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The nearer the Church the further
from God.
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Bishop Lancelot Andrews (1555-1626)
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When marriage was a purely civil ceremony in the West, divorce
was a simple and routine matter available to all. When marriage
was taken over by the Church, divorce became more problematic.
The Bible is not clear on the matter. In the Matthew gospel,
Jesus is reported as saying that if a man divorces his wife
and marries another, he commits adultery, unless the first wife
was unfaithful (Matthew 19:9). This implies that if she was
unfaithful, it is perfectly acceptable for the man to divorce
her and remarry. The Mark author has him banning divorce altogether
(Mark 10:2-12). Following the Matthew author, many Church Fathers
took for granted that divorce was permitted. So did a number
of early synods. Broadly speaking, the Eastern Church followed
the Matthew version, and has always permitted divorce and remarriage
on the grounds of infidelity (as well as on other grounds specified
in the Civil Code of Justinian ). The Western Church preferred
the Mark version, prohibiting divorce, and that is the line
that has generally been followed — except when it has been
convenient to do otherwise.
Married people have been permitted to divorce and sometimes
remarry in all manner of circumstances by the Roman Church.
For example, in the eighth century Pope Gregory II said that
a man could remarry because his wife was so seriously ill that
she could not live with him. If the spouse of a convert to Christianity
abandoned their marriage it was held that marriage was dissolved
and the convert could remarry. This was the Pauline Privilege,
so called because it was justified by reference to St Paul's
writings (1 Corinthians 7:10-17). It became Church law in the
twelfth century. Pope Alexander III in the middle of the twelfth
century held that a marriage could be dissolved if it had not
been consummated. Towards the end of the century Pope Celestine
III declared that a marriage could be dissolved if one of the
parties became a heretic, although this was denied by his successors.
Celestine also said that a woman could remarry if her husband
abandons her, leaves the faith and marries a pagan.
In 1585 Pope Gregory XIII extended the Pauline Privilege to
cover converts even when there had been no desertion by their
partner. In 1894 Pope Leo XIII granted a divorce to a couple
who had married as Jews but had separated and then independently
converted to the Roman Church. In 1924 Pope Pius XI dissolved
a marriage between a Protestant and a Jew when the Protestant
wanted to convert to the Roman Church and remarry. Later the
same year he dissolved a marriage between an Anglican woman
and an unbaptised man. The current rules about the dissolution
of the marriage bond are set out in canons 1141 to 1150 of the
1983 Code of Canon Law.
Divorce was rarely permissible for Christians who lacked wealth,
power and influence. For those who had these qualifications
there was no problem, at least not unless someone else with
more wealth, power and influence opposed the separation. Canon
lawyers invented all manner of imaginative reasons why marriages
could be annulled. Technically an annulment meant that the marriage
had never been valid in the first place, so the parties were
free to remarry. In fact it was often merely a cover for divorce,
as J. H. Baker, a legal historian, puts it:
Some of the subtleties of the Canonists in this regard seem
very remote from theology, morality or human feeling, and
served merely to facilitate divorces on flimsy grounds, by
the discovery of forgotten indiscretions or genealogical obscurities.
Moreover, some of the impediments could be dispensed with
in return for money paid to the Church1.
Historically, annulments have been granted principally to advance
the interests of the papacy, as gestures of goodwill or to satisfy
powerful allies and potential enemies. The Church developed
ways of ensuring that virtually any marriage could be annulled.
Prohibition on marriages between relatives was extended to the
seventh degree of consanguinity in canon law (sixth cousins)2.
This gave grounds for annulling almost every royal marriage
in Europe, if required. The chance of finding two members of
royal houses, or even two noble houses, not related in the seventh
degree or more closely was remote. If no blood link could be
found, then spiritual affinity could be used instead: Godparents
and their families were treated like blood relatives. Even the
officiating priest could create spiritual affinity, as the following
case shows:
Spiritual affinity arises between one baptized and the child
of the baptizer, and it is a diriment impediment to their
contracting marriage. Thus for this text: Gregory IX.
We understand from your letter that his wife M. charged her
husband Alan before the official of Canterbury, and proved
through trustworthy witnesses, by these witnesses' public
depositions, that he had known her carnally. A. produced the
defense that he could not have her as wife because her father,
a certain priest, had baptized him. Then, when the same official,
having refused to accept this defense, gave a final judgment
against him, he appealed to the Apostolic See. Thus we command
that, if this is the case, A. is cleared of the woman's charge,
and we impose perpetual silence about this on the woman.
(Decretals of Pope Gregory IX , Book Four, Title II C.
8)
Another method was to count as related men and women who had
had sex together, or had at some stage been betrothed. The practical
result of all this was that grounds could be found for the annulment
whenever it was expedient to find them. The degree of consanguinity
in which marriage was prohibited by the Roman Catholic Church
varied every few centuries. By the sixteenth century it was
down to the fourth degree of consanguinity in canon law (third
cousins), and in 1917 this was reduced to three (second cousins).
