NOTE: The following article is taken from the Rudder, which was published in 1800:
Canon 48 of the Holy Apostles
“If any layman who has divorced his wife takes another, or one divorced by another man, let him be excommunicated”
Inasmuch as the Lord decreed in His Gospel that “Whosoever shall divorce his wife, except on account of fornication, is causing her to commit adultery; and whoever marries her who hath been divorced commits adultery” (Matthew 5:32; 19: 9), therefore the divine Apostles too, following the Lord’s decree, say in their present Canon: If any layman who insists upon divorcing his wife, except on the ground of fornication, which is to say adultery (for the Evangelist here used the word fornication instead of adultery. Concerning this point see also Canon IV of Nyssa), and takes another woman that is free to marry, let him be excommunicated. Likewise let him be excommunicated if, after being divorced from his wife without the ground of fornication, he takes another woman who is one also divorced from her husband without the ground of fornication, or, in other words, of adultery. These things, which we have said with reference to the husband, must be understood to apply also to the wife who leaves her husband, except on account of fornication, and takes another man as her husband. As for any man or any woman who separates from his or her spouse without a reasonable cause and remarries or is remarried, he or she shall be canonized to have no communion for seven years according to Canon LXXXVII of the 6th Ecumenical Synod, Canon XX of Ancyra, and Canons LXXVII and XXXVII of Basil. Read also Canon XLIII of Carthage which prescribes that if a married couple separate without the commission of fornication on the part of either spouse, either they must remain unmarried or they must become reconciled and be reunited, as St. Paul also says in Chapter 7 of his First Epistle to the Corinthians.
Footnote 68 to the 85 Apostolic Canons Concerning Marriage & Divorce
Strictness and the Lord’s decree are equally averse to letting a man divorce his wife, or a woman her husband. For the Lord said in regard to both the man and the woman: “Whoever shall divorce his wife and marry another, commits adultery against her” (Matthew 19:9); and “If a woman shall divorce her husband and be married to another, she commits adultery” (Mark 10:12), without adding except it be for fornication either in the case of the man only or in the case of the woman only, but He left this to be understood by us indifferently as regarding both.
The custom of the Church is to allow the man authority to divorce his wife when he finds her to be fornicating or committing adultery, but not to let a woman divorce her husband even though she find him to be fornicating or committing adultery. If on the other hand, she should divorce him on grounds of fornication or adultery, and he, being unable to suffer should marry a second woman, the first women who divorced him will have the sin of such a separation, whereas the husband deserves a pardon for having married a second time, and his second wife is not condemned as an adulteress. Gregory the Theologian did not accept this custom, which came into the Church from Roman civil law. For he says in his (Discourse on the saying in the Gospel, when Jesus spoke the previous words); “I see many men belonging to the common people to be judging perilously regarding temperance. And I see their law as being unequal and inconsistent”. For what reason does the law chastise a woman if she fornicates, but allows a man the liberty to do the same. And if a woman betrays the bed of her husband, she is judged an adulteress, but if a man who has a wife fornicates with other women, is he guiltless? I do not accept that legislation; I do not praise the custom. It was men who made that law, and on this account they only legislated against women.
For those same legislators of this civil law made a law for children to be under the control of their father, but as for the weaker side that is, the mother who is a weak woman, they left her without care, not having made a law for her children to be under her control. However, God made no such law. On the contrary, He says, “ Honor your father and your mother,” which is the first commandment among the promises, “that it may go well with you” (Deuteronomy 5:16; Exodus 20:12; Sirach 8:8; Matthew 19:19; Mark 7:10; Luke 18:20) and “He that speaks evil against his father or mother, let him die the death” (Exodus 20:12; Leviticus 19:3; Deuteronomy 5:16). Both in the case of the father and in the case of the mother, He equally honored obedience and chastised insolence. And “A father’s blessing firmly establishes the houses of children, but a mother’s curse uproots the foundations” (Proverbs 19:14).
Herein do you not see the equality of the legislation? The Creator of man and woman is one. Both of them are of one and the same clay. One and the same law governs them both. There is but one resurrection. We have been born quite as much by a woman as by a man; children owe their parents a single debt. How then is it that you the legislator being a man, demand temperance of women, when you yourself are intemperate?
How is it that you ask for what you do not give? How is it that you enact unlike legislation for woman notwithstanding that your body is like that of woman? But can it be that if you are thinking of the evils attending disobedience because the woman sinned? Why, did not Adam also sin? The serpent deceived them both. Accordingly, it cannot be said either that the woman proved the weaker of the two in being deceived, or that the man proved to be the stronger of the two in that he avoided being deceived. Or if you are thinking of the good results attending reformation remember that Christ saved them both with His passion. He became flesh for man, but also for woman.
