INDISSOLUBILITY OF MARRIAGE AND DIVORCE – Indissolubility is one of the essential properties of marriage, which finds its fullest sanction in the Sacrament of Marriage after its consummation. Divorce is the dissolution of marriage while both spouses are still living.
#### I. NELLA TEOLOGIA DOGMATICA E MORALE.
I. CONCEPTS
If one considers the consent of the contracting parties, which, once given, is immutable, one speaks of intrinsic indissolubility. If, instead, one considers the possibility of an external dissolution of the matrimonial bond by authoritative intervention, one speaks of extrinsic indissolubility.Every validly contracted marriage enjoys intrinsic indissolubility. This holds true even if the matrimonial contract is not elevated to the dignity of a Sacrament (Syllabus, prop. 67), since a different solution would deprive the matrimonial institution of any stability and reduce it to a vague cohabitation more pecudum, insufficient to achieve the purposes of the conjugal institution itself—procreation and education of offspring and mutual assistance between spouses—and would create anarchy precisely in that cell which should be the seminarium reipublicae.
The extrinsic indissolubility of the conjugal bond is also a rule of secondary natural law, because, even if it is not required by the primary purpose of the institution (procreation of offspring), it nevertheless corresponds to the desire of the spouses when they contract marriage, to the advantage of the family, and to the interest of society; moreover, the moral education of children, which enters as an integrative element in the primary end of marriage, imperatively demands II.
This second indissolubility, already deriving from the contracted marriage, is not absolute: it becomes more complete when Marriage takes on the character of a Sacrament, since then Grace pulsates within it, which is a bond of greater union; and it becomes entirely absolute when the Christian Marriage, consummated through copula carnalis, represents even more accurately the union of Christ and the Church. Therefore, indissolubility is called by theologians a bonum Sacramenti, insofar as the sacramental symbolism of Marriage strengthens the bonds of indissolubility and provides its gradation, corresponding in a certain sense to the more or less complete perfection of the symbolism.
Consent and the union of souls in Marriage already signify the spiritual union of Christ with the faithful through charity; this consent has greater vigor when the contract is vivified by Grace: carnal union then represents more vividly the union of Christ who became flesh to unite His Church. Now, while the first union of charity, also figured in the marriage of unbelievers and even more in that of the faithful (ratified Marriage), can unfortunately be broken by human sin, the second union, realized through the Incarnation, is perpetual and indissoluble. A stricter indissolubility therefore befits ratified and consummated Marriage more than the marriage-contract or simply ratified Marriage.
The first (ratified and consummated) can never be dissolved by any human authority. The second (marriage-contract) and the third (ratified Marriage) may be dissolved by legitimate authority in certain cases: Pauline privilege (v.), dissolution of ratified Marriage for solemn profession or by dispensation of the Roman Pontiff (v. MATRIMONIO).
Since, therefore, the extrinsic indissolubility of the matrimonial bond does not belong to the primary principles of natural law, from which not even God can deflect without denying Himself, but to secondary natural law, it is not repugnant that God may have granted exceptions to the law in the course of history, exceptions that no longer exist due to God’s different will manifested in the sources of Revelation.
II. THE DIVINE-POSITIVE LAW
The indissolubility of the matrimonial bond was made manifest to mankind by divine-positive law, as clearly expressed in the exclamation that escaped Adam’s lips upon the appearance of his companion: «This at last is bone of my bones and flesh of my flesh... Therefore a man leaves his father and his mother and clings to his wife, and they become one flesh» (Gen. 2:23-24). In the Old Testament, however, Moses, as God’s ambassador to the Hebrews, imposed limits on the indissolubility of marriage and validated, in certain cases, the celebration of a new marriage. In the New Testament, abrogating this concession, Christ the Lord restored the indissolubility of Marriage, already established in the Earthly Paradise: «It was said, ‘Whoever divorces his wife, let him give her a certificate of divorce’; but I say to you that anyone who divorces his wife, except on the ground of unchastity, causes her to commit adultery; and whoever marries a divorced woman commits adultery» (Mt. 5:31-32). And again: «Whoever divorces his wife and marries another commits adultery; and if she divorces her husband and marries another, she commits adultery» (ibid. 19:6; cf. Mk. 10:11-12; Lk. 16:18). The Apostle Paul inculcates the same truth, almost in the same words (I Cor. 7:10-11, 39). Only death can break the bond (Rom. 7:2-3) of the two who have become one flesh (Eph. 5:31). Jesus Christ has one spouse, which is the Church, and the Church has one spouse, who is her head and Savior, Jesus Christ: therefore, this bond, like that between Christ and the Church, is not only holy but perpetual (Eph. 5:25, 27, 28, 29, 32). The content of these Scriptural passages is well summarized in Christ’s own words: «What God has joined together, let no man put asunder» (Mt. 19:6).As for adultery, nothing authorizes the claim that it may offer a legitimate occasion for the dissolution of Marriage. The two difficult passages (et nisi ob fornicationem: Mt. 19:9; «excepta fornicationis causa»: ibid. 5:32), which seem to suggest a restriction on the permanence of the bond in the case of a wife’s infidelity, need not necessarily be taken in this sense. A different and logical interpretation may be given, whether one prefers to interpret the text as meaning that the clause refers only to the first part of the verse, thus admitting that adultery justifies repudiation without, however, authorizing a new marriage; or whether one wishes to defer to the authority of tradition, which has always given
these two passages a practical interpretation of indissolubility, compelling the admission of a precise theoretical interpretation, while restricting this absolute indissolubility to the consummated Marriage between the faithful.
The Council of Trent did not explicitly condemn the opposing interpretation of the separated Greeks, who, based on these same passages, admit divorce in cases of adultery; but the condemnation, already included in the «Decretum pro Armenis» (Denz-U, 702), is implicit in the anathema pronounced against those who dare accuse the Catholic Church of error in its traditional teaching (Council of Trent, Sess. XXIV, de Matrim., can. 7: Denz-U, 977).
Trent then explicitly condemned Protestantism, which, by introducing divorce in the West for the first time, had proposed other grounds for breaking the indissolubility of the bond (ibid., can. 5: Denz-U, 975). The Tridentine canons on this matter have dogmatic value. It was therefore pure arbitrariness on the part of the Gallicans to distinguish between discipline and dogma, and thus between Sacrament and contract, paving the way for liberal doctrinalism on civil marriage and the captious syllogism that, from marriage as a contract and the dissolubility of contracts, would also derive the dissolubility of the matrimonial bond.
This doctrine is today reaffirmed in cann. 1118: «A valid, ratified, and consummated Marriage cannot be dissolved by any human authority except by death», and 1110: «From a valid Marriage arises between the spouses a bond that is by its nature perpetual and exclusive...». It is this bond that then creates the impedimentum ligaminis (v. LIGAMEN).
The Council of Trent and the Code are the echo of centuries of Church teaching. Already the Shepherd of Hermas (ca. 150) permitted the husband, in the case of adultery, to abandon the adulterous wife but declared him an adulterer if he dared marry another (Mand. 4, cap. 1, 6: ed. by F. X. Funk, I, Tübingen 1901, pp. 175-76). Tertullian repeatedly contrasts Christian legislation with Roman law on this point (cf. I. Delazer, De indissolubilitate matrimonii iuxta Tertullianum, in Antonianum, 7 [1932], pp. 441-64). Echoing the words of the Savior, Clement of Alexandria (ca. 200) also considers adulterous anyone who marries while the first spouse is still living (Strom., 2, 23: PG 8, 1095). Origen reports that some Church leaders permitted a separated wife to remarry, considering it a lesser evil; but he also states explicitly that this is contrary to Sacred Scripture and the law established from the beginning (Comm. in Mt., 19, 16: PG 13, 1246).
There are some Fathers who, based on the words of Mt. 19:9, misinterpreted, seem to admit the possibility of divorce for the innocent party in cases of adultery (St. Hilary of Poitiers, Comm. in Mt., 4, 22: PL 9, 940; Chromatius of Aquileia, Tract. IX in Mt.: ibid. 20, 251; Ambrosiaster, Commentaria in XIII epist. b. Pauli: ibid., 17, 217; Asterius of Amasea, Homil. in Mt., 19, 3-9: PG 40, 227; St. Basil, In epist. can. ad Amphil., 9: Mansi, III, 1191; Epiphanius, Haeret., 59, 4: PG 41, 1026). But against them stands the contemporary conciliar legislation and the teaching of the popes (cf. Council of Elvira, can. 9; First Council of Arles, can. 10 [advice, not precept]: Mansi, II, 7, 471; St. Siricius, Epist. ad Hincenerium, ep. Tarrac. 4, 5: Mansi, III, 657; Innocent I, Epist. ad Exuperium Tol., 12; ad Victric. Rotomag. 15, ad Probum: ed. P. Constant, Epist. Rom. Pontif., I, Paris 1721, pp. 754, 794, 909).
