De his, qui adhibitam sibi uxorem reliquerunt et aliam sociaverunt. Nulli liceat, excepta causa fornicationis, adhibitam uxorem relinquere et deinde aliam copulare; alioquin transgressorem priori convenit sociari coniugio. Sin autem vir et uxor divertere pro sola religiosa inter se consenserint vita, nullatenus sine conscientia episocopi fiat, ut ab eo singulariter proviso constituantur loco. Nam uxore nolente aut altero eorum etiam pro tali re matrimonium non solvatur.
Forma minor: Nullus excepta causa fornicationis uxorem suam dimittat. Si vero vir et uxor pro religion dividi voluerint, cum consensus episcopi hic faciant. Nam si unus voluerit et alius noluerit, etiam pro tali re matrimonium non solvatur.
Concerning those men, who have divorced [their] married wives and marry another. Let no one, except for the cause of fornication, divorce their married wife and then marry another. Otherwise, it is suitable for the transgressor to be married to the former spouse. If however a man and wife consent to divorce between themselves for the sake of a monastic life, in no way shall it be so without the joint knowledge of the bishop, so that they may be stationed by him in a single prepared location. For [if] due to an unwilling wife or her husband, let it not be dissolved for the sake of the marriage.
Smaller form: Let no one divorce his wife except for the cause of fornication. Truly if a man and a wife wish to separate for [pursuing] a religious life, let them do so with the consent of the bishop here. For if one wishes and another does not wish, let the marriage not be dissolved.
Concilia Romanum, canon 36, MGH, Concilia aevi Karolini, 2.1: 582
First, I have had several people make the claim that this canon only allows for divorce on account of fornication. Such an interpretation is simply not plausible. Every academic work that I have consulted on this matter argues that this canon explicitly allows for remarriage after divorce in cases of adultery. The following citations for this are:
Jo-Ann McNamara and Suzanne F. Wemple, “Marriage and Divorce in the Frankish Kingdom,” in Women in Medieval Society, edited by Susan Mosher Stuard (Philadelphia: University of Pennsylvania Press, 1976), 103.
Rachel Stone, Morality and Masculinity in the Carolingian Empire (New York: Cambridge University Press, 2012), 272.
Philip Lyndon Reynolds, Marriage in the Western Church: The Christianization of Marriage During the Patristic and Early Medieval Periods (New York: E. J. Brill, 1994), 187.
In short, there is no reason to understand this canon as permitting only divorce and not both divorce and remarriage. The main verb “licet” applies equally to the infinitive verbs “to divorce” (relinquere) and “to marry” (copulare). To further prove my point, let us look at a church canon that clearly does forbid divorce and remarriage (Council of Paris in 829 AD):
…ut Dominus ait, non sit uxor dimittenda, sed potius sustinenda, et quod hi, qui causa fornicationis dimissis uxoribus suis alias ducunt, Domini sententia adulteri esse notentur,…
As the Lord says, one ought not to divorce [their] wife, but rather support them. And also, those, who having dismissed their wife for the cause of fornication [and] marry another, are denoted by the sentence of the Lord to be adulterers.
Concilium Parisiense, canon 69, MGH, Concilium 2.2: 671.
As you can see, in this canon, it is made clear through precise Latin prose that remarriage after divorce was strictly forbidden. So to make the argument, that the Synod of Rome (826) actually forbids remarriage after divorce, is just pure nonsense. And again, no academic historian has understood this canon to mean that at all.
Council of Elvira (c. 300 AD)
To claim the Council of Elvira as permitting divorce and remarriage might appear as highly perplexing to some. After all, it is commonly used in Catholic apologetics to assert the indissolubility of marriage. For examples, see this blog and another one. I first encountered the argument that Elvira was modest in McNamara & Wemple’s article (McNamara & Wemple, 97-98). I did not think it was modest, so I initially did not place it in the pool of my evidence. However, I later encountered a more interesting argument put forth by Reynolds, who says that Elvira accepted divorce and remarriage but only for men who could prove their wife’s infidelity. In short, it only forbids divorce and remarriage for women (Reynolds, 181). To us modern people, this double standard sounds absolutely ridiculous (and rightfully so). I ask my readers to recall my previous post, where Ambrosiaster explicitly promotes this double standard. Furthermore, most of the canons I presented in my previous post assumed that only men could initiate divorce. Nevertheless, evidence for divorce & remarriage is still evidence, regardless of its sexist imperfections. Now let us look at the series of canons:
VIII: Item feminae, quae nulla praecedente causa, relinquerint viros suos, & se copulaverint alteris, nec in fine accipiant communionem.
