Title XIX: On the Separation of Spouses

Latin source headnote: Necessary homicide does not deprive one of the hope of marriage, but a plot against the death of a spouse does.

From the council at Worms.

If any woman has taken counsel with other [persons] for the death of her husband, and the man himself, in defending himself, kills one of them, and to prove this [you are able], the man himself can dismiss that wife and, after the death of the wife, if he wishes, marry another. But let the woman who laid the plot remain subject to penance without hope of marriage.

Latin source headnote: Spouses are not separated on account of the crime of one of them, unless they fornicate spiritually; and even then the marriage endures, even when they have been separated.

Alexander III.

Your fraternity asked of us whether a woman ought to be separated from her husband for robbery or any other crime and marry another; and concerning the man you proposed a question in like manner, whether for any disgraceful act he can be divided from his spouse and lawfully join another to himself in marriage. Therefore we respond in this manner: a woman ought not to be separated from him for theft or another crime of her husband, unless he endeavors to draw her into his evil deeds and wishes to corrupt the religion of her faith, nor is she for any reason to be joined to another. But if he has drawn his spouse into the evil deed of unbelief, the woman will be able to depart from the husband and to be separated, in such a way, however, that it will not be lawful for her to marry another, because, although they are separated, they will nevertheless always be spouses. In the case of husbands also, let the form of the present sentence be observed.

Latin source headnote: A husband cannot dismiss his wife without a judgment of the Church, even on account of a notorious impediment of kinship. If report relates an impediment to a marriage, even when no one opposes it, the bishop can inquire into it by his office. But if the impediment is notorious, the bishop can separate the marriage by his office.

The same, to the Bishops of Amiens.

Moreover, concerning the Count of Ponthieu, who dismissed the daughter of B. of Saint-Valery, his wife, without a judgment of the Church for the reason that he proposes that she was a blood relative of his deceased wife, let your prudence know this: even if the kinship were public and notorious, he could not be separated from her without a judgment of the Church; wherefore you are strictly to compel him to receive her who seeks restoration of him. If he is unwilling to receive her, bind him and the woman brought in over her with the bond of excommunication. But if any persons appear who lawfully wish and are able to attack the marriage itself, hear the case and decide it by the due end. Moreover, concerning H., who married the daughter of Adelm, his blood relative, [as] wife, if this is public and manifest and no one appears who wishes to attack the marriage, we respond to you that, when accusers do not appear and the kinship is manifest or public—which is not credible unless they were first cousins in the first or second degree—it pertains to your office to dissolve, with gravity applied, those marriages which are known to have been unlawfully contracted. [To these things, etc. Compare chapter 15, On Tithes, III. 30.]

Latin source headnote: A wife seeking restoration of her husband is repelled if she has notoriously fornicated and the husband has remained continent.

The same.

You signified to us that a certain knight in your province, having dismissed his wife without a judgment [and authority] of the Church because it had been suggested to him that she had committed incest with a certain blood relative of his, was on this account bound with the bond of excommunication. But the woman herself did not remain continent, but received offspring from another man; nevertheless she seeks to be restored to her husband, asserting that she [had been] unjustly dismissed by him and that the same man had given her material for committing adultery. Hence, because you consulted us whether the woman herself ought to be restored to [her] husband, and the husband compelled to receive her, we respond to your consultation in this manner: if it is notorious that the woman herself committed adultery, the aforesaid husband ought not to be compelled to receive her, unless it were established that he had committed adultery with another woman.

Latin source headnote: A marriage is separated on account of the adultery of the woman, and, if the man afterward fornicates, it is restored. And it is a good case and very capable of being cited.

The same.

