BIBLE
DIGEST - Number 38
November 1993
DIVORCE AND REMARRIAGE - A BRIEF HISTORICAL REVIEW
By Allon Maxwell
|
In my lifetime,
(now 61 years), social and church attitudes to divorce and remarriage have changed
dramatically. When I was a child, divorce carried a stigma with it which caused
adults to talk about it in hushed tones, especially if children might be listening.
It was simply not acceptable to church people. In 1936 this prevailing
majority attitude amongst the common people forced the abdication of Edward VIII,
King of England, when he insisted on marrying a divorced woman. It was unthinkable,
in those days, that the kingdom should be ruled by a king involved in such a scandal.
It was even more unthinkable that the Church of England should accept as its head,
a king who was married to a divorcee. Edward and his twice divorced wife were
forced to live outside England, in exile, for the rest of their lives. In the business
world men who were involved in divorce, (especially if they were the "guilty
party"), were often regarded as potentially unreliable, either for employment
or state office. It was common for these people to be dismissed, or forced to
resign, to remove the taint of scandal from their place of employment. These attitudes
extended to the world of entertainment. Amongst the famous, divorce and remarriage
were considered scandalous and reprehensible. It was not even acceptable for the
heroes of novels or movies. At first when such topics began to be introduced it
usually caused an outcry. It was rare to find
a minister of the church who would remarry divorced people. Some could be found
who would perform the service for the "innocent party", but if the congregation
objected, a minister could lose his job. It was common for
ministers to refer the divorced to a civil Marriage Registry, where these marriages
were almost invariably conducted. Sometimes after the civil ceremony, (and sometimes
with a compulsory verbal "repentance"), "innocent parties"
might be accepted back into a more liberal church. However it was also not uncommon
for this to lead to a church split. In the stricter churches, remarriage could
lead to excommunication. In those churches
which did accept the remarried into membership, there was often a barrier to their
appointment to office. Laymen could be barred from acceptance as elders, deacons
or missionaries. Ministers who divorced were regarded as no longer "above
reproach" and were expected to resign. THE WINDS OF
CHANGE Three main factors
have contributed to an almost total reversal in attitudes now experienced in the
1990s.
In our time, the
hard hearted have prevailed almost completely. With few exceptions, the Church
now joins hands with the World whose values it has adopted, to condone what Jesus
calls adultery. Australia now has
not only "no fault" divorce laws, but also wide ranging legislation
which forbids discrimination on the grounds of marital status. For instance, it
is now illegal to consider a divorced party as potentially unreliable for employment
or promotion. There are many other
ways in which these laws could be interpreted to make it illegal for Christians
to refuse privileges which they might feel condone sinful behaviour. The application
of these laws has already touched the lives of some Christians in uncomfortable
ways. The Media has reported at least one case in Sydney, where the court awarded
substantial damages to a de-facto couple, against a Christian landlord who refused
to rent them his house for the sake of conscience. The court ruled that his refusal
to condone their relationship in this way, was illegal discrimination. There are also problems
with defamation laws. It has not yet happened in Australia, but one recent case
was reported from U.S.A. where Church elders paid substantial damages for defamation
when they publicly announced the disfellowship of a confessed adulteress engaged
in an ongoing relationship. It has been claimed that the same sort of thing is
probably now possible under Australian defamation laws. I am old enough,
and so are some of you, to remember and treasure the values of a time when the
Church had not forgotten so many important things about this vital subject. It
saddens me to see so many younger Christians growing up in a Church and in a World,
where they are conditioned and deceived by the lesser values of this environment
in which we now live. We need to remind
ourselves that neither the Church nor the World has always been so tolerant of
the ease with which so many now change their marriage partners. This paper presents
a brief survey of Church and secular history, which will show that things have
certainly not always been as they are now. THE EARLY
CHURCH VIEW In this brief survey
we will refer to non-canonical writings of the early Church. This does not indicate
approval for all that those writings contain. They are not the final authority
on which we base our understanding of what Jesus taught about divorce and remarriage.
