Indissolubility of Marriage and Divorce

INDISSOLUBILITY OF MARRIAGE AND DIVORCE. - Indissolubility is one of the essential properties of marriage, which finds its fullest sanction in Marriage as a Sacrament after its consummation. Divorce is the dissolution of marriage while the spouses are living.

I. IN DOGMATIC AND MORAL THEOLOGY.

I. NOTIONS

If one considers the consent of the contracting parties, which, once given, is immutable, one speaks of intrinsic indissolubility. If, on the other hand, one considers the possibility of a dissolution of the marriage bond from without, through an authoritative intervention, one speaks of extrinsic indissolubility.

Any validly contracted marriage enjoys intrinsic indissolubility. This holds true even if one considers the marriage contract as not elevated to the dignity of a Sacrament (Syllabus, prop. 67), since a different solution would deprive the institution of marriage of any stability and reduce it to a vague concubinage more pecudum, insufficient to attain the ends of the conjugal institution itself — the procreation and education of offspring and mutual help between the spouses — and would create anarchy precisely in that cell which ought to be the seminarium reipublicae.

The extrinsic indissolubility of the conjugal bond is likewise a rule of natural law, albeit a secondary one, because, even though it is not required by the primary purpose of the institution (the 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; and furthermore the moral education of the children, which enters as an integrative element into the primary end of marriage, imperiously demands it.

This second indissolubility, deriving already from the marriage contracted, is not absolute: it becomes more complete when Marriage takes on the character of a Sacrament, since then the Grace pulsates within it, which is a bond of greater union; and it becomes entirely absolute when Christian Marriage, consummated through the copula carnalis, represents even more exactly the union of Christ and the Church. Hence indissolubility is called by theologians a bonum Sacramenti, inasmuch as the sacramental symbolism of Marriage strengthens the bonds of indissolubility and further gives their gradation, corresponding in a certain sense to the more or less complete perfection of the symbolism.

The consent and the union of souls in Marriage already signify the spiritual union of Christ with the faithful

INDISSOLUBILITÀ DEL MATRIMONIO E DIVORZIO

through charity; this consent has greater vigor when the contract is vivified by Grace: the carnal union then represents more vividly the union of Christ who became flesh, in order to unite Himself to His Church. Now while the first union of charity, figured also in the marriage of unbelievers, and more so in that of the faithful (ratified Marriage), can through human misfortune be broken by sin, the second union brought about by the Incarnation is perpetual and indissoluble. A stricter indissolubility therefore belongs to ratified and consummated Marriage than to marriage-as-contract or to merely ratified Marriage.

The first (ratified and consummated) can never be dissolved by any human authority. The second (marriage-as-contract) and the third (ratified Marriage) can be dissolved by the legitimate authority in determined cases: the Pauline privilege (v.), the dissolution of a ratified Marriage by solemn profession or by dispensation of the Roman Pontiff (v. MATRIMONIO).

Since, therefore, the extrinsic indissolubility of the marriage bond does not belong to the first principles of natural law, from which not even God can depart without denying Himself, but to secondary natural law, it is not repugnant that God may have granted in the course of history certain exceptions to the law, exceptions which no longer subsist because of a different will of God manifested in the sources of Revelation.

II. THE DIVINE-POSITIVE LAW

The indissolubility of the marriage bond was made manifest to the human race by the divine-positive law, so clear in the exclamation that came from the lips of Adam at the appearance of his companion: "This is now bone of my bones, and flesh of my flesh... Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh" (Gen. 2:23-24). In the Old Testament, however, Moses, as divine ambassador for the Hebrews, admitted limits to the indissolubility of marriage and in that case validated the celebration of a new marriage. In the New Testament, abrogating this concession, Christ the Lord restored the indissolubility of marriage, already fixed in the earthly Paradise: "It was said that whosoever shall put away his wife, let him give her a writing of divorcement; but I say unto you that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery; and whosoever shall marry her that is divorced committeth adultery" (Mt. 5:31-32). And again: "Whosoever shall put away his wife and marry another committeth adultery, and whosoever shall marry her that is divorced committeth 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 only one spouse, which is the Church, and the Church has only one spouse, who is its 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 pages is well summed up in the word of Christ himself: "What therefore God hath joined together, let not man put asunder" (Mt. 19:6).

As for adultery, nothing authorizes us to say that it can 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 the wife's infidelity, are not necessarily to be taken in this sense. A different and logical interpretation can be given, whether one prefers to interpret the text in the sense that the clause concerns only 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 to the two passages a practical interpretation of indissolubility, which forces us to admit a very precise theoretical interpretation, while restricting this absolute indissolubility to marriage consummated between the faithful.

The Council of Trent did not wish explicitly to condemn the opposite interpretation of the separated Greeks, who on the basis of these same passages admit divorce on account 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 to 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, introducing divorce first in the West, had put forward other motives 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 hence between Sacrament and contract, preparing the way for the liberal doctrinairism on civil marriage and for the cavilling syllogism that from marriage-as-contract and from the dissolubility of contracts would wish to arrive also at the dissolubility of the marriage bond.

This doctrine is today reaffirmed in cann. 1118: "A valid marriage that has been ratified and consummated cannot be dissolved, except by death, by any human authority," and 1110: "From a valid marriage there 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 the Church's teaching. Already the Shepherd of Hermas (ca. 150) permitted the husband in case of adultery to abandon his adulterous wife, but declared him an adulterer if he dared to marry another (Mand. 4, ch. 1, 6: ed. by F. X. Funk, I, Tübingen 1901, pp. 175-76). Tertullian repeatedly contrasts Christian legislation with Roman legislation 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) likewise considers an adulterer anyone who marries while the first spouse is still living (Strom., 2, 23: PG 8, 1095). Origen reports that some heads of Churches permitted a separated wife to remarry, and considers it a lesser evil; but he still says expressly that this is against Holy Scripture and the law established from the beginning (Comm. in Mt., 19, 16: PG 13, 1246).

There is no lack of Fathers who, on the basis of the words of Mt. 19:9, badly interpreted, seem to admit the possibility of divorce for the innocent party in case 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 is the contemporary conciliar legislation and the teaching of the popes (cf. Council of Elvira, can. 9; First Council of Arles, can. 10 [counsel, 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).

In the East too there is no lack of 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 above all in the West that the tradition continues unvarying (cf. St. Jerome, Ep. 55 ad Armand.: 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 up to before the end of the 8th century, A. Esmein (Le mariage en le droit canonique, I, Paris 1929, pp. 66-67) emphasizes a twofold aspect, one traditional and the other conciliatory toward divorce, as admitted by the civil laws, Roman and barbarian.

A. Villen, however (Divorce, in DThC, IV, coll. 1465-1466) points out that the councils, composed solely of ecclesiastical elements, and in which the true doctrine of the Church must therefore be found, never permitted divorce, nor allowed it to be glimpsed that it could be permitted. Famous decisions to the contrary, such as that of Verberie (756) and of Compiègne (757), are the fruit of a compromise between ecclesiastical and civil discipline (cf. Capitularia regum Franc., in MGH, Leges, sect. II, vol. II, 1, p. 37 ff.). If we except certain articles of the Council of Compiègne, approved by a legate of the Holy See (an approval that binds the Church only to a very limited extent), no official assent of the Church to these decisions can be demonstrated. The universal Church cannot be held responsible for the mistakes or negligences due to the weakness of certain bishops. Even in the so-called penitential books, alongside numerous texts that affirm absolute i., there are others that practically admit divorce; there are even penitentials with contradictory texts, such as that of Theodore (II, 12: ed. P. W. Finsterwalder, Weimar 1929, p. 326 ff.). But these are not authentic sources: it suffices to recall the protests raised against heterodox penitentials by various councils, such as that of Paris of 829 (cann. 32, 34: Hefele-Leclercq, IV, 1, pp. 65, 66), which ordered the bishops to seek them out « et inventos igni tradant ». The popes, moreover (Gregory I, Registrum, in MGH, Epist., II, pp. 289, 301) continued to proclaim the principle of i.