IX: Item femina fidelis, quae adulterum maritum reliquerit fidelem & alterum ducit, prohibeatur ne ducat; si duxerit, non prius accipiat communionem, nisi quem reliquerit, prius de saeculo exierit; nisi forte necessitas infirmitatis dare compulerit.
X: Si ea; quam catechumenus reliquit, duxerit maritum, potest ad fontem lavacri admitti. Hoc & circa feminas catechumenas erit observandum. Quod fuerit fidelis, quae ducitur, ab eo qui uxorem inculpatam reliquit, & cum scierit illum habere uxorem, quam sine causa reliquit; placuit, huic nec in finem dandam esse communionem.
8: Again, women who, having no prior cause, leave their husband and marry another, shall not receive communion unto death.
9: Again, a faithful woman, who divorces [her] adulterous, faithful husband and marries another, is prohibited from marrying lest she marry. If she marries, she may not receive communion as before, unless he that she divorces has departed from [this] world; or unless perhaps a force of weakness compels [one] to give [her communion].
10: If she, whom a male catechumen has relinquished, and she has married a husband, she is able to be admitted to the fountain of baptism. And this ought to be observed concerning female catechumens. But if a faithful woman is married by he who divorces an inculpable wife, and she knows that he has a wife that he has divorced without cause, then it is suitable for her that she ought not be given communion unto death.
Concilium Eliberitanum, canons 8-10, Mansi 2: 7.
LXV: Si cujus clerici uxor fuerit moechata, & scierit eam maritus suus moechari, & non eam statim projecerit, nec in fine accipiat communionem: ne ab his, qui exemplum bonae conversationis esse debent, ab eis videantur scelerum magisteria procedere.
65: If a cleric’s wife has committed adultery, and he knows that his wife has committed adultery, and he does not immediately reject her, he shall not receive communion unto death: lest from these things, those men who ought to be an example of good association, are seen by some to take part in a wicked magisterium.
Concilium Elberitanum, canon 65, Mansi 2: 16
LXIX: Si quis forte habens uxorem semel fuerit lapsus, placuit, eum quinquennium agere de ea re poenitentiam; & sic reconciliari; nisi necessitas infirmitatis coegerit ante tempus dare communionem. Hoc & circa feminas observandum.
LXX: Si cum conscientia mariti uxor fuerit moechata, placuit, nec in fine dandam esse communionem; si vero eam reliquerit, post decem annos accipiat communionem.
69: If perhaps there is any man having a wife has once lapsed [into adultery], then it is suitable that he perform a five year penance about it and thus be reconciled; unless [of course] the necessity of infirmity compels one to give him communion before the time [of penance is up]. This also ought to be observed by women.
70: If with the joint knowledge a husband’s wife commits adultery, it is suitable that the husband not be given communion unto death. But if he divorces her, he may receive communion after ten years.
Concilium Elberitanum, canons 69-70, Mansi 2: 17
Alright, so now to break it all down. First, I want to bring attention to some striking details present throughout many of these canons regarding those based on sex. Canons 10 and 69 both have the explicit addition that their prescripts apply to men and women. Meanwhile, the other canons do not have this qualifier. Therefore, none of the other canons should be construed as applying to both sexes unless they otherwise explicitly say so.
Canon 8 penalizes only women for leaving their husbands and marrying another without prior cause. Canon 9 further elaborates on women stating that no woman can divorce her husband and marry another even in cases of adultery (by “faithful husband” it should be understood as “Christian husband”). If she does marry, she is barred from communion until the death of her first husband or if she nears her deathbed. Notice the fact that this canon does NOT prescribe that she leave her second husband, thus leaving a certain amount of ambiguity.
