§ 201. Grounds of Divorce

According to the significance and kind of cause for which a marriage may be dissolved, the grounds of divorce are divided into those that entail a penalty for the spouse who caused the divorce, and, further, those in which neither spouse falls under any penalty.[1] Those causes entail a penalty which are bound up with a violation of the established laws on marriage; where there is no such violation, there can naturally be no penalty either. Of all the grounds of divorce that exist, some were established by ecclesiastical authority, others by civil authority. For Orthodox canon law, the former by themselves carry positive force, while, of the latter, those are valid which have been received into the fundamental canonical collection of the Orthodox Church, namely into the Nomocanon of Fourteen Titles. If some ground of divorce that the civil authority has established is not mentioned in that collection, then in such a case that ground does not hold good for canon law either, nor can some marriage be canonically dissolved on the basis of such a ground; and conversely, as soon as some ground introduced by the civil authority is found in that collection, canonical significance is thereby already recognized as attaching to that ground, and on the basis of it the marriage in question may be canonically dissolved. We shall enumerate in order the grounds of divorce, namely: a) those introduced by ecclesiastical authority and whose basis is in the canonical sources; further, b) those which the civil authority established, and which have been received by the Church as such; and finally, c) those which exist in civil legal sources, but which have not been adopted by the Church either materially or formally.

I. Canonical grounds of divorce:

1. Adultery, that is, when husband or wife breaks conjugal fidelity. This ground rests on divine law.[2] On the ordinance of that law rest the corresponding canonical provisions of the Church, which mention adultery as the first and chief ground for the dissolution of marriage.[3] Civil legislation, both old and new, agrees with the canons, placing adultery among the first grounds for divorce.[4] But given the Church’s concept of the exalted purpose of marriage, and having regard to the gravity of the transgression that the Church sees in adultery, and which transgression it equates, as to penalty, with murder, the Church has received as a basic ground for the dissolution of marriage also all those cases which the Greco-Roman legislation mentions, and which presuppose adultery and destroy the purpose of marriage and the foundation of the marital bond between husband and wife. Beyond adultery, actual and proven, canon law recognizes, in connection with adultery, also the following further grounds of divorce: a) when husband or wife, with criminal intent and against the continuance of the marriage, plot against one another’s life.[5] In such a case the innocent party has the right to demand a divorce. The husband has the right to demand a divorce b) when the wife deliberately kills the child conceived within her, thereby frustrating the chief purpose of marriage;[6] c) when the wife, with criminal intent, feasts with strangers;[7] d) when the wife, without justified reason and without her husband’s knowledge, spends nights in the houses of strangers;[8] e) when the wife, against her husband’s will, frequents public places unbecoming to an honorable woman.[8] The wife has the right to demand a divorce f) when the husband induces the wife to fornication with other men;[9] g) when the husband publicly and unjustly accuses the wife of adultery;[8] and h) when the husband, publicly or secretly, in his own house or outside it, lives with another man’s wife.[8]

2. If one party (husband or wife) apostatizes from the Christian faith. This ground for the dissolution of marriage likewise rests on divine law,[10] and on the basis of that the canons speak also of apostasy from the Christian faith as a ground for divorce.[11] Present-day civil legislation likewise mentions this same ground.[12]

3. Standing as godfather to one’s own begotten child. By canon 53 of the Council in Trullo, marriage of a godparent with the widowed mother of his godchild is forbidden (§. 192), and, consequently, those who contract such a marriage must be separated. Basing themselves on this, certain persons who wished to find a lawful ground on which to divorce their wives—or conversely—stood as godparent to their own begotten child, and thereby attained their purpose without fear of any penalty. In order to put a stop to this abuse, there was issued, in the eighth century, in connection with the said canon of Trullo, an imperial Novel by which this ground of divorce was legally established, along with the corresponding heavy penalty for the guilty party, and a prohibition against his entering into a new marriage.[13]

4. Ordination as bishop. Of this ground of divorce, canons 12 and 48 of the Council in Trullo speak. The latter of these canons permits that a husband who is chosen as bishop may be separated from his wife, provided the wife consents to the separation being carried out. In such a case the wife enters a monastery, which must be at a distance from the bishop’s place of residence, and the bishop is obliged to see to her maintenance.[14] — On the basis of this same canon 48 of Trullo it is established that a ground of divorce may likewise be recognized as

5. Entry into monasticism of husband or wife. And this may occur only when the wife freely consents that her husband become a monk, or the husband that his wife become a nun.[15]

II. Grounds of divorce established by civil authority, and which the Church, too, receives as such:

1. Conspiracy against the imperial power. This is the first among the grounds of divorce established by civil authority in the Greco-Roman state. The Church has received this as a ground of divorce on account of the gravity of the transgression, and on account of the severe penalty that this transgression entails.[16]