Only Scripture has that authority. However they are certainly useful in understanding
how the early Christians thought about what Jesus said, how they put it into practice,
and how all that compares with what happens today. On some Biblical
topics there is great diversity in the writings of the early church fathers. However on this
subject, for the first five centuries of the Church, there is almost total agreement.
The Church upheld a view of divorce and remarriage which was distinctly different
to the common practices of the Jewish, Roman and Greek societies with which it
co-existed so uncomfortably. Henri Crouzel is the French author of what has been claimed to be
the most comprehensive study ever written on the subject of divorce and remarriage
in the early church. ("L'eglise Primitive
Face au Divorce du Premier au Cinquime Siecle" - Paris, Beauchesnes,
1971). Crouzel claims that for the first five centuries
all Greek and Latin writers, except one, agree that marriage following divorce,
for any reason at all, (including adultery) is adulterous. The marriage bond
was held to be irrevocable until one party died. Even though for most, it was
acceptable, (and for some writers, compulsory), to put away an adulterous partner,
this DID NOT, in the view of the Church, dissolve God's bonding of the two into
one. In those cases where
a divorce had taken place for adultery, the "innocent party" did not
have the right to remarry during the lifetime of their erring partner. The same was true
in the case of the so called "Pauline Privilege", (1 Corinthians 7:15). While their first partner was still
alive the deserted Christian was expected to remain unmarried, or else be reconciled. These writers include
Hermas, (c. AD 140-150), Justin Martyr, (c. AD 150), Athenagorus, (c. AD 185),
Clement of Alexandria, Origen and Tertullian, (all three early third century).
Later Christian writers up to the end of the 5th century continue to confirm the
tradition. In those five centuries
Crouzel identifies only one writer, Ambrosiaster (c. AD 366-383), who did advocate permission
for marriage for deserted Christians and innocent husbands (but not wives!), in
cases of adultery. In these attitudes he is in direct opposition to the dominant
position of the early Church. However, it does
seem that there were at least some who disagreed in practice if not in preserved
writings. Origen did take note of some Egyptian bishops in the third century,
who he says "contrary to Scripture ........ have permitted remarriage
of a woman while her husband was alive. They did it despite what was written
(in 1 Corinthians 7:39)". At the other extreme
the council of Elvira (AD 306) ruled in Canon 8, that women who deserted their
husbands without any valid reason and remarried, should never again receive communion,
not even on their deathbed. Canon 9 of the same
council declares that women who remarried because of their first husband's adultery,
should be barred from communion until after his death. Canon 77 of Basil,
Bishop of Caesarea (AD 370-79) insisted that those who remarried should not be
received back into the Church until after seven years penitence. During that time
they were required to weep for one year outside the church door, listen for two
years in the vestibule, be prostrated amongst the catechumens for three years,
and then stand upright amongst the congregation for one year. Finally, they then
received communion! Canon 10 of the
council of Arles (AD 314) also ruled that Christians divorcing their wives for
adultery, were forbidden to remarry. In the case of adulterous
remarriage the Church's demand for repentance included forsaking the second marriage.