He died for man, but woman too is saved through His death. Perhaps you think that He honored man because He was born of David’s seed. But in being born of the Virgin He honored women. “They shall be one flesh,” it says (Genesis 2:24): that one flesh accordingly must deserve equal honor. St. Paul, also lays down a law of temperance for man. How? “This is a great mystery; I am speaking concerning Christ and the Church” (Ephesians 5:32).
It is well for a woman to revere Christ by means of the reverence which she shows toward her husband. It is also well for a man not to dishonor the Church of Christ by means of the dishonor toward his wife by fornicating with another.
In the same way, Chrysostom also testifies to the same view in his fifth sermon on the First Epistle to the Thessalonians. “I beg,” he says, “that we guard ourselves against this sin. For just as we men chastise our wives when they betray their honor to others, so does God, if not the laws of the Romans, chastise us when we betray the honor of our wives, and fornicate with another, since the sin of men with other women is also adultery. For adultery is not only when a married woman commits adultery with another man, but also when a married man commits adultery with any other woman. Give attention to the accuracy of what I say to you. Adultery is not only when married men sin with a strange woman who is married, but also when they sin with an unmarried woman, which is also adultery. For notwithstanding that the woman with whom they sin is not tied to a man, they themselves are tied to a woman. And for this reason it can be said that they have violated the law and have wronged their own flesh. For why should they chastise their wife if she fornicates with a man that is not married? Of course, it is adultery, despite the fact that the man who fornicated with her has no wife, also simply because his wife is tied to a man. So they also, since they are tied to a wife, if they fornicate with an unmarried woman, are committing adultery by their act of fornication.
“Whosoever shall divorce his wife,” says the Lord, “except on account of fornication, is causing her to commit adultery; and whosoever shall marry her that is divorced commits adultery” (Matthew 5:32; 19:9). And if this is so, is not one committing adultery even more so, who has a wife when he joins in self-corruption with an unmarried woman? Yes.
That is obvious to everyone. Not only St. Gregory and St. Chrysostom, but even Basil himself cannot bear to follow that custom which disregards the commandment delivered by God, as he makes known in other pages as well as in the twelfth definition of his Ethics. But he also says in his Canon XXXV: “When a woman abandons her husband, we must inquire into the reason why she left him. Then, if it appears that the woman left him unreasonably and without cause, the man is to merit a pardon, but the woman, a canon and penalty, as having become the cause of the evil.” No other reasonable cause for the separation of a married couple can be found besides that of fornication or of adultery of a man and or a woman.
But Justinian Novel l17, situated in Book 28 of the Basilica, Title VII, ordains that if any man has another woman either in the city where he is dwelling or under the roof of his house, and is corrupting himself with her, if his real wife should tell him to abstain from the other woman, and should he refuse to abstain from her, permission is granted to be released from the marriage due to the jealousy of his wife. For such jealousy leads many wives to drink poison and commit suicide, and others to lose their mind, others to jump off a precipice, and others to still other absurd things, as may be seen from such examples which are daily occurrences in nearly every city and island and town.
For just as a man’s anger is full of jealousy for his wife if she has committed adultery, as Solomon says (Proverbs 6:34), “and he will not spare in the day of vengeance, nor will he forgo his enmity for any amount of ransom, neither will he be coaxed to remit it in exchange for a multitude of gifts.” In much the same way (or even more) is a woman’s anger, and her heart is full of jealousy for her husband if he has committed adultery.
However, note that though the Lord allowed husbands to separate from their wife on account of fornication, that is because of adultery, yet a bishop ought not to give them permission to enter into a second marriage, but ought to leave them thus separated for a long space of time, until the one who committed fornication, which is adultery, comes to repent of his or her act, to fall at the feet of the other, and to promise that henceforth he or she will keep the honor of the other mate, and in this manner they are finally reunited.
For even the Lord did not allow them to be separated only on account of adultery, but mainly because of the jealousy which results from such adultery, and the murder which often follows as a result of the jealousy. A second reason for allowing a separation is to prevent the confusion and bastardization of the offspring that follows as a result of such adultery as St. Gregory the Theologian says. So that, as Zonaras says in his interpretation of Canon IX and XXI of St. Basil, a man is not forced to keep his adulteress wife if he does not want to do so, but if he wants her, he may without prejudice keep her and live with her. What am I saying, without prejudice? Why that man is to be praised and to be esteemed very wise indeed who takes his wife back even after she has committed fornication (on the promise, however, that she will sin no more) for two good and sufficient reasons.