2. When a husband disappears and his whereabouts are unknown, the wife may, after the time established by law, demand that the marriage be dissolved, so that she may remarry; likewise, if one spouse maliciously abandons the other.[17] The canons permit the wife to remarry only when it is in fact proven that her husband has died.[18]

3. When the husband is incapable of performing the marital duty, the wife may demand a divorce. This is regarded as a justified ground for divorce when the husband has not been able to perform this duty for three full years from the day the marriage was contracted.[19]

III. Grounds of divorce in civil law which the Church does not recognize as such:

1. Insanity is mentioned by the Greco-Roman legislation as a ground of divorce, but the canon law of the Orthodox Church does not admit this.[20]

2. A contagious disease (λώβη, lepra, leprosy) is mentioned as a ground of divorce only in the Ecloga of the emperor Leo the Isaurian, but this too has not been received into Orthodox canon law.[21]

3. Many-year penal servitude—namely, when someone has committed some grave transgression that entails several years’ imprisonment. This is a provision of more recent civil legislation, by which the innocent party is permitted, if he or she so wishes, to demand a divorce.[22]

4. Insurmountable aversion between spouses. This ground of divorce is put forward, as though it held good for the Orthodox, in the civil law codes of Austria (1811) and Romania (1864);[23] but Orthodox canon law knows nothing whatsoever of this ground for the dissolution of marriage, nor do other, more recent civil codes that deal with the grounds of divorce for the Orthodox.[24]

That, on the basis of a ground recognized by Orthodox canon law, a divorce may be pronounced, it is prescribed, by both ecclesiastical and civil legislation alike, that one must proceed with great caution and not rush to a decision, but must investigate all the circumstances in detail and diligently, and repeatedly attempt to reconcile the estranged spouses and to have them mutually and forbearingly forgive the injury inflicted; and only when all such attempts have proved unsuccessful, and when the existence of a ground for divorce has been proven to the point of evidence, only then should the competent judge pronounce the divorce. Of the judicial procedure in this matter we have already spoken (§ 147, II, III).[25]

Footnotes

[23] § 115 of the Austrian civil code and § 214 of the Romanian civil code. This entered the Austrian civil code from the marriage patent of Emperor Joseph II of March 6, 1786, which in § 57 mentions odium capitale inter conjuges as a ground for divorce for Protestants; and later, when by a decree of the Vienna Court Chancellery of Nov. 20, 1820 it was established that the provisions of § 115 of the civil code were to apply to the marriages of der nicht unirten Griechen in the Austrian monarchy, it was assumed that this Protestant ground for divorce (odium capitale) applied to the Orthodox as well, and in accordance with that it was also practiced in divorce suits. Meanwhile, had attention been paid to the true sense of the words used at the beginning of this § 115, “gestattet das Gesetz, nach ihren Religionsbegriffen”, and had those words not been taken the way Th. Dolliner (Ueber die Auflösbarkeit der Ehe zwischen nicht katholischen christ. Religions-Verwandten, besonders zwischen nicht unirten Griechen, zur Erläuterung des §. 115. des a. b. G. B. [Materialien für Gesetzkunde und Rechtspflege in den oesterreich. Staaten von D. C. J. Pratobevera. Wien, 1821. Bd. V. S. 10—15]) would have them mean, i.e. “because that agrees with the religious notions of their church”, but in their actual sense, namely “insofar as their religious notions allow this”, as is proper, and as Th. Pachmann has soundly demonstrated (Lehrbuch des Kirchenrechts. III. Aufl. 1865. Bd. II, S. 406—408), there would never have been the claim that “irresistible aversion between the spouses” is regarded as a ground for divorce also by the canon law of the Orthodox Church, as, e.g., Kuzmany (Eherecht. S. 474) even wished to prove scientifically, citing, quite without foundation, as if this ground for divorce were mentioned also in the Nomocanon of Fourteen Titles.

[24] Ἀκατάλλακτον μῖσος (irresistible hatred) is mentioned as the ground on account of which one marriage was dissolved, in a synodal decision of Constantinople of December 1315 (Acta Patr. Constantinopolitani. I, 29). Zhishman (Eherecht S. 788. Anm. 2) designates this decision, entirely correctly, as “durch keine kanonische Satzung gerechtfertigte.” When J. Hadschits in his aforementioned treatise (p. 39) also adduced odium implacabile, as a ground for the dissolution of marriage juxta disciplinam orthodoxae ecclesiae orientalis, he did so certainly because on the basis of § 115 of the Austrian civil code the practice had been introduced in the Metropolitanate of Karlovci of dissolving marriages also on this ground, and not because the disciplina orth. ecclesiae prescribes this.

§ 201. Grounds of Divorce

§ 201. Бракоразводни узроци