INDISSOLUBILITÀ DEL MATRIMONIO E DIVORZIO

INDISSOLUBILITY OF MARRIAGE and DIVORCE. – Indissolubility is one of the essential properties of marriage, which finds its fullest sanction in the Sacrament of Matrimony after its consummation. Divorce is the dissolution of marriage while both spouses are alive.

OUTLINE: I. In dogmatic and moral theology – II. Among primitive peoples – III. In civil legislation – IV. In the history of Italian legislation – V. In current Italian jurisprudence – VI. Moral questions.

I. IN DOGMATIC AND MORAL THEOLOGY

1. Notions

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 solution, through authoritative intervention, of the marital bond, one speaks of extrinsic indissolubility.

Every validly contracted marriage possesses intrinsic indissolubility. This holds true even if one considers the marital contract not elevated to the dignity of a Sacrament (Syllabus, prop. 67), since any other solution would deprive the institution of marriage of all stability and reduce it to a vague concubinage akin to that of beasts, insufficient to achieve the purposes of the conjugal institution—procreation and education of offspring and mutual aid between spouses—and would create anarchy precisely in that cell which ought to be the *seminarium reipublicae*.

Extrinsic indissolubility of the marital bond is also a rule of secondary natural law, because, although it is not required by the primary end of the institution (procreation of offspring), it nonetheless 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 is an integral element of 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 Matrimony takes on the character of a Sacrament, since then the Grace that is a bond of greater union pulsates within it; and it becomes altogether absolute when the Christian Marriage, consummated through *copula carnalis*, more exactly represents the union of Christ and the Church. Hence, indissolubility is called by theologians a *bonum Sacramenti*, inasmuch as the sacramental symbolism of Matrimony strengthens the bonds of indissolubility and gives them a gradation corresponding, in a certain sense, to the more or less complete perfection of the symbolism.

The consent and the union of hearts in Matrimony already signify the spiritual union of Christ with the faithful.

through charity; this consent has greater force when the contract is vivified by grace: the union
then more vividly represents the union of Christ
who became flesh to unite Himself with His Church. Now,
while the first union of charity, also figured in the marriage of the unbaptized and more so in that of the faithful (ratified marriage), can unfortunately be broken by human sin, the second union effected by the Incarnation is perpetual and indissoluble. A stricter union, therefore, befits a ratified and consummated marriage than a merely contracted marriage or a ratified marriage. The first (ratified and consummated) can never be dissolved by any human authority. The second (contracted marriage) and the third (ratified marriage) can be dissolved by legitimate authority in certain cases: the Pauline privilege (v.), dissolution of a ratified marriage due to solemn profession or by dispensation of the Roman Pontiff (v. MATRIMONIO).

Since, therefore, the extrinsic element of the marital bond does not pertain to the first principles of natural law—from which not even God can deviate without denying Himself—but to secondary natural law, it is not repugnant that God could have granted exceptions to the law in the course of history, exceptions that no longer exist due to a different will of God manifested in the sources of Revelation.

II. DIVINE-POSITIVE LAW

The indissolubility of the marital bond was made manifest to humanity by divine-positive law, as clearly expressed in the exclamation that came from Adam’s lips at 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 cleaves 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, admitted certain limits to the indissolubility of marriage and validated the celebration of a new marriage in such cases. In the New Testament, abrogating this concession, Christ the Lord restored the indissolubility of marriage as originally established in the earthly paradise: “It was said, ‘Whoever divorces his wife, let him give her a bill of divorce’; but I say to you that every one who divorces his wife, except on the ground of unchastity, makes her an adulteress; and whoever marries a divorced woman commits adultery” (Mt. 5:31-32). And again: “Whoever divorces his wife and marries another, commits adultery; and he who marries a woman divorced from her husband 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 (1 Cor. 7:10-11, 39). Only death can break the bond (Rom. 7:2-3) of those who have become one flesh (Eph. 5:31). Jesus Christ has but one spouse, which is the Church, and the Church has but one spouse, who is her head and Savior, Jesus Christ; for 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 therefore God has joined together, let not man put asunder” (Mt. 19:6, 9).

As for adultery, nothing authorizes the claim that it can provide legitimate grounds for the dissolution of marriage. The two difficult passages (“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 cases of the spouse’s infidelity, need not necessarily be taken in this sense. A different and logical interpretation may be given, whether one prefers to understand the clause as relating solely to the first part of the verse and admitting that adultery justifies separation without, however, permitting remarriage; or whether one wishes to defer to the authority of tradition, which has always given these two passages a practical interpretation of indissolubility, even if it restricts this absolute indissolubility to a consummated marriage between the faithful.

The Council of Trent did not explicitly wish to condemn the opposing interpretation of the separated Greeks, who, based on these same passages, admit divorce for adultery; yet 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, Session XXIV, *De Matrim.*, can. 7: Denz-U, 977). Trent then explicitly condemned Protestantism, which, having first introduced divorce into the West, had advanced other grounds for breaking the bond (ibid., can. 5: Denz-U, 975). The Tridentine canons on this matter have dogmatic value. It was therefore sheer 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 sophistical syllogism that, starting from the marriage-contract and the dissolubility of contracts, would extend to the dissolubility of the marital bond.

This doctrine is today reaffirmed in the canons. 1118: “A 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 by its nature is 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 (c. 115-150) permitted a husband, in cases of adultery, to abandon an adulterous wife but declared him an adulterer if he dared to marry another (Mand. 4, cap. 1, 6: ed. F. X. Funk, I, Tübingen 1901, pp. 175-76). Tertullian repeatedly contrasts Christian legislation in this regard with Roman law (cf. I. Delazer, *De indissolubilitate matrimonii iuxta Tertullianum*, in *Antonianum*, 7 [1932], pp. 441-64). Echoing the Savior’s words, Clement of Alexandria (c. 150-215) likewise considers anyone who marries another while the first spouse is still alive to be an adulterer (Strom. 2, 23: PG 8, 1095). Origen reports that some church leaders permitted a separated wife to remarry and considers this a lesser evil, yet he explicitly states that this is contrary to Holy 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; Astasius of Amasea, Homil. in Mt. 19, 3-9: PG 40, 227; St. Basil, in epist. can. ad Amphil.: Mansi, III, 1191; Epiphanius, Haeres. 59, 4: PG 41, 1026). But against them stands conciliar legislation of the time and the teaching of the popes (cf. Council of Elvira, can. 9; Council of Arles I, can. 10 [counsel, not precept]: Mansi, II, 7, 471; St. Siricius, Epist. ad Himerium, ep. Tarrac. 4, 5: Mansi, III, 657; Innocent I, Epist. ad Exuperium Tol., 12; ad Victric. Rotomag. 15, ad Probin: ed. P. Coustant, *Epist. Rom. Pontif.*, I, Paris 1721, pp. 754, 794, 909).