Nor does the text of Gregory II (Epist. ad Bonif., in MGH, Epist., III, p. 276, 3), which seems favorable to divorce on account of supervening impotence, create any difficulty. Since the most ancient canonists (Summa Roland, causa 32, cap. 5: ed. F. Thaner, Innsbruck 1874, pp. 181, 186) this text has been interpreted in the sense that it speaks of a dispensation of a ratified, non-consummated marriage and not of divorce. This is urged by the constant tradition regarding indissolubility, which finds an echo in Gregory II himself (Ep. ad legatos suos in Bavar.: MGH, Epist., III, p. 453) and in his successors (Zachary, Ep. ad Pip. reg. ibid., p. 482, 21-23; Stephen II, Ep. ad Mon. Britan., 5: Mansi, XII, 559; John VIII, Ep. ad epist. Cantuar.: PL 126, 746). The doctrine of the vast majority of ecclesiastical writers is also in favor of absolute indissolubility. In this regard, the doctrine of Hincmar of Reims (H. Schors, Hincmar von Reims, Freiburg im Breisgau 1884, pp. 179 ff., 499-504) and of Pseudo-Isidore (ed. P. Hirschius, Decretales Pseudoisidorianae, Leipzig 1863, p. 90) is very precise in the 9th century; until, under the influence of the Gregorian reform, the last discordant voices disappear (the Exceptiones Petri [1110-20], I, 37, contain one of the last notes to the contrary), so much so that in the first half of the 12th century the absolute indissolubility of marriage can be said to be recognized without opposition (cf. H. Portmann, Wesen und Unauflöslichkeit der Ehe in der kirchl. Wissenschaft und Gesetzgebung des XI. u. XII. Jahrh., Emstetten 1938).

III. THE CONDUCT OF THE CHURCH

Besides teaching, the Roman Church championed by its deeds the absolute indissolubility of ratified and consummated marriage. Already in the period considered thus far, two facts are to be noted: Adrian I (772-95) stood alongside the patriarch of Constantinople and Theodore Studites in condemning the divorce of Constantine VI, emperor of the East, from Maria of Armenia, in order to enter into a new marriage with Theodora, a woman of the court (C. Baronio, Annales ecclesiastici, ad ann. 795, n. LVI). This authorizes us to be very cautious in judging his silence and that of other Pontiffs in the face of Charlemagne regarding the infringement of the marriage laws (G. Soranzo, Il papato per la difesa del Matrimonio crist., in Il Matrimonio cristiano, Milan 1931, pp. 86-87). Nicholas I, then, with apostolic freedom raised his voice in his letters against Lothair III, who wished to repudiate Theutberga in order to unite himself with Waldrada (MGH, Epist., VI, pp. 267-352).

Innocent II did likewise in the face of Ralph, count of Vermandois, who had repudiated his lawful consort in order to marry the sister-in-law of King Louis VII of France (C. Baronio, Annales ecclesiastici, ad ann. 1142, n. I ff.). The historical reasons for the silence of Eugene III in the face of the divorce of Louis VII are, however, unknown. It should not be forgotten that in that case St. Bernard also kept silent, certainly not weak in the face of the powerful (ibid., ad ann. 1151, n. III). Indomitable, then, was the firmness of Innocent III — the affair had begun under his predecessor Celestine III — in the face of the claims of Philip Augustus of France, who, having sent Ingeborg back, wished to marry Agnes of Merania (cf. E. Lavisse, Histoire de France, II, 1, Paris 1911, pp. 144-50).

Long and interesting, again in this regard, is the controversy between Clement IV (1265-68) and James of Aragon, who, on the pretext of leprosy, intended to divorce his consort Theresa (O. Raynaldus, Annales cit., ad ann. 1266, n. XXVI).

Dramatic was the duel, begun by Nicholas III and continued by his successors Martin IV, Honorius IV and Nicholas IV, with 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, too well known is the controversy that flared up under Pope Clement VII over the divorce of Henry VIII (v.) from Catherine of Aragon, which, although 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 everything, even the apostasy of a kingdom (cf. I. Trésal, Les origines du schisme anglican, 3rd ed., Paris 1923, p. 42 ff.). The same firmness was again shown by Pius VII in the face of Napoleon I, on the occasion of his divorce from Josephine Beauharnais. This marriage had been celebrated in 1796 with the simple civil rite. Having learned of this, Pius VII, on the eve of the solemn coronation in Paris, on 1 December 1804, made the celebration of the religious marriage a condition of the ceremony, which, after some insistence on the Emperor's part, took place in the presence of Cardinal Fesch, his uncle, to whom the Supreme Pontiff had given every faculty « contrarisi non obstantibus quibuscunque », and therefore also that of dispensing from the observance of the Tridentine form. And indeed the marriage, perhaps to avoid scandal, was celebrated without the presence of witnesses and of the parish priest. Precisely on the basis of the lack of witnesses and of the proper parish priest (ex capite clandestinitatis), the diocesan officiality of Paris in the first instance declared the marriage of 1 December 1804 null: Pius VII, the sentence observed, had indeed furnished Cardinal Fesch with all the dispensations, without however 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 at the moment of the celebration only externally in order to avoid scandal. But Pius VII, from his exile, raised the objection of the incompetence of the Paris tribunals, because, since what was at issue in the case was the marriage of a prince, it was a « causa maior » reserved to the Pope. In other words, he declared the sentence of Paris null and consequently that the nullity of the first marriage was not established. It was only in contempt of the laws of the Church that Napoleon proceeded to a new marriage with Marie Louise in 1810 (J. Rinieri, Pio VII e Napoleone Bonaparte, II, Turin 1906, p. 297 ff.).

After all this, the Church certainly cannot be accused of having contradicted itself in preaching the absolute indissolubility of ratified and consummated marriage, or of not having correctly interpreted the thought of Jesus. Nor is it valid to argue from the dispensations that it grants, as in the case of a merely ratified marriage between baptized persons, or from the application of the Pauline privilege (v.). Nor can one argue from declarations of nullity of marriage, because in this the Church does nothing other than declare in the external forum the non-existence of a true marriage, even if there were external appearances of one. The objection therefore falls that is drawn from these causes of nullity in order to say that the Church too has its divorce, which it wishes however to reserve to itself, without recognizing an equal power in the State.

Even the so-called "Marconi divorce," which aroused so much clamor because of the celebrity of the party involved, comes down to nothing other than a causa nullitatis matrimonii, through which his previous marriage to Beatrice O'Brien, contracted in London on 16 March 1905 before an Anglican minister, was declared null by reason of the exclusion precisely of the indissolubility of marriage on the part of the bride, of Anglican religion, and of himself who, although baptized a Catholic, adhered in practice to the Anglican sect (ex capite exclusae indissolubilitatis). The sentence of nullity of this marriage with all its grounds « in iure » and « in facto » is found in S. R. Rotae Decisiones seu sententiae, XIX, Vatican City 1936, pp. 104-15, alongside other sentences of nullity of marriage of many other obscure professionals or workers, who, finding themselves in the same circumstances, obtained the same result, perhaps availing themselves of free legal aid.