Canon 10 says that if male Christian catechumen leaves their non-Christian spouse and marries another woman, he is not to be penalized. In fact, he is still to be received into baptism. It then explicitly states that this portion of the canon applies equally to both men and women (Hoc & circa feminas catechumenas erit observandum). But the canon continues with a further stipulation that ONLY applies to women. It goes on to say that a Christian woman (which I’ve translated as “faithful woman,” but is better understood as “woman of the faith”), and only a Christian woman, should be penalized for marrying a man who has dismissed his first wife without cause. The man’s faith in this case, does not matter. Here is where things get interesting. Canon 8 has specified that no woman can leave their husbands without prior cause. Canon 9 then makes it more narrow insofar that a woman cannot even remarry, even if her Christian husband has committed adultery. But again, none of these apply to men. So if a man, regardless of faith, dismisses his first wife with legitimate cause, then the Christian woman is NOT guilty of adultery. In short, men can divorce and remarry under some circumstances, but not women. Now, some Catholics and Protestants will attempt to say this this matter only applies because the marriage between an unbaptized individual and a Christian individual is not a sacramental marriage. While this idea might very well be behind part of the reasoning for these canons, it still does not explain the gap that is left for men. Men can still divorce and remarry, even if he and his first wife had a Christian marriage.
Canon 70 strengthens the above interpretation. It states that if a man knows that his wife has committed adultery and he continues to tolerate it, he is to be barred from communion until the end of his life. If, however, he tolerates it for only a little while and then divorces her, he is to be barred from communion for only ten years. The requirements are much harsher for married priests in Canon 65. If a priest’s wife commits adultery even once, then the priest is required to immediately divorce her. He can under no circumstances attempt to work things out with her, because he ought to avoid even the mere appearance of scandal. Meanwhile for the rest of the populace, if the adultery of a spouse occurs not regularly, but only once, then according to Canon 69, the guilty party is permitted to try to work things out with their spouse whom they have harmed. The guilty party is also barred from communion for five years. Yet, it should be noted that neither the guilty party nor the infringed are under obligation to try to work things out, since it is not demanded, but rather only pleasing or suitable (placuit) that they do so. The infringed can initiate a divorce. However, as already stipulated, if the infringed party is the husband, then he can remarry since he has prior cause.
In short, what I have demonstrated thus far about the Council of Elvira (c. 300 AD) is that it does not in any sense uphold the indissolubility of marriage, sacramental or not. Rather it only restricts the circumstances in which divorce and remarriage occur. Women can only remarry if their first husband is either dead or if he was not a Christian when she divorced him with the further provision that her second husband is not a divorcee, who dismissed his first wife on illegitimate grounds. Meanwhile, a Christian man could divorce a Christian woman and then marry another Christian woman, so long as he had prior cause to divorce his first wife. By all means, this council is sexist, but it also stipulates that a sacramental marriage is not indissoluble.
Council of Agde (506 AD)
The Council of Agde was a Visigothic council that occurred in Southern France on September 10, 506 AD, and was overseen by Saint Caesarius of Arles, a Church Father. It stipulated the following:
XXV: Hi vero saeculares, qui coniugale consortium culpa graviore dimittunt vel etiam dimiserunt et nullas causas discidii probabiliter proponentes, propterea sua matrimonia dimittunt, ut aut illicita aut aliena praesumant, si antequam apud episcopos comprovinciales discidii causas dixerint et prius uxores quam iudicio damnenter abiecerint, a communion ecclesiae et sancto populi coetu, pro eo quod fidem et coniugia maculant, excludantur.
25: But these laymen, who end their marriage on account of a grave fault or even if they have already divorced and proffer no probable cause of discord for the sake of ending their marriage so that they might presume to enter into either an illicit marriage or another marriage, let them be excluded from the communion of the church and the holy company of the people because they defile the faith and marriage; [but only] if they have divorced their former wives before they have given their cause of discord in a tribunal with the provincial bishops.
Concilium Agathense, canon 25, Mansi 8: 329
Concilium Agathense, canon 25, CCSL 148: 204
This canon here is relatively straight forward. If a man wishes to divorce his wife on account of some unspecified grave fault, then he must bring the case before an ecclesiastical tribunal and present his case. If he does not follow this procedure, then he is to be excommunicated. It is implied that the man is permitted to remarry if he is able to prove his case. Furthermore, as Reynolds points out, the canon forbids divorce if the initiate does so in order to contract a new marriage (Reynolds, 184-185). That is to say, the motive for divorce was impure rather than on account of a truly grave fault.
Council of Compiègne Revisited (757 AD)
In my previous post, I offered as evidence Canon 11 of this council which stipulated that if a man’s wife commits adultery with her brother-in-law, then the husband if free to divorce her and marry another. The adulteress and the brother-in-law, however, may not marry. Now I would like to introduce more canons from this council, specifically Canons 16 and 19.