Even in the East, there are defenders of absolute indissolubility (cf. Victor of Antioch, Comm. in Mk. 10, 1-12; St. John Chrysostom, *De libello repudii*: PG 51, 221). But it is above all in the West that the tradition continues unbroken (cf. St. Jerome, Ep. 55 ad Amand.: PL 22, 562; St. Augustine [though somewhat uncertain in his earlier 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 just before 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 and the other conciliatory toward divorce, as permitted by Roman and barbarian civil laws.

A. Villien, however (Divorce, in DThC, IV, cols. 1465-1466), points out that councils, composed solely of ecclesiastical members and in which one must therefore find the true doctrine of the Church, have never permitted divorce nor even hinted that it might be permitted. Celebrated decisions to the contrary, such as those of Vermerie (756) and Compiègne (757), are the result of a compromise between ecclesiastical and civil discipline (cf. Capitularia regum Franc., in MGH, Leges, sect. II, vol. II, 1, p. 37 ff.). Apart from certain articles of the Council of Compiègne, approved by a legate of the Holy See (an approval which does not bind the Church except in a very limited measure), no official approval of the Church for these decisions can be demonstrated. The universal Church cannot be held responsible for the errors or negligences due to the weakness of some bishops. Even in the so-called penitential books, alongside numerous texts that affirm absolute indissolubility, 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: suffice it to recall the protests raised against heterodox penitentials by various councils, such as that of Paris in 829 (canons 32, 34: Hefele-Leclercq, IV, 1, pp. 65, 66), which ordered bishops to seek them out and destroy every trace of them. The popes, moreover (Gregory I, Registrum, in MGH, Epist., II, pp. 289, 301), continued to proclaim the principle of absolute indissolubility.

Nor is there any difficulty with the text of Gregory II (Epist. ad Bonif., in MGH, Epist., III, p. 276, 3), which seems favorable to divorce in cases of subsequent impotence. From the earliest canonists (Summa Roland, causa 32, cap. 5: ed. F. Thaner, Innsbruck 1874, pp. 181, 186), this text has been interpreted as referring to a dispensation for a ratified but unconsummated marriage, not to divorce. This is supported by the constant tradition regarding indissolubility, which finds an echo in Gregory 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 episc. Cantuar.: PL 126, 746). The doctrine of the vast majority of ecclesiastical writers is also in favor of absolute indissolubility. Particularly precise in this regard is the doctrine of Hincmar of Reims in the 9th century (H. Schörs, Hincmar von Reims, Freiburg in Br. 1884, pp. 179 ff., 499-504), of Pseudo-Isidore (ed. P. Hinschius, Decretales Pseudoisidorianae, Leipzig 1863, p. 90); until, under the influence of the Gregorian Reform, the last discordant voices disappeared (the Exceptiones Petri [1110-20], I, 37, contain one of the last dissenting notes), so that in the first half of the 12th century the absolute indissolubility of marriage can be said to have been recognized without contest (cf. H. Portmann, Wesen und Unauflöslichkeit der Ehe in der kirchl. Wissenschaft und Gesetzgebung des XI. u. XII. Jahrh., Ermatingen 1938).

III. THE CONDUCT OF THE CHURCH

In addition to teaching, the Roman Church upheld the principle of the absolute indissolubility of ratified and consummated marriage through its actions. Even in the period under consideration, two notable instances stand out: Adrian I (772-95) stood alongside the patriarch of Constantinople and Theodore the Studite in condemning the divorce of Constantine VI, Emperor of the East, from Maria Armena, so that he might marry Theodora, a court woman (C. Baronio, Annales ecclesiastici, ad ann. 795, n. LVII). This justifies caution in judging the silence of Adrian and other popes regarding the infraction of marital laws by Charlemagne (G. Soranzo, Il papato per la difesa del Matrimonio crist., in Il Matrimonio cristiano, Milano 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 marry Waldrada (MGH, Epist., VI, pp. 267-352).

Innocent II acted similarly against Raoul, Count of Vermandois, who had repudiated his legitimate wife 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 Eugenius III regarding the divorce of Louis VII remain unknown. It should not be forgotten that in that case St. Bernard also remained silent, though he was certainly not weak when confronting the powerful (ibid., ad ann. 1151, n. III). The firmness of Innocent III was then unyielding—though the matter had begun under his predecessor Celestine III—in the face of the claims of Philip Augustus of France, who, having sent away Hildeburga, wished to marry Agnes of Merania (cf. E. Lavisse, Histoire de France, II, 1, Paris 1911, pp. 144-150).

Long and interesting, too, is the controversy between Clement IV (1265-68) and James I of Aragon, who, under the pretext of leprosy, sought to divorce his wife Teresa (O. Raynaldus, Annales cit., ad ann. 1266, n. XXVI).

Dramatic was the conflict, 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, Vetere monumenta Hungariam Sacram historiam spectantia, Rome 1859, pp. 327-69).

Finally, too well known is the controversy ignited under Pope Clement VII over the divorce of Henry VIII (v.). Catherine of Aragon, though with disastrous consequences, demonstrated to the world how the Catholic Church, in order to remain faithful to "what God has joined together, let no man separate" (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 ff.). The same firmness was shown by Pius VII in the face of Napoleon I, on the occasion of his divorce from Joséphine de Beauharnais. This marriage had been celebrated in 1796 with only a civil rite. Upon learning of this, Pius VII, on the eve of Napoleon’s solemn coronation in Paris on 1 December 1804, made the celebration of a religious marriage a condition for the coronation ceremony. After some resistance from the Emperor, this took place in the presence of Cardinal Fesch, Napoleon’s uncle, to whom the Supreme Pontiff had given full powers "contrariis non obstantibus quibuscumque," including the power to dispense from the observance of the Tridentine form. Indeed, the marriage was celebrated without the presence of witnesses or the parish priest, perhaps to avoid scandal. On the grounds of the lack of witnesses and the parish priest (ex capite clandestinitatis), the diocesan court of Paris in the first instance declared the marriage of 1 December 1804 null. Pius VII, however, observed that the sentence was flawed, for while he had indeed granted Cardinal Fesch all dispensations, he had not specified them. The metropolitan court of Paris, in second appeal, confirmed the sentence, adding another ground of nullity: the lack of consent, which the Emperor had allegedly given only externally at the time of the ceremony to avoid scandal. But Pius VII, from his exile, contested the competence of the Parisian tribunals, arguing that since the case concerned the marriage of a prince, it was a *causa maior* reserved to the Pope. In other words, he declared the Parisian sentence null and void and consequently held that the nullity of the first marriage was not proven. It was only in defiance of the laws of the Church that Napoleon proceeded to a new marriage with Marie Louise in 1810 (J. Riehlert, Pio VII e Napoleone Bonaparte, II, Turin 1906, p. 297 ff.).

After all this, one cannot accuse the Church of contradicting itself in preaching the absolute indissolubility of a ratified and consummated marriage or of failing to interpret correctly the thought of Jesus. Nor is it valid to argue from the dispensations it grants, as in the case of a 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 more than declare in the external forum the non-existence of a true marriage, even if there were external appearances to the contrary. The objection that one draws from these causes of nullity, to say that the Church also has its divorce, which it wishes to reserve to itself without recognizing an equal power in the State, therefore falls to the ground.

