The Roman law under the Empire was extremely favorable to divorce, making it easy for either party to become rid of the other for any cause that seemed sufficient. The Christian Church from the first, following the teaching of Christ, opposed divorce. Marriage was an indissoluble relation; see § 39 [f], [g]. It was only by degrees that much change could be introduced into the civil law. The following law of Theodosius II gives the condition of the law in the fifth century. It shows that to some extent the Christian principles regarding marriage had affected legislation.
If a woman leave her husband by a repudiation made by her and prove no cause for her divorcing him, the gifts which she received as bride shall be taken away and she shall likewise be deprived of her dowry, and be subjected to the punishment [pg 392] of deportation; and to her we deny not only the right of marriage with another man, but also the right of post-liminium.[145] But if the woman opposed to the marriage prove faults of morals and vices, though of no great gravity, let her lose her dowry and pay back to her husband her marriage gift, and let her never join herself in marriage with another; that she may not stain her widowhood with the impudence of unchastity we give the repudiated husband the right of bringing an accusation by law. Hereafter if she who abandons her husband prove grave causes and a guilt involving great crimes, let her obtain a control of her dowry and marriage gifts, and five years after the day of repudiation she shall receive the right of remarrying; for it would then appear that she had acted rather out of detestation of her husband than from desire after another. Likewise, if the husband bring a divorce and charge grave crimes against the woman, let him bring action against the accused under the laws and let him both have the dowry (sentence having been obtained) and let him receive his gifts to her and let the free choice of marrying another be granted him immediately. But if it is an offence of manners and not of a criminal nature, let him receive the donations, relinquish the dowry, and marry after two years. But if he merely wishes to dissolve the marriage by dissent, and she who is put away is charged with no fault or sin, let the man lose the donation and the dowry, and in perpetual celibacy let him bear as a penalty for his wrongful divorce the pain of solitude; to the woman, however, is conceded after a year the right to remarry. Regarding the retention of the dowry on account of the children we command that the directions of the old law shall be observed.
(k) Jerome, Epistula 78, ad Oceanum. (MSL, 22:691.)
Divorce and remarriage.
The principle here laid down by Jerome was that which ultimately prevailed in the Church of the West, that after divorce there could be no remarriage, inasmuch as the marriage bond was indissoluble, though the parties might be separated by the law. But another principle [pg 393] was also made a part of the code of Christian morality, that what was forbidden a woman was also forbidden a man, i.e., the moral code as to chastity was the same for both sexes.
§ 3. The Lord hath commanded that a wife should not be put away except for fornication; and that when she has been put away, she ought to remain unmarried [Matt. 19:9; I Cor. 7:11]. Whatever is given as a commandment to men logically applies to women also. For it cannot be that while an adulterous wife is to be put away, an incontinent husband must be retained.… The laws of Cæsar are different, it is true, from the laws of Christ. Papinian commands one thing; our Paul another.[146] Among them the bridles are loosened for immodesty in the case of men. But with us what is unlawful for women is equally unlawful for men; and both are bound by the same conditions of service. She[147] then put away, as they report, a husband that was a sinner; she put away one who was guilty of this and that crime.… She was a young woman; she could not preserve her widowhood.… She persuaded herself and thought that her husband had been lawfully put away from her. She did not know that the strictness of the Gospel takes away from women all pretexts for remarriage, so long as their former husbands are alive.
(l) Jerome, Adversus Jovinianum, I, 7. (MSL, 23:229.)
The inferiority of marriage to virginity.
While the Church teachers insisted on the indissolubility of marriage and its sanctity, in not a few cases they depreciated marriage. Of those who did this Jerome may be regarded as the most characteristic and representative of a tendency which had set in, largely in connection with the increase of monasticism, regarded as the only form of Christian perfection.
“It is good for a man not to touch a woman.”[148] If it is good not to touch a woman, it is bad to touch one; for nothing [pg 394] is opposed to goodness but the bad. But if it be bad and the evil is pardoned, it is conceded that a worse evil may not happen. But what sort of good is that which is allowed only because there may be something worse? He would have never added, “Let each man have his own wife,” unless he had previously said, “But because of fornication.”… “Defraud ye not one another, except it be by consent for a season, that ye may give yourselves unto prayer.” What, I pray, is the quality of that good thing which hinders prayer, which does not allow the body of Christ to be received? So long as I do a husband's part, I fail in continency. The same Apostle in another place commands us to pray always.[149]