Late Byzantine Canonical Views on the Disolution of Marriage (Fr. Patrick Viscuso, 1999)

NOTE: The following article is taken from The Greek Orthodox Theological Review, Vol. 44. Nos. 1-4, 1999, pp. 273-290

Orthodox Canon Law

Canon law often affirms the ideal of lifelong marriage and fidelity. Regulations prohibiting or justifying the dissolution of marital unions reflect underlying viewpoints concerning gender and sexual behavior. This study will treat the views of late Byzantine canonists concerning the dissolution of marriage. These canonists will include Matthew Blastares (ca. 1335), whose nomokanon. The Alphabetical Collection, enjoyed great popularity during the fourteenth century; as well as Theodore Balsamon (c. 1140 – c. 1195), John Zonaras (death after 1189), and Alexios Aristenos (twelfth century), whose commentaries and works remain canonical references for the Orthodox church.

THE GROUNDS FOR DIVORCE

The Alphabetical Collection was a popular legal work of the fourteenth century surviving in a large number of manuscripts and translated contemporaneously for use in the Serbian Empire of Stephen Dushan. 1 Divorce legislation occupies a large section constituting an entire chapter and including citations of imperiallaw.2 Dissolution of marriage occurs legally for causes that have arisen from actions by one or both of the parties to the union. According to these causes, the divorce is either penalized or unpenalized.

At the outset of his discussion, Blastares states that divorce by mutual consent was formerly blameless according to “ancient laws and long-held custom.” Such dissolutions took the form of the husband saying to his spouse, “Wife, manage your own affairs,” and the wife, “Husband, manage your own affairs.” This type of divorce was “abolished by Christians” through the enumeration by “the pious emperors” of causes for the dissolution of marriage, without which “it is illicit to separate.” According to Blastares, “the civil law,” and especially “the novel of Justinian which expressly sets forth the causes for which the husband or the wife sends a libellus of repudiation, i.e., a bill of divorce, to the spouse,” treats divorce “most completely.”3

Sexuality, Marriage, and Celibacy

There are six main causes listed for divorce that arises from the actions of the wife. Each is taken from imperial legislation and, with the exception of the last cause, also listed in another legal work important for the study of canon and civil law, the Nomokanon of Fourteen Titles.4 They are cited as follows:

  1. If the wife is implicated in any plotting against the Empire, and did not reveal this to her own husband.5
  2. If an accusation of adultery were to be made against the wife, and she were to be convicted as an adulteress according to the law.6
  3. If she plotted against the life of her husband in any manner whatsoever, or consented for others to do this, and did not reveal it.7
  4. If she attends banquets or bathes with strange men, against the will of the husband.8
  5. If she stays outside of the home against the will of the husband, unless she happens to be with her own parents, or he drives her out without the aforesaid causes, and parents not existing for her, she spends the night outside.9
  6. If she attends horse races, theatres, or hunts, in order to be seen, without her husband’s knowledge or against his prohibition. 10

For these causes, the husband is able to repudiate the wife and gain the dowry. The wife can be accepted back by the husband during the two-year period after the repudiation, although this would mean that he “condones the crime.”

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In turn, there are five causes that arise from the husband’s actions, for which the wife is able to send a libellus of repudiation. Likewise, these are also based on imperial legislation, and are as follows:

  1. If the husband himself conspires against the Empire, or after be-coming aware of others that conspire, he does not reveal this to the emperor either in person or by any other persons. 11
  2. If the husband plots against the life of the wife in any manner whatsoever. 12
  3. If the husband plots against the chastity of the wife by endeavoring to deliver her up to other men in order to be debauched. 13
  4. If, after the husband accuses her of adultery, he does not prove it.14
  5. If the husband has carnal relations with another woman in the same house, or in the same city, and after being warned by the wife, her parents, or any other person, he does not wish to abstain. 15

These causes are listed in the Nomokanon of Fourteen Titles as well. 16 On account of them, the wife is able to send a bill of repudiation, obtain her dowry, and gain “the husband’s gift on account of the marriage,” the antenuptial gift. Ownership of the gift is held on be­ half of the children, or if there are no offspring from the marriage, it is kept by the wife.

wedding crowns

Unpenalized dissolution of marriage arises from three main causes, which are also derived from imperial legislation. These causes are: impotence of the husband for three years, entrance by either spouse into religious life, and the capture and uncertain fate of either spouse for five years. 17 In the first case, the antenuptial gift remains with the husband and no loss of property occurs for either party. Entrance into the religious life is treated with regard to property relations in the same way as the death of a spouse. On this point, Blastares cites from the fifth chapter of Justinian’s twenty-second novel:

Wherefore, the one contracting would fix by agreement a benefit to occur in case of the other’s death. This benefit is necessary for the party left behind by the other (either husband or wife can establish it), since he that chooses one mode of life instead of another is thought to be dead for his spouse.18

However, remarriage of the spouse left in the world is not dis­ cussed. Although, if both husband and wife enter religious life, and one remarries or fornicates, the children receive all of that partner’s property, and in lieu of offspring, the state treasury. 19

Finally, Blastares covers the penalties for a divorce that occurs illegally, without any of the causes set forth by the law. These penal­ ties include confinement of both spouses to a monastery with loss of all property, which in tum is given to either the family or the monastery depending on whether the ascendants or descendants acquiesced to the illegal repudiation. If reconciliation takes place before the confinement, no penalties apply. Likewise, if one of the parties “wishes the marriage to be restored, and if the other were to not consent, the punishments prevail against the one that does not assent.” This discussion appears to be a synopsis of eleventh chapter of Justinian’s one hundred thirty-fourth  novel. 20

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The full article can be read here:

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