Even in the East, there are defenders of indissolubility without exceptions (cf. Victor of Antioch, Comm. in Mc., X, 1-12; St. John Chrysostom, De libello repudi: PG 51, 221). But it is especially in the West that the tradition continues unbroken (cf. St. Jerome, Ep. 55 ad Amand.: PL 22, 562; St. Augustine [somewhat uncertain, however, in his early writings], De adulterinis coniugis: ibid., 40, 473; St. Leo the Great, Ep. ad Nic. Aquil.: ibid., 54, 1136).
In conciliar legislation from the 5th century until the end of the 8th century, A. Esmein (Le mariage en le droit canonique, I, Paris 1929, pp. 66-67) highlights a dual aspect: one traditional, the other conciliatory toward divorce, admitted by civil laws, both Roman and barbarian.
A. Villen, però (Divorce, in DThC, IV, coll. 1465-1466) precisa che i concili, composti di soli elementi ecclesiastici, e nei quali bisogna trovare perciò la vera dottrina della Chiesa, non hanno mai permesso il divorzio, né lasciato intravedere che potesse permettersi. Celebri decisioni in contrario, come quella di Vermerie (756) e di Compiègne (757) sono frutto di un compromesso tra la disciplina ecclesiastica e civile (cf. Capitularia regum Franc., in MGH, Leges, sect. II, vol. II, 1, p. 37 sgg.). Se si eccettuano alcuni articoli del Concilio di Compiègne, approvati da un legato della S. Sede (approvazione che non obbliga la Chiesa che in una misura molto ristretta), non si potrà dimostrare alcun benestare ufficiale della Chiesa a queste decisioni. Non si potrà rendere responsabile la Chiesa universale degli sbagli o delle negligenze dovuti alla debolezza di alcuni vescovi. Anche nei cosiddetti libri penitenziali, accanto a numerosi testi che affermano la i. assoluta, ve ne sono altri che ammettono praticamente il divorzio, vi sono perfino penitenziali con testi contrastanti, come quello di Teodoro (II, 12: ed. P. W. Finsterwalder, Weimar 1929, p. 326 sgg.). Ma non si tratta di fonti autentiche: basti ricordare le proteste elevate contro i penitenziali eteredossi da diversi concili, come quello di Parigi dell'829 (cann. 32, 34: Hefele-Leclercq, IV, 1, pp. 65, 66), che ordinava ai vescovi di ricercarli « et inventos igni tradant ». I papi del resto (Gregorio I, Registrum, in MGH, Epist., II, pp. 289, 301) continuarono a proclamare il principio della i.
Né fa difficoltà il testo di Gregorio II (Epist. ad Bonif., in MGH, Epist., III, p. 276, 3), che pare favorevole al divorzio per sopravvenuta impotenza. Fin dai più antichi canonisti (Summa Roland, causa 32, cap. 5: ed. F. Thaner, Innsbruck 1874, pp. 181, 186) questo testo è stato interpretato nel senso che vi si parli di dispensa di Matrimonio rato, non consumato e non già di divorzio. A ciò spinge la tradizione costante per l'i., che trova eco in lui stesso (Ep. ad legatos suos in Bavar.: MGH, Epist., III, p. 453) e nei suoi successori (Zaccaria, Ep. ad Pip. reg. ibid., p. 482, 21-23; Stefano II, Ep. ad Mon. Britan., 5: Mansi, XII, 559; Giovanni VIII, Ep. ad epist. Cantuar.: PL 126, 746). Anche la dottrina della stragrande maggioranza degli scrittori ecclesiastici è per l'i. assoluta. Ben precisa al riguardo è nel sec. IX la dottrina di Incmaro di Reims (H. Schors, Hincmar von Reims, Friburgo in Br. 1884, pp. 179 sgg., 499-504), dello Pseudo-Isidoro (ed. P. Hirschius, Decretales Pseudoisidorianae, Lipsia 1863, p. 90); finché sotto l'influsso della riforma gregoriana scompaiono le ultime voci discordi (le Exceptiones Petri [1110-20], I, 37, contengono una delle ultime note in contrario), tanto che nella prima metà del sec. XII l'i. assoluta del Matrimonio può dirsi riconosciuta senza contrasto (cf. H. Portmann, Wesen und Unauflöslichkeit der Ehe in der hirchl. Wissenschaft und Gesetzgebung des XI. u. XII. Jahrh., Emstetten 1938).
III. THE CHURCH’S CONDUCT
Beyond her teaching, the Roman Church championed the absolute indissolubility of ratified and consummated marriage through her actions. Even in the period considered thus far, two episodes stand out: Adrian I (772-95) sided with the Patriarch of Constantinople and Theodore the Studite in condemning the divorce of Constantine VI, Emperor of the East, from Maria of Armenia, so that he might marry Theodora, a court lady (C. Baronio, Annales ecclesiastici, ad ann. 795, n. LVI). This fact warrants great caution in judging the silence of Adrian and other Pontiffs regarding Charlemagne’s violations of marital laws (G. Soranzo, Il papato per la difesa del Matrimonio crist., in Il Matrimonio cristiano, Milan 1931, pp. 86-87). Later, Nicholas I, with apostolic freedom, raised his voice in his letters against Lothair III, who sought to repudiate Theutberga in order to marry Waldrada (MGH, Epist., VI, pp. 267-352).Innocent II acted similarly when confronted with Raoul, Count of Vermandois, who had repudiated his lawful wife to marry the sister-in-law of King Louis VII of France (C. Baronio, Annales ecclesiastici, ad ann. 1142, n. I sgg.). The historical reasons for Eugene III’s silence in the face of Louis VII’s divorce remain unknown. It should not be forgotten that in that case, even St. Bernard—hardly weak in the face of the powerful—also remained silent (ibid., ad ann. 1151, n. III). Unyielding firmness was then shown by Innocent III—though the affair had begun under his predecessor Celestine III—against the demands of Philip Augustus of France, who, having dismissed Ingeborg, wished to marry Agnes of Merania (cf. E. Lavisse, Histoire de France, II, 1, Paris 1911, pp. 144-50).
Equally lengthy and noteworthy, in this regard, was the dispute between Clement IV (1265-68) and James of Aragon, who, under the pretext of leprosy, sought to divorce his wife Theresa (O. Raynaldus, Annales cit., ad ann. 1266, n. XXVI).
Dramatic was the struggle, initiated by Nicholas III and continued by his successors Martin IV, Honorius IV, and Nicholas IV, against Ladislaus, King of Hungary, who had repudiated his wife Elizabeth, daughter of Charles of Anjou (A. Theiner, Vetera monumenta Hungariam Sacram historiam spectantia, Rome 1859, pp. 327-69).
Finally, the controversy that erupted under Pope Clement VII over Henry VIII’s (v.) divorce from Catherine of Aragon—though disastrous in its consequences—demonstrated to the world how the Catholic Church, in order to remain faithful to « quod Deus coniunxit, homo non separet » (Mt. 19, 6), must endure all things, even the apostasy of a kingdom (cf. I. Trésal, Les origines du schisme anglican, 3rd ed., Paris 1923, p. 42 sgg.). Pius VII displayed the same steadfastness when confronted with Napoleon I over his divorce from Josephine Beauharnais. This marriage had been celebrated in 1796 with a simple civil ceremony. Upon learning of this, Pius VII, on the eve of the solemn coronation in Paris on December 1, 1804, made the celebration of a religious marriage a condition for the ceremony. After some resistance from the Emperor, the marriage took place in the presence of Cardinal Fesch, his uncle, to whom the Supreme Pontiff had granted every faculty « contrarisi non obstantibus quibuscumque », including dispensation from the observance of the Tridentine form. Indeed, the marriage—perhaps to avoid scandal—was celebrated without witnesses or the parish priest. Precisely on the grounds of the lack of witnesses and the parish priest (ex capite clandestinitatis), the diocesan officiality of Paris declared the marriage of December 1, 1804, null in the first instance. Pius VII, the sentence observed, had indeed granted Cardinal Fesch all dispensations, but without specifying them. The metropolitan officiality of Paris, on second appeal, confirmed the sentence, adding another ground of nullity: the lack of consent, which the Emperor would have given only externally at the time of the celebration to avoid scandal. But Pius VII, from his exile, challenged the jurisdiction of the Parisian tribunals, arguing that, since the marriage of a prince was at issue, it was a « causa maior » reserved to the Pope. In other words, he declared the Parisian sentence null and, consequently, the nullity of the first marriage unproven. It was only in defiance of the Church’s laws that Napoleon proceeded to a new marriage with Marie Louise in 1810 (J. Rinieri, Pio VII e Napoleone Bonaparte, II, Turin 1906, p. 297 sgg.).