This made early Church discipline very difficult in a society where outside the
Church, divorce was commonplace. It was as difficult then, as it is today, to
persuade people to accept the church's position on divorce, in a society governed
by public opinion. Many failed to accept Christianity on this count. Many who had become
believers lapsed when the test became too hard for them and were excommunicated
as a result. However the canons quoted above indicate that there were some cases
where genuine repentance occurred, which made it necessary for the church to develop
a procedure to restore the penitent to the Church. While the procedure goes far
beyond the teaching of Christ and Paul on forgiveness in such cases, it does at
least indicate how far the Church of the time felt it necessary to go, in a bid
to make the consequences of a second marriage totally unattractive. Outside the Church,
In AD 293 the Emperor Diocletian passed a law which permitted women to dissolve
their marriages, simply by writing a bill of divorce, without any need to give
it to their husbands or even tell them about it! DIVORCE UNDER
OTHER NAMES It was not to be
expected however, that the hard hearted would fail to find a way through the Church's
verbal and written prohibitions. Although the teaching of the Catholic Church
insisted on the absolute indissolubility of marriage, divorce was in fact practised
under other names. There were two ways in which this could be done:- *
A church approved separation
without the right to remarry. *
A decree of nullity which declared
that the marriage had never really existed. To this present
time the Papal "Decree of Nullity" remains the method by which the Roman
Catholic Church pretends to itself that it maintains obedience to Jesus in this
matter. By this outward form it caters for divorce, without using the word. The philosophy behind
the machinery for the nullity decree is found in the wording of the ancient marriage
ceremonies. It is preserved in some marriage ceremonies of our own time. The old
version of the Anglican prayer book contains the familiar words, "be assured
that those who are joined other than in accordance with the will of God are not
joined at all". The words in themselves, are of course clearly, in some special
cases, a valid interpretation of Scripture. The problem lies with men who quickly
found invalid ways to manipulate the words to suit the purposes of their hard
hearts. Initially, impediments
to a valid marriage included:- *
marriage outside the faith (i.e.
one party not a Catholic). *
nonconsummation of the marriage. *
mental incapacity. *
marriage under duress. *
Prohibited blood relationships
(which eventually included remote cousins and the like, far beyond anything
envisaged in Scripture). Under the influence
of the fertile imaginations of the men who administered these laws, the range
of impediments eventually became so vast that it was far more likely than not,
that some ground for nullity could be found ...... especially if it meant obliging
the rich, who could fill the Papal coffers or confer some favour seen as useful
to the church. Because nullity
decrees were seen as a source of revenue to the Church they were, in general,
seldom available to the poor. These had to avail themselves of the simpler remedy
of desertion and new de-facto relationships outside the approval of the Church.
However the Church used the threat of eternal torment as a powerful deterrent
to adultery and bigamy. In addition there was also the other more immediate penalty,
which the Church could impose by handing the perpetrators over to the civil authorities. Adulterers could
be severely punished by flogging, imprisonment, or even death. THE INFLUENCE
OF ERASMUS ON THE PROTESTANT REFORMERS For 1500 years the
traditional view prevailed. It was not until the time of Erasmus, in the sixteenth
century, that it began to be accepted in Protestant Reformation circles that,
in some circumstances, remarriage after divorce could be justified for Christians.
Erasmus introduced two concepts to the subject. The first was that
of freedom of remarriage for the " innocent party " to a divorce. The second was that
it should be permissible - not easily, but for very serious reasons - for ecclesiastical
authorities, or recognised civil judges, to dissolve some marriages on other grounds
not mentioned by Jesus. On the continent,
Erasmus' teaching was quickly taken up and supported, in one degree or another,
by all of the major reformers. By 1563 the teaching had become so well established
that the Catholic Church was compelled to take note of it at the Council of Trent,
rejecting it and reaffirming the Church's traditional position. Luther refined the
teaching of Erasmus to allow for remarriage of the innocent party in virtually
any case. He reasoned, first
of all, that since under the Law of Moses adulterers should have been put to death,
the act of adultery actually made the offender legally dead , in his relationship
to God and also to his partner.! Luther then said
that since the adulterer was considered as dead in the eyes of God, remarriage
of the other spouse during the lifetime of the offender was as permissible as
if they were actually dead! Luther applied this
same sophistry to the other cases. First, he permitted remarriage for the Christian
deserted by an unbeliever. Then he then went on to say that if a Christian husband
was so callous as to desert his Christian wife and children, he should be considered
as no better, in the sight of God and men, than an unbeliever! He deserved the
same punishment as an adulterer and could be regarded as dead! This then entitled
the believing partner to marry again. Calvin was equally
devious. He did recognise
adultery as the only valid cause for divorce and he granted freedom to remarry
in such cases. However he also went on to say that the man who divorced his wife
on other grounds made himself an adulterer . For Calvin, it was
inconceivable that such a desertion could take place without the deserter being
involved in adultery at some stage. It made no difference
whether the deserting spouse was a believer or unbeliever. Adultery was presumed
and the innocent believer who was deserted was entitled to remarry! However, Calvin's
approval for divorce and remarriage did not extend to divorce by mutual consent. DIVORCE IN
ENGLAND From the time of
William the Conqueror in 1066AD, until 1857, the regulation of marriage and divorce
remained in the hands of the ecclesiastical authorities. Until 1534 this was of
course, the Roman Catholic Church. After that time it was the Church of England.