Even the so-called “Marconi divorce,” which caused such a stir because of the celebrity of the actor, amounts to nothing more than a cause of nullity of marriage, through which his previous marriage to Beatrice O’Brien, contracted in London on 16 March 1905 before an Anglican minister, was declared null precisely because of the exclusion of the indissolubility of marriage by the bride, who was of the Anglican religion, and by him, who, although baptized a Catholic, in practice adhered to the Anglican sect (ex capite exclusae indissolubilitatis). The sentence of nullity of this marriage, with all its reasoning “in iure” and “in facto,” is found in S. R. Rotae Decisiones seu sententiae, XIX, Città del Vaticano 1936, pp. 104–115, alongside other sentences of nullity of marriage of so many other obscure professionals or workers who, found in the same circumstances, achieved the same result, perhaps availing themselves of free legal assistance.

What stands opposed to the indissolubility of the marital bond, as has been repeatedly stated, is civil divorce, which is the dissolution of a valid marriage while both spouses are living. As regards the ancient history of humanity, it is well known that for the Jews there was a dispensation granted by God to His people “because of the hardness of their hearts” (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. To provide adequate documentation for a satisfactory answer to this question, one must content oneself with a mere phenomenological study.

II. AMONG PRIMITIVE PEOPLES

Even among primitive peoples, the indissolubility and divorce—understood as the dissolution of the marital bond by living spouses—constitute highly complex social phenomena. This complexity is inherent in the very nature of divorce, since it touches all the effects of marriage, destroys a family, and disturbs social life. Indeed, divorce first severs the relationship between wife and husband through a reciprocal unfavorable judgment of their life together, whatever the reasons that may have led them to divorce. Secondly, it becomes a source of animosity, discord, or at least unease, among the social groups of the tribe that are connected by exogamous kinship ties, for since the divorced man and woman belong to one group or the other, these groups cannot remain indifferent to them and easily share in their judgment. Thirdly, it raises the question of the belonging of the children born of the marriage, and, if the children are young, of their support and education, so that they are first assigned to the mother and then to the father according to the system of kinship. Fourthly, it raises the question of the restitution or non-restitution of the dowry, the bride price, and the division of the common property of the family. Fifthly, although civil authority rarely intervenes to approve or disapprove of it, it cannot remain indifferent, since divorce entails serious social consequences and must intervene to regulate II. Finally, divorce cannot be rightly judged unless it is related to the moral and religious ideal of the people, so that it may exist only in fact, as an abuse resulting from the decline of moral values, in contrast to the ideals of life.

Evolutionists such as Lubbock, Morgan, and those who have accepted and vulgarized their theory—Marx, Engels, Simon, Bebel—would have to 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 by ascertaining that, on the contrary, monogamy is the rule among the most ancient primitive peoples and is by them regarded as almost indissoluble. This corresponds well to their religion, which explicitly or implicitly affirms that marriage was instituted by God after creating man, male and female, the first human couple, or even several men, as the Pygmies of Gabun maintain, but always in pairs. Marital fidelity until death is the rule.

Adultery is considered one of the gravest crimes, which, according to the Andamanese, arouses God’s wrath. Adultery is punished: among the Negritos of the Philippine Islands, the Semang and the Senoi of the Malay Peninsula, adultery is punished by death. Divorce is an illness, an exception. Among the said Negritos, while a man’s adultery is punished by death, a woman’s adultery 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 so rare as among the other gathering peoples here under consideration, because there are several grounds for divorce among them, the most frequent being the failure, after the conclusion of a marriage between two social groups, to provide in exchange for the bride a young woman of marriageable age to the other group. This would be a forced divorce, independent of the spouses’ will, desired simply by the social group, an usage presumably of Negro influence. Reflecting, however, that these Pygmies demand 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 disease, lightning, or in other ways; that marriage is made for mutual sympathy and among the spouses there often reigns a true mutual affection, 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 does not conform to their ideals of moral and religious life. It is finally noted that divorce among these African Pygmies sometimes occurs peacefully, but more often with much quarrelling and fighting, because every divorce involves compensation between the two groups, as happens among their Negro neighbors. In short, it can be said that the most ancient ethnologically primitive peoples, called gatherers, consider monogamous marriage to be almost indissoluble, believing, explicitly or implicitly, that this is what God wills.

This same ideal conception of marriage can also be found among many peoples who are culturally more advanced, indeed even among some of high civilization. It is well known in this regard that Chinese written legislation forbids bigamy and also forbids a concubine (concubinage is permitted in China) from becoming a legitimate wife. Among nomadic pastoral peoples, marriage is normally monogamous; fidelity until death is honored; divorce is rare. Among the Galla of East Africa, indeed, marriage is in principle indissoluble, so much so that if a wife, sent away for her infidelity, has children by her lovers, they legally belong to the husband. Among the Tungusi, adulterers caught in the act may be killed by the injured party. But adultery is not in itself a cause for divorce. A married woman who has relations with several men is despised and called a bitch. The husband tries to make her change her ways, even going so far as to beat her. Divorce is rare; if it occurs, the usual cause is the wife’s flight. If the husband is not at fault, the kalym (bride price, which can amount to twenty reindeer) is returned to the groom’s clan, at least in part, but the bride’s clan loses the dowry. At every tango it is recognized that the wife has the right to divorce if she 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 has been requested by both spouses. Children born in the marriage always remain in the husband’s clan. Totemistic tribes do not admit divorce. Among those in Australia, when a bachelor abducts another man’s woman, or when a woman, dissatisfied with her husband, takes a liking to another man and flees with him, as commonly happens, the 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 without mercy; her abductor must become the target of the betrayed man’s arrows, who shoots him repeatedly, though not in vital parts, and he, to defend himself, may only use the shield that is given to him. Practically speaking, divorce occurs if the fugitive couple manages to remain hidden for some time, because in this case the abductor is often allowed to keep the woman, especially if the fugitive has the support of powerful friends. In any case, it is always the woman who fares the worst, because she is almost certain to receive a severe beating.

