Divorce and Remarriage in the Decretists

Discussions of divorce and remarriage by the decretists mirrored their underly­ing disagreements concerning the formation of marriage. Thus, writers of the Bolognese school distinguished between the termination of marriages initiated by the exchange of consent and those completed by consummation.

Decretists who held that present consent of the parties created marriage faced greater difficulties in dealing with separation and divorce. Since consen­sual theory maintained that sexual intercourse was not essential to the forma­tion of the marriage bond, its advocates had difficulty in accounting for the fact that Church authorities actually did terminate marriages on the grounds of im­potence or long-continued absence. Consensualists tended to argue that the grounds for granting separation ought to be limited to reasons involving capac­ity to marry (consanguinity, affinity, age, previous marriage, and religious vows) or defects of consent (fraud, deceit, coercion, and insanity).^[1158]

Practical reality, as both French and Bolognese decretists well knew, differed from canonistic theory.

Decretists of both schools also knew that marriages contravening the elabo­rate rules on consanguinity and affinity were commonplace. Both French and Bolognese writers agreed that unions violating the incest canons ought to be dissolved, particularly when the relationship was a close one and the parties were aware of it.^[1162] When the relationship was distant and not generally known, however, dispensations were the preferred remedy, so as to maintain the mar­riages by waiving application of the law. Rolandus seems to have originated the use of the terms “diriment impediment” to characterize the first of these situa­tions and “impedient impediment” to describe the second.^{[1163] [1164] [1165]}

Impotence Cases

Sexual impotence vividly demonstrates the practical consequences of the differ­ences between the marriage formation theories of the French and Italian schools.

Writers of the French school rejected these solutions to impotence cases.^{[1166] [1167] [1168] [1169] The author of the Summa Parisiensis, for example, discussed and then dis­missed the Bolognese teaching. The Summa Parisiensis held that if sexual inca­pacity preceded the exchange of marital consent the marriage might be dis­solved; if the condition appeared after the exchange of consent, however, the marriage must remain intact. If impotence preceding marriage was inborn and natural, the marriage could still be dissolved and the sexually capable partner could remarry. If the impotent party subsequently recovered his or her sexual capacity the Summa Parisiensis held that this created a presumption that the divorce had been secured through perjury; the divorce should therefore be res­cinded and the marriage reinstated.[1170]}

Other writers who adopted French marriage formation theory were more sketchy in accounting for their rejection of the Bolognese impotence doc­trine.^[1171] John of Salisbury, who was generally sympathetic to the teachings of the Parisian schools where he himself had been trained, added a further reason to be wary of divorces based on grounds of sexual impotence: these allegations, he observed, are easy to make, and women arc often quick to accuse their hus­bands of sexual shortcomings when they are dissatisfied with them for other reasons.

Huguccio s approach was more subtle than the others. He distinguished three different causes of sexual impotence: it might result from inborn physical conditions; from mental incapacity, as in a madman; or from both mental and physical incapacity, as in a young child. Impotence might preclude true mar­riage, he added, but it did not necessarily do so.^[1173] Those who suffered from both mental and physical impotence, or from mental impotence alone, were incapable of contracting valid marriage, and the unions that they attempted to create were void. Physical incapacity was more difficult to evaluate and Huguc- cio followed the Parisian decretists in his treatment of congenital and acquired sexual impairment.^[1174] Huguccio added that if a married couple deliberately de­cided not to consummate their marriage, even though both parties were ca­pable of intercourse, no one, including the pope, had the power to dissolve their union.^[1175]

Inconsistencies marked the handling of impotence problems in the de­cretists’ commentaries. Their differences of opinion reflected the cloudy state of the law on the subject. Late twelfth-century popes were no more consistent in their treatment of these matters than were academic lawyers.^[1176] The discrepan­cies in approach to the problem also reflected differences in customary prac­tices, particularly between the Church in France and the Roman curia, as the treatise In primis hominibus pointed out.^[1177]

Presumption of Death Cases

The problem posed by the disappearing spouse, discussed in C. 34 of the De­cretum, also highlighted the consequences of the disagreement between Paris and Bologna concerning the formation of marriage. Rolandus followed Gratian’s doctrine closely, as did Paucapalea, holding that a woman who believed in good faith that her missing husband had died should be allowed to remarry; she could not be charged with adultery should her belief prove mistaken.