To the indissolubility of the marriage bond there is opposed, on the other hand, as has been repeated several times, civil divorce, which is the dissolution of a legitimate marriage during the lifetime of the spouses. As regards the ancient history of humanity, it is known that for the Hebrews there was a dispensation given by God to his people « ad duritiam cordis » (Mt. 19, 8). Since the institution of divorce is found also among other peoples, one might ask whether a similar dispensation was extended also to the other peoples until the coming of Christ. In the absence of documents to give an adequate answer to the question, one must be content with the simple study of the phenomenon.

II. PRESSO I PRIMITIVI.

Among primitive peoples too, indissolubility and divorce, as the dissolution of the marriage bond effected by the spouses while still living, constitute very complex social phenomena. Such complexity is inherent in the very nature of divorce, since it touches all the effects of marriage, destroying a family and disturbing social life. In fact, divorce first of all severs the relations between wife and husband with a reciprocal unfavorable judgment of their life, whatever the reasons that may have led them to divorce. Secondly, it is an element of enmities, of discords, or at least of uneasiness, among the social groups of the tribe, which are related by kinship through the law of exogamy, because, since the divorced parties, the man and the woman, are members of one and the other group, these groups cannot remain indifferent to them and can easily share the judgment. Thirdly, it imposes the question of the belonging of the offspring born of the marriage, and, if the children are small, of their support and their education, for which reason they are first assigned to the mother and then to the father according to the kinship system. Fourthly, it raises the question of the restitution or non-restitution of the dowry, of the bride price, of the division of the common property of the family. Fifthly, although the civil authority rarely intervenes to approve or disapprove of it, it cannot remain indifferent to it, given that divorce entails serious social effects, and it must intervene to regulate it. Finally, one does not can rightly judge divorce, unless it is placed in relation to the moral and religious ideal of the people, for which reason it may happen that it exists only in fact, as an abuse, the effect of the decay of moral values, in contrast with the ideals of life.

The evolutionists, such as Lubbock, Morgan, and those who accepted and popularized their theory — Marx, Engels, Simon, Bebel — should regard divorce as a very recent phenomenon in human history, since for them monogamy is the most recent stage in the development of sexual and social relations between man and woman. Modern ethnology has splendidly demonstrated the falsity of this theory, establishing that, on the contrary, monogamy is the rule among the most ancient primitive peoples and is considered by them to be almost indissoluble. This corresponds well to their religion, which affirms, explicitly or implicitly, that marriage was instituted by God, after He created man male and female, the first human couple, or even several men, as the Pygmies of Gabum maintain, but always in couples. Conjugal fidelity until death is the rule.

Adultery is considered one of the greatest crimes, which, according to the Andamanese, provokes the wrath of God. Adultery is punished: among the Negritos of the Philippine Islands, the Semang and the Senoi of the Malay Peninsula, adultery is punishable by death. Divorce is an abnormality, an exception. Among the aforementioned Negritos, while a man's adultery is punishable by death, a woman's leads to divorce, in which case the small children go with the mother. Among the Bambuti Pygmies of the Ituri in Africa, divorce does not seem to be as rare as among the other gathering peoples considered here, because there are several grounds for divorce existing among them, the most frequent of which is the failure, after the conclusion of a marriage between two social groups, to give, in exchange for the bride, a young woman of marriageable value to the other group. This would be a forced divorce, independent of the will of the spouses, willed simply by the social group, a custom probably of Negro influence. Reflecting, however, that these Pygmies require absolute fidelity between spouses; that adultery is for them a crime, which can lead to murder; that the Supreme Being forbids it and punishes adulterers with illness, with lightning or in other ways; that marriage is made for mutual sympathy and that a true mutual affection often reigns between the spouses, which can even lead to scenes of jealousy: it is easy to understand that even among these peoples divorce cannot be the rule, but an exception, which is not in conformity with their ideals of moral and religious life. Finally, it is noted that divorce among these African Pygmies sometimes occurs peacefully, but for the most part with many quarrels and brawls, because every divorce entails a compensation between the two groups, as happens among their Negro neighbors. In short, it can be said that the primitive peoples who are ethnologically the most ancient, called gatherers, regard marriage as monogamous and almost indissoluble, believing, explicitly or implicitly, that this is what God wills.

This very ideal conception of marriage can also be observed among many culturally more advanced peoples, indeed even among some of high civilization. It is well known in this regard that written Chinese legislation prohibits bigamy, and also prohibits a concubine (concubinage is permitted in China) from becoming a legitimate spouse. Among nomadic pastoral peoples marriage is as a rule monogamous; fidelity until death is held in honor; divorce is rare. Among the Galla of East Africa, indeed, marriage is in principle indissoluble, so much so that if the wife, sent back for her infidelity, has children by her lovers, they belong by law to the husband. Among the Tungus, adulterers caught in flagrante delicto may be killed by the injured party. But adultery is not in itself a cause of divorce. A woman

A married woman who has relations with several men is despised and called a bitch. The husband tries to make her change her life, going so far as to beat her. Divorce is rare; if it occurs, the ordinary cause is the wife's flight. If the husband is not at fault, the calim (bride price, which can reach as much as twenty reindeer) is returned to the groom's clan, at least in part, but the bride's clan loses the dowry. Every Tungus is recognized as having the right to divorce if the wife has had sexual relations with foreigners. Every case of divorce must be decided by the assembly of the clan, or of both related clans if the divorce has been requested by both spouses. Children born in the marriage always remain with the husband's clan. Totemist tribes do not permit divorce. Among those of Australia, when a bachelor abducts another man's woman, or when a woman, dissatisfied with her husband, feels affection for another man and flees with him, as commonly happens, the totemists regard these cases as cases of theft. The betrayed man, together with his relatives and friends, sets out to pursue the fugitives. If they catch them, the woman is returned to her husband and beaten without mercy; her abductor must make himself the target of the betrayed man's arrows, who strikes him repeatedly, though not in vital parts, and he, to defend himself, may have only the shield that is given to him. Divorce practically occurs if the fleeing couple manages to remain untraceable for some time, because in this case the abductor is often allowed to keep the woman, especially if he knows how to fight and is supported by powerful friends. In any case it is always the woman who fares worst, because she can almost certainly expect a good dose of beatings.

Among matriarchal peoples or peoples of mixed civilization, formed by the crossing of matriarchy with another culture, the mutual situation of man and woman is very varied and is reflected also in marriage and therefore in divorce. Thus in French Equatorial and Western Africa it has been observed that there are peoples who do not practice divorce and consider marriage indissoluble; there are others, instead, among whom divorce exists and there is a tribunal to judge it. Among certain matriarchal tribes of Melanesia and Africa the wife, if badly treated by her husband, can obtain a divorce; the husband loses the price he had paid for his wife, because in this case it is not returned to him. In Chinese Turkestan women are granted six grounds for divorce. The French explorer Grenard notes, however, that for the slightest reason and even without reason, the woman gathers up her clothes, her jewels and carpets, the objects that belong to her in the common house, and withdraws to her parents. The husband has no means of making her return to the conjugal domicile and ends by leaving her complete freedom, repudiating her. Having returned to her family after the divorce, she acts independently. But the resulting conjugal instability has led to a relaxation of morals, as Grenard himself noted. Among the matriarchal Kocce in Assam marriage is rigorously monogamous; it is impossible for them to think of polygamy and concubinage; the 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 from his mother's marriage. Among the Lolo in western China, who have a civilization with a matriarchal foundation, monogamy is in accordance with the people's traditional moral ideal; conjugal fidelity is held in great honor; adultery is extremely rare; adulterers caught in the act are condemned to death. The only ground for divorce for both spouses is adultery; for the wife, moreover, ill-treatment by her husband. In the latter case the husband nevertheless has 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 goes so far as to say that there are very few old Dusun who live with the wife of their first marriage. Divorced women, moreover, find it easier to remarry than a widow does. The divorced man even attends the feast of the new marriage of his former partner. The Dusun also permit divorced persons to unite again in marriage. Every case of divorce is brought before the village chief to determine the division of the bride price, called nopung; the division is ordinarily made thus: three quarters or two thirds go to the husband and the rest goes to the wife's brother. The most common cause of divorce is infertility, but any reason is good and at any time.