Among matriarchal peoples or those of mixed civilization, formed by the crossing of matriarchy with another culture, the relative position of man and woman is very varied and is reflected also in marriage and therefore in divorce. Thus in French Equatorial and West Africa it has been noted that there are peoples who do not practice divorce and consider marriage indissoluble; there are others, however, in which divorce exists and there is a tribal authority to judge II. Among some matriarchal tribes of Melanesia and Africa the wife, if badly treated by her husband, may divorce; the husband loses the price that he had paid for the wife, because in this case it is not returned to him. In Chinese Turkestan six cases of divorce are recognized for the woman. The French explorer Grenard notes, however, that for the slightest reason and even without reason, the woman gathers her clothes, her jewelry and carpets, the objects that belong to her in the common house, and retires to her parents’ home. The husband has no means to force her to return to the conjugal home and ends up by leaving her complete freedom, repudiating her. After returning to her family following the divorce, she acts independently. But the resulting conjugal instability has led to a relaxation of morals, as Grenard himself notes. Among the matriarchal Kuki 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 by his mother’s estate. Among the Lolo in western China, who have a civilization with a strong matriarchal foundation, monogamy is in accordance with the traditional moral ideal of the people; conjugal fidelity is highly honored; adultery is very rare; adulterers caught in the act are condemned to death. The only ground for divorce for both spouses is adultery; for the wife, in addition, ill-treatment by her husband. In the latter case, however, the husband is entitled to the return of the bride price. Among the Dusun of northern Borneo, divorce is easy and very frequent, so much so that Stal goes so far as to say that very few old Dusun live with the wife of their first marriage. Divorced women then find it easier to remarry than widows do. The divorced man even attends the feast of his former partner’s new marriage. The Dusun also allow the divorced to remarry. 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 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 barrenness, but any reason is acceptable at any time.

Among the Ucarra in East Africa divorce is even easier than among the Dusun, since it is a purely private matter. It suffices for the husband to say, for example, to his wife: “You told my friends that I am quarrelsome and given to brawling, so you may return to your parents”; or simply: “Return to your parents”; or again, after having thrown his mat of reeds before the door, he may say: “Woman, I no longer want you; return to your parents.” Divorce is immediately valid, and the woman may depart at once, except in the case that she is pregnant, when she must await the birth. The children belong to the husband, and it would be ridiculous among the Ucarra for a boy to wish to remain with his mother; this is permitted only until the second, or at most the third, year of age.

From the above it is clear how greatly the customs and usages regarding divorce differ among the various peoples of the earth, and how differently they judge it in their attitudes of mind. Civil authority plays a very limited role. It has already been noted that among the Tungusi the clan assembly is convened to judge a divorce, but among many peoples, such as in French West and East Africa, the tribunal does not pronounce in favor of either party by judging the reasons adduced, as is prescribed in certain European legislations, but rather to determine the transfer of property, as in a donation, the marriage being thus regarded as a kind of donation. Among the ancient Mexicans there also existed a special tribunal for divorce, which however did not pronounce judgment. The tribunal first asked, given the existence of concubinage, whether there had been a legitimate marriage. Then the party seeking divorce presented its reasons, which for the husband were incompatibility of character, barrenness, the wife’s 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 presented its case. After this the judge explained the economic and social consequences of the divorce. If they did not reconcile, he did not formally pronounce the sentence of divorce, but left them to act as they saw fit. The judge did not pronounce sentence because he did not wish to offend the people’s conscience, which regarded divorce as immoral. If the couple had children, the sons were assigned to the father; daughters and young sons until the end of nursing were assigned to the mother. The division of goods existing at the time of marriage was also made; the guilty party had to give half of his property to the innocent one; household utensils belonged to the wife. Mexican law forbade the divorced from remarrying and imposed a severe penalty on transgressors.

Great diversity is also seen in the assignment of children; among some peoples all are assigned to the father’s clan; among others to the mother’s; among others still, as among the aforementioned Mexicans, sons to the father and daughters to the mother. Great diversity is also noted in the return of the bride-price and dowry, and in the division of common family property. It should be added that among the aforementioned Dusun, if children were born of the marriage, the bride-price goes by right to them and not to the two parties, as was said above; among the Beir in East Africa the husband receives a smaller quantity of cattle because in divorce he retains the children. Diversity is also seen in the consideration of the causes of divorce, not only in themselves but also in the spouses themselves. Adultery, for example, is not considered a cause of divorce by many peoples, although it is regarded as a grave crime, at times the gravest. Among many peoples it is punished by death; at times by the most cruel and ignominious means. This is an effective way to defend marriage, as is the imposition of heavy fines on the adulterer, fines in which the village and the family may be implicated. Among the Giagga 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 resulted in pregnancy, the penalty was doubled. This was done by the tribal chief and the elders expressly to make divorce more difficult, since they had noted a decline in the moral level of the people.

Divorce among primitive peoples deserves to be studied in depth, but thus far this has not been done. From what little has been said here, one may conclude, 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 with such grave social and moral consequences, demonstrates that it is contrary to human nature and society. A study of the psychology of love among primitive peoples clearly reveals that love knows no limits of time and even imposes the sacrifice of oneself for the beloved.

III. IN CIVIL LEGISLATION

Mosaic law contemplates the permission granted by the Lord to the Hebrews to divorce a wife propter aliquam foeditatem, with the obligation to give her a bill of divorce; the divorced woman could marry another man, but not the first husband again. This remains the substance of Jewish legislation today, so that the repeal of Mosaic law and the institution established by Jesus Christ have become dead letters.

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

Among the Romans, divorce was of a different nature because marriage was constituted by two elements: cohabitation and the intention to remain united in marriage (*affectio naturalis*), the latter of which had to be lasting. When the intentional element was lacking, the bond dissolved. Initially rare, divorces multiplied as morals relaxed. Numerous measures were enacted to curb the practice, but even the strictest laws of Constantine and Justinian (Nov. 117) did not abolish divorce outright; they merely imposed punishments on the spouses or one of them, since the nature of Roman marriage was fundamentally opposed to 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 eveniant ligatum omne dissolubile* — Nov. 22).

Divorce was generally permitted among the barbarian peoples who invaded Italy, and it was only after the year 1000, when marriage was removed from civil legislation, that the principle of the indissolubility of ratified and consummated marriage began to take hold.

In Catholic countries, divorce was introduced with the French Revolution. In France, divorce was legalized in 1792, maintained in the Napoleonic Code, suppressed in 1816, and reintroduced by the law of July 27, 1884, which, abolishing the *consentement mutuel et persévérant* of the Code, permitted divorce for the adultery of the wife (art. 229) and the husband (art. 230); for excesses, cruelty, and serious injuries, including abandonment (art. 231); and for the conviction of a spouse to corporal and infamous punishment (art. 232).

In Spain, divorce was introduced in 1932 with the advent of the republic but was abolished again 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 generally permits divorce after three years of marriage for 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, divorce is granted for adultery and malicious desertion for more than four years and is also available to non-domiciled persons who have resided there for more than forty days. In Ireland, divorce is authorized case by case by an act of Parliament.

In Germany, the law of July 6, 1938, expanded the grounds for divorce beyond those of the Civil Code, distinguishing between culpable and non-culpable causes. Culpable causes include adultery, refusal to procreate, and other misconduct by a spouse that seriously disrupts marital life (*Ehezerrüttung*). Non-culpable causes include the breakdown of marital life for three years, serious physical or mental illness, and sterility arising after marriage. Switzerland’s Civil Code (arts. 137–51) likewise permits divorce on the ground of such severe marital disruption that one spouse cannot reasonably be expected to continue the union (art. 142). Similarly, Turkish law allows divorce when marital disruption makes common life impossible, though it may only be sought by the innocent spouse. Switzerland, in addition to divorce, recognizes certain causes for the dissolution of marriage that are in effect further forms of divorce.