XVI: Si quis vir dimiserit uxorem suam et dederit comiatum pro religionis causa infra monasterium Deo servire aut foras monasterium dederit licentiam velare, sicut diximus propter Deum, vir illius accipiat mulierem legittimam. Similiter et mulier faciat. Georgius consensit.
16: If any man has divorced his wife and has given her permission to serve God in a monastery for the sake of religion or has given her license to veil herself outside the monastery, [then] just as we have said according to God, that man may receive [another] legal wife. And similarly, let it be so for a woman [in the reverse circumstances]. George has agreed [to this stipulation].
Capitularia regum francorum, canon 16, MGH 1: 38
XIX: Si quis leprosus mulierem habeat sanam, si vult ei donare comiatum ut accipiat virum, ipsa femina, si vult, accipiat. Similiter et vir.
19: If any leper has a healthy wife, [and] if he wishes to give her permission so that she may marry [another] many, that woman, if she so wishes, may marry [another man]. And similarly, [let it be so] for a man [in the reverse circumstances].
Capitularia regum francorum, canon 19, MGH 1: 39
These canons are quite stunning. In neither of these cases has either party in the marriage committed a wrong. In both canons, the couple can dissolve the marriage by mutual agreement. The egalitarian nature of these canons is rare in the Latin West, unlike in the Greek East, where it was more common (Reynolds, 176). But here divorce and remarriage is only permissible for either the case of the extreme disease of leprosy or for the sake of entering a monastery. In the case of Canon 19, it must be understood that medieval people thought leprosy was highly contagious (which it is not) and that they had no means of adequate treatment. The canon emphasizes the healthiness of the unaffected spouse. In short, the underlying principle of the canon was the concern that the healthy spouse would become ill with leprosy as well. As a means to avoid that, they granted the couple the option to terminate the marriage and for the healthy spouse to marry another, if both parties agreed. What is further implied is that if both parties are lepers, then they cannot divorce and remarry. In the case of Canon 16, it presumes that the spouse who enters the monastery actually wants to enter the monastery. In short, one member of the marriage cannot force their spouse into the monastery and then presume to enter into another marriage. Their has to be a clear religious desire (pro religionis causa). It is also reasonable to assume that the council participants considered sexual activity to be a very important part not only for the consummation of the marriage, but throughout the marriage. This assumption is bolstered by the fact that divorce and remarriage is permitted if the spouse merely takes a vow of chastity (assumes the veil) but does not enter a monastery.
Penitential of pseudo-Theodore of Canterbury (820/2 – 847 AD)
First things first, the authorship and dating of this penitential has undergone significant debate over the past 150 years. The scholarly consensus is now that this penitential is not the work of Theodore of Canterbury (otherwise known as Theodore of Tarsus), although it does make use of the real penitential of Theodore. Furthermore, it is not of Anglo-Saxon origin. Rather, this penitential is most certainly of Frankish origin, dating from 820/2 to 847 AD. For the detailed arguments about this matter, see the introduction to the following modern critical edition of the text:
pseudo-Theodore, Paenitentiale pseudo-Theodori, edited by Carine van Rhijn, CCSL 156B (Turnhout, Belgium: Brepols, 2009)
Now, let us look at some of the canons of pseudo-Theodore. I’ve listed the chapter and canon numbers for the CCSL edition first and in parentheses I have provided the canon numbers for Wasserschleben’s edition, which is available on Google Books:
XIII.7 (6): Qui dimiserit uxorem propriam alienamque in coniugio duxerit, non tamen uxorem alterius sed vacantem quempiam vel virginem, vii annos peniteat.
XIII.13 (12): Si quis legitimam uxorem habens dimiserit et aliam duxerit, vii annos peniteat. Illa vero quam duxit non est illius, ideo non manducet, neque bibat, neque omnino in sermone sit cum illa quam male accepit, neque cum parentibus illius. Ipsi tamen, si consenserint, sint excommunicati. Illa vero excommunicatio talis fiat, ut neque manducent neque bibant cum aliis christianis, neque in sacra oblatione participes existant et a mensa Domini separentur quousque fructum penitentie dignum per confessionem et lacrimas ostendant.
XIII.19 (18): Mulier si adulterata est et vir eius non vult habitare cum ea, dimittere eam potest iuxta sententiam Domini, et aliam ducere. Illa vero, si vult in monasterio intrare, quartam partem suae hereditatis obtineat. Si non vult, nihil habeat.