Among the Ucarra in eastern Africa divorce is even easier than among the Dusun, because it is an entirely private affair. It is enough for the husband to say, for example, to his wife: "You have told my friends that I am quarrelsome and contentious; so you may go back to your parents"; or: "Go back to your parents"; or, after throwing before the door the plate he has made from rushes: "Woman, I no longer want you; return to your parents." The divorce is immediately valid and the woman can remarry at once, except in the case where she is pregnant, for which she must wait for the birth. The children belong to the husband, and for the Ucarra that boy would be ridiculous who wished to remain 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 usages observed by the different peoples of the earth with regard to divorce, and their different attitude of mind in judging it, emerges clearly. The action of the civil authority is very limited. It has already been said that among the Tungus the assembly of the clan is convened to judge the divorce, but among many peoples, as, for example, in French West and East Africa, the tribunal does not pronounce in order to approve the divorce in favor of one or the other party by judging the reasons adduced, as is prescribed in certain European legislations, but in order to determine the transfer of property, as in a donation, marriage being thus regarded. Among the ancient Mexicans too there existed a special tribunal for divorce, which, however, did not pronounce its sentence. The tribunal asked first of all, given the existence of concubinage, whether there had been a legitimate marriage. Then the party seeking divorce brought its reasons, which for the husband were incompatibility of character, the wife's infertility, her laziness, especially her neglect of household duties; for the wife they were ill-treatment, lack of support and the husband's neglect in the education of the children. Then the other party made known its point of view. After this the judge set out the economic and social consequences of the divorce. If they did not become reconciled, he did not formally pronounce the sentence of divorce, but left them to act as they thought best. The judge did not pronounce the sentence because he did not wish to offend the conscience of the people, who regarded divorce as immoral. If the spouses had had offspring, the children were assigned to the father; the daughters and small children up to the end of nursing were assigned to the mother. The division was also made of the property existing at the time of the marriage; the guilty party had to give the innocent one half of his own property; the household utensils belonged to the wife. The Mexican law forbade divorced persons to unite again in marriage and imposed a heavy penalty on transgressors.

Great is the diversity also in the assignment of the 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, as among the aforementioned Mexicans, the sons to the father, the daughters to the mother. Great diversity is also noted in the restitution of the bride price and of the dowry, and in the division of the common family property. Add to this that among the aforementioned Dusun the bride price, if children have been had from the marriage, goes by right to these and not to the two parties, as was said 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 the consideration of the causes of divorce, not only in themselves, but also in the spouses themselves. Adultery, for example, is by many peoples not considered a cause of divorce, although it is held to be a great crime, sometimes the greatest. Among many peoples it is judged with the penalty of death; sometimes the most cruel and ignominious. This is an effective way of defending marriage, like that of inflicting heavy fines on the guilty party in adultery, fines in which the village and the family may 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 the adultery is followed by pregnancy the penalty is doubled. This was done by the chief of the tribe and by the elders expressly to make divorce more difficult, having noticed a lowering of the moral level of the people.

The i. and divorce among primitive peoples deserve to be studied deeply, but so far this has not been done. From the little that has been said here one can conclude, at least with great probability, that the fact that so many peoples, beginning with those ethnologically most primitive, the gatherers, do not admit divorce on moral and religious principles, and that it, where it exists, is resolved in such different ways and with such grave social and moral consequences, demonstrates that it is against human nature and society. Studying the psychology of love among primitive peoples, one clearly observes that love knows no limits of time and imposes even the sacrifice of oneself for the person loved.

Luigi Vannicelli

III. IN CIVIL LEGISLATIONS.

The Mosaic law contemplates the permission granted by the Lord to the Hebrews to repudiate the wife propter aliquam foeditatem with the obligation to give her the bill of repudiation; the repudiated woman could join herself to another man, but no longer to her first husband. This is, even today, the substance of the Jewish legislation, on account of which the revocation of the Mosaic law and the i. re-established by Jesus Christ have remained a dead letter.

In Greece divorce was contemplated in the very ancient law of Gortyn, and in Athens it could be requested by the husband (repudiation), by the wife (abandonment), by both spouses by consent, and also provoked by third parties.

Among the Romans divorce has a different nature because marriage is constituted by two elements, cohabitation and the intention of remaining united in marriage (affectio maritalis), of which the second must be lasting; when the intentional element fails, the bond is dissolved. Rare at first, divorces multiplied with the relaxation of morals: numerous were the measures to try to curb their use, but even the most severe of Constantine and Justinian (Nov. 117) did not go so far as to decree nullity and abolition, but only the punishment of the spouses or of one of them, since the abolition of divorce was repugnant to the nature of Roman marriage (Nuptias affectus... facit mutuus... Cum autem semel contractae sint... oporet solutionem sequi aut impunitam aut cum poena, quoniam ex iis quae inter homines evenium 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 marriage withdrawing from civil legislation, that the principle of the i. of ratified and consummated marriage is affirmed.

In countries of Catholic religion divorce infiltrates with the French Revolution. In France, introduced in 1792, maintained in the Napoleonic Code, suppressed in 1816, it is again introduced with the law of 27 July 1884, which, having abolished the contentement mutuel et persévèrent of the Code, admits divorce for adultery of the wife (art. 229) and of the husband (art. 230); for excesses, cruelty and grave insults, including among these also abandonment (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 regulated by the Matrimonial causes act of 1937, which admits it normally after three years of marriage, for ill-treatment (cruelty), abandonment of the conjugal domicile for at least three years, adultery, incurable mental illness lasting at least five years, and for rape, sodomy and bestiality on the part of the husband; in Scotland for adultery and malicious abandonment protracted beyond four years, and it is granted also to persons not domiciled there, provided they have resided there for more than forty days; in Ireland divorce is authorized case by case by act of Parliament.

In Germany the law of July 6, 1938, broadening the grounds for divorce compared with the Code, distinguished between culpable and non-culpable grounds; the former are adultery, refusal to procreate and all the other faults arising from the conduct of one spouse, which produce a grave disturbance in married life (Eheserüttung); non-culpable grounds are the breakdown of married life for three years, grave illness of body and mind, and sterility arising after the celebration of the marriage. Switzerland too, in its Code (arts. 137-51), admits the very broad ground of conjugal disturbance so grave that the other spouse cannot demand the continuation of the conjugal union (art. 142). Similarly the Turkish Code admits divorce for a disturbance of the marriage such as to make common life impossible, but provides that it may be sought only by the spouse who is not at fault. Switzerland, besides divorce, admits certain grounds for the dissolution of marriage, which are in reality just as many divorces.

In some countries, after a certain time from legal separation, divorce may be granted (Denmark, Sweden, Switzerland, Turkey). The procedure is normally contentious or by mutual consent.

