Article II. On The Indissolubility Of Matrimony

The other property of matrimony is indissolubility, to which divorce or the dissolution of matrimony is opposed. A twofold divorce is customarily distinguished: one perfect, which dissolves the matrimonial bond itself, so that it is lawful for the spouses to pass to other nuptials; the other imperfect, which, while the bond remains intact, grants separation of the spouses with regard to bed and habitation. After we have proved the complete indissolubility of consummated Christian matrimony, we shall treat: 1. of perfect divorce or divorce with regard to the bond; 2. of imperfect divorce or divorce with regard to bed and habitation.

662. Proposition. A valid, ratified, and consummated matrimony can never be dissolved by any human power or for any cause (except death). Thus the Code of Canon Law, c. 1118.

Proof 1. From the Council of Trent.²³⁶ "If anyone says that the Church errs when she has taught and teaches, according to evangelical and apostolic doctrine, that the bond of matrimony cannot be dissolved because of the adultery of one of the spouses, and that neither one, even the innocent one who gave no cause for the adultery, can contract another matrimony while the other spouse is living, and that he commits adultery who, having dismissed an adulteress, marries another, and she who, having dismissed an adulterer, marries another: let him be anathema."

From these words it follows that it is of faith that the Church does not err when she teaches that the matrimonial bond cannot be dissolved because of adultery. Since, however, it is added in the canon that the Church teaches this according to evangelical and apostolic doctrine, the indissolubility of consummated Christian matrimony is certain from evangelical and apostolic doctrine, and consequently seems to pertain to the faith. There are some, however, who vindicate certainty indeed for this truth, but not the certainty of faith.²³⁷ Yet whatever may be the case concerning this controversy, according to all Catholics he is a heretic who says that the Church errs when she has taught and teaches that the matrimonial bond cannot be dissolved because of the adultery of one of the spouses. Consequently, under this head Protestants are heretics. But he who should say that the bond of matrimony can be dissolved because of adultery would be at least in an error proximate to heresy.²³⁸

Launoy and a few others contend that this canon is not dogmatic but only disciplinary, and consequently subject to change; but this is false, as is evident from its object, which is the inerrancy of the Church teaching according to evangelical and apostolic doctrine.²³⁹

Proof 2. From Sacred Scripture. In diverse places Christ declares that adultery is committed by him who marries a dismissed wife. Thus He says: "And I say to you, that whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and he that shall marry her that is put away, committeth adultery."²⁴⁰ Now if matrimony could be dissolved with regard to the bond, certainly he who married a dismissed wife would not commit adultery. Therefore, according to the precept of Christ, it is not lawful to effect a divorce with regard to the matrimonial bond.

Certainly, in the cited text Christ seems to permit divorce in one case, namely, in the case of fornication, since He says: "except it be for fornication," and in St. Matthew, c. 5, v. 32: "saving the cause of fornication." For this reason many, both Protestants and heterodox Greeks, permit the dissolution of matrimony (even with regard to the bond) when adultery has been committed by one spouse. But this text, accurately examined, does not have this meaning. From the first centuries onward there has been much dispute concerning what the words "except it be for fornication" mean.²⁴¹ The best, most ancient, and more common explanation of all is that which St. Thomas brings forward:²⁴² "That exception [namely, saving the cause of fornication], which is in the words of the Lord, is referred to the dismissal of the wife, and therefore the objection proceeds from a false understanding."

Therefore the meaning of the words of the Lord is: It is not lawful to dismiss a wife except because of fornication or adultery committed by her; but even in this case it is not lawful to enter new nuptials; and if anyone nevertheless contracts another matrimony while the adulteress is living, he commits adultery. Thus also the Council of Florence understood the text of St. Matthew, teaching: "Although it is lawful to effect a separation of bed because of fornication, nevertheless it is not lawful to contract another matrimony, since the bond of a matrimony legitimately contracted is perpetual."²⁴³

That this is truly the meaning of the words of Christ appears manifestly from the parallel places in St. Mark 10:10 and St. Luke 16:18. For there Christ says simply and without limitation: "Whosoever shall put away his wife and marry another committeth adultery against her; and if the wife shall put away her husband and be married to another, she committeth adultery"; or: "Every one that putteth away his wife and marrieth another committeth adultery; and he that marrieth her that is put away from her husband committeth adultery." Hence St. Augustine²⁴⁴ exclaims: "Who, then, are we that we should say: there is one who, dismissing his wife and marrying another, commits adultery, and there is one who, doing this, does not commit adultery, when the Gospel says that everyone who does this commits adultery?"

