§ 200. The Basis of the Dissolution of Marriage

One of the chief consequences flowing from the concept of marriage (§. 178) is that it is indissoluble (ἄλυτος, indissolubile) for as long as husband and wife both live, and for as long as the marriage answers to its three purposes: the physical, the ethical, and the religious-juridical. This indissolubility of marriage the Christian Church has affirmed still more strongly, having recognized marriage as a great mystery of human nature, which mystery, in Christianity, acquired a religious significance and became an image of the spiritual bond of Christ with the Church.

The indissolubility of marriage, according to the teaching of the Orthodox Church, is one of the essential properties of marriage. “What God hath joined together, let not man put asunder,” says the Holy Scripture.[1] Accordingly, to dissolve the marital bond between two persons lawfully married can be effected either by death, or by such a cause as overwhelms the ecclesiastical concept of the indissolubility of marriage and destroys its moral or religious foundation—which cause is likewise death, only in another form. Death itself, then, whether physical, moral, or religious, can dissolve the marital bond, can dissolve a marriage. This is the teaching the Orthodox Church bases both on its own concept of marriage, as a New Testament mystery, and on the significance of marriage for family, social, and religious life, and equally on the positive teaching of the New Testament law.[2] But by the dissolution of a marriage—or, to use the expression of the Gospel, by the putting asunder of husband and wife, which occurs by reason of a moral or religious death that has befallen a spouse—the commandment of the Gospel, that man is not to put asunder what God has joined together, is not transgressed, nor does this occur through an act of authority recognized by the Church as legislative; rather, it manifests itself of itself, because the marital bond has been broken, because the very foundation of the marriage between the spouses has ceased to exist, because the relevant purpose of the marital bond can no longer be attained—in a word, because there is no longer a marriage. The competent authority, therefore, does not dissolve the marriage, but merely juridically declares the sorrowful fact that a lawful marriage has been deprived of its foundation, and that it has consequently been put asunder by God Himself. And just as the Orthodox Church is strict in its teaching on the indissolubility of marriage and on the preservation of its sanctity, so too it is strict in its judgment as to when it must recognize the dissolution of some marriage.

The institution of marriage is as old as humanity itself, and the legislation on questions of both the contracting and the dissolution of marriage was, in the world, established long before Christianity was to appear. The Church, then, when it began to take charge of marriage, could only reform, in a certain direction, the institution of marriage, but could not transform it at its root; it could only exert a moral influence on the existing legal provisions concerning marriage and on the relations between spouses. On account of the dissoluteness of Roman social life at the time of the appearance of Christianity, the Roman civil laws on marriage in general, and on the dissolution of marriage in particular, were very far from that moral concept of marriage which is, by nature, implanted in the human heart. Repudium—that is, the dissolution of the marital bond—was left entirely to the will of the spouses, who availed themselves of it whenever it suited their personal reasons to do so. Conjugalis affectio (conjugal love) was the first condition of marriage, and as soon as that affectio ceased, each had the right to avail himself of the repudium, whether both spouses consented together to the divorce, or one of them sent the other a libellum repudii, and the marriage was thereby already dissolved.[3] The Roman laws of that time paid little heed to this matter, and freedom of divorce met with no legal obstacle whatsoever, being limited solely by the personal moral sentiment of the spouses concerned. The laws of a later period, issued in order to stem the constant divorces, were powerless against the general dissoluteness of Roman society. One-sided dissolution of marriage—that is, a declaration by one spouse that he dissolves the marriage—was in the main abolished; but there continued to exist, alongside this, divorce by consent (divortium ex consensu), and this stood under the protection of the law.[4]