First, on account of the love and sympathy he is thus showing for his own flesh — I mean for his own wife — by emulating the very Master and God of all things, who notwithstanding that human nature was formerly an adulteress and had formerly committed fornication with idols, He condescended to make her His bride by virtue of the incarnate economy, and to save her through repentance and union with Him. And just as it is the part of a prudent man when any of his members is wounded or injured not to cut it off, but to make it his business to give it medical treatment, so is it the part of a prudent man, when his own member sins, that is his own wife, not to divorce her, but to take even greater care of her and to cure her by means of repentance and by giving her an opportunity to return. And secondly, because when such an impure condition has developed between a husband and wife, it is by God’s concession, and as a result of previous sins that it ensued. (And let everyone examine his own conscience, and he will find our words true.)
Hence both parties must have patience with each other, and not insist upon a separation. Even the Apostle says that a faithful husband ought to cohabit even with his unfaithful wife, and conversely, a faithful wife ought to cohabit with her unfaithful husband, for the hope of salvation of both of them. “For how do you know, wife, whether you shall save your husband? Or how do you know, husband, whether you shall save your wife?” (1Corinthians 7:16). How much more ought a husband and wife, then, to cohabit with and not separate, even after fornication has occurred, at a time when impiety, the worst of all sins, will not separate it? Of course all that we have said concerning the husband, is to be understood also as pertaining to the wife. Nevertheless, that the author of Proverbs says: “Whoever retains an adulteress is foolish and impious” (Proverbs 18:22; this saying reflects the harshness and severity of the old Law, and not the leniency of the most sweet Law of the Gospel.
Rather should the Old Covenant be quoted from the mouth of Malachias, who says: “Do not abandon the wife of your youth: but if after coming to hate her you send her away, a feeling of impiety will darken your recollections, says the Lord Almighty”’ (Malachias 2:15).
If, however, in the end no way, nor device, can be found to reunite the couple henceforth, the innocent party may, as a matter of great necessity, marry a second time, but never the party guilty of fornication who became the cause of the separation.
This party, instead of second nuptials and wedding candles ought rather to sit mourning and weeping over his sin, and find solace in the darkness of sorrow of a widow or widower, because of the fact that whom God joined he or she rent apart. What am I saying? Why, the party that was the cause of the separation ought to pay damages, as the imperial laws command, according to St. Chrysostom (Discourse on a woman bound by law, etc.); and that the guilty party in the couple ought not to be allowed to marry may be inferred from Novel 88 of Leo. For this Novel says that the husband of a woman guilty of adultery is to receive her dowry, while the woman herself is to be placed in a monastery and compelled even against her will to become a nun.
Whatever property she had over and above her dowry is to be divided between her children and the monastery; or if she has no children, her parents and relatives are to have it. Justinian Novel 117 also commands that if the husband of a woman confined in a monastery for adultery should die within the two years before taking her back, she is to become a confined nun and not be allowed to remarry).
That the husband is not permitted to take back his wife after she has been guilty of committing adultery is attested on the one hand by Armenopoulos (Book 6, Title II), and on the other hand by holy Photios (Title I, Chapter 2). Novel 184 of Justinian (inserted in Book 28 of the Basilica, according to Balsamon), ordains that the husband can take back his guilty wife within two years after she committed the adultery and was sentenced to the monastery for the act of adultery, and that he can cohabit with her freely without fearing any danger on this account and without injury to his marriage as a result of the previous sin and separation. St. Basil the Great, also says in his dissertation on virginity that if a woman who has been left by her husband repents and corrects the cause on account of which he left her, the husband ought to have compassion on her because of her because she corrected herself, and to take her back as his own member again. Moreover, Canon XCIII of the 6th Ecumenical Synod permits a soldier to take back his own wife if he so chooses, even though she has taken another husband because of his many years’ absence from the country in foreign lands. Canon VIII of Neocaesarea likewise appears to permit a priest to live with his wife when she is guilty of adultery if he cares to, though he must be deposed.
Note also the fact that not everyone can start suit for adultery, but only five persons listed, and these must be the most intimate and nearest relative of the woman, namely, father, brother, uncle on the father’s side, and uncle on the mother’s side, and exceptionally and especially and above all her husband. As long as the marriage is in force nobody else is permitted to start such a suit except only the husband of the woman, by means of five witnesses attesting in fear of God that they all saw her in the very act of committing adultery. A suit for adultery may be started at any time within five years, and not late (Armenopoulos, Book 1, Title III).