After all this, the Church cannot be accused of contradicting herself in preaching the absolute indissolubility of ratified and consummated marriage or of misinterpreting the thought of Jesus. Nor is it valid to argue from the dispensations she grants in the case of merely ratified marriage between the baptized or from Pauline privilege (v.). Nor can one infer anything from declarations of marriage nullity, for in such cases the Church does nothing more than declare, in the external forum, the non-existence of a true marriage, even if external appearances suggested otherwise. Thus, the objection that these causes of nullity demonstrate that the Church, too, has her own form of divorce—reserved to herself without recognizing an equal power in the State—collapses.
Even the so-called “Marconi divorce,” which caused such an uproar due to the actor’s fame, amounted to nothing more than a causa nullitatis matrimonii, through which his previous marriage to Beatrice O’Brien—contracted in London on March 16, 1905, before an Anglican minister—was declared null due to the exclusion of the indissolubility of marriage by the bride, an Anglican, and by Marconi himself, who, though baptized Catholic, adhered in practice to the Anglican sect (ex capite exclusae indissolubilitatis). The nullity sentence of this marriage, with all its legal and factual motivations, can be found in S. R. Rotae Decisiones seu sententiae, XIX, Vatican City 1936, pp. 104-15, alongside other nullity sentences for marriages of many other obscure professionals or workers who, under the same circumstances, achieved the same outcome, sometimes benefiting from free legal aid.
In contrast to the indissolubility of the marital bond, as repeatedly stated, stands civil divorce, which is the dissolution of a lawful marriage while both spouses are alive. Regarding the ancient history of humanity, it is well known that for the Jews there was a dispensation granted by God to His people « ad duritiam cordis » (Mt. 19, 8). Since the institution of divorce is also found among other peoples, one might ask whether a similar dispensation was extended to them until the coming of Christ. In the absence of documents to provide an adequate answer, one must be content with the mere study of the phenomenon.
II. PRESSO I PRIMITIVI.
Anche presso i primitivi l'i. e il divorzio, quale scioglimento del legame matrimoniale fatto dai coniugi ancora viventi, costituiscono fenomeni sociali molto complessi. Tale complessità è insita nella stessa natura del divorzio, toccando esso tutti gli effetti del matrimonio, distruggendo una famiglia e turbando la vita sociale. Infatti, il divorzio tronca primieramente le relazioni tra moglie e marito con un giudizio reciproco sfavorevole della loro vita, qualunque possano essere le ragioni che li hanno indotti al divorzio. In secondo luogo, esso è un elemento d'inimicizie, di discordie, o almeno d'inquietudine, tra i gruppi sociali della tribù, che sono in relazione di parentela per la legge di esogamia, perché, essendo i divorziati, l'uomo e la donna, membri dell'uno e dell'altro gruppo, non possono questi gruppi disinteressarsi di essi e facilmente ne possono condividere il giudizio. In terzo luogo, esso impone la questione dell'appartenenza della prole nata dal matrimonio, e, se i figli sono piccoli, del loro sostentamento e della loro educazione, per cui sono prima assegnati alla madre e poi al padre secondo il sistema di parentela. In quarto luogo, pone la questione della restituzione o non della dote, del prezzo della sposa, della divisione dei beni comuni della famiglia. In quinto luogo, benché l'autorità civile raramente intervenga per approvarlo o disapprovarlo, non può disinteressarsene, dato che il divorzio comporta gravi effetti sociali, e deve intervenire per regolarlo. Finalmente, non si
può rettamente giudicare il divorzio, se non si pone in relazione con l'ideale morale e religioso del popolo, per cui può accadere che esso esista solo di fatto, come un abuso, effetto della decadenza dei valori morali, in contrasto con gli ideali della vita.
Gli evoluzionisti, come il Lubbock, il Morgan e quelli che ne hanno accettata e volgarizzata la teoria, Marx, Engels, Simon, Bebel, dovrebbero ritenere il divorzio come un fenomeno molto recente nella storia dell'umanità, essendo per essi la monogamia lo stadio più recente nello sviluppo delle relazioni sessuali e sociali tra l'uomo e la donna. L'etnologia moderna ha splendidamente dimostrato la falsità di questa teoria, constatando che, al contrario, la monogamia è di regola presso i popoli primitivi più antichi e viene da essi considerata quasi indissolubile. Ciò corrisponde bene alla loro religione, che afferma, esplicitamente o implicitamente, che il matrimonio è stato istituito da Dio, dopo aver creato l'uomo maschio e femmina, la prima coppia umana, o anche più uomini, come affermano i Pigmei del Gabum, ma sempre a coppie. La fedeltà coniugale fino alla morte è di regola.
L'adulterio è ritenuto uno dei più grandi delitti, che, secondo gli Andamanesi, eccita l'ira di Dio. L'adulterio è punito: presso i Negritos delle Isole Filipine, i Semang e i Senoi della Penisola di Malacca l'adulterio è condannato a morte. Il divorzio è un'anormalità, un'eccezione. Presso i detti Negritos, mentre l'adulterio dell'uomo è punito di morte, quello della donna porta il divorzio, nel qual caso i figli piccoli vanno con la madre. Presso i Pigmei Bambuti dell'Ituri in Africa il divorzio non sembra così raro come presso gli altri popoli raccoglitori, che sono qui presi in considerazione, perché sono parecchie le ragioni di divorzio che esistono presso di loro, di cui la più frequente è il mancato impegno, dopo la conclusione di un matrimonio fra due gruppi sociali, di dare, in cambio della sposa, una giovane valevole in matrimonio all'altro gruppo. Questo sarebbe un divorzio forzato, indipendente dalla volontà degli sposi, voluto semplicemente dal gruppo sociale, un uso verosimilmente d'influsso negro. Riflettendo però che questi Pigmei richiedono fedeltà assoluta tra i coniugi; che l'adulterio è per loro un delitto, il quale può portare all'omicidio; che l'Essere Sommo lo proibisce e castiga gli adulteri con malattie, con il fulmine o in altri modi; che il matrimonio è fatto per reciproca simpatia e tra i coniugi regna spesso un vero vicendevole affetto, il quale può portare anche a scene di gelosia: è facile comprendere che anche presso questi popoli il divorzio non può essere di regola, ma un'eccezione, che non è conforme ai loro ideali di vita morale e religiosa. Si rileva finalmente che il divorzio presso questi Pigmei africani avviene talvolta pacificamente, ma per lo più con molti litigi e risse, perché ogni divorzio comporta un compenso tra i due gruppi, come avviene tra i loro vicini Negri. Insomma, si può dire che i popoli primitivi etnologicamente più antichi, detti raccoglitori, ritengono il matrimonio monogamico e quasi indissolubile, credendo, esplicitamente o implicitamente, che così vuole Dio.
Questa concezione stessa ideale del matrimonio si può constatare anche presso molti popoli culturalmente più progrediti, anzi anche presso qualcuno di alta civiltà. È noto al riguardo che la legislazione cinese scritta proibisce la bigamia, e proibisce anche che la concubina (è ammesso il concubinato in Cina) possa divenire sposa legittima. Presso i popoli pastori nomadi il matrimonio è di regola monogamico; è in onore la fedeltà fino alla morte; il divorzio è raro. Presso i Galla dell'Africa orientale, anzi, il matrimonio è per principio indissolubile, tanto che se la moglie, rimandata per la sua infedeltà, ha figli dai suoi amanti, essi appartengono giuridicamente al marito. Presso i Tungusi gli adulteri, trovati in flagrante delicto, possono essere uccisi dalla parte lesa. Ma l'adulterio non è per sé causa di divorzio. Una donna
Among the Tungus, a married woman who has relations with multiple men is despised and called a bitch. The husband attempts to make her change her ways, even resorting to beating her. Divorce is rare; if it occurs, the usual cause is the wife’s flight. If the husband is not at fault, the calim (bride price, which can amount to as many as twenty reindeer) is returned to the groom’s clan, at least in part, but the bride’s clan loses the dowry. Every Tungus man is recognized as having the right to divorce if his wife has had sexual relations with outsiders. Every case of divorce must be decided by the assembly of the clan, or of both related clans if the divorce is requested by both spouses. Children born in marriage always remain with the husband’s clan. Totemistic tribes do not permit divorce. Among those in Australia, when a bachelor abducts another man’s wife, or when a woman, dissatisfied with her husband, takes a liking to another man and flees with him—as commonly happens—totemists regard these cases as theft. The betrayed man, together with his relatives and friends, pursues the fugitives. If they are caught, the woman is returned to her husband and beaten mercilessly; her abductor must serve as a target for the betrayed man’s arrows, which strike him repeatedly, though not in vital areas, and he may defend himself only with the shield he is given. Divorce effectively occurs if the fugitive couple manages to remain untraceable for some time, as in such cases the abductor is often allowed to keep the woman, especially if he can fight and is backed by powerful friends. In any case, it is always the woman who fares worst, as she is almost certain to receive a severe beating.