A formal marriage ceremony was not a legal requirement until Lord Hardwicke's
"Act for the Better Preventing of Clandestine Marriages" was approved
by Parliament in 1753. The English
Church In 1527 Henry VIII
asked Pope Clement VII for a special dispensation to annul his 18 year old marriage
to Catherine of Aragon, to allow him to marry Anne Boleyn. However for political
reasons, Clement refused. The situation in Spain at that time was such that he
could ill afford to offend Charles V, who was King of Spain and also Catherine's
nephew . To achieve his goal
Henry was forced to take matters into his own hands. In January 1533, with the
aid and approval of the English Bishop Cranmer, he secretly married Anne. In May
an English court declared Henry's marriage to Catherine null and void. The Pope
countered by excommunicating Henry, forcing him to move quickly to reject Papal
authority in England, in order to maintain the validity of his marriage to Anne.
In 1534 the Act of Supremacy established Henry as "supreme head on
earth of the Church in England". The break with Rome was complete. In 1527, the same
year that Henry first sought Papal approval for his new marriage, the English
reformer, William Tyndale introduced the reformed teaching about divorce to England.
Tyndale appears to have borrowed from both Luther and Calvin. He adopted Luther's
rationalisation for remarriage after divorce for adultery and, like Calvin, he
presumed adultery in the case of desertion. However Henry's
goal was not reformation of the church or of its teaching on divorce and remarriage.
He merely wanted an English Catholic Church in place of a Roman one, so that he
could be granted a "legitimate" annulment. It was not a desire for general
divorce reform that led to the break with Rome, but his political need for his
own personal annulment, and a new wife who might produce a male heir to succeed
him on the English throne. Consequently the
views of the reformers were not adopted by the English Church. The Church's attitude
to divorce remained unchanged from the 1500 year old tradition. The English Church's
AD1603 revision of Canon Law provided for only separation or annulment. Divorce
with permission to remarry was not available, even in the case of adultery. Canon 107 required
that separated partners "shall live......chastely and continently
......neither shall they, during each other's life, contract matrimony with
any other person". The Scottish
Church The reformation
was accepted in Scotland in 1560 and the Presbyterian
Church was a political force to be reckoned with when the English Civil war began
in 1641. The Scots extracted
a high political price for assistance given to the English Parliament in that
war, which led to the temporary suspension of the English monarchy. One of the political
favours extracted at that time led to the Westminster Assembly of Divines, which
met in London from 1643. This Assembly produced the Westminster Confession which
was aimed at the reformation of the Church in England after the example of the
reformed churches. Indeed for twelve years during the time of Cromwell, the established
English Church was officially Presbyterian, although Cromwell hindered its full
development. The Assembly adopted
the reformed views of Luther and Calvin with respect to divorce. Chapter XXIV,
Section V gives permission for divorce in the case of adultery, and permission
for remarriage to another party, as if the offending party were dead. This piece of hypocrisy
required lip service to Luther's fiction that a person could be regarded as "legally
dead", even though they were still very much alive. Section VI of the
same document expressly forbids the dissolving of a marriage for any cause other
than adultery and wilful desertion. However, divorce and remarriage required the
approval of both church and a legal magistrate. The Westminster
Confession was adopted by the Scottish Church but was rejected by the English
Church when the monarchy was restored in 1660 and episcopacy
was reinstated. Parliamentary
Divorce When Papal nullity
decrees (which granted freedom to remarry) were no longer recognised by the Church
of England, it was not to be expected that the hard hearted would long remain
content with this new constraint. The demand for some
remedy outside the restrictive administration of the Church led to the institution