In Russia, in the R.S.F.S.R., the Code of 1926 regards marriage as any ordinary transaction of a private nature, which may be dissolved freely at the request of both spouses or judicially at the request of only one spouse. Marriage is said to be registered or de facto, according to whether or not the spouses have reported it, and consequently there is also registered divorce and de facto divorce, according to whether or not the spouses have notified it to the registrar of civil status. In White Russia and in Ukraine de facto divorce is not admitted.

In the United States of America divorce is granted, by proceedings before a court of justice 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, attempt on the life of the other spouse, absence for more than three years, sentence to more than three years' imprisonment or for a dishonoring crime, ill-treatment of the husband's direct relatives in the ascending line by the wife, which makes common life impossible, and grave incurable illness.

In Italy divorce was proposed by Ninchi during the discussion of the civil Code of 1865, which on the contrary admitted the dissolution of marriage only by the death of a spouse (art. 148).

The Code in force has confirmed the principle of the Code of 1865 (art. 149). Between the one and the other code, various attempts to introduce divorce were made by liberal and socialist parliamentarians, but in vain. The question also had an indirect echo in the discussion of the new constitution (v. below).

Today in Italy, given the regime of the Concordat (art. 34; and art. 7 of the Constitution), with respect at least to Concordat marriage, the Italian judge, besides being unable to pronounce decrees of divorce of Italian citizens, could not even declare enforceable the divorce decrees of Italians pronounced abroad. Likewise the Italian judge is held 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 aforesaid case) is debated, as is also a matter of discussion the possibility of declaring enforceable in Italy divorce decrees between foreigners, pronounced abroad, on the basis of the Hague convention of June 12, 1902.

In canon law, the addition of the pactum divorciandi to the consent, in the sense both of a concordant manifestation of the parties and of a unilateral manifestation, produces the nullity of the bond only if the parties or one of them intended to reserve to themselves the dissolution of the religious bond or, generically, the means of definitively regaining their own freedom. If, on the other hand, the spouses intended to reserve to themselves the dissolution of the civil bond alone, in order to acquire freedom before the world, but knowing that they remained bound before God, the marriage is valid, because their intention does not vitiate the consent.

Giulio Pacelli

IV. IN THE HISTORY OF ITALIAN LEGISLATION

The first systematic formulation of the problem of divorce in Italy is owed to Melchiorre Gioia (Teoria civile e penale del divorzio, Milan 1893), a sensualist of the Condillac type. And the first crack in legislative practice came with the promulgation in Italy of the Napoleonic Code (1864 and following years), which adopted the institution of civil marriage and of divorce. After Napoleon's fall, the Italian states returned in substance to the recognition of religious marriage.

Divorce was discussed in the Subalpine Parliament and then in the Italian one in connection with the debates on and the introduction of civil marriage, but more than anything else in order to reject it. As already in the discussions within the legislative commission, so in the parliamentary debates there were no real proposals to introduce divorce. There was only the secularization of marriage.

The first divorce bill presented to the Italian Chamber dates from 18 June 1867 and was the work of the Hon. Salvatore Morelli, himself also a sensualist and an Enlightenment thinker. He repeated the attempt in 1874, when the bill was admitted for reading but not debated owing to Morelli's absence; in 1875, when Morelli himself gave up debating it; and in 1878, when the Chamber voted to take it into consideration, but the bill fell because the parliamentary session closed; for the same reason it fell in 1880. These bills passed amid the hilarity of the Assembly, among other things because of their scant juridical seriousness. Only at the end did they receive the benevolent consideration of the Minister of Justice Villa, a Freemason, who was the continuer of Morelli's work. His first bill dates from 1880 and fell because the parliamentary session closed; the second, from 1881, fell because the XIV legislature ended.

Divorce, however, had become a kind of commitment of the Left, and Zanardelli, Minister of Justice in the fourth Depretis cabinet, on 10 April reintroduced Villa's bill in its entirety. On the order of business, however, the Zanardelli bill was never debated, because its sponsor in 1884 left the office of Minister of Justice and no one took up the project again during the session. It was Villa himself, as a simple deputy, who reintroduced it in 1892, when it fell because the XVII legislature closed, and in 1893, when, postponed, it fell because the 1st session of the XVIII legislature closed.

The apathy of the Chamber was determined more than anything else by contrary public opinion, kept alive by the "Opera dei congressi" (v.), which in 1881 succeeded in delivering two million signatures to the Chamber, while Freemasonry played no small part in feeding the wind of pro-divorce dissent.

The work of Freemasonry in favor of divorce is explicitly brought to light by Leo XIII's encyclical Humanum genus of 20 April 1884 (Civ. Catt., 12th series, 6 [1884, II], pp. 274-75).

Its men made a last attempt with the Zanardelli-Cocco Ortu bill of 26 Nov. 1902, already promised in the Speech from the Throne of 20 February of the same year and fallen, after being rejected by the parliamentary commission, owing especially to the Hon. Salandra, because the XXI legislature closed. But the initiative had already passed to the socialists, who as early as 1901, at the request of the Hon. Berenini and Borciani, had presented a bill of their own, even if it was not adopted by the party; this too, however, fell because the 1st session of the XXI legislature closed, and then because precedence was given to the government bill. In 1909 the Hon. Treves raised the problem again, but without follow-up. Of greater importance is the bill of the Hon. Comandini (12 Feb. 1914), which was never debated, however.

A further attempt to introduce divorce incidentally is that of the liberal Hon. Girardi in Feb. 1919, who, however, in the face of opposition, withdrew the proposal.

We return again to the socialists with the Marangoni-Lazzari bill, motivated by the sad situation of various families of ex-servicemen, presented to the Chamber on 6 Aug. 1920 amid general indifference, and this too fell with the closing of the only session of the XXV legislature.

In 1923, on the occasion of the discussion of the reform of the Codes, Ferri made a last attempt, to which the deputy Martire validly opposed himself.

Under Fascism, divorce, contrary to the new religious and demographic policy, no longer became an object of discussion in the Chambers. With 11 Feb. 1929, the date of the stipulation of the Lateran Pacts between the Holy See and Italy, the regulation of marriage in Italy underwent a radical transformation, since by art. 34 of the Concordat "civil effects" were recognized "for the sacrament of Matrimony, governed by canon law."

To carry out the commitment undertaken, the Italian legislator promulgated the law of 27 May 1929, no. 847.

The State recognizes, under certain conditions, civil effects for marriage having the requirements demanded by canon law, while it regulates separately (law of 24 June 1929, no. 1159, art. 7 ff.; Royal Decree of 28 Feb. 1930, no. 289, arts. 25-28) marriage celebrated before the ministers of the "admitted cults" and maintains as optional the institution of civil marriage, currently regulated by title VI (arts. 79-230) of the new Civil Code.

The indissolubility of the bond, in the current Italian matrimonial order, remains sanctioned, for "concordat" marriage, by can. 1118 of the CIC, and for civil marriage by art. 149 of the new Civil Code.

One may ask whether, after the Lateran Pacts, the Italian legislator can introduce a law on divorce. For civil marriage the State has, to be sure, 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 in the negotiations for the Conciliation (cf. C. Biggini, Storia inedita della Conciliazione, Milan 1942, p. 124), it was nevertheless not followed up.

However, a divorce law, even one concerning only civil marriage, would violate the spirit of the Concordat, bearing in mind also art. 1 of the Treaty on the Catholic religion, the religion of the State, since there is no need to demonstrate how much a law on divorce conflicts with the spirit of the Catholic religion, which holds Marriage to be indissoluble by secondary natural law.

