Divorce and Remarriage in the Canonical Collections of the Reform

Between the turn of the millennium and the appearance of Gratian’s Decretum about 1140, canonistic policy with respect to divorce and remarriage under­went an important change.

All of the canonists of the period agreed that separations and divorces must be discouraged and that sanctions ought to be imposed upon those who divorced without cause or simply deserted their spouses.¹¹² It was common ground, too, that separation or divorce should be allowed only for serious cause—mere dis­like or disgust with the appearance, habits, or character of the marital partner did not furnish adequate grounds for separation.¹¹³ Anselm of Lucca maintained that the only proper grounds for separation were consanguinity, affinity, or im­potence.¹¹⁴ Ivo, however, still upheld the venerable tradition that considered adultery a sufficiently serious breach of marital vows to justify separation.¹¹⁵ Even so, Ivo thought that separation ought to be discouraged and that every effort should be made to reconcile the parties.¹¹⁶ Separation was clearly a last resort in Ivos eyes, but one that must be allowed if all else failed in adultery cases. Although he cited one canon that permitted separation for consanguinity, Ivo, like Burchard, seems to have operated on the principle that the Church should prevent consanguineous marriages in the first place.

Separation, as Ivo described it, was just that and nothing more: the sepa­rated couple continued to be married to one another but were no longer ex­pected to maintain a common life or to share the same household.¹¹⁸ Here Ivo

¹¹²Burchard, Decretum 9.62 (= Ivo, Decretum 8.198), in PL 140:825; Ivo, Decretum 8.229, 8.328 (= Panormia 6.106).

¹¹³Ivo, Decretum 8.35, 8.231 (= Panormia 6.106), 8.232 (= Panormia 6.103), 8.235 (= Panormia 7.5-6), in PL 161:591, 633-35. Iⁿ practice, of course, repudiation of spouses for personal reasons was scarcely unknown. A scandalous example was King Philip Γs dismissal of his first wife because she was too fat; William of Malmesbury, De gestis regum Anglorum 3.257, ed. William Stubbs₁ 2 vols., Rolls Scries no. 90 (London: Her Majesty’s Sationery Office, 1887-89) 2:315. On this account, however, Philip was excommunicated three times and ultimately forced to do penance and make his peace with the church authorities; Duby₁ Medieval Marriage, pp. 29-45, ^and Knight, Lady, and Priest, pp. 3-18₁ examines the episode in detail. Earlier, Robert the Pious (996­1031) repudiated his Italian wife, Rozala (also known as Susanna), because she was too old; Richer of St.-Remy, Historiae 4.87, in MGH₁ SS 3:651; also Duby₁ Knight, Lady, and Priest, pp. 75-85.

¹¹⁴Anselm₁ Collectio 10.22-24, θd. Thaner₁ pp. 492-93; Flichc₁ La reform# gre- gorienne et la reconquete chretienne, p. 466.

¹¹⁵Burchard₁ Decretum 9.63 (= Ivo₁ Decretum 8.199)₁ in PL 140:825-26; Ivo, De- cretum8.g(= Panormia7.6), 8.43(= Panormia 7.7), 8.109-10, 233₁ 239₁ 240(= Panor- mia 7.1), 16.160₁ in PL 161:586, 593-94₁ 606₁ 633, 634, 654, 935.

¹¹⁶Burchard, Decretum 9.81 (= Ivo, Decretum 8.217 and Panormia 7.41₁ in PL 140:830; Ivo₁ Decretum 8.237 (⁼ Panormia 7.4), 8.242 (= Panormia 7.35-37), 8.243 (= Panormia 7.38), in PL 161:635-37.

¹¹⁷Burchard₁ Decretum 7.18 (= Ivo₁ Decretum 9.54 and Panormia 7.70)₁ 7.2.7, and 9.80 (= Ivo, Decretum 8.216 and Panormia 7.89)₁ in PL 140:782, 784₁ 830.