of civil divorce through an Act of Parliament. The first such divorce was granted
in 1668, in the House of Lords, in the face of vigorous opposition from those
Lords who were also Church authorities. Such divorces were
extremely rare and costly. The difficulty with which they were obtained is indicated
by the fact that only about 320 Bills of Divorce were passed by the Parliament
in the next 200 years ! Of those 320 cases,
only four were granted to women, all in the 19th century. Even for men, the
prior requirements for success were: a)
proof of the wife's adultery, b)
successful court action against
the seducer for damages, c)
ecclesiastical approval for the
separation. After that, the
Bill had to pass through both Houses of Parliament. The cost of a Parliamentary
divorce was prohibitive for all except the very wealthy. It cost about 15-20 times
the annual earnings of a tradesman. This cost left the poorer classes with no
real recourse to Parliamentary divorce. Many resorted to
the simpler remedy of separation and/or desertion, with new de-facto relationships
outside the approval of either church or state. These were viewed as adulterous,
and the children of such unions were classed as illegitimate. Bigamists could
be imprisoned. Eventually this
discrimination between the rich and the poor was recognised by Parliament, leading
to the passing of "The Divorce and Matrimonial Causes Act" of 1857.
This Act removed the regulation of marriage and divorce from both Church and Parliament
to the secular courts. Under the Act, the
sole ground for divorce for male petitioners, was proven adultery on the part
of the wife. For female petitioners,
the ground was "aggravated adultery". This was defined as adultery by
the husband, accompanied by persistent physical cruelty towards the wife. DIVORCE IN
AUSTRALIA In Australia there
were no legal divorces from either Church or State from the time of settlement
in 1788 until 1860. The colonists had to resort to de-facto separation when their
marriages broke down. After the English
act of 1857, the several separate State colonies were invited by the Crown to
establish similar laws for their own territories. This they did, each in their
own right, following the English pattern for grounds. New South Wales was the
last to act, in 1873. By the end of the
19th century, most States had added additional grounds for divorce. For example,
in 1892, New South Wales added desertion for three years, habitual drunkenness
over a period of three years, or conviction for assault and cruel beatings of
the petitioner. The Federal
Matrimonial Causes Act of 1959 After Federation
in 1901, divorce remained in State hands until the enactment of a Federal uniform
divorce law in 1959. This Matrimonial Causes Act came into effect in 1961, in
the face of vigorous opposition. This new law included
some fourteen grounds of fault, on which divorce could be immediately available.
It also introduced the controversial "No Fault" provision, which allowed
for divorce after five years separation, irrespective of fault. The Act was hedged
about with strict limitations on the availability of divorce. These included a
restraint that no divorce proceedings could be initiated until three years after
the marriage was entered, (except by special leave of the court). This "special
leave" was not easily obtained but would usually be given in cases where
an early new marriage would legitimise the impending birth of a baby conceived
in adultery. Under the five year
No Fault provision, no divorce could be granted where it could be shown that the
decree would be harsh or oppressive, or against the public interest. However,
in practice, this provision was seldom invoked. This was the heyday
of the private detective, many of whom made a great deal of money gaining evidence
of "fault", (and often arranging, quite illegally, for the conditions
of connivance under which evidence of adultery could be obtained - complete with
photographic "proof"!) The Family Law
Act of 1975 The Australian divorce
law was changed again in 1975 when the Family Law Act made divorce readily available
to all, on the sole ground of "irretrievable breakdown of the marriage". This ground is established
to the satisfaction of the Family Law Court by 12 months separation of the parties.