Among matriarchal peoples or those with a mixed civilization formed by the intersection of matriarchy with another culture, the reciprocal situation of men and women varies greatly and is also reflected in marriage and, consequently, in divorce. Thus, in French Equatorial and West Africa, it has been observed that some peoples do not practice divorce and consider marriage indissoluble; others, however, permit divorce and have a tribunal to judge II. Among some matriarchal tribes in Melanesia and Africa, if a wife is mistreated by her husband, she may initiate divorce; the husband loses the price he paid for her, as it is not refunded in such cases. In Chinese Turkestan, six grounds for divorce are recognized for women. The French explorer Grenard, however, notes that for the slightest reason—or even without reason—a woman gathers her clothes, jewelry, carpets, and belongings from the shared home and returns to her parents. The husband has no means to compel her to return to the marital home and eventually grants her complete freedom, repudiating her. After divorce, she acts independently. However, the resulting marital instability has led to moral laxity, as Grenard himself observed. Among the matriarchal Cocce in Assam, marriage is strictly monogamous; polygamy and concubinage are unthinkable to them. A husband’s adultery is judged very severely: if he does not wish to become a slave, he must pay a fine of sixty rupees, provided by his mother’s marriage. Among the Lolo in western China, whose civilization is fundamentally matriarchal, monogamy aligns with the people’s traditional moral ideal; conjugal fidelity is highly esteemed; adultery is extremely rare; and adulterers caught in the act are sentenced to death. The sole grounds for divorce for both spouses is adultery; for the wife, it is also mistreatment by her husband. In the latter case, however, the husband retains the right to the return of the bride price. For the Dusun of northern Borneo, divorce is easy and very frequent, so much so that Staal states that very few elderly Dusun live with their first spouse. Divorced women also remarry more easily than widows. The divorced man even attends the celebration of his ex-wife’s new marriage. The Dusun also allow divorced individuals to remarry one another. Every divorce case is brought before the village chief to determine the division of the bride price, called nopung; the usual division is as follows: three-quarters or two-thirds go to the husband, and the rest to the wife’s brother. The most common cause of divorce is infertility, but any reason is acceptable at any time.
Among the Ucarra in East Africa, divorce is even easier than among the Dusun, as it is entirely a private matter. It suffices, for example, for the husband to say to his wife: “You told my friends that I am quarrelsome and contentious; then you may return to your parents”; or: “Return to your parents”; or, after throwing her plate—made of reeds—in front of the door: “Woman, I no longer want you; return to your parents.” The divorce is immediately valid, and the woman may remarry at once, except if she is pregnant, in which case she must wait until after childbirth. The children belong to the husband, and it would be ridiculous for a boy among the Ucarra to wish to stay with his mother; this is permitted only until the second, or at most, the third year of age. From what has been said, the great diversity of customs and practices regarding divorce among different peoples of the world, and their varying attitudes toward it, is evident. The role of civil authority is very limited. It has already been mentioned that among the Tungus, the clan assembly convenes to judge divorce, but among many peoples, such as in French West and East Africa, the tribunal does not rule to approve divorce in favor of one party or the other by weighing the reasons presented, as prescribed in certain European legislations, but rather to determine the transfer of property, as marriage is thus regarded. Even among the ancient Mexicans, there was a special tribunal for divorce, though it did not pronounce the sentence. The tribunal first inquired, in cases of concubinage, whether a legitimate marriage had existed. Then, the divorcing party presented their reasons, which for the husband included incompatibility of character, the wife’s infertility, her laziness, and especially her neglect of household duties; for the wife, they included mistreatment, lack of support, and the husband’s neglect in educating the children. Next, the other party stated their position. Afterward, the judge explained the economic and social consequences of divorce. If they did not reconcile, the judge did not formally pronounce the divorce sentence but allowed them to act as they saw fit. The judge refrained from issuing the sentence because they did not wish to offend the people’s conscience, which regarded divorce as immoral. If the spouses had children, the sons were assigned to the father; daughters and young children until weaning were assigned to the mother. The existing property at the time of marriage was also divided; the guilty party had to give the innocent party half of their own property; household utensils belonged to the wife. Mexican law prohibited divorced individuals from remarrying and imposed severe penalties on transgressors.
Great diversity is also observed in the assignment of children; there are peoples among whom they are all assigned to the father's clan; among others, all to the mother's clan; among still others, such as the aforementioned Mexicans, sons to the father, daughters to the mother. Great diversity is also noted in the restitution of the bride price and dowry, and in the division of common family assets. It should be added that among the aforementioned Dusun, the bride price, if children have been born from the marriage, rightfully belongs to them and not to the two parties, as mentioned above; among the Beir in East Africa, the husband receives a smaller quantity of livestock because, in divorce, he retains the offspring. Diversity is also noted in considering the causes of divorce, not only in themselves but also in relation to the spouses. Adultery, for example, is not considered a cause of divorce by many peoples, although it is regarded as a serious crime, sometimes the gravest. Among many peoples, it is punished with death, at times the most cruel and ignominious. This is an effective way to defend marriage, as is the imposition of severe fines on the adulterer, fines in which the village and the family may also be implicated. Among the Giaggia of East Africa, for example,
the ancient penalty of two goats for adultery was increased to a bull and a cow, or from two to three cows; if adultery results in pregnancy, the penalty is doubled. This was done by the tribe's chief and elders expressly to make divorce more difficult, having noticed a decline in the moral standards of the people.
The indissolubility and divorce among primitive peoples deserve to be studied in depth, but this has not yet been done. From what little has been said here, it can be concluded, at least with great likelihood, that the fact that so many peoples, beginning with those ethnologically most primitive—the gatherers—do not admit divorce on moral and religious grounds, and that where it exists, it is resolved in such different ways and with such serious social and moral consequences, demonstrates that it is contrary to human nature and society. Studying the psychology of love among primitive peoples, it is clearly evident that love knows no time limits and even imposes the sacrifice of oneself for the beloved person.
### III. IN CIVIL LEGISLATIONS.
Mosaic law contemplates the permission granted by the Lord to the Jews to repudiate the wife propter aliquam foeditatem with the obligation to deliver the bill of divorce; the divorced woman could marry another man, but no longer her first husband. This remains, even today, the essence of Jewish legislation, for which the revocation of Mosaic law and the indissolubility reestablished by Jesus Christ have remained a dead letter.
In Greece, divorce was contemplated in the ancient law of Gortyn, and in Athens it could be requested by the husband (repudiation), by the wife (abandonment), by both spouses by mutual consent, and could even be provoked by third parties.
Among the Romans, divorce had a different nature because marriage consisted of two elements: cohabitation and the intention to remain united in marriage (affectio maritalis), the latter of which had to be lasting; if the intentional element ceased, the bond was dissolved. Rare at first, divorces multiplied with the relaxation of morals: numerous measures were taken to try to curb their use, but even the most severe ones by Constantine and Justinian (Nov. 117) did not succeed in declaring nullity and abolition, but only in punishing the spouses or one of them, since the nature of Roman marriage was incompatible with the abolition of divorce (Nuptias affectus... facit mutuus... Cum autem semel contractae sint... oportet solutionem sequi aut impunitam aut cum poena, quoniam ex iis quae inter homines eveniunt ligatum omne dissolubile - Nov. 22).
Divorce was generally admitted also by the barbarians who invaded Italy, and it is only after the year 1000, with the removal of marriage from civil legislation, that the principle of the indissolubility of ratified and consummated marriage is affirmed.
In Catholic countries, divorce infiltrates with the French Revolution. In France, introduced in 1792, maintained in the Napoleonic Code, suppressed in 1816, it was reintroduced with the law of 27 July 1884, which, having abolished the contentement mutuel et persévèrent of the Code, admits divorce for adultery by the wife (art. 229) and by the husband (art. 230); for excesses, cruelty, and serious insults, including abandonment among these (art. 231); for the condemnation of a spouse to a corporal and infamous penalty (art. 232).
In Spain, divorce was introduced in 1932 with the advent of the Republic, but was then abolished in 1938.