XIII.24 (23): Si mulier discesserit a vira suo, dispiciens eum, nolens revertere et reconciliari viro, post v annos cum consensu episcopi aliam accipiat uxorem si continens esse non poterit et iii annos peniteat quia iuxta sententiam Domini moechus comprobatur.
XIII.25 (24): Si cuius uxor in captivitatem per vim ducta fuerit et eam redimi non potuerit, post annum potest alteram accipere. Item si in captivitate ducta fuerit et sperans quod debet revertere vir eius, v annos expectet. Similiter autem et mulier si viro talia contingerint. Si igitur vir interim alteram duxit uxorem et prior iterum mulier de captivitate reversa fuerit, eam accipiat posterioremque dimittat. Similiter autem et illa, sicut superius diximus, si viro talia contingerint, faciat.
13.7 (6): He who would dismiss his wife and marry another in union, [that is to say] not the wife of another, but any single maiden, let him make penance for seven years.
13.13 (12): If any living man having a legal wife divorces her and marries another, let him make penance for seven years. But that [first] woman whom he has married is no longer his, therefore let her not eat, drink, nor be anywhere within speaking distance with that [second] woman whom he has married wrongly nor with his parents. But those parents, if they consent [to be with the ex-wife], let them be excommunicated. But that excommunication shall be so great, that they shall not eat nor drink with any other Christians, nor be participants in holy oblation and be separated from the table of the Lord until they show worthy fruit with penance through confession and tears.
13.19 (18): A woman, if she is an adulteress, and her husband does not wish to live with her, he is able to divorce her in accordance with the prescription of the Lord, and marry another. That woman, however, if she wishes to enter into a monastery, let her retain a fourth of her dowry. If she does not wish [to do so], let her have none of it.
13.24 (23): If a woman has divorced her husband, despising him, not wishing to return and be reconciled to the husband, after five years with the consent of the bishop, he may marry another wife if he is unable to be continent. And let him make three years penance because in accordance with the prescription of the Lord, he is known as an adulterer.
13.25 (24): If a man’s wife has been led into captivity through force and he has been unable to redeem her, after one year he is able to marry another. Again, if a woman is led into captivity and her husband hopes that she ought to return, then he should wait for five years. And similarly for a woman if they have seized her husband. If therefore a man has married another wife and the first wife has returned from captivity, let him receive her and divorce the second. And similarly, just as we have said above, in the case of if her husband is seized and he returns, let her do likewise.
“Poenitentiale pseudo-Theodori,” in Die Bussordnungen der abendländischen Kirche, edited by F. W. H. Wasserschleben (Halle, Germany: Graeger, 1851), 581-583 (canons 6, 12, 18, 23-24)
Paenitentiale pseudo-Theodori, Chapter 13 De adulterio, CCSL 156B, 26-29 (canons 7, 13, 19, 24-25)
Canon 7 (I’m using CCSL numbers here) says that a man who divorces his wife and marries another must make penance for seven years. Given that the penance is not lifelong until he divorces the second wife or is shortened if he does divorce his second wife, it is clear that remarriage is permitted. It is surprising, however, that no circumstances are outlined that restrict the reasons for divorce. Meanwhile, Canon 13 repeats this injunction on the man, but then concerns itself with the behavior of the first wife. She is explicitly forbidden from being around the second wife or her former in-laws. If the in-laws allow their beloved ex-daughter-in-law to remain with them, those parents are excommunicated. Canon 13 seems to be intent of making the life of the second marriage as least awkward as possible by forcing the ex-wife entirely out of the picture. In other words, although the man is frowned upon for divorcing and remarrying, his second marriage is viewed as completely legitimate and worth the protection of the church and community.
Canon 19 is fairly straight forward in permitting divorce and remarriage of the husband, if his wife has committed adultery. It also issues stipulations for dividing her dowry. If she chooses to make penance by entering into a monastery, then she may keep a fourth of her dowry, presumably for her to give to her monastery when she enters it. But if she chooses not to make this penance and instead either make no penance or the seven year penance outlined in Canon 18 (17), which I did not translate here, then she is to keep none of her dowry. The loss of a dowry for a medieval woman after divorce was an incredibly harsh sentence.