The Summa Parisiensis, by contrast, rested its discussion of presumption of death on the nature of the consent to the first marriage. The author of the Paris Summa paid scant attention to the degree of probability necessary to justify re­marriage, but held that if the first marriage had been contracted by present consent, the wife was unconditionally obliged to return to her first husband, if he reappeared (see also Pl. 7.¹⁶² The fragmentary Cambridge Summa, unlike other discussions, treated the question of evidence in some detail. The Cam­bridge Summa maintained that a bona fide belief that the husband was dead justified remarriage, provided there was adequate cause for the belief, such as

¹⁵⁸Rolandus, Summa to C. 34, ed. Thaner, p. 200.

¹⁵⁹Rufinus, Summa to C. 34 q. 1 & 2 pr., ed. Singer, p. 507, required a “strong pre­sumption,” while Rolandus required merely “reasonable evidence” of the death of the first spouse.

¹⁶⁰Joannes Faventinus in B.L. Royal g.E.VII, fol. 147 vb; “Quoniam itaque si mulier proponitur utroque simul decidatur que uiuente uiro et absente alteri nubit aut ra­tionibus ex argumentis credit eum obiisse aut non? Si probabiliter, sibi facta fide credens eum obiisse alteri nubit, non est adulterii rea, quousque eum uiuere cognouerit.

¹⁶¹Rufinus, Summa to C. 34 q. 1 & 2 pr., ed. Singer, pp. 507-508.

¹⁶²SP to C. 34 q. 1 & 2 c. 1, ed. McLaughlin, pp. 255-56.

a report from the missing man’s comrades that he had died. Even a prolonged absence without any word concerning the missing man constituted sufficient reason to believe that he was dead, according to the Cambridge author.¹⁶³ The treatise In primis hominibus added, however, that the wife was required to re­join her first husband only if he wished her to do so, while Simon of Bisignano observed that if the wife did return to her first husband, the second husband was free to remarry, ^im

Adultery and Divorce

The decretists unanimously agreed that while the Church had the power to separate a couple when one party could prove that the other had committed adultery, separation created no right of remarriage for either party so long as the original partner lived.^lβs Rufinus noted that in actions brought on grounds of adultery the wife was at a legal disadvantage, since a man was entitled to

¹⁶³Frag. Cantah. to C. 34 pr. v. quidam uir, in U.L.C., MS Add. 3321(1), fol. 34r-v: “Cum superius egisset de errore, adhuc Iaicus prosequitur de errore, ponens (thema) [MS: teuma] de ea que uirum suum ductum in Captiuitate credebat defunctum, unde ad alterius transmit copulam. IIic queritur utrum hcc que sic transit ad secundum adulter­ium committat. Si transit sciens maritum suum uiuere, adulterium (perpetrat) [MS: pa­trat]. Si transit ad secundum sciens maritum suum mortuum uel credens maritum suum mortuum et habens iustam causam credendi eum esse mortuum, ueluti cum uenerunt socii eius eum mortuum in communi proclamantes, uel publica fama est quod mortuus sit, uel propter diutinam moram, excusatur ipsa ab adulterio et tunc utique legitima uxor est; inter eam tamen et secundum non est (ratum) [MS: raptum] matrimonium. Nam redeunte primo debet ipsa redire ad eum. Sed quid si ipse noluerit cam recipere, erit cogendus ut eam recipiat? Dicit rolandus quod non [sed cf. Summa Rolandi ad C. 44 q. 2, rec. Thaner, p. 200]. Apponit tamen medicamentum, quod si ipsa multo tempore expectauit eum ct obprimebatur a multis qui passim occupabant bona sua et bona fil­iorum suorum et credens eum mortuum habens iustam causam credendi eum mortuum, alteri nupsit, cum redierit maritus, uelit nolit, si ipsa uoluerit (debet) [MS: habet] eam recipere.”