In some countries, divorce may be granted after a period of legal separation (Denmark, Sweden, Switzerland, Turkey). The procedure is normally either contentious or consensual.

In Russia, within the R.S.F.S.R., the 1926 Code treats marriage as any private transaction that may be freely dissolved either by mutual agreement or by judicial decree at the request of one spouse. Marriage is classified as registered or de facto, depending on whether the spouses have reported it, and divorce is similarly classified as registered or de facto, depending on whether the spouses have notified the civil registrar. In White Russia and Ukraine, de facto divorce is not permitted.

In the United States, divorce is granted by a court of equity, generally for adultery, cruelty, and abandonment. In South America, divorce is not permitted in Argentina, Brazil, Chile, Colombia, or Paraguay. In China, divorce is permitted under the Civil Code for bigamy, adultery, cruelty, malicious and continuous abandonment, attempted life-endangering acts against the other spouse, absence for more than three years, and conviction to imprisonment of more than three years or to a dishonoring offense.

In Italy, divorce was proposed by Ninchi during the debates on the Civil Code of 1865, which instead permitted the dissolution of marriage only upon the death of a spouse (art. 148).

The current Civil Code has reaffirmed the principle of the 1865 Code (art. 149). Between these two codes, various attempts to introduce divorce were made by liberal and socialist parliamentarians, but without success. The issue also had an indirect echo during the debates on the new constitution (v. below).

Today in Italy, under the terms of the Concordat (art. 34; and art. 7 of the Constitution), at least with respect to marriages celebrated under the Concordat, the Italian judge cannot pronounce divorce decrees for Italian citizens, nor can they declare enforceable divorce decrees rendered abroad against Italians. Similarly, Italian courts are held to lack jurisdiction over the dissolution of marriages celebrated in Italy by foreigners under the Concordat form. The possibility for Italian courts to adjudicate divorce for foreigners (outside the above case) remains debated, as does the enforceability in Italy of foreign divorce decrees, based on the Hague Convention of June 12, 1902.

In canon law, the inclusion of a *pactum divortii* in the consent—whether as a mutual agreement or a unilateral declaration—renders the bond null only if the parties or one of them intended to reserve the right to dissolve the religious bond or, more generally, to regain their freedom definitively. If, however, the spouses intended only to reserve the dissolution of the civil bond in order to obtain freedom in the eyes of the world while remaining bound before God, the marriage remains valid, because their intention does not vitiate the consent.

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 sensist in the manner of Condillac. The first breach in legislative practice occurred with the promulgation in Italy of the Napoleonic Code (1844 and following years), which included the institution of civil marriage and divorce. With Napoleon’s fall, the Italian states essentially reverted to the recognition of religious marriage.

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

The first divorce bill presented to the Italian Chamber was on 18 June 1867, by Hon. Salvatore Morelli, also a sensist and an enlightener. He repeated the attempt in 1874, when the bill was admitted for reading but not pursued due to Morelli’s absence; in 1875, when Morelli himself renounced pursuing it; and in 1878, when the Chamber voted to consider it, but the bill fell due to the closure of the parliamentary session; for the same reason it fell again in 1880. These bills were met with the laughter of the Assembly, among other things because of the lack of serious legal grounding. They only later received the benevolent consideration of the Minister of Justice Villa, Massone, who continued Morelli’s work. His first bill was in 1880 and fell due to the closure of the parliamentary session; the second in 1881 fell with the end of the 14th legislature.

Divorce, however, had become something of a commitment for the left, and Zanardelli, Minister of Justice in the fourth Depretis cabinet, on 10 April [1884], reintroduced the Villa bill in its entirety. Yet, on the order of the day, the Zanardelli bill was never pursued because its sponsor left the office of Minister of Justice in 1884, and no one took up the bill during the session. It was Villa himself, now a simple deputy, who reintroduced it in 1892, when it fell due to the closure of the 18th legislature, and in 1893, when, after being postponed, it fell due to the closure of the session of the 18th legislature.

The Chamber’s apathy was determined above all by public opinion, which was opposed—thanks to the Opera dei Congressi (v.), which in 1881 managed to present two million signatures to the Chamber—while the Masonic movement contributed no small part to the pro-divorce agitation.

The Masonic movement’s support 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 adherents made a final attempt with the Zanardelli-Cocco Ortu bill of 26 November 1902, already announced in the Speech from the Throne of 20 February of that year, which fell after being rejected by the parliamentary commission, especially through the efforts of Hon. Salandra, due to the closure of the 21st legislature. By then, however, the initiative had passed to the socialists, who as early as 1901, at the urging of Hon. Berenini and Borciani, had presented their own bill, even if not adopted by the party; this too fell due to the closure of the 1st session of the 21st legislature and then because priority was given to the government bill. In 1909, Hon. Treves raised the issue again, but without result. Of greater significance is the bill by Hon. Comandini (12 February 1914), which was never pursued.

A further attempt to introduce divorce incidentally was made by the liberal Hon. Girardi in February 1919, but he withdrew the proposal in the face of opposition.

We return once more to the socialists with the Manragoni-Lazzari project, motivated by the dire situation of various families of ex-servicemen, presented to the Chamber on 6 August 1920 amid general indifference, and it too fell with the closure of the sole session of the XXV legislature.

In 1923, during the discussion of the reform of the Codes, Ferri made a final attempt, which was effectively opposed by the deputy Martire.

Under Fascism, divorce, contrary to the new religious and demographic policy, was no longer a subject of discussion in Parliament. With 11 February 1929, the date of the stipulation of the Lateran Pacts between the Holy See and Italy, the legal framework of marriage in Italy underwent a radical transformation, as article 34 of the Concordat recognized “the sacrament of Matrimony, governed by canon law, as having civil effects.”

To fulfill the commitment assumed, the Italian legislature enacted Law No. 847 of 27 May 1929.

The State recognizes, under certain conditions, civil effects for marriages that meet the requirements of canon law, while regulating separately (Law No. 1159 of 24 June 1929, arts. 7 ff.; Royal Decree No. 289 of 28 February 1930, arts. 25-28) marriages celebrated before ministers of “admitted cults,” and maintains the civil marriage institution as optional, currently regulated by Title VI (arts. 79-230) of the new Civil Code.

The indissolubility of the bond, in the present Italian matrimonial system, is sanctioned for the “concordatary” marriage by canon 1118 of the CIC, and for civil marriage by article 149 of the new Civil Code.

One may ask whether, after the Lateran Pacts, the Italian legislature could introduce a divorce law. For civil marriage, the State indeed has no formal impediment, neither of constitutional law—as will be seen—nor of international law. Although such an obligation 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 was not pursued.

Yet a divorce law, even only for civil marriage, would violate the spirit of the Concordat, especially in light of article 1 of the Treaty on the Catholic religion as the State religion, since it needs no demonstration how much a divorce law would conflict with the spirit of the Catholic religion, which holds Matrimony to be indissoluble by secondary natural law.

