius comugum matrimonii nicationis Herat tori separaHonem vinculum non posse dissolvi … facers, non tamen aliud matrimonium moecharique sum qui Amiss* adul- centrahere fas est, quum matrimonii terfi aliom duterit. et earn quae

a) The scriptural argument may be stated in three propositions, to wit: ( 1 ) Whenever Holy Scripture speaks of married people who have separated from each other, it brands the remarriage of either with a third person as adultery (Matth. X, n sq.; Luke XVI, 18). (2) Where there is a just cause for separation (none can be more just than adultery) the Bible knows of but one alternative — the parties must either remain single or become reconciled. (1 Cor. VII, 10 sq.) (3) The only thing that can dissolve the marriage bond is death (cfr. Rom. VII, 2 sq.; 1 Cor. VII, 39). 25 a) This teaching would be contradictory if adultery were a legitimate cause for divorce, and hence the most elementary principle of hermeneutics demands that the two ambiguous texts f rom St. Matthew, which Protestants quote in favor of divorce, be interpreted in conformity with the Scriptural truths stated above. The texts referred to are : Matth. V, 32 : ” Whosoever shall put away his wife, excepting the case of fornication, maketh her to commit adultery, and he that shall marry her that is put away, committeth adultery.” 29 Matth. XIX, 9 : ” Whosoever shall put away his wife, except it be for fornication, and shall marry another, 25 The argument is developed dimiserit uxorem suam, exceptd in detail by Tepe, Instit. Theol., Vol. fornicationis causd (irapeicrds \6yov IV, pp. 636 sqq., Paris 1896. iropvtlas), facit earn moechari, et 29 Matth. V, 32: ’ Omni s, qui qui dimissam duxerit, adulterat.” INDISSOLUBILITY 193 committeth adultery ; and he that shall marry her that is put away, committeth adultery/’ 27 Our opponents conclude from these texts, not only that a man may leave his adulterous wife, — which is in conformity with Catholic teaching, — but that adultery dissolves the marriage bond, as if Christ had said : ” He who puts away his wife for fornication (adultery) and marries another, does not commit adultery/’ But this interpretation is manifestly false. Logic forbids us arbitrarily to shift a restriction from one member of a sentence to another. The phrase, nisi ob fornicationem, or excepta fornicatione, plainly refers to dimittere, not to ducere aliatn. Were I to say : ” Whoever eats meat on Friday, except he have a dispensation, and drinks to excess, commits a sin,” I could not reasonably be understood to mean that he committed no sin, who, having a dispensation permitting him to eat meat on Friday, would drink to excess. To drink to excess is always sinful. If a man, besides drinking excessively, were to eat meat on Friday, he would commit two separate and distinct sins. Similarly, Christ means to say : To put away an adulterous wife is no sin, but to marry another is adultery, while if a man were to put away his innocent wife and then marry another, he would be guilty of double adultery, — that is to say, he would be responsible for the adultery committed by his wife (facit earn moechari) and commit the same crime himself. Hence, when our Lord speaks of dismissing a wife for fornication, he does not mean divorce, but merely a separation from bed and board, and the sense of the two texts is : ” Whosoever shall put away his wife 27Matth. XIX, 9: ” Quicumque aliatn duxerit, moechatur et qui dimiserit uxorem suam, nisi ob for- dimissam duxerit, moechatur.” nicationem M nopvelqi), et (which is justifiable if she be guilty of adultery), and marry another, commits adultery.” 28 The interpretation we have given is the only one that fits into, nay is demanded by, the context. The object of the whole passage (Matth. XIX, 3-9) is to revoke the Mosaic law permitting divorce, and to restore Matrimony to its pristine indissolubility. Had our Lord excepted adultery as a cause for divorce, He would have stultified Himself, for He says (Matth. XIX, 19) : ” He that shall marry her that is put away, committeth adultery.” How could this be if the adulterous woman did not remain the wife of her first husband?29 If we were to grant Protestant interpretation for argument’s sake, what would be the result? Would Matrimony be elevated from its former state of degradation to a position of security and permanence under the New Testament? No; on the contrary, it would sink beneath the level of the Mosaic law, for the adulterous wife as well as her husband would be empowered to contract another marriage, whereas a woman innocently put away by her husband would, according to 1 Cor. VII, 10 sq., be obliged to remain single unless she became reconciled to her husband. This would be putting a premium upon adultery and making the New Testament inferior to the Old, which punished adultery in both male and female with death.80 To ascribe such legislation to Christ would be to deny His wisdom and holiness. The Apostles evidently did not understand our Lord’s words in the sense which modern Protestants put 28Cfr. Tepe, Instit. Thiol, Vol. IV, p. 636. 