§ 202. Legal Consequences of Divorce

The legal consequences of divorce concern, on the one hand, the spouses themselves who are divorced, and on the other hand, their children.

Divorce dissolves entirely the marital bond that had existed, and restores husband and wife to the position between them in which they stood before the marriage. Their property relations are today settled—in the Eastern patriarchates, by the competent ecclesiastical authority, and in the other local churches, by the civil authority, according to the regulations in force there in that regard.[1] Following the pronouncement of the divorce, husband and wife are freed from all mutual rights and duties toward one another, and are thus in a position to be able to contract a new marriage. In this regard, the competent authority judges with an eye to the kind of cause that occasioned the divorce, and to the guilt of the party concerned in it. The party that gave cause for the divorce was permitted, by Justinian’s 22nd Novel, to enter a new marriage only five years after the pronouncement of the divorce of the first marriage. This has in the main been adopted in ecclesiastical practice as well, save that here the canonical prescriptions on the length of penance for a given transgression are taken into account; and only once that time has fully elapsed, and it is found that the person in question has fully repented his sin, is he then permitted to enter a new marriage.[2] This holds, moreover, for all grounds of divorce except adultery, which bars forever the person who falls into it from entering a new marriage.[3] The innocent party is permitted, without any restraint, to contract a second marriage—naturally under observance of all those prerequisites which the law prescribes for every other lawful marriage.

It is not merely permitted, but the law even recommends, that divorced spouses, where possible, again be reconciled and re-establish their former marital bond.[4] In such a case—that is, if the divorced spouses agree that they will again live in the marital bond—then, in accordance with the prescriptions of the law, one must proceed entirely as though an altogether new marriage were being contracted, and everything that is established for an ordinary marriage must be strictly observed.[5]

As regards the children found after a dissolved marriage, it is prescribed that these children remain with the innocent party to the divorce—although the competent authority may order otherwise, if it finds this more expedient and beneficial for the children. Care for the upbringing of the children rests upon the father, whether or not he was at fault in the divorce; but in the case of the father’s poverty and the mother’s wealthier condition, this care passes to the mother. The settling of this question, too, falls within the competence of the authority that pronounces the divorce.

VI. EXTRAORDINARY MARRIAGES.