In Great Britain, divorce is regulated differently in England, Scotland, and Ireland; in England, it is governed by the Matrimonial Causes Act of 1937, which normally admits it after three years of marriage, for mistreatment (cruelty), abandonment of the marital home for at least three years, adultery, incurable mental illness lasting at least five years, and for rape, sodomy and bestiality by the husband; in Scotland for adultery and malicious abandonment prolonged beyond four years, and it is granted even to persons not domiciled there, provided they have resided for over forty days; in Ireland, divorce is authorized on a case-by-case basis by an act of Parliament.
In Germany, the law of 6 July 1938, expanding the possibilities of divorce compared to the Civil Code, distinguished between culpable and non-culpable causes; the former include adultery, refusal to procreate, and all other faults dependent on the behaviour of a spouse that produce a serious disturbance in conjugal life (Eheserüttung); non-culpable causes are the dissolution of conjugal life for three years, serious illness of body or mind, and sterility occurring after the celebration of marriage. Switzerland, too, in its Civil Code (arts. 137-51), admits the very broad ground of conjugal disturbance so serious that the other spouse cannot be expected to continue the conjugal union (art. 142). Similarly, the Turkish Civil Code admits divorce for disturbance of marriage such as to render common life impossible, but provides that it may be requested only by the non-culpable spouse. Switzerland, in addition to divorce, admits certain causes of dissolution of marriage, which are in reality nothing other than divorces.
In some countries, after a certain period from legal separation, divorce may be granted (Denmark, Sweden, Switzerland, Turkey). The procedure is normally contentious or consensual.
In Russia, in the R.S.F.S.R., the Civil Code of 1926 considers marriage as any private legal transaction, which may be freely dissolved at the request of both spouses or judicially at the request of one spouse. Marriage is said to be registered or de facto, depending on whether the spouses have declared it or not, and consequently there is also registered divorce and de facto divorce, depending on whether the spouses have notified the civil status officer or not. In White Russia and Ukraine, de facto divorce is not admitted.
In the United States of America, divorce is granted, through proceedings before a judicial court sitting in equity jurisdiction, generally for adultery, ill-treatment (cruelty), and abandonment of the conjugal domicile. In South America, it is not admitted in Argentina, Brazil, Chile, Colombia, and Paraguay. In China, divorce is admitted by the Civil Code for bigamy, adultery, ill-treatment, malicious and continuous abandonment, attempted murder of the other spouse, absence for more than three years, imprisonment for more than three years or for a dishonourable crime, ill-treatment of the husband’s direct ascendants by the wife that renders common life impossible, and serious incurable disease.
In Italy, divorce was proposed by Ninchi during the discussion of the Civil Code of 1865, which instead admitted the dissolution of marriage only by the death of a spouse (art. 148).
The current Civil Code has confirmed the principle of the 1865 Code (art. 149). Between the two codes, various attempts to introduce divorce were made by liberal and socialist parliamentarians, but in vain. The question also had an indirect echo during the discussion for the new constitution (v. below).
Today in Italy, given the regime of the Concordat (art. 34; and art. 7 of the Constitution), at least with regard to concordat marriage, the Italian judge, besides not being able to pronounce divorce sentences for Italian citizens, could not even declare enforceable the divorce sentences of Italians pronounced abroad. Likewise, the Italian judge is considered to lack jurisdiction for the dissolution of marriages celebrated in Italy by foreigners in the concordat form. The possibility for the Italian judge to decide on the divorce of foreigners (outside the aforementioned case) is debated, as is the possibility of declaring enforceable in Italy divorce sentences between foreigners pronounced abroad, based on the Hague Convention of 12 June 1902.
In canon law, the inclusion of the pactum divorciandi in consent, whether as a joint manifestation of the parties or as a unilateral manifestation, produces the nullity of the bond only if the parties or one of them intended to reserve the dissolution of the religious bond or generically the way to definitively regain their freedom. If, however, the spouses intended to reserve only the dissolution of the civil bond, to acquire freedom before the world but knew they remained bound before God, the marriage is valid, because their intention does not vitiate consent.
IV. IN THE HISTORY OF ITALIAN LEGISLATION
The first systematic formulation of the divorce problem in Italy is due to Melchiorre Gioia (Teoria civile e penale del divorzio, Milan 1893), a sensist in the manner of Condillac. The first crack in legislative practice occurred with the promulgation in Italy of the Napoleonic Code (1864 and following years), which introduced civil marriage and divorce. After Napoleon’s fall, the Italian states essentially reverted to recognizing religious marriage.
Divorce was discussed in the Subalpine Parliament and later in the Italian Parliament in connection with debates on and the introduction of civil marriage, but primarily to reject II. As had already been the case in discussions within the legislative commission, no actual proposals to introduce divorce emerged in parliamentary debates. Only the secularization of marriage was achieved.
The first divorce bill presented to the Italian Chamber of Deputies dates to 18 June 1867, introduced by the Honorable Salvatore Morelli, also a sensist and an Enlightenment thinker. He renewed the attempt in 1874, when the bill was admitted for reading but not debated due to Morelli’s absence; in 1875, when Morelli himself waived the debate; and in 1878, when the Chamber voted to consider it, but the bill lapsed due to the end of the parliamentary session. The same fate befell it in 1880. These bills were met with derision in the Assembly, partly due to their lack of legal seriousness. They ultimately received only the benevolent consideration of the Minister of Justice Villa, a Freemason, who continued Morelli’s work. His first bill, in 1880, lapsed due to the end of the parliamentary session; the second, in 1881, lapsed with the end of the XIV legislature.
Divorce, however, had become a kind of commitment for the left, and Zanardelli, Minister of Justice in the fourth Depretis cabinet, on 10 April reintroduced Villa’s bill in its entirety. Yet the Zanardelli bill was never debated, as its sponsor left the office of Minister of Justice in 1884, and no one took up the bill during the session. Villa himself, as a simple deputy, reintroduced it in 1892, when it lapsed with the end of the XVII legislature, and again in 1893, when, after being postponed, it lapsed with the end of the first session of the XVIII legislature.
The Chamber’s apathy was largely determined by public opinion, which remained opposed, kept alert by the Opera dei congressi (v.), which in 1881 succeeded in delivering two million signatures to the Chamber. Meanwhile, Freemasonry played no small part in fueling the pro-divorce dissent.
The role of Freemasonry in advocating for divorce is explicitly highlighted in Leo XIII’s encyclical Humanum genus of 20 April 1884 (Civ. Catt., 12th series, 6 [1884, II], pp. 274-75).
Its supporters made a final attempt with the Zanardelli-Cocco Ortu bill of 26 November 1902, already promised in the Crown’s speech of 20 February of the same year. This bill, after being rejected by the parliamentary commission—particularly through the efforts of the Honorable Salandra—lapsed with the end of the XXI legislature. By then, the initiative had passed to the Socialists, who, as early as 1901, at the behest of the Honorables Berenini and Borciani, had presented their own bill, though it was not adopted by the party. This bill, too, lapsed with the end of the first session of the XXI legislature and then due to the precedence given to the government’s bill. In 1909, the Honorable Treves raised the issue again, but without success. Of greater significance is the bill introduced by the Honorable Comandini on 12 February 1914, though it was never debated.
A further attempt to introduce divorce incidentally was made by the liberal Honorable Girardi in February 1919, who, however, withdrew the proposal in the face of opposition.
The Socialists returned to the issue with the Marangoni-Lazzari bill, motivated by the difficult situation of many families of former combatants. Presented to the Chamber on 6 August 1920 amid general indifference, it too lapsed with the end of the sole session of the XXV legislature.
In 1923, during discussions on the reform of the Codes, Ferri made a final attempt, which was effectively opposed by Deputy Martire.
Under Fascism, divorce, contrary to the new religious and demographic policies, was no longer discussed in Parliament. With 11 February 1929, the date of the signing of the Lateran Pacts between the Holy See and Italy, the regulation of marriage in Italy underwent a radical transformation, as Article 34 of the Concordat recognized “civil effects for the sacrament of Matrimony, governed by canon law.”
To fulfill this commitment, the Italian legislator promulgated Law No. 847 of 27 May 1929.
The State recognized, under certain conditions, civil effects for marriages meeting the requirements of canon law, while separately regulating (Law No. 1159 of 24 June 1929, Articles 7 ff.; Royal Decree No. 289 of 28 February 1930, Articles 25-28) marriages celebrated before ministers of “recognized cults.” It maintained civil marriage as an optional institution, currently governed by Title VI (Articles 79-230) of the new Civil Code.
The indissolubility of the bond, in the current Italian matrimonial system, remains enshrined for “concordat” marriages by canon 1118 of the CIC, and for civil marriages by Article 149 of the new Civil Code.
