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Divorce and Annulments

The Difference between Orthodox Christianity and the Latins

That people get divorced and want to remarry is an unavoidable fact. Both Orthodox Christianity and the Latins (the Vatican religion) deal with this fact because they must. However, the difference in their approaches could not be more different.

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To understand the approach of the Orthodox Catholic Church, it is necessary to understand that marriage is not a legality. There are no vows in the Marriage rite of the Orthodox Catholic Church (neither says anything!). It, like all the Mysteries of the Church), has but one purpose, the purpose of everything the Church does: to assist the faithful in becoming perfectly united to Christ — to attain theosis. In Orthodoxy, marriage is for eternity, it is not until death do us part. A married couple are soul-mates assisting each other towards theosis.

(For those who are thinking marriage cannot be for eternity because of Matthew 22:30, please note that the Lord Jesus Christ teaches that the people will not get married or be given in marriage, but does not teach that marriages will be set aside or annulled in heaven.)

It is also necessary to understand that the Church does not have laws; she has canons (the Greek word kanon literally means guide) which are guidelines (the phrase canon law is an oxymoron). These guidelines are normally followed strictly, but can be applied more loosely, when, in the judgement of the bishop (and this is part of the heavy burden of the bishop's office of chief pastor for which he will answer at Judgement Day), it will be spiritually beneficial for the person(s) involved. (Strict application is known as akrievia; relaxed application is known as oikonomia.) This is because The sabbath was made for man, and not man for the sabbath (Mark 2:27) — guidelines are made to benefit people; people are not made for the guidelines.

There are two explicit Scriptural grounds for divorce: adultery, and abandonment. There are also related grounds such as severe spousal abuse because it is abandonment in a particularly cruel form: the husband/wife does not have the courtesy to run off, but rather beats his/her wife/husband until she/he does. These explicit Scriptural grounds for divorce were given due to human sin and weakness.

There are other manifestations of human sin and weakness that end marriages. The Church recognises this and faces the sin head-on. She does not try to explain it away or pretend it does not exist. Of course, forgiveness and reconciliation is always to be preferred, but when this does not happen (again, because of sin and human weakness), the Church, in the person of the bishop, deals with this and works to do what is best for the spiritual welfare of those involved. This is determined based upon specific circumstances, on a case-by-case basis. Often there will be an epitimia — an action intended to help with spiritual healing (somewhat like a physician ordering the patient to refrain from certain foods or to undertake exercise in order to achieve better physical health). An epitimia is not a form of punishment. I have heard of cases where an epitimia for divorce involved two years without receiving the Mysteries of the Church and a prohibition against marrying for seven years. In most cases, an epitimia is not so severe. A more typical epitimia is three to six months without receiving the Mysteries of the Church and a prohibition against marrying for one year.

The Church makes very clear that one marriage is the ideal — for eternity. When an Orthodox Christian who has been previously married (this includes widows/widowers as well as those who have divorced) is permitted to remarry, the ritual is radically different than the ritual for first marriages. There are no crowns, no songs of joy, no being led around the altar. Instead, it is a penitential service. The Epistle is 1 Corinthians 7:8ff (better to marry than to burn). The service makes very clear that this is a condescension to sin and human weakness. A second and (very rarely) a third attempt to achieve a marriage which aids both husband and wife in the goal of theosis may be permitted. A fourth attempt under any circumstances is unthinkable. This attitude is very ancient. Saint Justin the Philosopher (aka Saint Justin the Martyr), about a.d. 151, wrote: According to our Teacher, just as they are sinners who contract a second marriage, even though it is in accord with human law, so also are they sinners who look with lustful desires at a woman.. Saint Clement of Alexandria, about a generation later, wrote: One who marries a second time is not sinning, but he is not fulfilling the demands of evangelical perfection. It does him heavenly glory if he keeps the marriage tie sundered by death untainted by gladly obeying the economy.