We received from your letters that the bearer of the present letters, named V., formerly of your diocese, married a certain woman, namely Lucia, as wife; they, at the instigation of a malignant spirit, were in concord for only a short time. For the same V. proposed that he had married her through violence inflicted upon him, with fear also intervening. But you, together with your chapter, when you often endeavored to restore peace between them by both threats and admonitions, compelled them, after they had been rashly separated, likewise to be reconciled: finally the husband judicially accused his wife concerning the crime of fornication, and she, being led by what spirit is unknown, began publicly to confess that, because her husband refused to provide for her in things due and necessary, she was compelled to incur the aforesaid crime. And when she had been more diligently admonished by you not to propose so shameful a thing against herself at the suggestion of anyone or upon iniquitous counsel, she asserted it more manifestly. Indeed, when, after summoning your chapter and other discreet men, on their counsel you firmly enjoined upon each of them that continence was to be observed privately, in such a way that they should live chastely while separated from one another, and from the report of certain persons you perceived that the aforementioned V. intended to marry another woman, although you diligently admonished him not to attempt this in any manner, nevertheless outside the city he rashly celebrated betrothals and nuptials with another woman in secret. But when you labored to investigate the deed, so that you might proceed according to it, the above-mentioned V., explaining and expounding the course of the matter as it had been done, is said to have appealed to our hearing. Hence, by apostolic writings, we command your fraternity that, if the matter so proceeded, with appeal removed, through a sentence of excommunication you compel the aforesaid man to return to his lawful wife, and, after penance has been enjoined upon him for the adultery committed with the second woman, you cause the first to be treated by him with marital affection. [The chaplain, etc. Compare chapter 1, On Second Marriages, IV. 21. Given at the Lateran.]

Latin source headnote: If a wife departs on her own authority from a husband who has lapsed into heresy, she is compelled to return to him when he returns; otherwise, if she had been separated from him by a judgment of the Church.

Urban III, to the Bishop of Florence.

Concerning the woman indeed who, when her husband lapsed into heresy, avoided his companionship without a judgment of the Church, whether, when he returns to Catholic unity, she is to be compelled to restore the marriage, it seems to us that the woman—especially if she departed with the intention that he who lapsed into heresy, affected alike by weariness and confusion, might convert himself from his error—is to be restored to him when he has returned, and, even if she is unwilling to return, is to be compelled. But if by a judgment of the Church she withdrew from him without hope of restoring the marriage, we say that she is in no way to be compelled to receive him. [But concerning the wife, etc. Compare chapter 7, On Burial, III. 28.]

Latin source headnote: The conjugal bond is not dissolved when one of two faithful spouses lapses into heresy. But if one of two infidel spouses is converted to the faith and the other is unwilling to cohabit with that spouse, or not without blasphemy, or without mortal sin, the marriage is dissolved, and the convert will be able to contract.

Innocent III, to the Bishop of Ferrara.

The more we know you to be skilled in canon law, the more we commend your fraternity in the Lord because in doubtful points of questions you have recourse to the Apostolic See, which by the Lord’s disposition is the mother and teacher of all the faithful, so that the opinion which you once held in them while you taught others skill in canon law may either be corrected by the Apostolic See or approved. Indeed, your fraternity through its letters intimated to us that, when one of the spouses passes into heresy, the one who is left desires to fly to second vows and to procreate children; through your letters you considered that we should be consulted whether this can be done by law. Therefore, responding to your consultation on the common counsel of our brothers, we distinguish—although a certain predecessor of ours seems to have thought otherwise—whether one of two infidels is converted to the Catholic faith, or one of two faithful persons lapses into heresy or falls into the error of paganism. For if one of the infidel spouses is converted to the Catholic faith, while the other is either in no way willing to cohabit with that spouse, or is willing to do so at least not without blasphemy of the divine name, or in order to draw that spouse into mortal sin, the one who is left will pass to second vows if that person wishes. And in this case we understand what the Apostle says: “If the infidel departs, let that person depart. For a brother or sister is not subject to servitude in matters of this kind,” and also the canon in which it is said that “an insult to the Creator dissolves the law of marriage with respect to the one who is left.” But if one of two faithful spouses either lapses into heresy or passes into the error of paganism, we do not believe that in this case the one who is left can, while the other is living, fly to second nuptials, although in this case a greater insult to the Creator appears. For although a true marriage exists between infidels, it is nevertheless not ratified. But between the faithful it exists both true and ratified, because the sacrament of faith, which was once admitted, is never lost; but it makes the sacrament of marriage ratified, so that the sacrament itself endures between the spouses while it endures. Nor does it stand in the way that perhaps it is objected by certain persons that the faithful person who is left ought not without fault to be deprived of that person’s right, since this happens in many cases, as if one of the spouses is castrated. By this response, however, the malice of certain persons is forestalled who, out of hatred for their spouses, or whenever they displeased one another, if they could dismiss them in such a case, would feign heresy so that, when their spouses married, they might recoil from the marriage itself. Through this same response is resolved that question by which it is asked whether the one who remained in the faith is compelled to return to the one who returns [either] from heresy or from infidelity. [Given at the Lateran, on the Kalends of May, 1199.]