BIBL.:
G. JEMOLO, Il matrimonio nel diritto italiano, Torino 1933; ID., Il matrimonio, in Trattato di diritto civile italiano diretto da F. Vassalli, III, 1, Torino 1937; P. BONFANTE, Istituzioni di diritto romano, 10ª ed., Roma 1934, p. 190 ss.; G. ORLANDO, Diritto ecclesiastico, 2ª ed., Milano 1935; A. CICU, Il diritto di famiglia, Milano 1941; G. LE BRAS, Le mariage dans les pays de droit écrit, in Recueil de la Société Jean Bodin, VII, Bruxelles 1943, p. 117 ss.; per la storia legislativa: F. RUFFINI, La libertà religiosa, I, Torino 1901, p. 281 ss.; G. PRATO, La questione del divorzio in Italia, Torino 1902; A. M. BETTI, Il divorzio in Italia, Roma 1902; G. CANDIOTTI, Il divorzio, Roma 1902; G. DEL VECCHIO, Il divorzio, Roma 1903; A. C. JEMOLO, Il divorzio in Italia, in Studi in onore di F. Scaduto, III, Firenze 1936, p. 1 ss.; per la legislazione comparata: F. LESKE e W. LOEWENFELD, Das Eherecht der europäischen Staaten und ihrer Kolonien, 4 voll., Berlino 1933-34; G. BRUNELLI, Divorzio e nullità di matrimonio negli Stati d'Europa, Milano 1937; per la parte canonistica: P. GASPARRI, Tractatus canonicus de matrimonio, 2 voll., Città del Vaticano 1932; A. VERMEERSCH, De matrimonio, Romae 1935; A. d'AVACK, Cause di nullità e di divorzio nel diritto matrimoniale canonico, Roma 1940.
Giulio Pacelli
One may ask whether, after the Lateran Pacts, the Italian legislator could introduce a law on divorce. For civil marriage, the State has, in truth, no formal impediment, neither of constitutional law, as will be seen, nor of international law. Although such a commitment had been requested of the Italian State during the negotiations for the Conciliation (cf. C. Biggini, Storia inedita della Conciliazione, Milan 1942, p. 124), it did not, however, proceed further.
However, a divorce law, even if limited to civil marriage, would violate the spirit of the Concordat, also considering art. 1 of the Treaty on the Catholic religion, the religion of the State, since it is unnecessary to demonstrate how much a law on divorce contrasts with the spirit of the Catholic religion, which considers Marriage indissoluble by secondary natural law.
For religious Marriage, on the other hand, the State has obliged itself with art. 34 of the Concordat to recognize "the civil effects of the sacrament of Marriage," an obligation that endures as long as the Marriage exists according to the norms of canon law. If the Italian legislator wished to institute divorce, even for this marriage, it would have to limit itself, in contrast with the commitment undertaken, to not recognizing its civil effects. Nor can it be said, as some claim (C. Jemolo, Il matrimonio, Turin 1937, p. 198), that the recognition concerns only the formation of the bond, because then the State would recognize the marriage only at the moment it is celebrated, being able thereafter to modify its civil effects at will.
Nor can the argument based on the alleged modifications made to the Concordat by the law of 27 May 1929, no. 847, be accepted as valid. There is nothing in the article that suggests the possibility of a subsequent cancellation of civil effects while the Marriage continues to exist according to the norms of canon law, by which it is governed.
Since, therefore, civil effects must endure as long as the Marriage exists, it is logical that the recognition of indissolubility, an essential character of Marriage according to canon law, is inherent in the commitment arising from the Concordat. This is confirmed by the fact that the Holy See allows the Italian State to regulate the matter of personal separation of spouses: this permissive norm clearly implies that everything else (and thus also the existence of the bond) is devolved to the complete jurisdiction of the Church.
The question has not changed after the suppression of the word "indissoluble" from the draft of the Constitution, which entered into force on 1 January 1948. There was no dispute between divorce advocates and anti-divorce advocates in the Constituent Assembly. The contrast centered on whether the mention of the indissolubility of marriage should be included in the Constitution.
The explicit mention of indissolubility was introduced in art. 24 of the draft Constitution, which in a new formulation became art. 23, but disappeared due to an amendment proposed by Hon. Grilli (Italian Socialist Party of Proletarian Unity), voted by secret ballot, and approved with 194 votes in favor and 191 against in the session of the Constituent Assembly on 23 April 1947. During the discussions, almost all rapporteurs took care to note that the indissolubility of "concordat" marriage was beyond discussion, being protected by art. 7, which incorporated the Lateran Pacts into the Constitution with art. 34 of the Concordat.
Most scholars today believe that the omission of the declaration of indissolubility in art. 29 (as art. 23 became in the final coordination of the Constitution) concerns only civil marriage for the reason indicated. Nor can valid reasons be opposed by those few authors who believe that, with the suppression of the term "indissoluble" after "marriage," the matter should be considered completely remitted to ordinary legislation for both civil and "concordat" marriage (cf. V. Falzone, F. Palermo, F. Cosentino, La Costituzione della Repubblica italiana, Rome 1948, p. 66). Art. 29, in fact, cannot be considered an exception to art. 7, because it contains no statement on the matter, and it would be completely arbitrary to infer from silence an exception to a norm expressly established. Moreover, based on the same art. 7, "modifications to the Lateran Pacts" do not imply constitutional revision when an agreement is reached between the two contracting parties. Since no understanding with the Holy See is possible for a law on divorce, it is evident that by ordinary law one could not modify what is established in art. 34, making dissoluble a marriage that, according to canon law by which it is governed, is indissoluble.
It remains possible to introduce a law on divorce only for civil marriages, which, however, as Azzariti notes, would manifest only a partisan intent, such as that of distancing citizens from the celebration of religious Marriage with the hope of dissolving the bond. In such a case, it would become counterproductive "because it would spread the conviction that the only true marriage is the canonical one... It can therefore be concluded that art. 7 of the Constitution, although it concerns only canonical Marriage, subsequently has its repercussions on every kind of marriage; so that if divorce were to be introduced in Italy, it would necessarily have to apply generally, requiring a constitutional law, as if the general principle of the indissolubility of Marriage had been enunciated in art. 29" [G. Azzariti, L'i. del matrimonio nelle norme della nostra Costituzione, in Iustitia, 2 (1949), p. 64].
V. JURISPRUDENCE.
Despite Italian legislation and the concordat pacts, divorce in Italy has taken on a very particular aspect due to other international conventions and the norms for the transcription of concordat marriage, which, applied according to a certain legal formalism, have made it possible to apply divorce in Italy by indirect means. Leaving aside the questions regarding foreigners who have contracted concordat marriage in Italy and request its dissolution from the Italian judge (there is general agreement on the incompetence of the judge himself), or who have divorced abroad after a concordat marriage celebrated in Italy or after a religious Marriage, contracted anywhere, and request the recognition of divorce judgments in Italy (these cases have always been rather rare), it is appropriate to consider the phenomenon for Italian citizens.
I. DIVORCES BY RECOGNITION OF FOREIGN JUDGMENTS
Italy, together with various European states, was among the signatories of a convention intended to regulate conflicts of law and jurisdiction in matters of divorce and personal separation (12 June 1902). By virtue of this convention, the participating state undertook, among other things, under certain conditions, to recognise a divorce judgment pronounced in a signatory state, following a delibazione (recognition procedure). The convention was made enforceable in Italy by Law No. 523 of 7 September 1905. All this enabled Italian citizens, unwilling to endure the matrimonial bond, to seek abroad that divorce which they could not obtain in Italy, subsequently demanding the delibazione of the aforementioned judgments in Italy.It was natural that, for this purpose, the closest countries were chosen, where divorce procedures were more expeditious, particularly in relation to the period of residence (real or fictitious) required in the foreign territory to act as plaintiff or defendant. Some countries became, at certain times, preferred by Italian citizens seeking divorce. In the aftermath of the First World War, the vogue for "Fiume divorces" emerged. Before the annexation of Fiume to Italy, many Italian spouses, by acquiring affiliation to the Municipality of Fiume—which, under Fiume law of 2 April 1919, replaced the previously applicable Hungarian citizenship—obtained a divorce in Fiume by judgment, the recognition of which was then sought before Italian courts. This expedient ceased when, following the annexation of Fiume to Italy, Royal Decree No. 324 of 20 March 1924 extended to Fiume the provisions of the Italian Civil Code concerning marriage.
However, despite the Lateran Treaty (1929) and significant rulings by the Court of Cassation, such as that of 11 June 1934, which excluded the enforceability of foreign judgments of divorce or nullity of concordat marriages celebrated in Italy by foreigners or Italian citizens who subsequently acquired foreign citizenship, this practice continued, albeit in rare cases, with the compliance of certain Italian Courts of Appeal.
