Divorce & Remarriage in the Latin West:
A Forgotten History
Introduction: One of the biggest stumbling blocks for Roman Catholics converting to Orthodox Christianity is the issue of marriage and divorce. With author permission, I am posting this work for the benefit of all who struggle with this issue and would like to learn more about how it was considered in the first millennium. I will also direct readers to the author's own blog site for other good articles including an addendum to this one. I thank the author who goes by the name Alura for this permission. https://shamelessorthodoxy.com ~ jp
Over the past many years, there have been a number of internet articles that speak of the differences between the Latin West and the Greek East on the question of the indissolubility of marriage, divorce, and remarriage. Catholics often have seen the Greek East as deviating from correct teaching on the matter. And both Orthodox and Catholics have often seen the Latin West as a monolith concerning its position on divorce and remarriage. The truth of the matter, however, is much more complex. The Latin West for a long time had a rich tradition of allowing divorce and remarriage under a variety of circumstances and under a number of conditions. My purpose here is to illustrate them and to make the case that this tradition was hardly minor, but a very popular one for many centuries in the Latin West. In many ways, this tradition was analogous to the Greek tradition in the East.
Before I start this list, let me make the following statement. There is much to do with the Greek word or porneia clause in Matthew 19:9. For a brief introduction into the big argument about it, see the following blog post from Shameless Popery. I do not know Greek, so I will not try to offer my own interpretation of the original Greek text nor cite secondary sources in my favor since I cannot critically evaluate their understanding of the Greek. However, I am rather content to work with the Vulgate and the vast Latin literature on the subject. Moreover, I do think it is important to stress that for many centuries, the porneia clause or in Latin the fornicationem clause (see Vulgate Mt 19:9) was understood to be an exception clause. Often this tradition is brushed away as something that was minor. If one only looks at the Church Fathers, then they are perhaps correct. However it should be kept in mind that even the group of Church Fathers who held the majority opinion of no second marriage is further split into various smaller group opinions. For example, Basil and Tertullian both heavily disapproved of second marriages, even after the death of a spouse. Once seen in this light, we begin to understand that the issue of remarriage as a whole, as well as remarriage after divorce, is an extraordinarily complex subject in the first millennium of the Church in both the Latin West and the Greek East.
In terms of the Greek East and its traditions, there is a Catholic blog that already makes use of them to argue its case for the indissolubility of marriage. In fact, here is one and then another by the popular apologist Dave Armstrong. I won’t go into detail as to how they are mistaken with their assertion that the Orthodox Church has ignored the Eastern Church Fathers’ consensus in that marriage is indissoluble. I will only make the brief comment that many of these Church Fathers are speaking in the context of the parenetic genre. Furthermore, I will quote an excellent article on the matter briefly:
The idea by which the matrimonial bond subsisted in spite of a justified divorce, that is, one founded on Matthew’s clause of exception, is formally contradictory to the general position of the Eastern Fathers. It would be tedious to mention all the explicit testimonies to this effect. Let it suffice to mention St. John of Chrysostom, who confirms that through adultery marriage is dissolved and that after fornication, the husband ceases to be the husband. As for St. Cyril of Alexandria, he expressly states: “It is not a writ of divorce that dissolves marriage before God, but bad actions.”
Bishop Peter L’Huillier, “The Indissolubility of Marriage in Orthodox Law and Practice,” St. Vladimir’s Theological Quarterly 32 (1988): 206.
If one wishes to read more on the specific issue of Eastern Church Fathers, then I encourage you to read the following article quoted above, which also touches on the Latin Church Fathers too:
Bishop Peter L’Huillier, “The Indissolubility of Marriage in Orthodox Law and Practice,” St. Vladimir’s Theological Quarterly 32 (1988): 199-221.
At the same time, I’d also like to suggest reading the wonderful article on the Latin West’s treatment of marriage, which I also have used to a great extent to pull my primary sources from:
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), 95-124.
Now, without further ado, let us look at the list! The purpose of this list is not necessarily to prove anything against the present Latin position, most notably held by the Catholic Church (although held by some Protestants as well), about the indissolubility of marriage. Rather my purpose here to highlight a tradition of councils, two Latin Church Fathers, and early medieval penitentials used by priests that clearly allow divorce and remarriage in a variety of circumstances. This tradition in the Latin West goes back to at least the beginning of the fourth century.