The separation may even be valid if both parties continue to live under the same
roof, as long as they testify that they did not sleep together, eat together,
or go out together. The Act imposes only four limitations on the availability
of divorce: a)
No divorce can be granted if
reconciliation seems at all likely. In practice, this takes only one party to
declare that the marriage is irretrievable, even if the other party declares
that they are willing to reconcile. b)
The Family court must canvas the
possibility of reconciliation. In practise this consideration is merely
nominal and the law in this respect is satisfied by the giving of small
brochures to the parties, listing available counselling facilities. c)
The Act provides for the
establishment of an information and counselling service, attached to the
Family Court. It also provides for financial assistance for approved marriage
counselling organisations. In practice, the role of counsellors is often not
so much to try to prevent divorce, but to encourage the parties to settle
financial and child custody issues, without too much conflict. d)
No final divorce decree will be
made until the court is satisfied that proper arrangements have been made for
the wellbeing of any children. In practice, while misconduct in the broad
sense is still relevant to the issue of custody, this can often result in
moral considerations, important to Christians, being ignored in favour of
other matters which the court also considers important. For instance, it
is no longer unusual for these "proper arrangements" to consign the
children to live with parents involved in adulterous or even lesbian relationships. DIVORCE TRENDS
IN AUSTRALIA The table below
shows the trend in Australian divorce statistics for the 20th Century. It shows clearly
the alarming general increase in the rate of divorce. It indicates the effect
of changes in legislation. The sudden increase at the end of World War 2 is also
shown. Since the introduction
of the "No Fault" Family Law Act legal divorces in Australia have increased
from about 24,000 in 1975, to 46,000 in 1992. (Compare that with the figure of
about 360 at the turn of the century! Or more interesting
still, compare it with the older English figure quoted elsewhere, of only 320
for the two hundred years from 1668!) CONCLUSION We look back on
nearly 2000 years of history, during most of which marriage vows have been held
sacred by the majority of the church and divorce has been severely restricted. Even after the changes
introduced by the Protestant Reformation, which began to make divorce and remarriage
more easily available, the numbers availing themselves of the opportunity were
insignificant in comparison with our own generation. Statistics indicate
that we are now faced with a virtual landslide. It is currently estimated that
up to 40% of all marriages contracted in 1993, will end in divorce within the
first 10 years. There is every indication that this rate can be expected to increase
in the future. The great tragedy
is that the Protestant Church seems to have lost its way, forgetting all that
was once known to its antecedents. The hard hearted men in the Church of our time
have triumphed. Instead of holding
up the light of Truth they have joined the unbelieving World in a mad rush to
accommodate wilfully blind disobedience to the teaching of Jesus. That teaching is
now almost totally ignored, forgotten, or explained away. APPENDIX I - DIVORCE STATISTICS
FOR AUSTRALIA 1900-1991
* Annual averages for decade ....... # Annual
averages for 5 years FURTHER READING ON THE BIBLICAL VIEW OF DIVORCE AND REMARRIAGE For any interested in further study of
what the Bible really says about this important subject, we have several
other papers and a booklet available. These present the largely forgotten and
ignored New testament teaching of Jesus, which calls for a return to
faithfulness to marriage vows "until death do us part". The
following Bible Digest Papers and booklet are available here https://www.allonmaxwell.com/bdigest/bdigindx.htm
*
No 34. The Question About Divorce.
*
No 35. What Did Paul Really Say
about Divorce? *
No 36. Divorce and Remarriage -
The Pastoral Implications. *
No 39. What is
"Porneia"? - A Hebrew and Greek Word Study - In English. *
No 40. When God Divorced His
"Wife". (Extract from No. 39) *
No 41 Except For Fornication. *
No 42 Divorce and Remarriage -
Sorting out the Confusion of the Many Conflicting Theories. FREE BOOKLET "What the
Church Has Forgotten About Divorce". Bibliography: For anyone interested to do
their own reading of the history which has been condensed here, a
bibliography can be made available on request. |