The Law of Divorce

S. Mark x. 1–12

Many things happened between our Lord’s departure from Capernaum and the interview with the Pharisees with which this chapter opens. S. Luke and S. John fill up the gap which S. Mark has left. At this time He was in Peraea, and His enemies seized the opportunity as a favourable one to embarrass Him on the subject of divorce. The Governor of that country had put away the daughter of Aretas, and was living with the wife of his half-brother Philip. They expected, no doubt, that Jesus would take the same view of the case as the Baptist had done, and thus kindle the Tetrarch’s animosity against Him. If, however, they did not succeed in this aim, they were certain to embroil Him with one of the rival parties into which Jewish society was then divided. S. Mark says that they put the question on the legality of divorce, “tempting Him.” His answer must alienate one party or the other. The controversy between them had arisen out of the interpretation of a passage in Deuteronomy: “When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her; then let him write her a bill of divorcement.”

The stricter and more orthodox school of Shammai laid stress upon the words which spoke of “uncleanness,” and only permitted the dissolution of marriage on the ground of deliberate immorality. The laxer Hillelites dwelt rather upon the preceding words, and pronounced divorce legitimate “for every cause” in which the wife proved distasteful to her husband. “If she go not as thou wouldst have her, cut her off from thy flesh, and give her a bill of divorce, and let her go.”

In the general laxity of morals and prevailing profligacy of the times, this latter view had been accepted by the people at large; and it is clear that the Pharisees who tempted our Lord with this question belonged to the party of Hillel.

Jesus referred them to the instructions of their Lawgiver, and when they sheltered themselves under the letter of his directions, He took the opportunity of pointing out the true character of the Mosaic legislation on the subject. It was only intended to be permissive and provisional, enacted to meet the special exigency of the times. Moses found himself confronted by evils which he saw that it was impossible to extirpate, for dissolution of marriage had become common among the Jews, who had freely adopted the manners and customs of surrounding nations. Owing to the hardness of men’s hearts the indissolubility of the marriage-tie could not be maintained; but Moses determined to check divorce at the arbitrary will and caprice of the husband. That such was the spirit and tendency of his enactment is clear from the fact that separation could only be effected by a duly prepared and attested document. It would at least interpose delay and difficulty, and possibly lead in many cases to reconsideration. But our Lord showed that such legislation could not be final. It was a departure from the law originally laid down, and though it may have been, and doubtless was, expedient for the time, it could lay no claim to be permanently observed. It was not the only instance in which retrogressive legislation had been permitted: the principle was illustrated in the allowance of slavery or polygamy, both of which, equally with divorce, were only temporary relaxations of God’s original purpose. The ideal relation of the sexes was established at the beginning, when “God made them male and female,” one wife for one husband, to be united so closely that they should become not only one in heart and soul, but actually “one flesh.” It was an union designed for perpetuity, and this our Lord clearly taught when He said, “What therefore God hath joined together, let not man put asunder.”

The Pharisees went away discomfited, but when He was alone with His disciples in the house, the question was reopened, and, in answer to their inquiries, He enforced still more strongly the indivisible unity of them that are married. It is so close, He says, that if outward separation should take place, for either husband or wife to contract a second marriage, in the lifetime of the other, would be a distinct breach of the seventh commandment. Those who wish to separate and live apart must remain as they are after separation.

S. Mark has preserved a saying of our Lord’s which is of no little importance: “And if a woman shall put away her husband.” It struck another blow at the Jewish legislation of the time by establishing an equality of rights between husbands and wives, which the Jews denied by allowing the initiative to be taken by the husband alone.

Now it will be interesting to see what effect the reversion by our Lord to first principles on the true teaching of marriage has had upon Christianity. The Primitive Church speaks here with a less certain sound than is usual upon matters of momentous interest. The early Fathers were certainly divided among themselves; most of them, however, agreed in allowing separation on the ground of “fornication,” though they differed not a little in their interpretation of the original word, rendered in the Authorised Version “adultery” in the two passages where our Lord had used it, in dealing with the subject of divorce. Again, they were divided upon the lawfulness of contracting a second marriage during the lifetime of the divorced husband or wife; but there can be no doubt that the prevailing opinion during the first three centuries was decidedly against it. The only known synodical decisions that bear directly upon the question were given at the Synod of Elvira in 305 and the Council of Aries in 314. The former deals with a wife who leaves an adulterous husband, the latter with a husband who puts away an adulterous wife. In both cases the right of re-marriage is denied, but there is this noteworthy difference: if the woman disregarded the prohibition, she was to be permanently excommunicated, but in case the man did so, no provision was made for imposing ecclesiastical penance upon him. The Council was satisfied to decree that the men should be warned in the strongest manner, “so long as their adulterous wives are alive, not to take others.” The civil laws at the time were more considerate to the man, and the Church accepted the principle; but in the middle of the fifth century the position of man and wife was put on the same footing in this respect.