Latin Councils of the Church
Council of Arles, AD 314:
De his qui coniuges suas in adulterio depraehendunt, et idem sunt adulescentes fideles et prohibentur nubere, placuit ut, quantum possit, consilium eis detur ne alias uxores, viventibus etiam uxoribus suis licet adulteris, accipiant.
Concerning these [men] who find their wives in adultery – and [who] are young Christian men, and [who] are forbidden to marry – it has been decided that, as long as possible, even if their adulterous wife is living, counsel is to be given to them not to marry another woman.
Concilium Arelatense, canon 10, in Conciliae Galliae A. 314-A.506, edited by C. Munier, CCSL volume 148 (Turnholt, 1963), Page 11
Now, for the Council of Arles, my reader might be confused if they have read the following Catholic blog where the author misunderstands the canon as supporting the indissolubility of marriage. The problem with their translation is that it mistranslates the key phrase, “quantum possit” as “so far as may be.” I’ve highlighted my translation of the phrase in blue. “Possit” is the present subjunctive form of the verb “possum,” which means “to be able,” not “to be.” The proper Latin for the Catholic author’s English translation would be the following: “quantum sit,” which actually wouldn’t even make sense in this context. The implication of this phrase is that the man may marry another woman while his first wife is still alive, if he finds himself unable to abstain from sex. Ideally, he abstains. However, if he cannot, then he should marry again to avoid fornication. This canon far from upholds the principle of the indissolubility of marriage since it sanctions remarriage after divorce. This interpretation is further bolstered by the fact that he is only given advice not to marry again.
Council of Vannes, AD 465:
Eos quoque, qui relictis uxoribus suis, sicut in evangelio dicitur excepta causa fornicationis, sine adulterii probatione alias duxerint, statuimus a communion similiter arcendos, ne per indulgentiam nostrum praetermissa peccata alios ad licentiam erroris invitent.
Also, those who have abandoned their wives, just as it is said in the gospel, except for the cause of fornication, who have married another without proof of adultery, we likewise forbid from communion, in order that not through our indulgence they invite more permitted sins to the license of error.
Concilium Vernerticum, canon 2, CCSL, 148: Page 152
Council of Soissons, AD 744:
Similiter constituemus, ut nullus laicus homo Deo sacrata femina ad mulierem non habeat nec sua parentem; nec marito viventem sua mulier alius non accipiat, nec mulier vivente suo viro alium accipiat, quia maritus muliere sua non debet dimittere, excepto causa fornicationis deprehensa.
Corrected Latin from the notes (see lines 33-37 in link below): Similiter constituimus, ut nullus laicus homo Deo sacratam feminam ad mulierem non habeat nec sua parentem; nec maritus vivente sua muliere aliam non accipiat, nec mulier vivente suo viro alium accipiat, quia maritus mulierem suam non debet dimittere, excepta causa fornicationis deprehensa.
Similarly we establish, that no layman may either have his parent or a nun as his wife. Neither may the husband marry another while his wife lives, nor may the wife marry another while her husband lives, BECAUSE the husband ought not to dismiss his wife, unless a case of adultery has been discovered.
Now some might object to the above canon as supporting remarriage on the grounds that it excludes remarriage on the grounds that the spouse is still living. They then might further contend that the divorce is in fact only a separation in the case of adultery. This interpretation is simply not possible. The “quia” or “because” indicates that a husband ought not to divorce his wife and marry another at all while his wife lives, except in cases of adultery. The “because” must necessarily apply to the whole sense of the sentence. Furthermore, “because” or “quia” implies a determining reason. The circumstances of the canon here is speaking about divorces that have already occurred. Therefore, it would make no sense to give the exception clause for the fact of separation, which they are not concerned about. What they are clearly concerned about is that people are marrying after a divorce, and they are clarifying that unless the divorce was situated on certain grounds, celibacy is demanded.
Council of Compiègne, AD 757:
Si quis homo habet mulierem legittimam, et frater eius adulteravit cum ea, ille frater vel illa femina qui adulterium perpetraverunt, interim quo vivunt, numquam habeant coniugium. Ille cuius uxor fuit, si vult, potestatem habet accipere aliam.
If any man has a legal wife, and his brother has committed adultery with her, that brother and that woman who committed adultery may never marry one another while living. That man who was her spouse, if he wishes, has the power to marry another.