Finally, if anyone rightly understood the words of Christ, it is certainly St. Paul, the "vessel of election." Now he says: "But to them that are married, not I, but the Lord commandeth that the wife depart not from her husband; and if she depart, that she remain unmarried, or be reconciled to her husband."²⁴⁵ Very few Catholic theologians taught the dissolution of matrimony with regard to the bond because of adultery committed, at least after the time of Gratian, who, after adducing many texts of the Holy Fathers, thus concludes: "By these authorities it is most evidently shown that whoever has dismissed his wife because of fornication cannot marry another while she is living, and if he marries, he will be guilty of adultery."²⁴⁶

But if some older theologians and bishops seem to have permitted this dissolution of matrimony, it must be noted: a) that frequently their words are not so clear and certain; b) that they were somewhat more lenient in particular cases because of the hardness of the spouses' hearts, in order to avoid greater evils.²⁴⁷

Leo XIII²⁴⁸ beautifully and concisely says: "But the Supreme Pontiffs, as often as they resisted most powerful princes menacingly demanding that divorces effected by them be ratified by the Church, must be judged so often to have fought not only for the integrity of religion, but also for the civilization of nations. In this matter all posterity will admire the proofs of unconquered spirit given by Nicholas I against Lothair II; by Urban III and Paschal II against Philip I, King of the French; by Celestine III and Innocent III against Philip II, Prince of the French; by Clement VII and Paul III against Henry VIII; finally, by Pius VII, a most holy and most courageous Pontiff, against Napoleon I, exulting in prosperous affairs and in the greatness of his empire."

Since Protestants and civil governments permit the perfect dissolution of matrimony, the number of divorces increases from year to year, drawing with it the greatest harms against the education of offspring, the peace of society, and uprightness of morals. Leo XIII vividly describes in the truly golden Encyclical Arcanum how great are the evils arising from divorces:

"It is scarcely necessary to say how much matter of evil divorces contain within themselves. For because of them matrimonial covenants become changeable; mutual benevolence is weakened; pernicious incentives are supplied to infidelity; harm is done to the protection and education of children; occasion is provided for the sundering of domestic societies; seeds of discord are scattered among families; the dignity of women is diminished and depressed, and they come into danger of being held as abandoned after they have served the lust of men. And since nothing avails so much for destroying families and breaking the strength of kingdoms as the corruption of morals, it is readily perceived that divorces are especially hostile to the prosperity of families and states, for they arise from the depraved morals of peoples and, as experience testifies, open an approach and doorway to more vicious customs of private and public life. That these evils are much graver will be evident if it is considered that there will be no restraints so great as to be able to confine within fixed or previously foreseen limits the faculty of divorce once it has been granted. Great indeed is the force of examples, greater that of desires: by these incitements it must happen that the lust for divorces, creeping more widely each day, invades the minds of very many, like a disease spread by contagion or a mass of waters overflowing after the embankments have been overcome."

²³⁶ Sess. 24, can. 7, De matrimonio (Denz., n. 977).

²³⁷ For example, Tanquerey, Synopsis Theol. mor., De matrimonio, n. 718.

²³⁸ Among the propositions qualified by the Holy Office under Innocent X, this is found under n. 13: "The Supreme Pontiff can dispense so that even a consummated matrimony may be dissolved with regard to the bond because of the wife's adultery, to which the definition of matrimony is not opposed." All the Qualifiers were of the opinion that this proposition was rash and scandalous; four added that it was proximate to error; two, erroneous; and three, heretical (Analecta ecclesiastica IV [1896], 187). The Fathers of Trent in the earlier drafting of this canon simply taught that consummated matrimony is altogether indissoluble; but at the request of the Venetian legates the drafting was changed, lest the contrary practice of the Greeks be held condemned. Besides the Council of Trent, several other Councils maintained the same doctrine concerning the complete indissolubility of consummated Christian matrimony, for example, the Council of Elvira in 305, canons 8 and 9; the Fourth African Council (407), which in canon 6 employs almost the same words as the Council of Trent; the Second Council of Milevis, c. 17 (c. 5, C. 32, q. 7); and the Council of Florence (Decree for the Armenians). Moreover, the Supreme Pontiffs several times issued decrees concerning the complete indissolubility of consummated Christian matrimony, for example, Leo I, Zacharias, Alexander III, Innocent III, Leo XIII, and others.

²³⁹ Cf. Van de Burgt-Schaepman, Tract. de matrimonio, I, n. 21.

²⁴⁰ Matt. 19:9. Cf. also Matt. 5:32; Luke 16:18; Mark 10:11; 1 Cor. 7:10; Rom. 7:2 f.

²⁴¹ Diverse explanations of this text devised by theologians may be seen among the dogmatic theologians, for example, in R. Fei, O.P., Dogm., V, n. 187.

²⁴² IV, dist. 35, q. 1, a. 5, ad 4.

²⁴³ Denz., n. 702.

²⁴⁴ De adulterinis coniugiis, l. 1, c. 9, n. 10 (Migne, Patr. lat., 40, 457). In this entire little work St. Augustine most ingeniously explains both the texts of Sacred Scripture and Catholic doctrine.

²⁴⁵ 1 Cor. 7:10.

²⁴⁶ C. 16, C. 32, q. 7.

²⁴⁷ Besides Freisen, already cited, the history of the indissolubility of matrimony is well narrated by Fahrner, Gesch. der Ehescheidung im kan. Recht (1903); A. Cígoi, O.S.B., Die Unauflöslichkeit der christlichen Ehe und die Ehescheidung (1895).

²⁴⁸ Encyclical Arcanum.