For religious Marriage, on the other hand, the State has bound itself by art. 34 of the Concordat to recognize "the civil effects of the sacrament of Marriage," an obligation that endures as long as the Marriage subsists 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 conflict with the commitment undertaken, to not recognizing civil effects for it. Nor can it be said, as some maintain (C. Iemolo, 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 instant in which it is celebrated, being able thereafter to modify its civil effects at its own pleasure.

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 annulment of the civil effects, while the Marriage continues to be in existence according to the norms of canon law, by which it is governed.

Since, therefore, the civil effects must endure as long as the Marriage subsists, it is logical that the recognition of indissolubility, an essential characteristic of Marriage according to canon law, is inherent in the commitment deriving from the Concordat. This is confirmed by the fact that the Holy See allows the Italian State to regulate the matter of the personal separation of spouses: this permissive norm clearly implies that everything else (and therefore also the existence of the bond) is devolved to the complete jurisdiction of the Church.

The question did not change 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 supporters and anti-divorce supporters in the Constituent Assembly. The conflict unfolded on the point of whether the mention of the indissolubility of marriage was a subject to be inserted into the Constitution or not.

The explicit mention of indissolubility was introduced in art. 24 of the draft Constitution, which in a new formulation became art. 23, but it disappeared through an amendment proposed by the Hon. Grilli (Italian Socialist Workers' Party), voted by secret ballot, and approved with 194 votes in favor and 191 against in the session of the Constituent Assembly of 23 April 1947. During the discussions almost all the rapporteurs took care to point out that the indissolubility of "concordatarian" marriage was beyond discussion, being protected by art. 7, which inserted the Lateran Pacts into the Constitution together with art. 34 of the Concordat.

Most commentators today hold that the omitted 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 those few authors who hold that with the suppression of the term "indissoluble" after "marriage" the matter must be considered entirely remitted to ordinary legislation for both civil and "concordatarian" marriage (cf. V. Falzone, F. Palermo, F. Cosentino, La Costituzione della Repubblica italiana, Rome 1948, p. 66) oppose any valid reasons to the contrary. Art. 29 in fact cannot be considered as an exception to art. 7, because it contains no statement on the matter, and it would be completely arbitrary to infer an exception to an expressly established norm from silence. On the other hand, on the basis of the same art. 7, "the modifications of the Lateran Pacts" do not imply constitutional revision, when an agreement between the two contracting parties intervenes. Now, 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, rendering dissoluble a marriage that, by the canon law by which it is governed, is indissoluble.

A law on divorce remains possible only for civil marriages, which, however, as Azzariti notes, would manifest only a factional intent, such as that of drawing citizens away from the celebration of religious Marriage with the hope of the dissolution of the bond. In that case it would become counterproductive "because it would spread the conviction that the only marriage is the canonical one... One can therefore conclude 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 among us, since this must by necessity have general application, a constitutional law would be required, as if the general principle of the indissolubility of Marriage had been stated in art. 29" [G. Azzariti, L'i. del matrimonio nelle norme della nostra Costituzione, in Iustitia, 2 (1949), p. 64].

Pietro Palazzini

V. IN CONTEMPORARY ITALIAN JURISPRUDENCE

Despite Italian legislation and the concordatarian pacts, divorce in Italy has taken on a very particular aspect as a result of other international conventions and of the norms for the transcription of concordatarian 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 concerning foreigners who have contracted a concordatarian marriage in Italy and seek its dissolution from the Italian judge (there is agreement on the incompetence of the judge himself), or who have divorced abroad, after a marriage concordated in Italy or after a religious Marriage, wherever contracted, and seek the recognition of the divorce judgments in Italy (the cases have always been rather rare), it is worth considering the phenomenon for Italian citizens.

I. DIVORCES BY DELIBATION OF FOREIGN JUDGMENTS

Italy was, together with various European states, among the signatories of a convention intended to regulate conflicts of law and of jurisdiction in matters of divorce and personal separation (June 12, 1902). By this convention the participating state bound itself, among other things, under certain conditions, to give recognition to a divorce judgment pronounced in a signatory state, subject to delibation. The convention was made enforceable in Italy by law of Sept. 7, 1905, no. 523. All this gave Italian citizens, impatient of the marriage bond, the opportunity to seek abroad that divorce which they could not obtain in Italy, subsequently demanding in Italy the delibation of the aforesaid judgments.

It is natural that for this purpose the nearest countries were chosen, and those where the procedure for divorce was most expeditious, especially in relation to the period of residence (real or fictitious) required in the foreign territory in order to act as plaintiff or defendant. Some country became at certain moments preferred by Italian citizens in search of divorce. In the post-war period there was the vogue of "Fiume divorces." Before the annexation of Fiume to Italy, many

Italian spouses, by acquiring pertinence to the Municipality of Fiume, which by the Fiume law of Apr. 2, 1919 took the place of the previously prevailing Hungarian citizenship, obtained in Fiume a divorce by judgment, of which delibation was then sought before the Italian courts. The expedient came to an end when, Fiume having been annexed to Italy, the provisions of the Italian Civil Code relating to marriage were extended to Fiume by Royal Decree of March 20, 1924, no. 324.

Nevertheless, despite the Concordat (1929), despite important judgments of the Court of Cassation, such as that of June 11, 1934, excluding the enforceability of foreign judgments of divorce or of nullity of concordatory marriages, celebrated in Italy by foreigners or by Italian citizens who had subsequently assumed foreign citizenship, this practice continued, in cases, albeit rare, with the connivance of certain Italian courts of appeal.

Hungary replaced Fiume, where candidates for divorce had themselves adopted, automatically acquiring Hungarian citizenship, the prerequisite for divorce; after which they resumed Italian citizenship. But on the morrow of the Spanish Civil War the Italian government denied the reacquisition of citizenship to those Italians who had renounced it, and thus for the moment put an end to this new breach opened in derogation of the national laws and of the concordatory commitments.

The game was nevertheless continued elsewhere. Certain courts of appeal declared enforceable Swiss judgments of divorce relating to persons in possession of Italian citizenship, or of dual citizenship, Italian and foreign, on the basis of the Italo-Swiss convention of Jan. 3, 1933, approved by law of June 15, 1933, no. 743. This game too was in part cut short by the circular of July 8, 1941, no. 2603, according to which "judgments issued in one of the two States, in order to be valid in the other, must not be contrary to public order or to the principles of public law in force there." This circular was followed by that of May 12, 1942, no. 2705, which recalled "the non-derogability of the territorial jurisdiction (determined by the municipality in whose civil status register the marriage was entered or transcribed) of the court of appeal for cases of delibation of foreign judgments pronouncing the divorce or the 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 in order to avoid the influx of divorcing parties to those courts of appeal (Trento, Aquila, Bari, Genoa, and especially Turin) that had acquired a primacy of pliancy in delibations themselves.

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), against the measure of the president, who expressed a contrary opinion, on Jan. 29, 1943 still established that, pursuant to the convention of March 31, 1939 between Italy and the Republic of San Marino (by now the divorcing parties were orienting themselves toward the small Republic on the basis of the aforesaid convention), the judge of delibation, in granting enforceability to the foreign judgment, must disregard the jurisdiction of the judge who pronounced the judgment itself, that point being precluded from his examination (F. Della Rocca, op. cit., pp. 8-11).

To another convention of Italy with Romania, stipulated as early as Aug. (5-17) 1886, whereby under art. 14 every civil judgment pronounced in one of the two countries is automatically valid in the other, Italian divorcing parties then appealed. And so began the real or fictitious influx toward Ilfor (Romania), where judgments of annulment of marriage "for lack of reflection" were issued, and on these the aforesaid art. 14 was invoked for enforcement in Italy.

