Question I

GRATIAN. PART I. That a woman cannot be separated from her husband because of his inability to render the marital due is proved by evangelical and apostolic authority. For Christ says thus in the Gospel: “No one is permitted to put away his wife except for the cause of fornication”—either that by which one of them, as Augustine explains, has fornicated, or that to which one wished to draw the other.

Likewise the Apostle: “A woman, for as long as her husband lives, is bound to his law,” not the law of rendering her the marital due, but of not transferring herself to another.

Likewise: “To those who are joined in marriage I command—not I, but the Lord—that the wife is not to depart from the husband except for the cause of fornication.” Therefore, by evangelical and apostolic authority a woman is prohibited from departing from her husband except for that cause most well known to all. If she has departed when it intervenes, she must remain unmarried or be reconciled to her husband. Hence it is given to be understood that inability to render the marital due does not make a separation of the marriage.

§ 1. To these things it is answered thus: Marriage is confirmed by consummation, as was proved above. But after it has been confirmed by consummation, it is not lawful for a husband to put away his wife or for a wife to depart from her husband except for the cause of fornication. Yet before it is confirmed, inability to consummate dissolves the bond of marriage. Hence Gregory writes to John, bishop of Ravenna:

As to what you asked concerning those who are joined in marriage and cannot marry in fact—whether he can take another, or she another—concerning them it is written: “If a man and woman have joined themselves, and the woman afterward says concerning the man that he cannot have intercourse with her, if she can prove by a just judgment that it is true, let her receive another. But if he has received another, let them be separated.”

You asked concerning those who say that, because of the cause of a frigid nature, they cannot mingle with one another by giving their labor to the flesh. But if this man cannot use her as a wife, let him have her as a sister. But if they wish to break the marital bond, let each remain unmarried. For if he could not naturally agree with this woman, how will he be compatible with another? Therefore, if the man wishes to receive another wife, the reason lies manifestly open: at the devil’s suggestion, feeding hatred, he held her hateful, and for this reason he strives to put her away by the falsity of a lie. But if the woman brings the complaint and says, “I wish to be a mother and to procreate children,” let each of them, with seven relatives acting as oath-helpers, touching the most sacred relics, state under oath that they were never joined by mingling of the flesh and made one flesh. Then the woman appears able to contract a second marriage. I speak in a human manner because of the weakness of their flesh. But the man who is of a frigid nature is to remain without a spouse. But if he too has received another union, then those who had sworn are to be held guilty of the crime of perjury, and after penance has been completed they are to be compelled to receive their former marriages again.

PART II. GRATIAN. But this is commanded to be observed when each confesses the same thing. Yet if the man asserts that he rendered the marital due to his wife and she denies it, it is deservedly asked to whom credibility is rather to be given. Concerning these matters it was established thus in the Council held at Compiègne:

If anyone has received a wife and has had her for some time, and the woman herself says that he never had intercourse with her, while the man says that he did so, let the matter rest upon the truthfulness of the man, because the man is the head of the woman.

PART III. GRATIAN. Behold, inability to render the marital due dissolves the bond of marriage. But this was established concerning natural inability. This woman, however, was separated from her husband because an impediment of magic, not natural frigidity, prohibited the marital due. Hence it is asked whether in this case also it is lawful for her to depart from her husband and join herself to another. Hincmar, archbishop of Reims, writes thus concerning these matters:

If, through female diviners and sorceresses—with the hidden but never unjust judgment of God permitting and the devil preparing it—intercourse does not follow, those to whom these things happen are to be exhorted to make to God and a priest a pure confession of all their sins with a contrite heart and a humbled spirit, to make satisfaction to the Lord with abundant tears, more generous alms, prayers, and fasts, and that, through exorcisms and the other duties of ecclesiastical medicine, the ministers of the Church should strive to heal such persons insofar as the Lord—who healed Abimelech and his house through Abraham’s prayers—assents. But if perhaps they have been unable to heal them, they will be able to be separated. Yet after they have sought other marriages, while those to whom they were joined in the flesh are living, they will be unable to be reconciled to the former spouses whom they left, even if the ability to have intercourse has been restored to them.

GRATIAN. But in this Hincmar appears contrary to the preceding chapter of Gregory. For there, after the ability has been restored, she is commanded to be separated from the man whom she married second and to return to the first. Here, however, while the man to whom she had been joined second is living, she will not be able to be reconciled to the first.