For religious marriage, on the other hand, the State has bound itself by article 34 of the Concordat to recognize “the sacrament of Matrimony as having civil effects,” an obligation that persists as long as the Matrimony subsists according to canon law. If the Italian legislature wished to institute divorce, even for this marriage, it would have to refrain, in contradiction of its commitment, from recognizing its civil effects. Nor can it be argued, as some would (C. Jemolo, *Il matrimonio*, Turin 1937, p. 198), that recognition pertains only to the formation of the bond, for then the State would recognize the marriage only at the moment of its celebration, only to modify civil law to its liking thereafter.

Nor can the argument based on alleged modifications introduced to the Concordat by Law No. 847 of 27 May 1929 be accepted as valid. There is nothing in the article that suggests the possibility of later annulment of civil effects while the Matrimony continues to exist according to the norms of canon law by which it is governed.

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

The question has not changed since the word “indissoluble” was removed from the draft of the Constitution, which entered into force on 19 January 1948. There was no debate in the Constituent Assembly between divorce advocates and opponents. The controversy concerned whether mention of the indissolubility of marriage ought to be included in the Constitution.

The explicit mention of indissolubility was introduced in article 24 of the draft Constitution, which in a revised formulation became article 23, but it disappeared following an amendment proposed by Deputy Grilli (Italian Socialist Workers’ Party), passed by secret ballot with 194 votes in favor and 191 against in the session of the Constituent Assembly on 23 April 1947. During the discussions, nearly all the rapporteurs hastened to note that the indissolubility of “concordatary” marriage was not in question, as it was safeguarded by article 7, which incorporated the Lateran Pacts into the Constitution with article 34 of the Concordat.

Most contemporary jurists hold that the omission of a declaration of indissolubility in article 29 (as article 23 became in the final coordination of the Constitution) pertains only to civil marriage for the reason stated. Nor can valid objections be raised by the few authors who argue that, with the deletion of the term “indissoluble” after “marriage,” the matter should be entirely remitted to ordinary legislation for both civil and “concordatary” marriage (cf. V. Falzone, F. Palermo, F. Cosentino, *La Costituzione della Repubblica italiana*, Rome 1948, p. 66). Article 29 cannot be considered an exception to article 7, since it contains no statement on the matter and it would be entirely arbitrary to infer from the silence an exception to a norm expressly established. Moreover, under the same article 7, “modifications to the Lateran Pacts” do not require constitutional revision when an agreement is reached between the two contracting parties. Since no agreement with the Holy See on a divorce law is possible, it is evident that an ordinary law could not alter what is established in article 34, rendering dissoluble a marriage that, according to the canon law by which it is governed, is indissoluble.

A divorce law remains possible only for civil marriages, which, as Azzariti notes, would merely manifest a futile intention, such as that of deterring citizens from religious marriage by offering the hope of dissolving the bond. In that case it would be counterproductive “because it would spread the conviction that the only valid marriage is the canonical one... We may therefore conclude that article 7 of the Constitution, although it concerns only canonical marriage, subsequently has its repercussions on every kind of marriage; so that if we were to introduce divorce here, it would necessarily have to apply generally, requiring a constitutional law, as if the general principle of the Italian Constitution had been enunciated in article 29” (G. Azzariti, *L’Italiana*, 1929, and in the norms of our Constitution, in *Istituti*, 2 [1949], p. 64).

**

**V. IN CURRENT ITALIAN JURISPRUDENCE.**

Despite Italian legislation and the Concordat agreements, divorce in Italy has taken on a particularly distinctive aspect due to other international conventions and the rules governing the transcription of concordat marriages. When applied with a certain legal formalism, these have made it possible to introduce divorce into Italy indirectly. While it is appropriate to separate the issues concerning foreigners who have contracted a concordat marriage in Italy and seek its dissolution before an Italian court (consistently held to be beyond the court’s jurisdiction), or who have obtained a divorce abroad after a concordat marriage in Italy or after a religious marriage contracted anywhere and seek recognition of the divorce judgment in Italy (cases that have been rather rare), it is necessary to consider the phenomenon as it pertains to Italian citizens.

**I. DIVORCES THROUGH RECOGNITION OF FOREIGN JUDGMENTS.**

Italy, together with various European states, was a signatory to a convention regulating conflicts of law and jurisdiction in matters of divorce and legal separation (12 June 1902). Under this convention, participating states undertook, among other things and under certain conditions, to recognize a divorce judgment rendered in another signatory state, subject to recognition proceedings. The convention was made enforceable in Italy by Law No. 523 of 7 September 1905. This provided Italian citizens dissatisfied with their marital bond with a means of obtaining a divorce abroad—where it was not available in Italy—and then seeking recognition of the foreign judgment in Italy.

It is natural that, for this purpose, the nearest countries were chosen, particularly those where divorce procedures were most expeditious, especially with regard to the period of residence (real or fictitious) required within the foreign territory to act as plaintiff or defendant. At certain times, some countries became preferred destinations for Italians seeking divorce. In the immediate post-war period, the fashion for “Fiume divorces” arose. Before Fiume’s annexation to Italy, many Italian spouses, by acquiring residence in the Municipality of Fiume—where, under Fiume law of 2 April 1919, local registration served in place of former Hungarian citizenship—obtained a divorce judgment in Fiume and then sought its recognition before Italian courts. This expedient ceased when, following Fiume’s annexation to Italy by Royal Decree No. 324 of 20 March 1924, the provisions of the Italian Civil Code relating to marriage were extended to Fiume.

Nevertheless, despite the Concordat of 1929 and important judgments of the Court of Cassation—such as that of 11 June 1934, which excluded the enforceability of foreign judgments of divorce or nullity concerning concordat marriages celebrated in Italy by foreigners or by Italian citizens who had subsequently acquired foreign citizenship—this practice continued, albeit rarely, with the complicity of some Italian Courts of Appeal.

Fiume was succeeded by Hungary, where divorce seekers arranged to be adopted, thereby automatically acquiring Hungarian citizenship—a prerequisite for divorce—after which they would resume Italian citizenship. However, in the aftermath of the Spanish Civil War, the Italian government refused to allow the reacquisition of citizenship to those Italians who had renounced it, thereby closing this new loophole in derogation of national laws and concordat commitments.