The approach of the Latins is quite different. They view marriage from a legal viewpoint. If either of the partners was incapable of entering into the legal bond of marriage because of a lack of proper intention rendering him or her incapable of giving informed consent, then the marriage vows are deemed invalid. If the vows were invalid then was no valid marriage, i.e. the couple were never validly married. Once this determination has been made, both partners are free to marry as if they had never been married (legalistically, they are in the same situation as a person who had never married). Theoretically, there is no limit to the number of times a person, having received an annulment, can be married!

The reason the Latins place so much emphasis on the necessity for a proper intention is due to their teaching that, because sacraments are not dependent upon the worthiness of the minister, a sacrament is valid if it has the correct matter (the right substances are used) correct form (the right words are said in the right manner) and done with the correct intention. For most Latin sacraments, this means there is assurance of the validity of the sacrament. But not with marriage. The ancient practise (still maintained by the Orthodox Catholic Church) was that the priest was the minister of all the Mysteries (sacraments), including marriage. But if the Latins had maintained the ancient practise, they could only annul a marriage if they could find fault with the intention of the priest. If it were possible to find fault with the intention of a priest to annul a sacrament done years in the past, it would be call into question every sacrament performed by the priest and there would be no assurance that any of his sacraments were valid! To get around this problem, the Latins changed the ancient practise and made the marrying couple the co-ministers of the sacrament. This places the burden of having the proper intention on the couple and makes it easier to find the fault needed to justify a declaration that no valid marriage every existed: an annulment.

There are some consequences of this change. It is impossible to know if any Latin marriage is valid when it takes place (and probably not as long as both husband and wife are alive). It creates an inconsistency with Uniate marriages: the Vatican requires the Uniates to maintain the tradition that the priest (or bishop) is the minister of the sacrament whilst requiring them to accept the practise of annulments (thus creating the situation where a Uniate priest's proper intention is called into question in the administration of a sacrament and, by extension, all sacraments). It means that a Latin marriage (but not a Uniate marriage) can be done without the presence of a member of the clergy. (Since I have experienced outrage from Latins insisting this is not true, here is the regulation from the current Canon Law):

Canon 1112
§ 1 - Where there are no priests and deacons, the diocesan Bishop can delegate lay persons to assist at marriages, if the Episcopal Conference has given its prior approval and the permission of the Holy See has been obtained.

§ 2 - A suitable lay person is to be selected, capable of giving instruction to those who are getting married, and fitted to conduct the marriage liturgy properly.

(The phrase assist at a marriage is explained in Canon 1108, § 2: Only that person who, being present, asks the contracting parties to manifest their consent and in the name of the Church receives it, is understood to assist at a marriage. These canons can be found at http://www.intratext.com/ixt/eng0017/_P3Z.HTM.)

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The legalistic prohibition of second (and third) marriages was not a practise of the ancient, undivided Church, East or West. This can be seen by the Synod (Council) of Elvira (held between 300 and 314) and the Synod (Council) of Arles (held circa 314) in the West and by the teachings of Church Fathers in the East. For instance, among the canons from the Synod of Elvira we find:

8. Women who without acceptable cause leave their husbands and join another man may not receive communion even when death approaches.

9. A baptized woman who leaves an adulterous husband who has been baptized, for another man, may not marry him. If she does, she may not receive communion until her former husband dies, unless she is seriously ill.

10. If an unbaptized woman marries another man after being deserted by her husband who was a catechumen, she may still be baptized. This is also true for female catechumens. If a Christian woman marries a man in the knowledge that he deserted his former wife without cause, she may receive communion only at the time of her death.

11. If a female catechumen marries a man in the knowledge that he deserted his former wife without cause, she may not be baptized for five years unless she becomes seriously ill.