20 Cfr. St, Augustine, De Coniug. Adult., I, 9, 9: ” Neque quisquam ita est absurdus, ut moechum neget esse qui duxerit earn quam martins propter causam fornicationis abiecit, quum moechum dicot eum, qui duxerit earn, quae praeter causam fornicationis abiecta est.” 80 Lev. XX, 10. upon them, for they said to Him: “If the case of a man with his wife be so, it is not expedient to marry/‘1 that is, if a man may not put away his wife for adultery, it is better not td marry. P) This interpretation of the disputed texts is so evident and incontrovertible that we need not devote much space to certain other theories which have been suggested by Catholic theologians. Cardinal Bellarmine, e. g., explains the clause nisi ob fornicationem in a purely negative sense, as if our Lord meant to say : ” Whosoever shall put away his wife, — I am not now concerned with the case of fornication,— and shall marry another, committed! adultery.” 82 This interpretation fails to do justice to the context Other writers suggest that the two Scriptural passages under consideration refer to marriage among the Jews, who under the Mosaic law rightly regarded adultery as a sufficient ground for divorce. This interpretation is plainly untenable. The same must be said of Dollinger’s theory that the term ” fornication ” (vopvua) means unchaste conduct before marriage8 If this were so, Christ would have made a sin committed before marriage a diriment impediment. Patrizi interpreted fornicatio literally and explained the disputed passages in St. Matthew’s Gospel as follows: * No marriage can be dissolved, even by adultery, except the quasi-marriage of those who live in concubinage.84 This suggestion is unacceptable: first, because fornicatio is a generic term which includes adulterium as a species, and second, because Christ expressly calls the alBiMatth. XIX, xo: Si ita est 88 Dollinger, Christentum und causa hominis cum uxore, non ex- Kirche, p. 39?, Ratisbon 1868. pedit nubere. 84 De Interpret. Scriptur., 1. I, c 82 De Matrimonii), 1. I, c. 16. 7. Rome 1844. leged concubine ” wife,” 35 and brands her second marriage as “adultery.”3 b) The Latin Fathers are unanimous in teaching that adultery is no ground for divorce, and we may therefore confine the Patristic argument to the Greek Fathers, in order to show that the lax practice of the schismatic Orientals belies their own past. We begin with Hermas, because he wrote in Greek. * If a man have a faithful wife in the Lord, says the ” Shepherd,” ” and finds her out in some adultery, does the husband sin if he lives with her? … 4 What … shall the husband do if the wife remain in this disposition?’ ‘Let him put her away/ he said, ‘and let the husband remain by himself (ty* cavT©>). But if he put his wife away and marry another, he also commits adultery himself.”87 St. Justin Martyr says : ” Whoever marries a woman that has been put away by another, commits adultery.” 88 Dement of Alexandria writes : ” When Sacred Scripture advises [a man] to take a wife, and never allows a withdrawal from marriage, it openly lays down the law : 85 Matth. XIX, 9: ” uxorem suam, r^v yvvaiKa. adrofr” 8f For a fuller discussion of the New Testament teaching on the subject of divorce we must refer the student to Palmieri, De Matrimonio, pp. 178 sqq.; A. Ott, Die Auslegung der neutestamentlichen Teste Uber die Ehescheidung, Minister 191 1; F. E. Gigot, Christ’s Teaching Concerning Divorce in the New Testament, New York 191a. 87 Pastor Hermae, Mand. IV, i, 46 : ”… el yvvaUa IxT? tli wio”r^v iv KvpUp Kal TcU/r»jr etfpv h yuoiXl? Tivl dpa dfiaprdrei 6 dp^ip avw$wv per* adrift; … Tl ovv. tcOpiM, iro iijffjy 6 dv/jp, 4dr ixiftetrg r$ t&Bci Totfry 1) yvvf)\ ‘AiroXvffdrv* q»n

Thou shalt not put away thy wife except for adultery. At the same time, however, [the Bible] declares it to be adultery if a person marries another while his or her partner is still alive. … It says : Whoever marries the wife that has been put away, commits adultery.” Of such pseudo-marriages Origen says: ” As the wife who has been put away is an adulteress, though she seems to be married to another man during the lifetime of her husband, so our Saviour has shown that the man who has seemingly married such a woman, is not to be called her husband, but rather an adulterer.” 