It is from this point of view that it is necessary to consider the canonical grounds for divorce that exist today, which is only its legal, formal aspect, the logic of which is this: it is allowed when the marriage has actually lost its meaning. This is not an instruction on how to get divorced “church-like”, but merely an indication of what to do if the marriage has already broken up. Not without reason in the Church there is no rite of “debunking” or “church” divorce. There is only a blessing for a second marriage, which must be obtained from the bishop, if the person after the breakup of the marriage decided to re-create the family.
The main question of the topic of our conversation should have sounded differently: “Under what circumstances can we say that marriage has lost its meaning?” The Lord himself in the Gospel quite definitely points to one single reason for divorcing is the fault of adultery: “who divorces his wife his not for adultery and marries another, he commits adultery; and marrying a divorced woman commits adultery" (Matt. 19: 9).
Confessing this view of marriage, the Church, however, could not ignore the human weaknesses, the evil will of the people inside the Church. Based on the principle of oikonomia of condescension and mercy to the infirmities of people, but based on the two initial causes of divorce (the death of one spouse and the betrayal of one of them), she formulated a number of others. As for example, his unknown absence for a long time is equated to the death of a spouse: in this case, the remaining party is recognized as widowed and does not have to languish further in hopeless waiting.
Divorce as punishment
Ecclesiastical law of marriage, including the rules relating to the dissolution of marriage, was formed over the centuries. In this case, canonists relied on the Gospel commandments, although they had to take into account the peculiarities of secular legislation. The basic conditions for entering into and dissolving marriage, which were embodied in the canons of the Russian Orthodox Church, were borrowed from Byzantium, but over time they underwent some changes, though not very significant.
When a divorce on the basis of only mutual consent of the spouses was excluded from Byzantine legal practice, several reasons remained that gave legal grounds for divorce: first of all, adultery, as well as those cases that could be considered as an analogy of adultery or death.
The betrayal of one of the spouses was proved in court with the help of testimony, or the fact of childbirth or pregnancy, subject to the long-term absence of her husband. Premarital debauchery of the wife was equal to treason, in the event that the husband did not know about him before the wedding. Betrayal ceased to be a reason for divorce, if both parties were guilty of it, as well as if the injured party had already forgiven his spouse his crime, directly or indirectly,
Divorce is not the fault of the spouses
The reasons for the unconditional dissolution of a marital union that was not related to the misbehavior of one of the spouses was, for example, the inability to marry, acquired before marriage (the wife could seek divorce for this reason only 2 years after the start of family life). Infertility of the wife, unlike the pagan Roman law, was not recognized as the basis for divorce. The madness of the spouse, being an obstacle to marriage, could not serve as a basis for its dissolution if it was already manifested after the creation of a family. By Byzantine norms, the unknown absence of one of the spouses for 5 years for a civilian and 10 years for a warrior who went missing in a war was equal to death, and the remaining spouse was free to conclude a new alliance. In the event that after his wife entered the second marriage, the first husband returned, he had the right to return his spouse. However, the warrior’s captivity was not a reason for divorcing him. The marriage union was also terminated by the mutual pronouncement by the spouses of monastic vows, as well as by virtue of the monastic tonsure of one of them, with the consent of the other. At the same time, the civil laws of Byzantium, equating monasticism with natural death, did not deprive the possibility of remarriage remaining in the world.
If the marriage was preceded by circumstances that made his conclusion impossible, this was also the basis for the dissolution of the marital union. In particular, this concerned the age of marriage. In Byzantine law, it was 12–13 years for a woman and 14–15 for a man. In Russia, at the beginning of the 19th century, the so-called civil marriage age was introduced: 16 years for a woman and 18 years for a man, respectively (Byzantine norms remained valid for the Caucasus). If the spouses after the fact turned out to be younger, the marriage should immediately be forcibly terminated, unless the child was born or pregnancy occurred. Upon reaching the age of marriage, family relations could be resumed without a second wedding. If the husband and wife refused this, the family union was considered to be terminated. When entering into a second marriage, such persons were considered to be non-marriage and the relevant restrictions were imposed on them by canons.
The age limits applied to widowers, old maids, and old suitors equally. The maximum age for marriage was 60 years for women, for men the age limit was not defined by canons.
Issues related to the dissolution of marriage were considered at the Local Council of the Russian Orthodox Church in 1917. The list of grounds for divorce in the final documents of the Council has been significantly expanded. Among them are the confirmed falling away of one of the spouses from the Orthodox Church, the systematic mockery of one spouse over another, or the grave, incurable mental illness, one of them, and acquired in marriage. The reason for the dissolution of the family union was also recognized as an incurable serious infectious disease, in particular, syphilis and leprosy.
About secondhand marriage
The church disapproves of repeated marriages and allows them only by condescension to human weakness. According to the canonical right to re-enter into a church marriage can only the spouse, who, upon the dissolution of the marriage union, turned out to be the injured party. The culprit of the divorce could re-establish the family only in the case of repentance and readiness to bear the punishment determined by the Church for this. Intentional abandonment of a spouse from the time of Byzantium was also considered as a basis for divorce. Upon the dissolution of a marriage, the party found guilty was deprived of the right to create a new family, the innocent party received this right. Since the beginning of the twentieth century, it was allowed to enter into a second marriage and the one who committed adultery, which caused the divorce. However, it was possible not earlier than the end of church penance, defined in 3.5-7 years. This provision is valid to this day.
As a rule, the question of church divorce arises at a time when one of the spouses dissolving the family union – usually the one who was not responsible for the breakup of the family, elects a new life partner and decides to get married to him. However, after the separation of the Church from the state, civil acts have only acts committed in the registry office or through the courts, therefore ecclesiastical recognition of the termination of marital relations does not mean anything in the absence of state registration of the divorce. The church can only take into account existing family relationships. If the disintegration of the family is an objective given, in particular, if the spouses have not lived together for a long time, and the restoration of the family is impossible, church divorce is allowed by pastoral indulgence.
Church law, allowing for repeated ecclesiastical marriage (wedding), allows a third marriage only on an exceptional basis, with the obligatory fulfillment of two requirements: a person entering into a new family union must be at the age of no more than 40 years old and not have children. If, after two marriages, even in the case of early widowhood, a person has a child, church marriage is not permitted. If there are no children, but forty years have passed, marriage is also not allowed. The possibility of a fourth marriage by church canons is not considered at all.
Interviewed by Savelyev A. and Kiryanova O.