In 1983 the rules were further relaxed, and now the Catholic
Church puts no restriction on second cousin marriages but prohibits
first cousin marriages except by special dispensation*.
It is clear that annulments are sometimes really divorces under
a different name. Roman Catholic couples have been granted annulments
after they have been through a ceremony that everyone believed
valid, spent years together as husband and wife, and brought
up a family. For example, in 1993 Joseph Kennedy (son of Robert,
nephew of John F.) obtained an annulment of his marriage to
his wife Sheila after fourteen years and two children, despite
Sheila's protests, thus allowing him to remarry. It is not unknown
for prescient families of Roman Catholics who intend to marry
to write letters betraying some defect in intention. These letters
are then kept in safe custody, to provide an easy annulment
if one is ever required.
Consuelo, Duchess of Marlborough with
her younger son Ivor Spencer-Churchill
by Giovanni Boldini, 1906
Consuelo Vanderbilt married Charles
Spencer-Churchill, 9th Duke of Marlborough in 1895.
They had two children together. The Marlboroughs separated
in 1906 and divorced in 1921. The marriage was annulled
on 19 August 1926 after more than thirty years, after
an advisor suggested possible grounds. The grounds were
coercion on the part of Consuelo's mother - which she
cheerfully confessed to in order to secure the annulment.
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The Orthodox Church also has an uneven record. At one time
it opposed remarriage even after the death of a spouse. Such
a marriage (described as digamous) was considered offensive
to God. Later, the position became more flexible, and it was
even possible to divorce and remarry — though only once.
Then the rules were changed and it was possible to divorce and
remarry only twice. Then only three times. Then only four, but
this was an exception for an emperor. Now the Church has returned
to its earlier position and absolutely forbids a fourth marriage.
In England after the Reformation the position was not very
different from that of the Roman Church. Divorce was available
for the rich and powerful, but not for everyone else. A separate
Act of Parliament was required for each divorce until the year
1857. Between 1670 and 1857 there were 229 of them. Since 1857
divorces have been granted through the courts, but the Anglican
Church consistently tried to make it as difficult as possible
to obtain one.
The movement for reform was inspired by Jeremy Bentham. He
advocated divorce on Utilitarian principles in his Theory
of Legislation published posthumously in 1864. Over the
following century the Churches consistently opposed a series
of bills for reform. When Thomas Hardy hinted in Jude the
Obscure in 1895 that divorce might be preferable to a lifetime
of married misery the reaction was quick and vigorous. Such
Utilitarian blasphemy could not be tolerated. The Bishop of
Wakefield told readers of the Yorkshire Post that he had burned
his copy of Hardy's book, and had persuaded Smith's Circulating
Library to withdraw it. Before World War I a Royal Commission
(the Barnes Commission) had suggested giving the same rights
to women and men, and allowing divorce on the grounds of cruelty
and desertion as well as adultery. Christians were once again
scandalised. As J. H. Baker has noted: "The Convocations
of Canterbury and York immediately declared their hostility
to any proposal to “facilitate” divorce, and the
Bill which was drawn up to give effect to the suggestions of
the Barnes Commission was defeated in 1914 by opposition from
the Churches"3.
It was not until 1923 that Parliament managed (again in the
face of hostile Churches) to give a wife the same rights as
a husband4.
The Barnes Commission's other recommendations were finally implemented
by Act of Parliament in 1937, as a consequence of which the
Church of England immediately legislated to prevent divorced
people remarrying in church.
The question as to whether polygamists could keep their wives
after conversion was also a difficult one. The traditional position
has been that they were not allowed to. As a result Christianity
made hardly any impression in Asia over the five centuries it
had been evangelising there. Islamic missionaries had a huge
advantage over Christian missionaries in polygamous communities.
They won much of Asia and in the twentieth century were making
large inroads into Africa as well. Under God's guidance the
Anglican Church reassessed matters at the Lambeth conference
in 1989. It was decided that, contrary to Church teaching for
almost 2,000 years, polygamists who become Christian can keep
their wives after all.
The stark fact is that the ever-changing, and mutually inconsistent,
rules of the various Christian Churches have caused possibly
more misery and distress than any other Christian teaching.
From the time when the Church took over matters of divorce to
the time it lost control, ordinary couples whose marriages had
broken down irretrievably were unable to divorce each other.
Even when there was no chance of reconciliation and when each
partner had found someone else with whom they wished to share
their lives, divorce was still not permitted. Over the centuries
this ruling caused untold lifelong misery and suffering to millions.
In this century the Protestant Churches, like the Anglican Church,
have reversed their position on this matter, but Roman Catholics
still maintain that divorce should not be available to ordinary
couples - only the rich and powerful.
Now only religious people suffer because of religious rules
about divorce. For everyone else marriage and divorce have returned
to being secular civil matters. Indeed, some Christians seem
to have taken to divorce as keenly as they recently opposed
it. By the year 2000 non-believers had the lowest divorce rate
in the USA while born-again Christians had the highest.5
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