¹⁶¹In primis hominibus in B.L. Royal 11.B.XIII, fol. 88rb: “Opponitur quod mulier cuius maritus in regno longinqua tenetur captiuus et putatur mortuus cum indigeat rec­tore permissione ecclesie alii copulatur, utroque tamen uiuente, sed existente [in]tim- atione uxoris et auorurn non impu[t]ebat ille; quo redeunte secundum Coniugium dis- soluetur et redibi[t] ad primum si ille uolet.” Simon of Bisignano, Summa to C. 34 in

B. L. MS Add. 24,659, fol. 34ra: “Cum autem uir et maritus uerus reuertitur sicut mulier ad uirum primum redire compellitur, sic uir iste secundus ad aliam si uult potest uota transire.” If a woman whose husband was missing and presumed dead chose to en­ter a convent rather than to remarry, the problem became still more complicated; see Questiones Cusanae, no. 17, ed. Fransen, p. 216.

¹⁶⁵Paucapalea, Summa to C. 32 q. 7, ed. Schulte, pp. 128-29; Rolandus, Summa to

C. 30 q. 1 pr., C. 32 q. 7 c. 27, ed. Thaner, pp. 145, 187-88; Rufinus, Summa to C. 32 q. 7 c. 22, ed. Singer, p. 495; SP to C. 33 q. 2 pr. and d.p.c. 9, ed. McLaughlin, pp. 250-51; Frag. Cantab, to C. 27 q. 2 c. 1 v. non soluit, in U. L.C., MS Add 3321(1), fol. charge his wife with adultery on suspicion alone, while a woman could bring such a charge against her husband only with hard proof.^[1178] Rufinus was not pre­pared to agree with Peter Lombard, who taught that men could divorce their wives for adultery, but that wives could not rid themselves of their husbands on the same grounds.^{[1179] [1180]} The Summa Parisiensis, as an exception to the general rule, would allow husbands to dismiss their wives for adultery without formal ecclesiastical process, provided that the offense was open and notorious, but ruled out remarriage under any circumstances for either party, '^6s Ifboth parties were guilty of adultery, the decretists held, no divorce or separation should be allowed.^[1181]

Although the decretists often stated that married persons who indulged in excessive, immoderate, or unnatural sex were guilty of adultery, they exempted such couples from the consequences of adultery with respect to separation and divorce. This was true, one writer remarked, because of the good of marriage.^[1182]

The decretists expressed few disagreements about the question of whether a man and woman involved in an adulterous relationship could marry one an­other after the married party’s spouse died. The decretists followed Gratian in holding that such a couple could marry only if they satisfied three conditions: first, they must do penance prior to marrying; second, neither of them must have been involved in procuring the death of the first spouse; and third, they must not have agreed to marry prior to the death of the first spouse.^[1183] Rufinus argued in favor of a fourth condition, namely that the adulterous pair could marry only if the previously married party had been repudiated by the first spouse.^[1184]

Entrance into Religion

Discussions of the separation of married couples by mutual consent in order to enter the religious life reveal further disagreements among the decretists over the consequences of rival theories of marriage formation. Bolognese writers would allow unilateral separation so long as the marriage remained unconsum­mated; after consummation, however, they required mutual consent for this purpose.^[1185] Those who adopted the Parisian theory allowed unilateral separa­tion after future consent, but required mutual agreement in order to sanction separation after the exchange of present consent.^{[1186] [1187]}

Converts

Still another topic whose treatment reflected the differences between the Pari­sian and Bolognese schools concerned the marriages of converts to Christianity. Rolandus took the position that since coitus ratified marriage and made it indis­soluble, a man who converted to Christianity should be considered to have ratified his earlier marriage if, at any time after baptism, he had sexual relations with his unconverted wife. New converts who wished to shed pagan spouses must avoid sexual relations after baptism. If they had sex even once with their pagan partner after conversion, that transformed their prior, non-Christian marriage into a full-fledged Christian union, which was indissoluble.¹⁷³ Those who favored the Parisian theory of marriage formation, however, took the posi­tion that since consent made marriage, the preconversion marriage was bind­ing and could not be dissolved because of the baptism of one party into the Christian faith.^[1188]

As noted at the beginning of this chapter, the disagreements between de­cretists of the Bolognese and Parisian schools over marriage formation were not simply academic squabbles about abstract philosophical and theological principles. Rather, the differences between the two schools had important and tangible consequences for real couples and for a broad spectrum of issues, in­cluding the legitimacy of children, inheritance, marital property, and other topics. The rights of non-Christian spouses and the children of mixed marriages constitute another case in point.