Canon 24 very much resembles Canon 122 of pseudo-Egbert’s penitential, which I proffered in my previous post, but restricts the penance to only three years. The ambiguity of lifelong penance, outlined in pseudo-Egbert, is removed. However, the condemnation of the husband for not ideally staying single remains. Likewise Canon 25 is also similar to Canon 123 in the previously discussed pseudo-Egbert. However, the waiting periods differ drastically. In pseudo-Theodore, if the husband is clearly unable to redeem his wife, then he only has to wait a single year before remarrying. If, however, he expects, presumably through prior arrangements, that she be returned, then he must wait at least five years. If she has not returned after five years, then he can remarry. Pseudo-Egbert does not provide this nuance. Rather is says regardless of whether the husband expects to get his wife back after trying to do so, he must wait a full seven years before remarrying. Nevertheless, both penitentials agree that these stipulations apply to both men and women equally. Therefore, a woman could remarry if she is unable to redeem her captured husband. Furthermore, if the captured spouse somehow returns after the other has already remarried, the remarried party must divorce their second spouse and return to the other. It does not seem that the desires of either party matter in such circumstances. They must return to the first marriage regardless.
Pope Innocent I: The Case of Fortunius & Ursa (410 AD)
The following historical background for this case is detailed in Reynolds’ work, but Migne also presents some notes in the Patrologia Latina (Reynolds, 131-134). This particular case came before Pope Innocent I in 410 AD, brought to him by a woman named Ursa. We know of this case through a letter from Innocent addressed to a Roman civil official by the name of Probus. The circumstances of Ursa were that she was captured by the Visigoths who sacked Rome in 410. Eventually, however, she was able to return to Rome and to her husband. However, her husband, Fortunius, had already remarried another woman by the name of Restituta (Reynolds, 132). Under secular Roman law, if someone is captured by a foreign enemy and taken to territory outside Roman control, then their citizenship was suspended and their estate could be assumed by another. Furthermore, their marriage was automatically dissolved (Reynolds, 131). That is to say, even if they wanted to wait for the return of their spouse, under Roman law, the marriage had already been terminated automatically. Below is Innocent’s letter, which contains the particulars of this case:
Epistola XXXVI. Si maritus cujus uxor in captivitatem fuerat abducta, alteram acceperit, revertente prima, secunda mulier debet excludi.
[Col.0602B] Conturbatio procellae barbaricae facultati legum intulit casum. Nam bene constituto matrimonio inter Fortunium et Ursam captivitatis incursus fecerat naevum, nisi sancta religionis statuta providerent. Cum enim in captivitate praedicta Ursa mulier teneretur; aliud conjugium cum Restituta Fortunius memoratus inisse cognoscitur (34, q. 1 et 2, c. 2; Ivo p. 8, c. 245). Sed favore Domini reversa Ursa nos adiit, et nullo diffitente, uxorem se memorati perdocuit. Quare, domine fili merito illustris, statuimus, fide catholica suffragante, illud esse conjugium, quod erat primitus gratia divina fundatum; [Col.0603A] conventumque secundae mulieris, priore superstite, nec divortio ejecta, nullo pacto posse esse legitimum.
Letter 36. Whether a husband whose wife has been led into captivity and has married another woman should, with the first wife having returned, divorce the second wife.
Innocent to Probus
The confusion of the violent barbarian has brought a legal case before my power. For their attack has wrought a blight upon the good marriage between Fortanius and the captive Ursa, unless they have provided a holy statute of religion. Indeed, the woman Ursa was taken into the aforementioned captivity, Fortunius is known to have entered into another marriage with Restituta. But with the favor of the Lord, the returned Ursa came before us, and with no denial, proclaimed convincingly that she was the wife of times past. By which means, young illustrious lord with merit, we have ruled, having favored the universal faith, that [first] marriage to stand, because it was formerly founded with divine grace, and that covenant with the second woman, as long as the first wife lives or is not divorced, cannot by any agreement be legitimate.
Pope Innocent I to Probus, Epistula 36, Patrologia Latina 20: 602A – 603A
There is a lot to go through here. Since it is only fair, a previous scholar by the name of G. H. Joyce said that this case was a legal case, not an ecclesiastical case, thereby meaning Innocent was operating as a secular legal judge and was bound by secular law. This argument can be seen in Christian Marriage: An Historical and Doctrinal Study printed in 1933. Reynolds, however, rebuts this position insisting that the case was seen before an ecclesiastical court. The reason for this is because Emperor Honorius had ruled in 399 AD that bishops could only hear religious cases and that civil cases must be held before civil courts. Furthermore, under civil law, Ursa would have most certainly lost her case against Fortunius, because Roman law automatically dissolved their marriage once she was captured and taken into foreign territory (Reynolds, 133). This argument is further bolstered by the fact that Innocent makes mention of religious statutes (sancta religionis statuta) and the favoring of the universal faith (fide catholica suffragante) (Reynolds, 133). These statutes would have no standing in this case if it was a secular legal one. In short, this was most certainly a religious case adjudicated by Pope Innocent I.