Latin source headnote: Pagans joined in a degree prohibited only by canon law are not separated when converted to the faith. This first. If a pagan previously has several wives, after receiving the faith he will adhere to the first. This second. And if, after repudiating a wife, he contracted with a second, even after baptism he will dismiss the second and adhere to the repudiated first wife, even if the repudiated woman had contracted with another; otherwise if she had fornicated. This third.

The same, to the Bishops of Tiberias.

We rejoice in the Lord and in the power of his might, and we render abundant acts of thanksgiving to the Father of lights, from whom is every best thing given and every perfect gift, because, as you intimated to us by your letters, in these last days he who does not wish the death of a sinner but that he be converted and live has inspired the hearts of many pagans to come to the Christian faith. You sought to be instructed by an apostolic writing whether pagans who take as wives women joined to them in the second or third or a further degree, being so joined, ought after their conversion to remain together or to be separated from one another. Concerning this we respond to your fraternity in this manner: since the sacrament of marriage exists among both the faithful and infidels, as the Apostle shows, saying, “If any brother has an unbelieving wife, and she consents to dwell with him, let him not dismiss her,” and in the aforesaid degrees marriage has been lawfully contracted by pagans with respect to themselves, who are not bound by canonical constitutions—“For what is it to us,” according to the same Apostle, “to judge concerning those things which are outside?”—especially in favor of the Christian religion and faith, from the reception of which men can easily be recalled by wives who fear that they will be deserted, faithful persons of this kind who were matrimonially joined can freely and lawfully remain joined, since marriages are not dissolved through the sacrament of baptism, but crimes are remitted. But because pagans divide conjugal affection among several women at the same time, it is not without reason doubted whether after conversion they may retain all of them or which one of all. But because both the patriarchs and other just men before the law and likewise after the law are read to have had many wives at the same time, and no contrary precept appears in the Gospel or the law, nor are pagans subject to canonical institutes discovered afterward, as was premised, it seems that even now according to their rite they lawfully contract with different women, whose lawful unions the water of sacred baptism does not dissolve; and thus, after the example of the patriarchs, pagans converted to the faith of Christ will rejoice in a plurality of marriages. But this seems discordant and hostile to the Christian faith, since from the beginning one rib was transformed into one woman, and divine scripture testifies that for this reason a man shall leave father and mother and shall adhere to his wife, and the two shall be in one flesh; it did not say “three or more,” but “two,” nor did it say “he shall adhere to wives,” but “to his wife.” Hence Lamech, who is read to have had several wives at the same time, is reproved in the scriptures because he first introduced the reprobate form of bigamy. Although you did not ask concerning these things, nevertheless, wishing to render both you and others more certain concerning them as well, and that truth may prevail over falsehood, without any doubt we declare that it was never lawful for anyone to have several wives at the same time, unless it was granted to him by divine revelation, which is sometimes reckoned custom and at other times even divine right; through this, just as Jacob is excused from falsehood, the Israelites from theft, and Samson from homicide, so also the patriarchs and other just men who are read to have had several wives at once are excused from adultery. Indeed, this truthful sentence is proved also by the testimony of Truth, who testifies in the Gospel: “Whoever shall dismiss his wife, except on account of fornication, and shall marry another, commits adultery.” If, therefore, after the wife has been dismissed, another cannot lawfully also be married, all the more while she is retained; through this it plainly appears that plurality concerning marriage is to be reproved in both sexes, since they are not judged by unequal standards. Moreover, etc. (Compare chapter 15, Which Children Are Legitimate, IV. 17.) But he who according to his rite repudiated his lawful wife, since Truth in the Gospel has reproved such repudiation, will never lawfully be able, while she lives, to have another, even after being converted to the faith of Christ, unless after his conversion she refuses to cohabit with him, or, even if she consents, nevertheless not without insult to the Creator, or in order to draw him into mortal sin. In this case, restitution would be denied to the one seeking restoration, although an unjust spoliation were established, because according to the Apostle a brother or sister is not subject to servitude in matters of this kind. But if she, converted also, follows him after he has been converted to the faith, before he marries a lawful wife on account of the aforesaid causes, he will be compelled to receive her. Moreover, although according to the truth of the Gospel he who marries a dismissed woman commits adultery, nevertheless the man who dismissed her will not be able to object to the dismissed woman the fornication arising from the fact that she married another after the repudiation, unless she otherwise fornicated.