Council of Verberie, AD ?758-768?:
Si qua mulier mortem viri sui cum aliis hominibus consiliavit, et ipse vir ipsius hominem se defendo occiderit et hoc probare potest, ille vir potest ipsam uxorem dimittere et, si voluerit, aliam accipiat.
If a wife has conspired in the murder of her husband with another man, and the man [Note: the husband] himself kills the other man in self defense and is able to prove this, that man is able to divorce his wife, and if he wishes, marry another.
Synod of Rome, AD 826, which Pope Eugenius II presided over:
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.
As one can easily see, the canonical tradition for remarriage after divorce in the Latin West was strong in the first millennium.
Church Fathers: Jerome and Ambrosiaster
Now let us examine two of the Latin Church Fathers.
Saint Jerome on Matthew 19:9, AD 398:
It is fornication alone that conquers the affection for one’s wife. Indeed, the “one flesh” he has with his wife, he shares with another woman. By fornication she separates herself from her husband. She should not be held, lest she cause her husband to be cursed too, since the Scripture says: “He who holds an adulteress is foolish and impious (Proverbs 18:22).” Therefore, whenever there is fornication and suspicion of fornication, a wife is freely divorced. And since it could have happened that someone brought a false charge against an innocent person, and on account of the second marriage-union hurled a charge at the first wife, it is commanded to divorce the first wife in such a way that he has no second wife while the first one is living. For he says the following: If you divorce your wife not on account of lust, but on account of an injury, why after the experience of the first unhappy marriage do you admit yourself into the danger of a new one? And besides, it could have come to pass that according to the same law, the wife too would have given a bill of divorce to the husband. And so by the same precaution, it is commanded that she not receive a second husband. And since a prostitute and she who had once been an adulteress were not afraid of reproach, the second husband is commanded that if he marries such a woman, he will be under the charge of adultery.
Jerome, Commentary on Matthew 19:9, Trans. by Thomas P. Scheck, Commentary on Matthew (Washington D.C.: Catholic University of America Press, 2008): 216-217
This passage of Jerome’s commentary is often misunderstood to mean that he supports the indissolubility of marriage here. This is simply not the case. Jerome is notably concerned with the prospect of a husband or wife divorcing their spouse for unjustified reasons or on spurious grounds. If such happens and then they marry, then both the unsuspecting party and the more guilty party are guilty of adultery. Therefore, Jerome questions the motives of anyone who divorces and then marries another. He insinuates that the wronged party of a first marriage should be so emotionally injured that they would not want to marry again. If such is not the case, then it might very well be that the charges against the spouse to give grounds for divorce were trumped up. Jerome forbids or at least cautions against remarriage on these grounds. While I realize that Jerome’s position in his 77th letter is different, I think it is important to note any fluidity or changes in his position.
The anonymous Ambrosiaster (?366-384?):
The apostle’s advice is as follows: If a woman has left her husband because of his bad behavior, she should remain unmarried or be reconciled to him. If she cannot control herself, because she is unwilling to struggle against the flesh, then let her be reconciled to her husband. A woman may not marry if she has left her husband because of his fornication or apostasy, or because, impelled by lust, he wishes to have sexual relations with her in an illicit way. This is because the inferior party does not have the same rights under the law as the stronger one has. But if the husband turns away from the faith or desires to have perverted sexual relations, the wife may neither marry another nor return to him. The husband should not divorce his wife, though one should add the clause “except for fornication”. The reason why Paul does not add, as he does in the case of the woman, “But if she departs, he should remain as he is” is because a man is allowed to remarry if he has divorced a sinful wife. The husband is not restricted by the law as a woman is, for the head of a woman is her husband.
Ambrosiaster, Commentary on 1 Corinthians 7: 11 Trans. by Gerald L. Bray, Commentaries on Romans and 1-2 Corinthians (InterVarsity Press, 2009): 150-151
While Ambrosiaster’s blatant sexism is undoubtedly disturbing to us today (and rightly so), it is clear that he understood some legitimate grounds for divorce and remarriage. Any claim that he thinks marriages are indissoluble contradicts his sanction of remarriage for divorced men.
Lastly let us engage the penitentials used by confessors. The first two examples come from the section known as The Extracts (Excerptiones), which is to say that the following guidelines for penance are pulled from various canons of various councils as well as church fathers. According to Mansi, these were composed around the year of 748, but do take that date with some caution since Mansi’s system of dating is centuries old:
Si mulier discesserit a viro suo, despiciens eum, nolens revertere et reconciliari viro post quinque vel septem annos, cum consensus episcopi, ipse aliam accipiat uxorem, si continens esse non poterit, et poeniteat tres annos, vel etiam quamdiu vixerit, quia juxta sententiam Domini moechus comprobatur.
