Divorce and Remarriage in the Decretum of Gratian
Gratian’s treatment of divorce and remarriage reflected the novel concept of marriage that distinguished his work from that of his predecessors. Earlier writÂers had identified adultery, consanguinity, affinity, and sexual incapacity as the principal grounds on which marriage might be held invalid.
Gratians emphasis was quite different, and the differences flowed from his notions about the marÂriage bond. Nonconsummated marriages, in his view, were incomplete and hence dissoluble by mutual consent of the parties. The union that the couple had created solely by consent they could also dissolve by consent, provided that they had adequate reason for doing so, such as a desire to enter religion.[964] FurÂther, even a consummated marriage, according to Gratian, might be terminated or held invalid if there were serious defects of consent. A marriage entered into under a misapprehension might be held null, Gratian declared, if the mistake was basic and serious. In order to justify a nullity ruling it was not sufficient to show, for example, that one had married a husband whom one thought rich and who turned out to be bankrupt. Even if a man married a woman whom he beÂlieved to be a chaste and pious virgin and then discovered that his bride had been a prostitute, this did not entitle him to be freed from th j union, according to Gratian. On the other hand, if a man consummated his m ,rriage with one woman (say, Jane) while believing her to be someone else (perhaps Joan), the marriage was invalid and the parties were free to remarry.[965] [966] Marital consent given by a person who was under the minimum age for marriage or who was insane was likewise not binding.61Gratian was also prepared to countenance divorce where one party proved to be sexually impotent, since in that situation the marriage could not be perÂfected by sexual union.[967] He was reluctant, however, to sanction divorce when the parties were related within the forbidden degrees of kinship, either by conÂsanguinity or affinity, especially if the relationship was unknown or had been concealed by one party at the time of the marriage.
In these situations Gratian believed that the illegal marriage should be remedied by the mechanism of disÂpensation; the marital defect ought to be healed by the exercise of the Church’s power to permit exceptions to its own laws. Consanguinity and affinity regulaÂtions, Gratian maintained, were products of ecclesiastical legislation, not of diÂvine or natural law. Hence the Church retained the power to waive these proviÂsions when necessary in order to preserve marriages, and should exercise that power instead of dissolving marriages.[968] Divorces could be permitted on grounds of consanguinity or affinity, Gratian concluded, but the Church should authorize them only rarely.Gratian’s treatment of marriages between Christians and heretics was ambigÂuous. On the one hand he held that where a heretic had concealed his aberrant beliefs and the Catholic party had married him under the mistaken apprehenÂsion that he was a good Catholic, then divorce might be permitted, essentially because the deception amounted to fraud and hence vitiated good faith conÂsent.[969] On the other hand when two pagans married and one of them subseÂquently converted to Christianity, while the other remained pagan, the situaÂtion was more complicated. Baptism, as St. Ambrose had observed, wipes out sins; it does not abolish marriages.[970] But Gregory the Great had ruled that if the pagan party to a mixed marriage railed against the Christian faith, then the marriage might be dissolved for that reason.[971] [972] Gratian attempted to harmonize this conflict of authorities by distinguishing between situations in which the non-Christian party deserted the Christian spouse and situations in which the pair continued to cohabit. If the non-Christian walked out, then Gratian would allow the Christian to remarry. If they remained together, however, he would allow the Christian party to obtain a separation in order to secure unhindered freedom to practice his religion, but he would not countenance remarriage durÂing the lifetime of the other partner.76 Many early authorities, as Gratian well knew, had allowed divorce on grounds of adultery,[973] but Gratian hedged this practice about with restrictive qualifiÂcations. Concubinage Gratian relied on the Council of Gangra as his authority for condemning inÂformal divorce and separation.76 These fourth-century rulings also furnished him with a basis for asserting that the Church forbade child abandonment and required that absent or separated parents furnish adequate support for their children.77 Finally, on the issue of remarriage following the death of a first spouse, GratÂian advised that, although it would be better for widows and widowers to live a life of continence, second and subsequent marriages were not merely allowed by the Church’s law, but were advisable if there were any danger that the surÂviving spouse might lapse into fornication.78