Latin source headnote: It is not lawful to take the widow of a brother as wife, and if married in fact she is to be separated, unless the Church dispenses otherwise.

The same, to the Bishop of Livonia and the brothers who are with him.

God, who his Church—(And below: [Compare chapter 11, On Life and Honesty, III. 1.]) But because in contracting marriages the rite among those of the Church of Livonia newly converted to the Catholic faith is different from ours, since they do not attend to the canonical distinction in consanguinity or affinity, and have been accustomed indiscriminately to join the widows of their brothers to themselves; lest on account of this they be drawn back from their good purpose—since certain of them were unwilling to believe unless you permitted them to retain their brothers’ widows, nor were you willing to receive them for baptism unless they dismissed such women—on account of the newness and weakness of that people, we concede that they may enjoy marriages contracted with their brothers’ widows, if nevertheless, when the brothers died without offspring, they contracted with such women so that they might raise up the seed of the deceased according to the Mosaic law; prohibiting them from joining such women to themselves henceforth, after they have come to the faith. [To these things,] adhering to the footsteps of blessed Pope Gregory, our predecessor of holy memory, lest the people of Livonia, through fear of more austere requirements, withdraw from the good which it began, by apostolic authority we dispense with them so that they may contract marriage in the fourth and further generation until they are more fully made firm in the faith; conceding this to them not with the intention that, after they have been made firm in the faith with a stable root, they may be joined to such persons; for according to the word of the Apostle, saying, “I gave you milk as drink, not meat,” we conceded that these things are to be held for the present only, not for future times, lest, which may it not be, the good which has been planted with a still-weak root be burned up, but rather that it may be strengthened and faithfully preserved unto perfection. But since the sacrament of marriage exists among the faithful and infidels, as the Apostle declares: “If any brother,” he says, “has an unbelieving wife, and she consents to dwell with him, let him not dismiss her”; and since by pagans, who are not bound by canonical constitutions—(for what is it to us, according to the same Apostle, to judge concerning those who are outside?)—marriage in the second and third degree is lawfully contracted with respect to themselves: in favor of the Christian religion and faith, from the reception of which men can easily be recalled by wives who fear that they will be deserted, faithful persons who, in this degree while in infidelity, were matrimonially joined to one another can freely and easily remain joined, since marriages are not dissolved through the sacrament of baptism but crimes are remitted. Moreover, etc. [Compare chapter 7, On Penance, V. 38. Given on the thirteenth day before the Kalends of May, in the fourth year, 1201.]