Now, it is worthy to note that Pope Innocent makes the interesting point of some exceptions in cases of divorce and remarriage. If the first wife died, then of course Fortunius could remarry. Additionally, if Fortunius had divorced his wife in an ecclesiastical court, then he could remarry. In short, Innocent here is saying that he permits divorce and remarriage. The question quickly arises as to under which circumstances would Innocent have granted an ecclesiastical divorce. To this point I will later return.
Now some readers will object to this interpretation based upon Innocent’s Letter to Bishop Victricius of Rouen in 408 AD. In it, he prohibits an adulteress woman from remarrying again while her husband still live. Catholic Answers has this quote proudly posted on their website concerning the issue of marriage. However, it should be noted that this woman is clearly the guilty party in the marriage. Furthermore, the letter says nothing about forbidding that husband from remarrying. Nevertheless, Innocent does forbid remarriage after divorce, even in cases of adultery, for both parties in Letter 6, Chapter 6 (PL 20: 0500B – 0501A) dating from 405 AD. So either Innocent changed his position five years later in the case of Ursa, or he was always extraordinarily strict in giving permission for ecclesiastical divorce. Reynolds speculates that the extraordinary circumstances might have been related to many years of captivity (Reynolds, 134). Again, we cannot know the specifics. What is certain however is that Pope Innocent believed divorce and remarriage was possible, but on what grounds remains uncertain.
Pope Leo I: On the Return of Captive Spouses (458 AD)
Nearly four decades later, Pope Leo I, like Innocent, faced the daunting challenge of barbarian invaders – this time the Huns under the command of Attila. Around 452 AD, the Huns had invaded Northern Italy, and took many captives. The remaining women whose husbands had been taken into captivity eventually remarried. However, many of the men were able to return some years later. Bishop Nicetas of Aquileia is unsure of what to do in these difficult cases. Therefore, he asks Leo for his opinion on the matter. Listed below is a portion of Leo’s reply in a rescript (Reynolds, 134-135). It is important to note that rescripts were not binding judgments. Nicetas was under no obligation to listen to Leo’s advice.
Epistola CLIX. Ad Nicetam episcopum Aquileiensem
Caput I. De feminis quae occasione captivitatis virorum suorum, aliis nupserunt.
Cum ergo per bellicam cladem et per gravissimos hostilitatis incursus, ita quaedam dicatis divisa esse conjugia, ut abductis in [Col.1136B] captivitatem viris feminae eorum remanserint destitutae, quae cum viros proprios aut interemptos putarent, aut numquam a dominatione crederent liberandos, ad aliorum conjugium, solitudine cogente, transierint. Cumque nunc statu rerum, auxiliante Domino, in meliora converso, nonnulli eorum qui putabantur periisse, remeaverint, merito charitas tua videtur ambigere quid de mulieribus, quae aliis junctae sunt viris, a nobis debeat ordinari. Sed quia novimus scriptum, quod a Deo jungitur mulier viro(Prov. XIX, 14), et iterum praeceptum agnovimus ut quod Deus junxit homo non separet(Matth. XIX, 6), necesse est ut legitimarum foedera nuptiarum redintegranda credamus, et remotis malis quae hostilitas intulit, unicuique hoc quod legitime habuit reformetur, [Col.1136C] omnique studio procurandum est ut recipiat unusquisque quod proprium est.
Caput II. An culpabilis sit qui locum captivi mariti assumpsit.
Nec tamen culpabilis judicetur, et tamquam alieni juris pervasor habeatur, qui personam ejus mariti, qui jam non esse existimabatur, assumpsit. [Col.1137A] Sic enim multa quae ad eos qui in captivitatem ducti sunt pertinebant in jus alienum transire potuerunt, et tamen plenum justitiae est ut eisdem reversis propria reformentur. Quod si in mancipiis vel in agris, aut etiam in domibus ac possessionibus rite servatur, quanto magis in conjugiorum redintegratione faciendum est, ut quod bellica necessitate turbatum est pacis remedio reformetur?