These canons demonstrate that even the West recognised acceptable cause for leaving a spouse and made allowances for those who, through sin and weakness, ended one marriage and entered into another. This is similar to the teaching of Saint Basil the Great (330-379) who, in his First Canonical Epistle to Amphilochius (aka Epistle 188), wrote as Canon IV:

In the case of those who marry a third time they laid down the same guide, in proportion, as in the case of marrying a second time; namely one year for the second marriage (some authorities say two years); for a third marriage men are separated for three and often for four years; but this is no longer described as marriage at all, but as polygamy; nay rather as limited fornication. It is for this reason that the Lord said to the Samaritan woman who had five husbands, he whom thou now hast is not thy husband. He does not reckon those who had exceeded the limits of a second marriage as worthy of the title of husband or wife. In cases of a third marriage we have accepted a seclusion of five years [i.e. permitted no further than the narthex], not by the canons, but following the precept of our predecessors. Such offenders ought not to be altogether prohibited from the privileges of the Church; they should be considered deserving of hearing after two or three years, and afterwards of being permitted to stand in their place; but they must be kept from the communion of the good gift [i.e. permitted into the nave, but barred from the Mysteries], and only restored to the place of communion after showing some fruit of repentance.

This canon was approved by the Fourth, Sixth, and Seventh Ecumenical Synods (Ecumenical Councils).

Dr. Joseph Martos (a Latin author) has written a textbook that includes a primer on the development of marriage regulations amongst the Latins in his textbook Doors to the Sacred: A Historical Introduction to Sacraments in the Catholic Church. In reference to the earliest Christian practises regarding marriage, Dr. Martos writes:

During the first three centuries of Christianity, then, the fathers of the church did not say much about marriage, but when they did they talked about it as an important aspect of Christian life, not as an ecclesiastical institution. When Christians married they did so according to the civil laws of the time, in a traditional family ceremony, and often without any special church blessing on their union. The early Christian writers implicitly accepted the government's right to regulate marriage and divorce, and when they spoke about marriage they usually limited themselves to pastoral matters, affirming the goodness of marriage, urging Christians to marry within their own community, and warning them not to get drunk and unruly at wedding feasts. The bishops did not approve of divorce but they did not absolutely prohibit it, and they even allowed remarriage in some places that we know of and perhaps others. (page 352)

Although it is rare for Latins or Protestants to really understand the Orthodox Catholic approach to marriage and divorce (let alone explain it correctly), Dr. Martos provides an accurate explanation a few pages later:

It sometimes happens, however, that Christians do not live up to their spiritual calling, that they do not live up to what was symbolized and initiated in their baptism and marriage, and it sometimes happens drastically and publicly as in the case of apostasy and divorce. When it does happen the church does not approve of it but it does recognize it as a fact. Christian should not renounce their faith, and they should not be divorced, but when these things happen they must be recognized as realities, and ways must be found to be found to deal with the persons involved justly and mercifully. In the case of lapsed Christians, the way is always left open to reconciliation with the church, and in the case of divorced Christians the way is left open to reconciliation with each other or, if that is not possible, to remarriage. Orthodox churches, therefore, do not grant divorces but they do allow for the possibility that Christians might receive a civil divorce and later want to remarry. Rather than exclude the innocent and repentant from communion in the church, then, they allow divorced Christians to remarry in the church as a concession to human needs and imperfections even though this second marriage cannot symbolize, as the first one did, the union between the one head and the one body of the church. Thus this second marriage is recognized as a real marriage but it is not regarded as a sacramental marriage, for it is not a full sign of the unique and eternal commitment that the first one promised to be. It is an approach to marriage which focuses on the liturgical aspects of the sacrament rather than on its juridical aspects, for that is the early church tradition out of which it grew. (page 356)

As we have shown, there is a radical difference between the Orthodox Catholic and the Latin ways of responding to the reality of divorce and the desire to remarry. The former faces the sin and human weakness head-on, the latter resorts to legalistic legerdemain in an attempt to explain away the reality, even when this results in internal contradictions.

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