Having entered into alliance with the state, the Church had to exert all its strength so that, amid that general social dissoluteness, the institution of marriage might be restored to its rightful footing, and so that, by the joint action of ecclesiastical and civil legislation, its sanctity might now be secured. Its first care in this matter was to bring about the abolition of that law by which husband and wife could separate by consent, the husband then to marry another woman, the wife to marry another man. The canonical teaching of the Church against this divorce by consent was established already in the earliest times of the Church.[5] It took the Church, however, several centuries of struggle and effort before it succeeded in bringing the civil Greco-Roman legislation, too, to forbid such divorce. Down to Justinian, individual emperors prescribed in their laws for what causes a marriage might be dissolved;[6] but there was as yet no law whatsoever against divorce by consent between husband and wife. Justinian himself, in the first years of his reign, recognized by law that every marriage might be dissolved if husband and wife agreed between themselves to this;[7] and it was only later that, by two separate laws, he forbade this, and ordained that a marriage might be dissolved only for certain designated causes, and this after a judicial sentence to that effect.[8] A few years later, the emperor Justin again restored the old law, that a marriage might be dissolved by mutual agreement (κατὰ συναίνεσιν, consensu).[9] It took, after that, a further three centuries before the standpoint of ecclesiastical law with regard to freedom of divorce was finally established in the civil Greco-Roman legislation.[10] After that period (the ninth century), a marriage could be dissolved only for precisely designated causes, and this by the competent authority. Divorce by consent was permitted only for the sake of some higher and worthy reason (εὔλογος αἰτία)—namely, when the spouses aspired to a more perfect life, which, according to the teaching of the Church, consisted in monastic asceticism.

Thanks to the Church’s efforts, the Greco-Roman legislation also determined for what particular causes a marriage might be dissolved. Death, whether physical, moral, or religious, can alone put asunder the marital bond between husband and wife. On the basis of the Gospel teaching already mentioned concerning this, ecclesiastical legislation issued the relevant canonical provisions as to what facts are to be regarded as the basis for judging one, another, or a third kind of death.[11] Having established these facts for itself, the Church then had, in keeping with the ecclesiastical-civil character of the institution of marriage, to see to it that the civil legislation adopted this same standard as well. Constantine the Great, in agreement with the bishops, issued in the year 331 a law forbidding divorce in general, except for adultery (adulterium) and such transgressions on the part of husband or wife as entail death or life imprisonment.[12] Succeeding emperors down to Justinian issued laws on divorce, now stricter, now milder.[13] Justinian, by one of his Novels (of the year 542), put an end to the vacillation that had prevailed until then in this matter, and established the fundamental rule for future times, as to when and for what causes a lawfully contracted marriage may be dissolved.[14] It prescribes, namely, that this may occur: a) when a transgression on the part of husband or wife is established that entails the penalty of death; b) when husband or wife falls into such a condition as may be regarded as equivalent to physical death; c) when adultery is shown in the marriage, or such an act as gives grounds to judge it as adultery; d) when the essential physical condition for marriage is lacking; and e) when husband or wife wish to devote themselves to an ascetic life. All these grounds for divorce are set out in detail in that Novel of Justinian, and we discuss them in the following section. By this Novel, and then by another one (of the year 556), every divorce is condemned that is not proclaimed on the basis of one of the causes there enumerated and that is not carried out by regular judicial process, and it is ordained that the husband or wife concerned is, in such a case, to be sent to a monastery for life, and their property divided between the heirs and the monastery; while those who proclaim some unlawful divorce are to be subjected to corporal punishment and sent to penal labor.[15] Since the provision of that first Novel of Justinian (of 542) on the grounds of divorce is fully consonant with the provisions of Orthodox canon law on this matter, and since that Novel itself was issued in agreement with, and at the instance of, the then Patriarch of Constantinople, Menas (536—552), that same Novel was already incorporated into the first redaction of the fundamental canonical collection of the Orthodox Church, namely into the Nomocanon of Fourteen Titles,[16] which, as we know, was later, in the tenth century, proclaimed as the collection binding on the whole Church. By this, the provisions of that same Novel acquired formal force in the Orthodox Church, and became authoritative for the ecclesiastical authority in all matrimonial divorce suits.[17] Other particular causes, mentioned in the Greco-Roman legislation and in ecclesiastical practice of later centuries, are nothing other than a more detailed application of what is contained in the mentioned Novel of Justinian.[18] On the basis of this Novel, and of what the canon-legal sources tell us in general about divorce, the grounds of divorce now in force for Orthodox canon law have been established.[19]