Hungary replaced Fiume, where divorce candidates had themselves adopted, thereby automatically acquiring Hungarian citizenship—a prerequisite for divorce—after which they reacquired Italian citizenship. However, in the aftermath of the Spanish Civil War, the Italian government denied the reacquisition of citizenship to those Italians who had renounced it, thus temporarily closing this new loophole opened in derogation of national laws and concordat commitments.
The game, however, continued elsewhere. Certain courts of appeal declared Swiss divorce judgments enforceable concerning persons holding Italian citizenship, or dual citizenship (Italian and foreign), based on the Italo-Swiss convention of 3 January 1933, approved by Law No. 743 of 15 June 1933. This practice was partly curtailed by Circular No. 2603 of 8 July 1941, which stated that "judgments issued in one of the two states, to be valid in the other, must not contravene public order or the principles of public law in force therein." This was followed by Circular No. 2705 of 12 May 1942, which reaffirmed "the inderogability of territorial jurisdiction (determined by the municipality in whose civil status register the marriage was registered or transcribed) of the court of appeal for delibazione cases concerning foreign judgments pronouncing divorce or nullity of marriages celebrated in the Kingdom," in relation to the new Code of Civil Procedure (Art. 28 in relation to Arts. 70, No. 2 and 5, and 796). This was intended to prevent the influx of divorce seekers to those courts of appeal (Trento, Aquila, Bari, Genoa, and especially Turin) that had acquired a reputation for leniency in such recognition proceedings.
Nevertheless, the Court of Appeal of Turin (cf. F. Della Rocca, A proposito di alcuni recenti indirizzi giurisprudenziali in materia matrimoniale, Rome 1943, pp. 8-11), contrary to the measure of the president, who expressed an opposing opinion, ruled on 29 January 1943 that, pursuant to the convention of 31 March 1939 between Italy and the Republic of San Marino (by then, divorce seekers were turning to the small Republic based on the aforementioned convention), the judge of the delibazione, in granting enforceability to the foreign judgment, must disregard the competence of the judge who pronounced the judgment itself, as this point was precluded from examination (F. Della Rocca, op. cit., pp. 8-11).
Italian divorce seekers then appealed to another convention between Italy and Romania, stipulated as early as (5-17) August 1886, under which, by virtue of Art. 14, every civil judgment pronounced in one of the two countries was automatically valid in the other. Thus began the real or fictitious influx toward Ilfov (Romania), where judgments of marriage annulment "for lack of reflection" were issued, and upon which the aforementioned Art. 14 was invoked for execution in Italy.
The Romanian annulments drew the attention of the Minister of Justice following a report by the Prosecutor General of Milan, prompting a circular from Minister Grassi (30 December 1947), which, interpreting the aforementioned Art. 14, clarified that such Romanian judgments could not be transcribed without case-by-case delibazione by the Italian judiciary. The Court of Appeal of Turin, however, declared its intention to retain its freedom of judgment regarding the automatic efficacy of Romanian annulments and continued its previous course of action.
For the sole purpose of enunciating abstract interpretative principles, the Supreme Court of Cassation also intervened in the dispute, at the request of the Prosecutor General at the Court itself, and, in a plenary session, affirmed (judgment No. 1592 of 25 June 1949) the necessity of a prior delibazione judgment for Romanian judgments.
Romanian judgments fell out of fashion, and another expedient, previously rarely applied, gained traction: the annulment of the transcription of concordat marriages.
II. DIVORCES BY "ANNULMENT OF TRANSCRIPTION" OF CONCORDAT MARRIAGE
As previously mentioned—in execution of the commitment undertaken in Art. 34 of the Lateran Treaty—the Italian legislator promulgated Law No. 847 of 27 May 1929, which unilaterally established certain conditions for the recognition of civil effects of religious marriage, possessing the requisites required by canon law, and excluded from transcription certain cases, namely: 1) marriage in which one or both contracting parties were bound, even to each other, by another marriage valid under civil law; 2) marriage of a person interdicted for mental infirmity (Arts. 12, 13).Setting aside all other issues that scholars and jurisprudence have raised regarding this law, which canonist doctrine has on numerous occasions lamented for its substantial illegitimacy due to the significant reduction of the pact's scope (such as the denial of civil effects to canonically valid marriages), it is now necessary to highlight only the abuse made of it to free oneself from a concordat marriage and contract a new civil marriage.
In addition to the provision of Art. 13 of the aforementioned law on transcription, it is necessary to recall Art. 85 of the Italian Civil Code, which prohibits marriage for interdicted persons, and furthermore Art. 120, which states that marriage contracted by a person who, though neither interdicted nor subject to interdiction proceedings, is proven to have been incapable of understanding or willing, for any cause, even transitory, at the time of celebration, may also be impugned.
There have been cases where interdiction was obtained (later revoked abroad) for a person who had contracted a concordat marriage "due to mental illness existing at the time of the marriage," and through an arbitrary interpretation of Art. 16 of the concordat implementation law, a foreign court similarly declared the nullity of the transcription of the concordat marriage and the consequent nullity of the civil effects of the religious marriage.
These judgments were made enforceable in Italy through specific delibazione (recognition) by certain courts of appeal.
Moreover, some Italian courts of appeal (e.g., Bologna) have, through a series of rulings, equated the case of interdiction for mental illness, as indicated in Art. 12 no. 3 of Law No. 847 of May 27, 1929, with the state of mental illness (natural incapacity), even if temporary and not followed by a declaration of interdiction. By distinguishing between the legal moment (of a civil nature) of transcription and the earlier sacramental moment of canonical celebration, they have ruled for the annulment of the transcription. In practice, this has opened the way to the celebration of a new civil marriage, the ultimate aim of the petitioners, who, in order to achieve their goal, have not hesitated to fall into the absurdity of a moment of dementia, complacently documented by experts and endorsed by the court.
These jurisprudential trends, highly debatable and debated even on a purely legal level, have led to very obvious conclusions: namely, that Italian legislation on the application of Art. 34 of the Concordat presented loopholes that needed to be remedied. Thus arose the bill to amend Art. 72 of the Code of Civil Procedure, now approved by the Senate and Chamber (July 14, 1950), to increase the powers of the public prosecutor, tasked with safeguarding the law. With the authority granted to challenge judgments, it is hoped that the path to a jurisprudence that, all things considered, does not seem to align with the entire Italian legal system on matrimonial matters will be permanently closed.
VI. MORAL QUESTIONS.
The indissolubility of a ratified and consummated marriage is, as theologians say, of secondary natural law. This gives rise to a preliminary question underlying all moral issues related to divorce: is requesting or pronouncing civil divorce in itself intrinsically evil? The question has been debated since the proliferation of civil laws sanctioning divorce brought to the fore an issue so intimately tied to numerous practical implications. The Church has not to this day authentically resolved the question, and attempting to argue from the responses or decrees of the Holy Office and the Apostolic Penitentiary on the matter is nearly futile, given the care and deliberation used in the phrasing employed by the Holy See.
One thing, however, seems certain: there is a noticeable broadening in the responses of the Holy Office and the Sacred Penitentiary known to us, from the earliest to the most recent (see the responses of the Holy Office, Dec. 19, 1860; Apr. 3, 1877; Sacra Romana ed Universale Inquisizione, June 25, 1885; May 27, 1886; the response of the Apostolic Nuncio in Belgium, Sept. 14, 1886; of the Holy Office, July 26, 1887; of the Sacred Penitentiary, Apr. 4, 1887; June 4, 1890; and the latest response of the Holy Office, Aug. 6, 1906). The field, however, remains open to theological disputes. Faced with a considerable number of authors who still uphold the intrinsic malice of the acts in question (their names and arguments can be read in A. De Smet, De sponsalibus et matrimonio, Bruges 1927, n. 399), there stands a majority—one might say a qualified one—which denies that requesting or pronouncing divorce are acts intrinsically evil in themselves.
It is not without significance that among these stands
Cardinal Pietro Gasparri himself in the new edition of his De matrimonio, published after the Code (II, Rome 1932, p. 337, n. 1324): he who had once upheld the opposite opinion and, at the time of his retraction, was counted among the cardinal members of the Holy Office.
If one considers the matter in itself, requesting or pronouncing divorce do not appear to be acts involving intrinsic malice. The divorce decree, considered in itself, merely entails the dissolution of civil formalities and not the dissolution of the matrimonial bond, which remains intact.
