BIBLE DIGEST -
Number 38
November 1993
DIVORCE AND REMARRIAGE - A BRIEF HISTORICAL REVIEW
By Allon Maxwell
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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/Bible
Digest Index.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". |