40 St. Gregory of Nazianzus condemns the unjust divorce laws of his time as follows : ” In this question I behold most people ill advised, and their law unjust and illogical. What justifies them in putting a curb on the woman, while they leave the husband unmolested? The wife that has disgraced the marriage bed of her husband is branded with the mark of adultery and punished with the severest penalties, whereas the husband who is unfaithful to his wife goes scot free. I do not approve of such a law, I do not commend such a custom. Men made this law, and therefore it is directed against the women.* 41 St. John Chrysostom composed a homily on the Mosaic bill of divorce, in which he says: What is that law which Paul has given to us? The wife, he says, is bound by the law, and consequently may not separate from her living husband., or take another man besides him, or contract a second marriage. And behold how carefully he has weighed his words. He does not say: ’ She shall cohabit with her husband as long as he lives/ so Stromata, 1. II, c 23 (Migne, 40 In Matthoeutn, torn. 14, n. 23 P. G., VIII, 1095). (Migne, P. G., XIII, 1246). 41 Or., 37. n. 6. MATRIMONY but : ’ The wife is bound by the law as long as her ttusband lives/ Hence, even if he gives her a bill of divorce, and she leaves his home and lives with another, she is bound by the law, and an adulteress. … Do not cite the [civil] laws made by outsiders, which command that a bill be issued and a divorce granted. For it is not according to these laws that the Lord will judge thee on the last day, but according to those which He Himself has given.” « Thesis III: A consummated marring between Christians is both intrinsically and extrmwcaUy indissoluble. This proposition may be technically qualified as “propositio certa.” Proof. A marriage may be intrinsically indissoluble, yet extrinsically soluble.3 A consummated marriage between unbaptized persons can be dissolved if one party embraces Christianity and is baptized, while the other either refuses to live with the baptized party, or will not cohabit with him or her in peaceful wedlock without injury to the Creator. (This is called the Pauline privilege or casus Apostoli, of which we shall have something more to say later on. ) 4 A marriage legitimately contracted between baptized Christians, but not yet consummated (matrimonium return iantum), can be dissolved either by 42Z?# Ubelh RtpudU (Migpe, stamentlicken Sekrifttesie Ui den P. G., LI, ai8)^-Cfr. M. JH& VVtem, Paderborn xgao. ner. Die Ehescheidung itn Neuen 48 V. supra, No. t. Testament. Die Auslegung der nettle- 4* V. infra, Sect. 3. INDISSOLUBILITY 99 solemn profession in a religious order or by decree of the Sovereign Pontiff.46 We are dealing in this thesis with a consummated marriage (rattm et consummatum) between Christians, and we assert that such a marriage cannot be dissolved by any earthly power. We advisedly say, by any eairthly power, because God could dissolve it, though we hold that He never does so. The argument for our thesis may be briefly stated as follows : Had God meant to empower any earthly authority to dissolve a validly contracted and consummated marriage, He would surely have given this privilege to His Church, and not to the State, which in all probability can not even dissolve purely natural marriages. But the Church denies that she has this power. Consequently, no earthly authority can dissolve a consummated marriage between Christians. Canon Law is full of provisions showing the mind of the Church in this matter. Even where the situation of the innocent party is almost unbearable, the Church forbids second marriage as adulterous if it is certain that the first marriage was both ratified and consummated. Pope Alexander III declares: “What the Lord says in the Gospel, that a man is not allowed to put away his wife except for fornication, must according to the true interpretation of Sacred Scripture be understood of those whose marriage has been consummated by carnal intercourse. • 49 V. infra, Sect. 3. gelio dicit, non ticere viro nisi ob tt £**# qnoi Dminus m cvm causam fomkalionis uxorttn sum 200 MATRIMONY The reason for this absolute indissolubility is that only of a properly consummated Christian marriage can it be said in the full sense of the phrase that husband and wife are * two in one flesh, 47 and that their union is a perfect symbol of Christ’s mystic union with His Church, consummated by the Incarnation.48 dimittere, intelligendum est secundum interpretationem sacri eloquii de his, quorum matrimonium carnall copula est consummatum.* (Denzinger-Bannwart, n. 395). 47 Gen. II, 24. 48Cfr. St Thomas, Summa Theol., Sup pi., qu. 61, art. a, ad x: Matrimonium ante carnalem copulam significat Mam contonctionem. quae est Christi ad animam per gratiam, … sed post carnalem copulam significat coniunctionem Christi ad Ecclesiam quantum ad assumptionem humanae naturae in unitatem personae, quae omnino est indivisibilis.” — For a fuller development of the doctrine set forth in our thesis see Palmier!, De Matrimonio Christ., the, 24.