Besides any of these things, it ought to be known to everyone that the civil and imperial laws never permit husbands to kill their wives, even though they have caught them as adulteresses. Hence there is no excuse for those who kill either their wives, or their sisters and daughters or relatives of any other kind, on the ground that they have been guilty of fornication or of adultery.
So, inasmuch as it may be inferred, from all that we have said, that a married couple ought not to be separated, therefore it is necessary for one side of the couple to bear with the other patiently, according to St. Gregory the Theologian. Thus, the wife ought to put up with her husband even though he insults and beats her, even though he spends her dowry, and no matter what else he may do to her; and just as much ought the husband to put up with his wife even though she is possessed by demons, as mentioned in I Timothy 4:1, and even though she is suffering from other defects, and has diseases, according to St. Chrysostom (in his Discourse on a woman bound by law, etc.). And yet that imperial and external laws on many accounts permit married couples to separate and be divorced, St. Chrysostom (in the same place), in the course of voicing opposition to them, says: “God is not going to judge in accordance with those laws, but in accordance with the laws which He himself has laid down with regard to marriage.
There is but one reasonable ground for divorce, and that is the one ordained by the laws, according to Emperors Leo and Constantine, when one party plots against the life of the other (Title XIII, of the selection of laws). A married couple may be divorced reasonably enough, again, when one party is an Orthodox Christian, and the other party is a heretic, according to Canon LXXII of the 6th Ecumenical Synod; or when there is a blood relationship by marriage, according to Canon LIV of the same Synod; or a relationship due to baptism, according to Canon LIII of the same Synod; and also when the lord of the couple will not consent to their being wedded, according to Canons XL, XLI, and XLII of St. Basil. As to the proper form of a Letter of Divorce, see at the end of this Rudder. (pp. 320 -329)
Form for a Canonical Divorce
With our humbleness in the chair and surrounded by a simultaneous session of the most honorable Clerics, most reverent Priests, and most honest Magistrates (and Provosts), there appeared before all of us most honest Sir George, of the village or parish ( name ), accusing his wife Mary of the crime of adultery, and asserting that he found her really defiling her part in the bed of her husband and being caught in the very act of being polluted with adultery by another man. When interrogated about this, he also produced credible witnesses to the fact, named (So-and So and So-and-So and So-and-So), who with fear of God and a heavy conscience, before all of us testified as concerning this man’s wife that she has not truly kept due faith with her own husband, but, having abandoned her own sobriety, has acted as an adulteress. And therefore our humbleness, after being told and informed of these facts, allowed this case to be postponed. And indeed after later employing various arguments and inducements and ways and means, with a view to persuading the said George to take back and accept his wife (for this is permissible according to the divine laws), overlooking this misdeed of hers, seeing that she bitterly repents it, and promises never again to do such a thing, and after having negotiated all these aspects for a sufficient length of time, yet unable to induce him to be persuaded in her favor. Hence, following the decision rendered by our Lord in the Gospels, wherein He says that “whosoever shall divorce his wife, except on the ground of fornication, is causing her to commit adultery” (Matthew 5:32; cf. 19:7, 9). And reflecting that this is the only legal and reasonable excuse for separating a husband from his wife – the ground, that is to say, of adultery, just as the Lord declared; yet at the same time exercising due foresight lest anything more terrible may result hereafter from their cohabitation, seeing that adultery engenders jealousy in most cases, and that jealousy leads to murder: on this account and for this reason our humbleness pronounces the said George to be divorced and set free from his wife Mary, in accordance with the decision of our Lord and the divine Canons, Apostolic as well as Synodal; and furthermore gives him permission to take another woman to wife, whereas with regard to his aforesaid wife Mary our humbleness will never give her permission to take another man to husband, on the ground that she has become the cause of this separation and divorce. For she ought, instead of having another wedding and enjoying nuptial pleasures, to continue thus weeping and mourning throughout her life over her sin, since what God had joined she put asunder (Matthew 19:6), and since otherwise too, she committed adultery while her husband was living, whom she herself divorced by reason of her licentiousness, a fear subsists lest she become an adulteress again in case she is allowed to become a wife to another man (Romans 7:3), according to St. Paul, who elsewhere says that “if a woman be divorced from her husband, let her remain unmarried” (I Corinthians 7:11). Hence in evidence thereof the present Divorce was drawn up, and was given to the repeatedly aforementioned George 3 in the year of the Lord . . .”(1796) and in the month of August. (pp. 1808-1809)