The procurator general of Milan drew the attention of the Keeper of the Seals to the Romanian annulments, provoking a circular from Minister Grassi (Dec. 30, 1947), which, interpreting the aforesaid art. 14, pointed out how the aforesaid Romanian judgments could not be transcribed without the delibation, case by case, of the Italian judiciary. The Court of Appeal of Turin nevertheless let it be known that it wished to preserve its freedom of judgment concerning the automatic efficacy of the Romanian annulments and continued in its line of conduct.

For the sole purpose of enunciating abstract interpretive maxims, the Supreme Court of Cassation also intervened in the dispute, on appeal of the Procurator General attached to the Court itself, and in joint sections affirmed (judgment of June 25, 1949, no. 1592) the necessity of a prior judgment of delibation for Romanian judgments.

The Romanian judgments went out of fashion, and another device took hold, previously rarely applied: the annulment of the transcription of concordatory marriages.

II. DIVORCES BY "ANNULMENT OF TRANSCRIPTION" OF CONCORDATORY MARRIAGE

As has already been said — in execution of the commitment undertaken with art. 34 of the Concordat — the Italian legislator promulgated the law of May 27, 1929, no. 847, which unilaterally laid down certain conditions for the recognition of the civil effects of religious marriage, having the requisites required by canon law, and excepted from transcription certain cases, namely: 1) marriage in which one contracting party or both were bound, even to each other, by another marriage valid for civil effects; 2) the marriage of a person interdicted for mental infirmity (arts. 12, 13).

Setting aside all the other questions that authors and jurisprudence have raised around this law, of which the canonistic school has on numerous occasions lamented the substantial illegitimacy for the notable reduction of the limits of the pact (such as the denial of civil effects to canonically valid marriages), it is now important to note only the abuse that has been made of it, in order to free oneself from a concordatory marriage and be able to contract a new civil marriage.

Besides the provision of art. 13 of the cited law on transcription, one must recall art. 85 of the Italian Civil Code, which forbids marriage to the interdicted person, and furthermore art. 120, which says that the marriage contracted by one who, though neither interdicted nor in the process of interdiction, is proved to have been incapable of understanding or willing, for any cause, even a transitory one, at the moment of celebration, may also be challenged.

Now there have been those who obtained the interdiction (followed later by revocation, likewise abroad) of a person who had contracted a concordat marriage "on account of mental infirmity existing at the time of the marriage" and, thanks to an arbitrary interpretation of art. 16 of the concordat application law, likewise obtained from a foreign court a declaration of nullity of the transcription of the concordat marriage and the consequent nullity of the civil effects of the religious marriage.

Such judgments were made enforceable in Italy by a specific delibazione of certain courts of appeal.

But beyond this, there have been Italian courts of appeal (Bologna, for example) which themselves, by a series of rulings, equated the case of interdiction on account of mental infirmity, indicated in art. 12 no. 3 of the law of 27 May 1929, no. 847, with the state of mental infirmity (natural incapacity), even though contingent and not followed by a declaration of interdiction, and, distinguishing between the juridical moment (of a civil nature) of the transcription and the earlier sacramental moment of the canonical celebration, ruled for the annulment of the transcription. In practice they thus opened the way to the celebration of a new civil marriage, the ultimate aim of the petitioners, who, in order to achieve their purpose, did not fear to fall into the ridiculousness of a moment of dementia, complaisantly documented by the experts and endorsed by the Court.

These jurisprudential tendencies, highly debatable and debated, even on the purely juridical plane, have led to some very obvious observations. Namely, that Italian legislation on the application of art. 34 of the Concordat presented gaps, and that it was necessary to remedy them. Thus arose the bill to amend art. 72 of the Code of Civil Procedure, by now approved by the Senate and Chamber (14 July 1950) for the increase of the powers of the public prosecutor, charged with the protection of the law. With the power given him to challenge judgments, it is hoped that the way may be forever barred to a jurisprudence which, all things considered, does not seem to conform to the entire Italian legal order in matrimonial matters.

VI. MORAL QUESTIONS.

The indissolubility of a ratified and consummated marriage is, as the theologians say, of secondary natural law. From this arises a preliminary question that lies at the basis of all moral questions relating to divorce: is requesting or pronouncing civil divorce a thing intrinsically evil in itself? The question is debated, ever since the multiplication of civil laws sanctioning divorce brought to the fore a question so intimately bound up with numerous practical consequences. The Church has to this day not authentically resolved the question, and to attempt to argue from the responses or decrees of the Holy Office and the Apostolic Penitentiary on the matter is a nearly vain undertaking, given the care and deliberation used in the phrasing employed by the Holy See.

One thing, however, seems certain, and that is the observation of a greater breadth in the responses of the Holy Office and the Holy Penitentiary known to us, from the first to the last (see the responses of the Holy Office, 19 Dec. 1860, 3 Apr. 1877; Sacra Romana ed Universale Inquisizione, 25 June 1885, 27 May 1886; the response of the apostolic nuncio of Belgium, 14 Sept. 1886, of the Holy Office, 26 July 1887; of the Holy Penitentiary, 4 Apr. 1887, 4 June 1890, and the last response of the Holy Office of 6 Aug. 1906). The field, however, is still open to theological disputes. Now, in the face of a fair number of authors who still maintain the intrinsic malice of the acts in question (their names and their arguments may be read in A. De Smet, De sponsalibus et matrimonio, Bruges 1927, no. 399), there stands a majority that one might call qualified, which denies that requesting or pronouncing divorce are acts intrinsically evil in themselves.

It is not without significance that among these aligned himself

Cardinal Pietro Gasparri himself in the new edition of his De matrimonio published after the Code (II, Rome 1932, p. 337, no. 1324): he who in earlier times had upheld the opposite opinion, and when he made his retraction was numbered among the cardinal members of the Holy Office.

If one then considers the matter in itself, requesting or pronouncing divorce do not appear to be acts involving an intrinsic malice. The divorce decree in fact, considered in itself, entails only the dissolution of the civil formalities, and not the dissolution of the marriage bond, which remains intact.

If one then looks: 1) at the bad intention of violating the law of the indissolubility of marriage or of usurping ecclesiastical jurisdiction, this may be absent in the judge or the mayor who pronounces the divorce; 2) moreover, there is no direct and immediate cooperation in the sin of another on the part of the judge or the mayor, in the case that the spouses seek the dissolution without then intending to contract a new marriage; but only indirect and mediate cooperation; 3) the indirect scandal that may arise from this can in part be removed by an appropriate declaration made by the judge or in some other way by which it appears that the judgment does not touch the marriage bond; it can then be excused by a proportionate reason.

From all this, however, it does not follow that these acts may be performed licitly.

There remains the material, indirect and mediate cooperation in the bad actions of others, more remote in the request, less so in the divorce decree; there remains the cooperation in the effects that follow from the divorce, both for the offspring and for families and society; there remains, as has been said, the indirect scandal that can be provoked in the people by the request for or the decree of divorce.

Therefore, even if these acts are not evil in themselves, they do not for that reason become lawful. The indirect scandal must be removed or, at least, there must exist a grave cause, proportionate, in order to permit it. All the more is this proportionate cause required to legitimize mediate cooperation in the sins of others and in the evil effects of the law. When all this is lacking, the acts are certainly unlawful. In a divorce case, however deliberately simplified it may be in many of today's legislations (almost so as to entice the petitioners), various persons take part. It is therefore necessary to see the part that each one plays in it in order to judge whether or not this cooperation is lawful.