If a woman separates herself from her husband, despising him, not wishing to return and be reconciled to the man, [then] after five or seven years, with the consent of the bishop, he himself may marry another wife if he is not able to be continent. And let him repent for three years, or even however long he lives, because of the statement of the Lord establishing [the criteria] for an adulterer.
Si cujus uxor in captivitatem ducta fuerit, et ea redimi non poterit, post annum septimum alteram accipiat: et si postea propria, id est prior mulier, de captivitate reversa fuerit, accipiat eam, posterioremque dimittat. Similiter autem et illa, sicut superius diximus, si viro talia contigerint, faciat.
If one’s wife is led into captivity, and he is not able to redeem her, after seven years he may marry another. And particularly if afterwards, that is the first woman, returns from captivity, let him receive her and dismiss his second wife. And similarly, just as we have said above, that woman may do if such [events] have befallen her man.
Si uxor viri cujusdam adulteretur, maritus eam potest deserere, et aliam ducere, si ea prima fuerit uxor; si autem secunda vel tertia fuerit, non potest aliam ducere: si uxor flagitia sua comittere velit intra quinque annos, alii viro nubere debet. Si mortuus maritus sit, uxor intra annum alium sumere potest. Quicumque maritus uxorem suam deseruerit, et ie injusto matrimonio (alii) adjungat, jejunet septem hyemes severum jejunium, vel quindecim leviora. Quicumque multa mala perpetraverit in homicidium, et occisionem hominis, et injustum concubitum cum bestiis, et cum mulieribus, eat ad monasterium, et semper jejunet usque ad finem vitae, si valde multa miserit.
If the wife of the same man has committed adultery, the husband is able to divorce her, and marry another [only] if she [the adulteress] was the first wife. But if she was the second or the third, he is not able to marry [again]. If the wife wishes to engage in a shameful act during the space of five years, [then] she ought to marry another man. If the husband is dead, the wife is able to marry in the space of a year. Every husband who divorces his wife, and marries another in unjust matrimony, let him fast for seven winters of harsh fasting, or fifteen winters lightly. Whoever perpetrates many evils in homicide, the killing of a man, unjust sexual relations with beasts and with women, let him go forth to the monastery, and fast always until the end of his life, if he truly gives up the many [evils].
This prescription above is particularly notable because its position on remarriage is very close to the present-day Orthodox practice.
And the final penitential:
Si maritus cum propria sua uxore coeat, lavet se antequam ad ecclesiam abeat; si mulier maritum suum a se rejiciat, et dein nolit resipiscere, et cum eo in quinque annis pacem inire, maritus cum consensus episcopi, aliam uxorem ducere potest. Si maritus uxoris in captivitatem ducatur, expectet cum sex annos, et ita vir uxori faciat, si ei captivitas accidat; si maritus aliam uxorem ducat, et captiva post quinque annos redeat, deserat posteriorem, et captivam sumat, quam antea eodem modo duxerat. Cum vir in adulterio conjunctus sit uxori suae familiae, post uxoris suae mortem, legitimo jure uxori illi conjungatur.
If a husband copulates with his wife, let him wash himself before going over to the church. If the woman rejects her husband from herself, and then does not wish to reflect, and he undergoes five peaceful years with her, the husband with the consent of the bishop is able to marry another. If the husband of the wife is led into captivity, let her wait for six years, and thus the man shall remain married to the wife, if the captured man happens to return to her. If the husband marries another wife, and the captured wife returns after five years, let him desert the latter wife, and retake the [formerly] captured wife, as he was married to her before. When a man is found to have committed adultery by his wife’s family, after the death of his wife, let him be married in legal law to that [other] woman.
These exegeses from two Latin Church Fathers, the canons of six Latin church councils (one of them being in Rome and presided over by a pope), and various statements and prescriptions given in the penitentials all serve to make it clear that the Latin West for most of the first millennium had far from reached a consensus on the issue of divorce & remarriage, as well as the issue of indissolubility. If anyone is wanting to know what eventually starts to happen to this tradition beginning in the 9th century, I wholeheartedly suggest reading the McNamara and Wemple article I listed above. All I will say on the matter is that Charlemagne has a big impact on it.