If one then considers: 1) the bad intention to violate the law of indissolubility of marriage or to usurp ecclesiastical jurisdiction, this may be absent in the judge or mayor who proclaims the divorce; 2) there is also no direct and immediate cooperation in the sin of others on the part of the judge or mayor if the spouses seek dissolution without intending to contract a new marriage, but only indirect and mediated cooperation; 3) the indirect scandal that may arise from this can, in part, be removed by an appropriate declaration made by the judge or otherwise, making it clear that the decree does not affect the conjugal bond; it may also be excused by a proportionate reason.
From all this, however, it does not follow that these acts may be licitly performed.
There remains indirect and mediated material cooperation in the evil actions of others, more remote in the request and less so in the divorce decree; there remains cooperation in the effects that follow from divorce, both for the offspring and for families and society; there remains, as mentioned, the indirect scandal that may be provoked among the people by the request or decree of divorce.
Therefore, even if these acts are not evil in themselves, they do not thereby become licit. It is necessary to remove the indirect scandal or, at least, that a grave cause exists, proportionate to permit II. A fortiori, this proportionate cause is required to legitimize mediated cooperation in the sins of others and the evil effects of the law. When all this is lacking, the acts are certainly illicit. In a divorce case—however deliberately simplified in many modern legislations (almost to entice petitioners)—various persons are involved. It is therefore necessary to examine the role each plays in order to judge the lawfulness or unlawfulness of this cooperation.
I. THE SPOUSES AND THE DIVORCE PETITION
The first party, in chronological order, is materially represented by the spouses, at least as long as civil legislations reserve the judicial action for divorce to the spouses or at least to one of them, and do not come to grant divorces ex officio, or at the request of other interested parties besides the spouses.1. The divorce petition is licit only when the spouses seek civil divorce not because they intend to dissolve the bond in order to contract other marriages, but only so that the marriage may be deprived of its civil effects and they may thus be freed from grave inconveniences from which they cannot extricate themselves by other means (S. Penitentiary, 30 June 1892; S. Office, 6 Aug. 1906). This case may arise especially in those countries, such as the United States of America, which admit only divorce actions and not personal separation of the spouses, particularly to avoid actions or counterclaims for abandonment of the marital home.
2. If the spouses can achieve the end they propose with mere personal and property separation, it is evident that it is not licit to seek divorce, as there is then no motive.
3. A fortiori, they cannot seek divorce in order to enter into new marriages, because in such a case they would be requesting something undoubtedly evil and repugnant to divine law.
4. Since matrimonial causes fall under the competence of the ecclesiastical forum, it is not licit per se for spouses to seek civil divorce unless they have first obtained from the competent ecclesiastical tribunal a sentence of nullity or personal separation.
Not infrequently, in countries where divorce is in force, even the faithful, due to religious ignorance and weak Christian sentiment, seek divorce from civil tribunals in order to obtain personal separation.
If, thus separated, they live in good faith, it is advisable not to disturb this good faith, because little fruit can be hoped for from admonition, and moreover, they often have no possibility of obtaining from the ecclesiastical tribunal a sentence that still produces civil effects.
What is now commonly taught seems to contrast with some responses given by the Church in this matter, through the S. Congregation of the Holy Office, but it must be borne in mind that those responses reflected a particular climate, namely the religious, political, and civil circumstances of France in 1884, in the aftermath of the restoration of divorce laws (S. Office, 28 May 1886).
Indeed, due to this severity, doubts arose in Belgium, and the S. Congregation of the Holy Office, through the apostolic nuncio, declared on 14 Sept. 1886 that the decree of 28 May 1886 did not concern Belgium. In particular cases, even the S. Penitentiary, in specific responses, conformed to this tone of severity. It declared, for example, that it was not licit to seek divorce: a) in order to open a public office as a means of sustenance (5 Jan. 1887); b) to avoid temporal damages and grave inconveniences (3 Jan. 1891); c) to procure the spiritual good of an orphaned niece (3 June 1891); although in these various cases the intention not to contract new marriages as long as the first spouse lived was clear (cf. Nouvelle revue théologique, 19 [1887], p. 74; 23 [1891], pp. 671, 677).
To the question of whether it was licit to resort to divorce as the only effective means to disavow the paternity of adulterine children, the S. Penitentiary responded on 7 Jan. 1892: "non licere"; but to the same case on 30 June 1892, it responded instead: "Orator consulat probatos auctores" (ibid., 24 [1892], p. 528 ff.).
The opinion of authors, at least of a good part of them, is that in the case presented there exists a proportionate cause to seek divorce. Beyond the disavowal of paternity, a most grave and proportionate cause to seek divorce would be, in the judgment of authors, a particular danger in the education of offspring or an exceptional damage to fortune.
5. The spouse against whom a divorce action is brought may introduce the so-called counterclaim. In this case, indeed, divorce is not directly sought, but it is requested that, if divorce is pronounced at the request of the plaintiff, it be pronounced in one's own favor.
6. Regarding the administration of the Sacraments to the divorced, the licitness or otherwise of the divorce petition by the spouses must be considered.
It is evident that if it concerns the party who has suffered divorce without doing anything to obtain it, they may be admitted to the Sacraments without further ado. Likewise, if it concerns the party who has sought divorce under the licit conditions outlined above. If, however, it concerns a person who has illicitly sought divorce, a further distinction must be made: a) if they have not contracted a new marriage nor intend to do so, they should resume common life; but if this is impossible, having obtained the sentence of separation in the ecclesiastical forum, they may be admitted to the Sacraments; b) if they have contracted a new marriage, they find themselves in concubinage and cannot be admitted to the Sacraments unless the concubinage is dissolved, the scandal repaired, and the sentence of separation obtained in the ecclesiastical forum.
II. LAWYERS AND DIVORCE CASES
When the faithful lawfully seek divorce, lawyers, as cooperators with their clients, may lawfully assist in obtaining II. 1) It is also tolerated that a Catholic lawyer may defend the case of one spouse against the other party seeking divorce. And in general, if the lawyer acts as defender of the bond in divorce cases involving a true and valid marriage, there is no obstacle to the exercise of his profession other than the fact that the case is heard in an incompetent forum, namely, the civil forum. The Holy See has declared that cooperation in such cases may be tolerated "provided the bishop is assured of the lawyer's integrity, and the lawyer does nothing that deviates from the principles of natural and ecclesiastical law" (S. Uffizio, 22 May 1860). 2) However, if the spouses seek divorce without just cause or with the malicious intent of subsequently entering into a new marriage, lawyers certainly cannot lawfully assume the defense of the case without a most serious reason, such as significant harm. Given such a grave cause, they may represent the client without conforming to his intentions.III. JUDGES AND CIVIL DIVORCE
The civil judge who handles divorce cases and pronounces the relevant sentences, as if the matter pertained to the civil forum, acts illicitly and unjustly, insofar as he usurps the jurisdiction of the Church. Some authors would argue that, in this case, the Church supplies jurisdiction, but neither the necessity of this is evident, whether from the perspective of the act considered objectively, nor from that of the spouses or the public good. If he recognizes the authority of the Church, he acts licitly only under the following conditions: 1) he intends only the civil effects of marriage; 2) he has most grave reasons for handling the case; 3) to prevent scandal, he admonishes both the spouses and others that his sentence concerns not the marriage itself, but only its purely civil effects; 4) there is no express prohibition from the Church.In practice, apart from special circumstances and the positive prohibition of the Church, it is licit for Catholic judges to pronounce a sentence of divorce, scandal having been removed and after having employed all possible means to dissuade the spouses from their intention, when, due to the strict wording of the law, they cannot act otherwise.
Likewise, civil registry officers and other officials obliged by virtue of their office to lend their ministry may cooperate in enforcing the sentence with regard to civil effects.
A final question may be raised in this matter. Given the validity of the first marriage "in facie Ecclesiae," is it licit for the civil officer to assist at the civil marriage of the divorced spouse?
The Holy Office, in a decree of 27 May 1886 ad 3um, gave a negative response, and the same response had already been given by the Penitentiary on 28 November 1883. The reason is evident: one thing is to remove the civil effects from a religious marriage, another is to cooperate in granting these same civil effects to those who are not and cannot be true spouses.
A more lenient opinion is nonetheless defended by some authors (cf. A. De Smet, op. cit. in bibl. n. 406). In practice, in those places where divorce law is in force, even mayors who unite divorced persons in civil marriage often act in good faith. If, troubled in their good faith, they seek counsel from the priest, the Ordinary must be consulted on how to proceed.
The case is almost impossible in Italy, where divorce law does not exist. What must then be thought of those spouses, judges, and lawyers who, even in Italy, in fraud not only of ecclesiastical and concordat law but also of civil law, procure the issuance of foreign divorce sentences, has been stated above, when discussing judges and lawyers who encroach upon the exclusive jurisdictional power of the Church in matters concerning the substance of marriage, and spouses who seek divorce in order to enter into new marriages.