663. Certain examples of the dissolution of consummated matrimony are indeed objected. Thus, for example, the Councils of Verberie (Verberie; 758) and Compiègne (Compiègne; 757) grant the dissolution of matrimony for several causes.²⁴⁹ Thus Celestine III (1191-1198) permitted the dissolution of the bond of a consummated matrimony when an apostate husband abandoned his wife, unduly extending the Pauline privilege to this case.²⁵⁰ Innocent III seems to allude to this opinion of Celestine, saying: "although a certain predecessor of ours seems to have thought otherwise."²⁵¹

But the principal difficulty arises from the response given by Gregory II to St. Boniface in 726: "As to what you have proposed, that if a woman, stricken by infirmity, should not be able to render the debt to her husband, what should her spouse do? It would be good if he should remain thus, so as to devote himself to continence; but because this belongs to great men, he who cannot contain himself should rather marry; nevertheless, he should not withdraw the help of support from her whom infirmity hinders and not a detestable fault excludes."²⁵²

Although one should not immediately say with Gratian: "That statement of Gregory is found to be altogether contrary to the sacred canons, indeed to evangelical and apostolic doctrine," nevertheless this text has always been the cross of jurists. The genuineness of the text being admitted, two probable explanations are given, namely: a) Gregory II speaks of ratified and non-consummated matrimony; b) that infirmity is nothing other than antecedent impotence, which certainly invalidates any matrimony.²⁵³

As regards the particular Councils, it can be conceded that they erred. As regards Celestine III, his opinion is not so clear. But even granting that Celestine erred in a particular case, nothing can thence be deduced either against the infallibility of the Supreme Pontiff or against the complete indissolubility of consummated Christian matrimony, and all the less because Celestine III himself strenuously defended the indissolubility of Christian matrimony against Philip II, King of France.

²⁴⁹ Cf. Fahrner, Gesch. der Ehescheidung im kan. Recht, 74 ff.

²⁵⁰ Cf. ibid., 164.

²⁵¹ C. 7, X 4, 19.

²⁵² C. 18, C. 32, q. 7.

²⁵³ Cf. Freisen, Gesch. des kan. Eherechtes, 331; Fahrner, loc. cit., 63.

664. Scholion. On the intimate reason for the indissolubility of consummated Christian matrimony. If anyone inquires into the ultimate and adequate reason for this perfect indissolubility of consummated matrimony, certainly the natural law alone cannot be assigned; for in the Old Law marriages of this kind were lawfully dissolved by a "bill of divorce," and in the New Law they can sometimes be dissolved by force of the Pauline privilege (concerning which below); but in neither case can it be said that the natural law itself (at least according to its primary principles) is violated. Nor can this perfect indissolubility be derived solely from the character of the sacrament which belongs to Christian matrimony; for ratified matrimony also is a true sacrament, yet it can nevertheless be dissolved with regard to the bond both by pontifical dispensation and by religious profession.²⁵⁴

Since these things are so, it is better and truer to say that the consummated matrimony of Christians is altogether indissoluble from the positive will of God manifested in the Gospel,²⁵⁵ and that this indissolubility is most fitting both to the natural law and to the character of the sacrament.²⁵⁶ Indeed, Pius IX in the Syllabus proscribed proposition 67: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority."²⁵⁷

But this proposition seems to be understood thus: 1. Civil authority cannot sanction divorce properly so called, that is, the dissolution of matrimony with regard to the bond; 2. the indissolubility of matrimony, especially consummated matrimony, rests upon the secondary natural law, because matrimony by its very nature requires the good education of offspring, the mutual love of the spouses, perpetual mutual services, and is instituted to restrain and satisfy carnal concupiscence in a lawful manner. All these things can scarcely, indeed hardly at all, be obtained if the dissolution of matrimony is permitted, as perpetual experience testifies. Therefore the dissolution of consummated matrimony is opposed to the secondary natural law.

But since (absolutely speaking) the procreation of offspring and their education, and all the other things, can be had even when matrimony has been dissolved, divorce with regard to the bond is not opposed to the primary principles of the natural law; as appears also from the fact that God never dispenses in the primary principles of the natural law. But as is evident from the things said above, God both in the Old and in the New Law sometimes dispenses in the bond of consummated matrimony.

²⁵⁴ Cf. below, n. 681.

²⁵⁵ Matt. 5:32; Luke 16:18.

²⁵⁶ Cf. Wernz-Vidal, Ius can., V, n. 623; Billuart, De matrimonio, diss. 5, a. 2; cf. also the Instruction of the Holy Office, July 6, 1817 (Collect. de Prop. Fide, n. 725). St. Thomas teaches concerning this matter: "Inseparability belongs to matrimony insofar as it is the sign of the perpetual conjunction of Christ and the Church, and insofar as it is ordained to the good of offspring as an office of nature. But because the separation of matrimony is more directly opposed to the signification of the sacrament than to the good of offspring, to which it is opposed consequently, the inseparability of matrimony is understood more in the good of the sacrament than in the good of offspring, although it can be understood in both; and insofar as it pertains to the good of offspring, it will be of the law of nature, but not insofar as it pertains to the good of the sacrament" (Suppl., q. 67, a. 1, ad 2).

²⁵⁷ Denz., n. 1767.