Caput III. Restituendam esse uxorem primo marito.
Et ideo, si viri post longam captivitatem reversi ita in dilectione suarum conjugum perseverent, ut eas cupiant in suum redire consortium, omittendum est et inculpabile judicandum quod necessitas intulit, et restituendum quod fides poscit.
Letter 159. To Bishop Nicetas of Aquileia.
Chapter 1. Concerning women who on the occasion of the capture of their husbands have married another man.
Therefore, when through the destruction of war and through the onset of the most grave hostilities, that, as you say, some marriages are dissolved, so that the women, whose husbands have been led into captivity, remain destitute and think that when their husbands have been slain or believe that they will never be freed from domination, therefore on account of being driven into loneliness enter into another marriage. Now whenever the state of things, with the help of the Lord, changes for the better, and some of them, who were thought to have perished, have returned, your charity is seen with deserved ambiguity with respect to the women who are joined to another man. Let [this case] be ruled by us. Because we have known the scriptures, which [say] that “a woman is joined to a man by God” (Proverbs 19:14), and again because we have known the prescription as “what God has joined let no man separate” (Matthew 19:6), [then] it is necessary that we believe the union of the legitimate marriage ought to be reintegrated, and once the evil enemy who attacked has withdrawn, what had lawfully been shall be reformed, and with every desire ought to be procured so that everyone will receive what is theirs.
Chapter 2. Whether there is culpability for he who assumed that the [first] husband was captured.
Nevertheless, the man who took the place of her husband, reckoning that the latter did not exist, should not be judged as culpable or as the invader of another’s right. For in this way many things which belonged to those who were taken into captivity may have passed into the rights of others. But it is altogether just that when they return, their property should be restored to them. Now if this is rightly observed in the matter of slaves or of land, or even of homes and possessions, how more more should this be done when it comes to the re-establishment of a marriage, so that what the adversities of war have disrupted should be restored by the remedy of peace.
Chapter 3. Whether the wife ought to be restored to her first husband.
And therefore, if men who have returned after long captivity so persevere in the love of their wives that they want them to come back to their partnership, then that which misfortune brought about should be set aside and what fidelity demands should be restored.
Note: Chapters 2 and 3 are translations found in Reynolds, Marriage in the Western Church, 135-137.
Pope Leo I to Bishop Nicetas of Aquileia, Epistula 159, Patrologia Latina 54: 1136A – 1137A
Here Pope Leo advises that if the first husband returns from captivity AND desires that he be reunited with his wife, who has since married another man, that the wife therefore leave her second husband and return to her first husband. Furthermore, no one party is held culpable for this situation. In fact, the second husband is explicitly excused from the matter. Also noteworthy is that if the husband returns AND does NOT desire to reclaim his wife, then the wife is under NO obligation to leave her second husband. One last thing worth pointing out here is that Leo did believed the woman’s second marriage was okay based upon two qualifications in the case of her first husband’s capture and enslavement. These two qualifications were either she believed her first husband to be dead OR she believed that, although he was still alive, he would never be able to return. Therefore, it is abundantly clear that Pope Leo I did not hold marriage to be indissoluble, as many Catholics and Protestants do today.
This addendum has turned out to be quite longer than the original post that I made back in September. Yet I think that it is sufficient to show that the tradition of divorce and remarriage in the Latin West was a strong and vibrant one during the first millennium. The Council of Rome (826) most certainly allowed for both divorce and remarriage under the guidance of Pope Eugenius II. Furthermore, the Council of Elvira (c. 300) allowed remarriage for husbands only. Women, however, faced a sexist double standard, which was not uncommon for permissions of remarriage in the Latin West. Equality for divorce and remarriage was much more common in the Greek East. This equality is best demonstrated in the Latin West in the penitential of pseudo-Theodore and the additional canons of the Council of Compiègne (757). I have also provided evidence of two more popes, Innocent I and Leo I (a Church Father), explicitly allowing divorce and remarriage. I have also shown that Saint Caesarius of Arles, another Church Father, oversaw a council that ruled divorce and remarriage to be permissible. To sum up the totality of these past two posts on the Latin West’s tradition: four Church Fathers, three popes, eight councils, and two penitentials all sanctioned divorce and remarriage in a variety of circumstances. Divorce and remarriage in the Latin West was most certainly a part of sacred tradition.