The Sacred Day
the invasion of God into the ordinary day
Phillips: A history of divorce
Untying the Knot: A Short History of Divorce
Roderick Phillips
Chapter 1: Catholics and Protestants
Catholic position: Marriage a contact until death. Only two other exits, and these were very rare: Pauline Privilege – deserted by nonbeliving spouse – or join an order before marriage consummated.
Catholic Church allowed only separation or annulment, not divorce. “Impediments” to marriage include relationship up to the third cousin degree. Quarrelling spouses might check their pedigrees to get an annulment on that basis. But these requests were actually quite rare and were rarely granted (2% of requests granted).
Separations were granted only in cases of extreme cruelty. Ecclesiastical judges worked hard to reconcile; acted like marriage counselors rather than judges. Spouses had to remain sexually faithful to each other after separation. 0.02-0.05% of marriages ended in separation each year (3-6/12,000). Celibacy a state preferred to marriage by Church.
Roman law initially allowed divorce freely, but later developed a list of just causes. Some early Christian fathers allowed divorce against an adulterous wife, but with no chance to remarry. Augustine and others supported zero divorce and it was codified in 314, 416 and 673. Then other councils allowed remarriage after divorce (465 & 752) for adultery only. Penitence for 7-15 years was required though. However, things solidified and for 600-800 years, divorce was simply not allowed.
The Protestant reformation dismantled the prohibition against divorce as a reaction to Catholic excesses rather than a response to a new reading of Scripture. They didn’t like celibacy because the priesthood at the time was so full of fornication and lewdness. They put marriage in a celebrated position instead of celibacy.
Luther allowed for divorce after adultery, desertion and impotence. He accepted adultery as a just cause from his reading of Mt. 19. He then tried to tie desertion to adultery, but realized, a year later, that this couldn’t be done, so he declared it a grounds for divorce independent on any specific scriptural basis. Impotence followed the Catholic position, which was based on the purpose of marriage being procreation.
Calvin agreed but dropped impotence. Neither accepted mutual incompatibility as a grounds, Calvin citing that an onerous marriage might be the penance we pay here on Earth for our sins.
Martin Bucer (Strausbourg) was the most liberal by far. He declared marriage to be benevolent, filled with love and having all duties being performed properly. If a marriage was not like this, then it wasn’t really a marriage and could be dissolved. He wanted to eliminate unhappy marriages.
In spite of all this, only one divorce per year was granted in Geneva in the 16th and early 17th centuries. Two reasons:
1) Strict laws against sexual misconduct, as a reaction against sexually deviant priesthood. Examples: death for adultery, imprisonment for fornication.
2) Reformers grew up in an era of marital indissolubility and retained an extreme reluctance to grant divorces.
Hutterites and Mennonites “tended to refer more closely to the biblical texts” and didn’t allow divorce except for Pauline Privilege, and then didn’t allow remarriage.
The Church of England permitted separation but stood apart and prohibited divorce.
Chapter 2: 17th Century England and its American colonies
In the 17th century, there was widespread conception in England and America that marriages were falling apart. Much concern for the family and many conduct books for families written.
Anti-divorce literature relied solely on scripture while pro-divorce literature used social theology, etc. Milton (pro-divorce, 1640) dismissed the anti-divorce literature as “resting on the mere element of the Text” while the pro-divorce literature “consult with charitie, the interpreter and guide to our faith”. My note: if they won’t take the Word as it is, a picture must be painted with different colors. That’s a shame, but that’s the reality of it, especially today.
American colonies attempted to liberalize divorce relative to England, especially in granting individual divorces by legislative action, but England curbed this. After the Revolution, American states allowed this more and also broadened the grounds for divorce beyond adultery to include cruelty, impotence and abandonment in some states. Still, the number of divorces was very small.
Chapter 3: Secularization
Between 1600 and 1800, western nations became increasingly secular and increasingly liberal in terms of divorce laws. Divorce courts comprised both secular and ecclesiastical judges or divorce was handled in sequence by ecclesiastical courts, and in last resort the case was taken to secular courts. Divorce counseling was the primary purpose of these courts, and it was messy and time consuming. The legislatures spent so much time over the “privileged” divorce cases that they finally created divorce legal protocols so they wouldn’t have to deal with individual divorces.
Luther identified marriage as “a worldly thing” and supported government responsibility for its regulation. [It’s nice to be anti-Catholic, if that’s your personal hobby, but to take the sacredness out of marriage just because the Catholics made it a sacrament and you don’t like Catholic-y things?]