¹¹⁸Ivo₁ Decretum 8.200 (= Burchard₁ Decretum 9.64), 8.209(= Burchard₁ Decretum 9.72), and 8.241 (= Burchard₁ Decretum 6.37). In addition see Ivo₁ Decretum 8.12-13 disregarded the authority of the Synod of Bourges (1031), whose canons allowed remarriage following separation because of adultery, but not on other grounds. Perhaps Ivo considered that the canons of a more recent council (Rouen, 1072), which forbade remarriage following repudiation for adultery, rescinded the Bourges canon.^{[778] [779]} But his treatment of separation and divorce rested, in the main, upon much older authorities than these two eleventh-century councils.

The canonists also drew upon earlier authorites for their treatment of pre- sumption-of-death cases. But the earlier rules, they discovered, were inconsis­tent. A man whose wife disappeared could remarry.^[780] Yet when a man disap­peared or was absent for protracted periods, his deserted wife could remarry only if her husband s death was known with certainty.^[781] Still other authorities taught that if a married man was taken captive by an enemy, and there was no reasonable expectation of his release, his wife might remarry; should the cap­tive return, the wife must return to her first spouse, thus presumably terminat­ing her second marriage. It is not clear in this situation whether the second husband was free to remarry or not.^{[782] [783] Most authorities, however, took a middle position: they insisted that a wife who believed in good faith that her husband was dead could remarry.}

Most canonists of the later reform period were prepared to allow separation or divorce on grounds of adultery, consanguinity, affinity, or, under some cir­cumstances, presumption of death. Insanity was sufficient reason for prohibit­ing a proposed marriage; if the couple married despite this, they were not to be separated.^[784] If one party to an already contracted marriage subsequently went mad, the canonists refused to dissolve the union.^[785] Several authorities explic­itly excluded sterility as a basis for separation.^[786] Impotence or frigidity, how­ever, presented more difficult problems on which opinion was divided. One au­thority dismissed the case of a couple who were unable to consummate their marriage because of the wife’s illness. The couple were urged to remain to­gether, despite their sexual problem. If they were unwilling to do so, however, they might separate, and the husband, who was sexually unimpaired, might re­marry. He was required, however, to continue to support his first wife.^[787]

Common opinion among the canonists held that when consummation was impossible due to a defect of either party, the healthy spouse might remarry, but the other might not.^[788] If an impotent person attempted to remarry, the second marriage should be terminated. Ivo cited one authority who ruled that divorce on grounds of impotence required no formalities, but that view was dis­tinctly eccentric.^[789] Most commentators on impotence questions required posi­tive proof of the alleged incapacity, although they differed sharply over the kinds of proof that were acceptable. A Merovingian council had held that where impotence was an issue the word of the husband should determine the outcome of the case.^[790] Others preferred to rely on the wife’s sworn statement and obser­vations of the couple by neighbors in evaluating the merits of these cases.^[791] Most authors who discussed impotence assumed that the condition was inborn and permanent.

The only other justification that canonists in the reform era were prepared to recognize for the separation of married couples involved a decision by one or both parties to enter religious life. Discussions of this possibility emphasized that the decision must be mutual; no one could unilaterally terminate a mar­riage in order to enter a monastery or convent. Anyone who attempted to do so should be refused admission to the religious life and required to resume co­habitation with his or her spouse. After separation by mutual agreement to allow one party to enter religion, the other might not remarry. The authorities on this matter were reasonably consistent and the law seems to have been well settled by Burchard s time.^[793]

By the end of the eleventh century, reform canonists had reached general agreement on divorce and remarriage law. They restricted the grounds for law­ful separation or divorce to a handful of causes (adultery, consanguinity, affinity, and under some circumstances, impotence or entrance into religion). They cir­cumscribed even more the right to remarry following divorce, for the canonists conceded this right only in some consanguinity or affinity cases and to the healthy party in congenital impotence cases; some would also allow remarriage in presumption-of-dcath situations.

This consensus among canonistic writers with respect to divorce and remar­riage was not followed, however, by immediate or universal implementation. In regions on the fringes of Latin Christendom, such as Frisia and Iceland, Ger­manic practices that allowed divorce and remarriage for a wide variety of rea­sons continued to flourish well into the twelfth century. In most parts of the Continent, however, ecclesiastical authorities made vigorous efforts to enforce the newly consolidated divorce law, even on persons at the highest levels of society.^[794]