The practice continued elsewhere. Some Courts of Appeal declared enforceable Swiss divorce judgments concerning persons possessing Italian citizenship or dual Italian and foreign citizenship, relying on the Italo-Swiss Convention of 3 January 1933, approved by Law No. 743 of 15 June 1933. This practice was partly halted by the circular of 8 July 1941, No. 2603, which stated that “judgments issued in one of the two states may only be valid in the other if they are not contrary to public order or to the principles of public law in force there.” This was followed by the circular of 12 May 1942, No. 2705, which reiterated “the non-derogability of territorial jurisdiction (determined by the municipality in whose civil status register the marriage was registered or transcribed) of the Court of Appeal for proceedings to recognize foreign judgments that pronounce divorce or the nullity of marriages celebrated in the Kingdom,” in relation to the new Code of Civil Procedure (Article 28 in connection with Articles 70, No. 2 and 5, and 796). This was intended to prevent divorce seekers from flocking to those Courts of Appeal (Trento, L’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), despite an order from the president expressing an adverse opinion, ruled on 29 January 1943 that, under the Convention of 31 March 1939 between Italy and the Republic of San Marino (by which time divorce seekers were turning to the small republic on the basis of that convention), the court recognizing the foreign judgment was to disregard the jurisdiction of the court that had rendered the judgment, as this point was precluded from its examination (F. Della Rocca, *op. cit.*, pp. 8-11).

Divorce seekers then turned to another convention between Italy and Romania, concluded on 5–17 August 1880, under which Article 14 provided that every civil judgment rendered in one of the two countries was automatically valid in the other. Italian divorce seekers began to flock—whether genuinely or fictitiously—to Ilfov (Romania), where judgments annulling marriages “for lack of reflection” were issued, and reliance was placed on the aforementioned Article 14 for enforcement in Italy.

The issue of *Romanian annulments* drew the attention of the Minister of Justice, prompting a circular from Minister Grassi (30 December 1947), which, interpreting the said Article 14, made clear that such Romanian judgments could not be transcribed without case-by-case recognition by the Italian judiciary. The Court of Appeal of Turin, however, indicated that it intended to maintain its discretion regarding the automatic efficacy of Romanian annulments and continued along its established course.

The Supreme Court of Cassation also intervened in the dispute, at the sole purpose of stating abstract interpretative principles, upon the appeal of the Public Prosecutor’s Office at the Court itself, and in joint sections affirmed (judgment of 25 June 1949, no. 1592) the necessity of a preliminary judgment of delibazione 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 THROUGH “ANNULMENT OF TRANSCRIPTION” OF CONCORDAT MARRIAGE

As has already been stated — in execution of the undertaking assumed by article 34 of the Concordat — the Italian legislator promulgated Law no. 847 of 27 May 1929, which unilaterally imposed certain conditions for the recognition of civil effects of religious marriages that met the requirements of canon law, and excluded from transcription certain cases, namely: 1) a marriage in which one or both parties were already bound, even between themselves, by another marriage valid for civil purposes; 2) the marriage of a person interdicted for mental infirmity (articles 12, 13).

Setting aside all the other questions raised by scholars and jurisprudence regarding this law — which canon-law scholarship has repeatedly deplored for its substantial illegitimacy due to the significant reduction of the scope of the Concordat (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, namely, to free oneself from a concordat marriage and contract a new civil marriage.

In addition to the provision of article 13 of the cited law on transcription, it is necessary to recall article 85 of the Italian Civil Code, which prohibits marriage to an interdicted person, and also article 120, which states that a marriage may be challenged even if contracted by a person who, though not interdicted or subject to interdiction, is proven to have been incapable of understanding or willing, for any cause, even a transitory one, at the time of the celebration.

Now, there have been cases in which a person who had contracted a concordat marriage was interdicted (later revoked, likewise abroad) on grounds of mental infirmity existing at the time of the marriage, and, through an arbitrary interpretation of article 16 of the Concordat application law, 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 rendered enforceable in Italy through a specific delibazione by some courts of appeal.

Moreover, there have been Italian courts of appeal (e.g., Bologna) that, through a series of judgments, have themselves equated the case of interdiction for mental infirmity, indicated in article 12, no. 3 of Law no. 847 of 27 May 1929, with a state of mental infirmity (natural incapacity), even if contingent and not followed by a claim of interdiction, and, distinguishing between the legal moment (of civil nature) of transcription and the prior sacramental moment of canonical celebration, have ruled for the annulment of the transcription. In practice, they have thus opened the way to the celebration of a new civil marriage, the ultimate aim of the applicants, who, in order to achieve their goal, did not hesitate to resort to the absurdity of a moment of insanity, complacently documented by experts and endorsed by the court.

These jurisprudential trends, highly questionable even on purely legal grounds, have led to very obvious conclusions. Namely, that the Italian legislation on the application of article 34 of the Concordat contained loopholes, and that it was necessary to remedy them. Thus arose the draft law amending article 72 of the Code of Civil Procedure, now approved by the Senate and Chamber (14 July 1950) to increase the powers of the public prosecutor, entrusted with the protection of the law. With the authority granted to challenge judgments, it is hoped that a jurisprudence which, all things considered, does not seem to conform to the entire Italian legal system on marital matters will be permanently barred.

VI. MORAL ISSUES.

The indissolubility of a ratified and consummated marriage is, as theologians say, a matter of secondary natural law. From this arises a preliminary question that underlies all moral issues relating to divorce: is requesting or pronouncing civil divorce intrinsically evil in itself? The question has been debated since the multiplication of civil laws sanctioning divorce has brought to the fore an issue so intimately connected with numerous practical repercussions. The Church has not to this day authoritatively resolved the question, and attempting to argue from the responses or decrees of the Holy Office or the Apostolic Penitentiary on the matter is nearly a futile exercise, given the care and caution exercised in the phrasing used by the Holy See.

One thing, however, seems certain, and that is the observation of a greater latitude in the responses of the Holy Office and the Sacred Penitentiary, known to us, from the earliest to the latest (see the responses of the Holy Office: 19 Dec. 1860, 3 Apr. 1877; Sacred Roman and Universal Inquisition, 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 Sacred Penitentiary, 4 Apr. 1887, 4 June 1890, and the last response of the Holy Office, 6 Aug. 1906). The field, however, is still open to theological disputes. Now, in the face of 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 the act of requesting or pronouncing divorce is intrinsically evil in itself.

It is not without significance that among these was aligned

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 in former times had upheld the opposing opinion, and when he made his retraction was numbered among the cardinals who were members of the Holy Office.

If one considers the matter in itself, the act of requesting or pronouncing divorce does not seem to involve an intrinsic malice. The divorce sentence, considered in itself, merely involves the dissolution of civil formalities, not the dissolution of the matrimonial bond, which remains intact.

If one then examines: 1) the evil intention of violating the law of God or of marriage, or of usurping ecclesiastical jurisdiction, this may be absent in the judge or mayor who pronounces the divorce; 2) moreover, there is no direct and immediate cooperation in another’s sin on the part of the judge or mayor, in the case where the spouses request the dissolution without intending to contract a new marriage; rather, the cooperation is indirect and mediate; 3) the indirect scandal that may arise therefrom can in part be removed by an appropriate declaration made by the judge or otherwise, so that it is clear that the sentence does not touch the matrimonial bond; it may also be excused by a proportionate reason.