I. THE SPOUSES AND THE PETITION FOR DIVORCE

The first party, in order of time, is materially represented by the spouses, at least as long as civil legislations reserve to the spouses, or at least to one of them, the judicial action for divorce, and do not go so far as to grant divorces ex officio, or at the request of other interested parties besides the spouses.

1. The petition for divorce is lawful only when the spouses seek civil divorce, not because they intend the dissolution of the bond, in order to contract another marriage, but only so that the marriage be deprived of its civil effects and they be thus freed from grave inconveniences, from which they cannot extricate themselves by other means (S. Penitentiary, 30 June 1892; S. Office, 6 Aug. 1906). The case can arise especially in those countries, such as the United States of America, which admit only actions for divorce and not for personal separation of the spouses, especially in order to avoid actions or counterclaims for abandonment of the conjugal home.

2. If the spouses can obtain the end they propose by personal and property separation alone, it is evident that it is not lawful to seek divorce, since any motive is then lacking.

3. All the more so can they not seek divorce in order to be able to enter into new marriages, because in that case they would be seeking something undoubtedly evil and repugnant to divine law.

4. Since matrimonial causes fall within the competence of the ecclesiastical forum, it is not lawful in itself for the spouses to seek civil divorce, except after having obtained from the competent ecclesiastical tribunal the sentence of nullity or of personal separation.

Not infrequently in countries where divorce is in force, even the faithful, through religious ignorance and scant Christian feeling, seek divorce from the civil courts in order to obtain personal separation.

If, thus separated, they live in good faith, it is fitting not to disturb them in this good faith of theirs, 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 would still produce civil effects.

What is now commonly taught seems to be in contrast with certain responses given by the Church in this matter, through the S. Congregation of the S. 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, on the morrow of the restoration of the divorce laws (S. Office, 28 May 1886).

So true is this that, because of this severity, doubts having arisen in Belgium, the S. Congregation of the S. Office, through the apostolic nuncio, declared on 14 Sept. 1886 that the decree of 28 May 1886 did not concern Belgium. In particular cases the S. Penitentiary too, in particular responses, conformed to this tone of severity. It declared, for example, that it is not lawful to seek divorce: a) in order to be able to open a public office as a means of sustenance (5 Jan. 1887); b) in order to avoid temporal damages and grave inconveniences (3 Jan. 1891); c) in order 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 was living, was clear (cf. Nouvelle revue théologique, 19 [1887], p. 74; 23 [1891], pp. 671, 677).

To the question whether it was lawful to have recourse to divorce, as the only effective means of disowning the paternity of adulterine children, the S. Penitentiary replied on 7 Jan. 1892: «non licere»; but to the same case on 30 June 1892 it replied instead: «Orator consulat probatos auctores» (ibid., 24 [1892], p. 528 f.).

The opinion of the authors, at least of a good part of them, is that in the case set forth there exists a proportionate cause for seeking divorce. Besides the disowning of paternity, a most grave and proportionate cause for seeking divorce would be, in the judgment of the authors, a particular danger in the education of the offspring, an exceptional harm to worldly goods.

5. The spouse against whom an action for divorce is brought may introduce the so-called counterclaim. In that case, in fact, divorce is not directly sought, but it is sought that, if the divorce is pronounced at the request of the plaintiff party, it be pronounced in one's own favor.

6. Regarding the administration of the Sacraments to the divorced, it is necessary to consider whether the petition for divorce by the spouses is lawful or not.

It is evident that if it is a question of the party that has suffered the divorce, without doing anything to obtain it, that party can be admitted to the Sacraments without further ado. Likewise if it is a question of the party that sought the divorce under the conditions of lawfulness set forth above. If, on the other hand, it is a question of a person who has sought divorce unlawfully, a further distinction is necessary: a) if that person has not contracted a new marriage, nor intends to, that person should resume common life; but if this is impossible, once the sentence of separation has been obtained in the ecclesiastical forum, that person can be admitted to the Sacraments; b) if that person has contracted a new marriage, that person is living in concubinage and cannot be admitted to the Sacraments, unless the concubinage is dissolved, the scandal repaired, and after having obtained the sentence of separation in the ecclesiastical forum.

II. LAWYERS AND DIVORCE CASES

When the faithful lawfully seek divorce, lawyers too, insofar as they are cooperators of their clients, lawfully contribute to obtaining it. 1) It is further tolerated that a Catholic lawyer defend the case of one spouse against the other party, who is seeking the divorce. And in general, if the lawyer supports the parties as defender of the bond in divorce cases, when it is a question of a true and valid marriage, there is no other difficulty in the exercise of his profession apart from the fact that the case is being heard in an incompetent forum, that is, in the civil forum. Now the Holy See has declared that cooperation in these cases can be tolerated "provided that the bishop is satisfied of the lawyer's probity, and the lawyer does nothing that departs from the principles of natural and ecclesiastical law" (Holy Office, 22 May 1860). 2) But if the spouses, either without just reason or with the bad intention of subsequently entering into a new marriage, seek divorce, lawyers certainly cannot lawfully undertake the patronage of the case, without a most grave reason, such as, for example, a notable harm. Given the most grave cause, they may plead for the client, without conforming to his intentions.

III. JUDGES AND CIVIL DIVORCE

The civil judge who handles divorce cases and pronounces the relative sentences, as if it were a matter pertaining to the civil forum, acts unlawfully and unjustly, insofar as he usurps the jurisdiction of the Church. Some authors would like to maintain that, in this case, the Church supplies jurisdiction, but no necessity for this is apparent, either on the part of the act objectively considered, or on the part of the spouses or of the public good. If he acknowledges the power of the Church, he acts lawfully only when these conditions concur: 1) he intends only the civil effects of the marriage; 2) he has very grave reasons for handling the case; 3) to prevent scandal he warns both the spouses and others whom his sentence touches that it concerns not the marriage, but only the merely civil effects; 4) there exists no express prohibition of the Church.

In practice, apart from special circumstances and the positive prohibition of the Church, it is lawful for Catholic judges to pronounce the divorce sentence, once scandal has been removed and after having employed all possible means to turn the spouses from their intention, when by force of the strict tenor of the law they cannot do otherwise.

Likewise the civil registrars and other officials obliged by virtue of their office to perform their ministry may cooperate in carrying the sentence into effect with regard to the civil effects.

A final question may be raised in this matter. When the first marriage validly exists "in facie Ecclesiae", is it lawful for the civil official to assist at the civil marriage of the divorced spouse?

The Holy Office, by decree of 27 May 1886 ad 3um, gave a negative answer, and the same answer had already been given by the Penitentiary on 28 Nov. 1883. And the reason is evident: it is one thing to remove the civil effects from a religious marriage, another to cooperate in admitting these same civil effects to those who are not and cannot be true spouses.

A more benign sentence is nevertheless defended by some authors (cf. A. De Smet, op. cit. in bibl. n. 406). In practice, in those places where the divorce law is in force, even the mayors who join in civil marriage divorced persons are often in good faith. If, troubled in their good faith, they ask advice of the priest, the Ordinary must be consulted on the manner of acting.

The case is almost impossible in Italy, where the divorce law does not exist. As for what should be thought of those spouses, judges and lawyers who even in Italy, in fraud not only of ecclesiastical and concordat law, but of civil law itself, procure the delivery of foreign divorce sentences, this has been said above, when there was question of judges and lawyers who invade the exclusive jurisdictional power of the Church in cases concerning the substance of marriage, and of spouses who seek divorce in order to pass to new marriages.