The Roman Church upholds the inherent perpetuity of the marriage-tie, and forbids either party, under any circumstances, to marry again during the other’s lifetime.

The Anglican Church has never officially recognised any other than judicial separation, and, by consequence, altogether disallows re -marriage. The Commissioners appointed by Henry VIII. aimed at relaxing the law, and were willing to constitute adultery, cruelty, and desertion sufficient grounds for an absolute dissolution, but these provisions never received legislative authority. From this time forward, however, the secular and ecclesiastical branches of the Legislature have been in conflict: 2 the former striving to relax, the latter to restrict, the rules of separation. The passing of the Divorce and Matrimonial Causes Act in this generation (A.D.1867) extinguished the ancient jurisdiction of the Church, and allowed a marriage to be nullified through direct appeal to a Secular Court.

The following considerations may help to the formation of a sound judgment upon this and kindred questions connected with the Marriage Laws.

If the directions of the New Testament are at all obscure, as they confessedly are, to judge by the differing views of commentators, instead of exercising the right of private judgment, it is the safer course to accept the general interpretation put upon them by the Church, which is the witness and keeper of Holy Writ. Again, we may well hesitate before doing anything which will tend to destroy the Sacramental character of Holy Matrimony. That which was chosen as a fitting type to represent Christ’s union with His Church was far more likely to have been regarded in the Mind of the Spirit as indissoluble than otherwise.

Further, the experience of the last seventeen years proves that the relaxation has encouraged immorality, and is striking at the root of the sanctity of family life.

And lastly, it behoves us to remember that dissolution of marriage was only allowed in the Mosaic economy as a concession to human weakness, owing to the hardness of men’s hearts; and to sanction it now is to admit that the times are so degenerate that we have reached no higher standard. We can conceive of no severer satire upon the boasted progress and civilisation of the nineteenth century.

Note: Cf. p. 130,

Note: Lit. “the nakedness or shame of the thing.” It can hardly be understood of adultery, because that was a capital offence. Cf. xxii. 20-22. From verse 3 personal hatred was sufficient cause for divorce, but clearly the spirit of the legislation made it unjustifiable save for some” immodest conduct or grave physical defect.”

Note: Josephus, who was by no means a man of lax morals, spoke of divorcing his wives as though it were a thing of most ordinary occurrence, needing no apology. Cf. Life, c. 75, 76. Such grounds as these were regarded as sufficient: “if she spin in public;” “if she go with her head uncovered;” “if she become dumb or sottish;” “if she cook her husband’s food amiss;” “if any man sees a woman handsomer than his own wife.” But R. Akiba, from whom the last is taken, explains that by “handsomer” he meant “of nobler deeds.”

Note: For specimen cf. Lightfoot’s Exercit. on S. Matthew v. 31.

Note: Clem. Alex. Strom, ii. 23; Tertull. contr. Marc. iv. 34; S. Hierom. Ep. 30; Epitaph. Fabiolae; S. Chrys. Horn. xvii. in Matt.; Origen, Horn, in Matth. in loc.; Epiphan. Hasr. 59.

Note: Cone. Trid. Sess. xxiv. Can. 7.

Note: Can. 107, A.D. 1604. It was decided in the Star-Chamber, Elizabeth 44, in the case of Foljambe, that adultery was a ground for judicial separation, i.e. a mensa et toro, but not a vinculo.

Note: Cf. Reformatio legum Anglicanarum de Adult, et Divor.

Note: The House of Lords again and again granted decrees for dissolution in opposition to the Ecclesiastical Courts. In 1798 it was enacted that the Upper House could dissolve a vinculo in any case where the Church had sanctioned divorce a mensa et toro. This intervention of the Spiritual Courts was made unnecessary by the Act of 1867.