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

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

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 there exist a grave, proportionate cause to permit II. All the more reason does this proportionate cause need to exist to justify the mediate cooperation in the sins of others and in the evil effects of the law. When all this is lacking, the acts are certainly illicit. In a divorce case, however simplified the proceedings may be in many modern legislations (almost to entice applicants), various persons are involved. It is therefore necessary to examine the role each plays in order to judge the liceity or illiceity of this cooperation.

I. THE SPOUSES AND THE REQUEST FOR DIVORCE. The first party, in chronological order, is materially represented by the spouses, at least as long as civil legislation reserves the judicial action for divorce to the spouses or at least to one of them, and does not extend to granting divorces *ex officio* or at the request of others besides the spouses.

1. The request for divorce is licit only when the spouses seek civil divorce, not because they intend the dissolution of the bond in order to contract other marriages, but solely so that the marriage may be deprived of its civil effects and they may thus be freed from grave inconveniences from which they cannot otherwise be relieved (Sacred Penitentiary, 30 June 1892; Holy Office, 6 Aug. 1906). This case may arise particularly in countries such as the United States of America, which admit only divorce actions and not personal separation of the spouses, especially to avoid actions or counterclaims for abandonment of the marital home.

2. If the spouses can achieve the end they seek through personal and property separation alone, it is evident that it is not licit to request divorce, since in that case there would be no motive whatsoever.

3. All the more reason they cannot request divorce in order to contract new marriages, for in that case they would be requesting something undoubtedly evil and repugnant to divine law.

4. Since matrimonial causes fall within the competence of the ecclesiastical forum, it is not licit *per se* for the spouses to request civil divorce unless they have first obtained from the competent ecclesiastical tribunal a sentence of separation or personal separation.

Not infrequently in countries where divorce is in force, even the faithful, through religious ignorance and a weak Christian sensibility, request divorce from civil tribunals in order to obtain personal separation.

If, having thus separated, they live in good faith, it is advisable not to disturb them in this good faith, for it is difficult to hope for any fruit from admonition, and often they have no possibility of obtaining from the ecclesiastical tribunal a sentence that would still produce civil effects.

What is now commonly taught seems to contrast with some responses given by the Church in this matter through the Sacred 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, immediately after the restoration of divorce laws (Holy Office, 28 May 1886). Indeed, because of this severity, doubts arose in Belgium, and the Sacred Congregation of the Holy Office, through the Apostolic Nuncio, declared on 14 Sept. 1886 that the decree of 28 May 1886 did not pertain to Belgium. In particular cases, even the Sacred Penitentiary, in its responses, conformed to this tone of severity. It declared, for example, that it was not licit to request divorce: a) in order to obtain a public office as a means of livelihood (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 while the first spouse was still alive 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 an effective means at the outset to disown the paternity of adulterine children, the Sacred 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 ff.).

And the opinion of the authors, at least of a good part of them, is that in the case presented there exists a proportionate cause for requesting divorce. In addition to the disownment of paternity, a most grave and proportionate cause for requesting divorce, in the judgment of the authors, would be a particular danger in the upbringing of the children or an exceptional damage to property.

5. The spouse against whom a divorce action is brought may introduce what is called a counterclaim. In this case, indeed, divorce is not directly requested, but it is requested that, if divorce is pronounced at the instance of the plaintiff, it be pronounced in one’s own favor.

6. Regarding the administration of the sacraments to the divorced, it is necessary to consider the liceity or illiceity of the spouses’ request for divorce.

It is evident that if the party concerned has undergone divorce without having sought it, that party may certainly be admitted to the Sacraments. The same applies to the party who has sought divorce under the conditions of lawfulness set out above. If, however, the person in question has sought divorce unlawfully, a further distinction must be made:

a) if that person has not contracted a new marriage nor intends to do so, he or she should resume common life; but if this is impossible, once a sentence of separation has been obtained in the ecclesiastical forum, he or she may be admitted to the Sacraments;

b) if that person has contracted a new marriage, he or she is living in concubinage and cannot be admitted to the Sacraments unless the concubinage is dissolved, the scandal repaired, and a sentence of separation has been obtained in the ecclesiastical forum.

II. LAWYERS AND DIVORCE CASES

When the faithful lawfully seek divorce, lawyers too, as cooperators of their clients, may lawfully assist in obtaining II. 1) It is also tolerated that a Catholic lawyer defend one spouse against the other in a divorce case. Generally speaking, if the lawyer acts as defender of the bond in divorce cases concerning a true and valid marriage, there is no other difficulty in the exercise of his profession except that the case is being tried in an incompetent forum, namely the civil forum. The Holy See has declared that cooperation in such cases may be tolerated “provided that the lawyer’s probity is attested by the bishop and that the lawyer does nothing that departs from the principles of natural and ecclesiastical law” (Holy Office, 22 May 1860).

2) But if the spouses seek divorce without just cause or with the bad intention of contracting new marriages afterwards, lawyers cannot lawfully undertake the defence of the case without very grave reason, such as considerable harm. In view of the very grave cause, they may defend the client without endorsing his intentions.

III. CIVIL JUDGES AND CIVIL DIVORCE

A civil judge who hears divorce cases and pronounces judgments on them, as if the matter pertained to the civil forum, acts unlawfully and unjustly, inasmuch as he usurps the jurisdiction of the Church. Some authors would argue that in this case the Church supplies jurisdiction, but there is no necessity for this, either objectively considered in the act itself, or on the part of the spouses or the common good. If the judge recognises the authority of the Church, he may act lawfully only under the following conditions:

1) he intends only the civil effects of marriage;
2) he has very grave reasons for hearing the case;
3) to prevent scandal, he warns both spouses and others that his judgment touches not the marriage itself but only its merely civil effects;
4) there is no express prohibition by the Church.

In practice, apart from special circumstances and the express prohibition of the Church, it is lawful for Catholic judges to pronounce a divorce judgment, once scandal has been removed and all possible means have been employed to dissuade the spouses from their intention, when the strict wording of the law leaves them no alternative.

Similarly, civil registry officials and other functionaries who are obliged by their office to render their service may cooperate in giving effect to the judgment in regard to its civil effects.

A final question may be raised in this matter. Where a valid marriage “in facie Ecclesiae” exists, may a civil official assist at the civil marriage of a divorced spouse?

The Holy Office, by decree of 27 May 1886 ad 3mm, gave a negative answer, 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 of 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 nevertheless defended by some authors (cf. A. De Smet, op. cit. in bibliography no. 406). In practice, in places where divorce law is in force, mayors who unite divorced persons in civil marriage are often acting in good faith. If, disturbed in their good faith, they seek the advice of a priest, it is necessary to consult the local ordinary on the manner of proceeding.

The case is almost impossible in Italy, where no divorce law exists. As for those spouses, judges and lawyers in Italy who, not only in fraud of ecclesiastical and concordatory law but also of civil law itself, seek the recognition of extraordinary divorce judgments, this has already been discussed above in connection with judges and lawyers who invade the exclusive jurisdiction of the Church in matters concerning the substance of marriage, and with spouses who seek divorce in order to contract new marriages.