You are on page 1of 19

THE GREEK ORTHODOX THEOLOGICAL REVIEW

Vol. 44. Nos. 1-4, 1999

Late Byzantine Canonical Views on the Dissolution of Marriage
FR. PATRICK VISCUSO

Canon law often affirms the ideal of lifelong marriage and fidelity. Regulations prohibiting or justifying the dissolution of marital unions reflect underlying viewpoints concerning gender and sexual behavior. This study will treat the views of late Byzantine canonists concerning the dissolution of marriage. These canonists will include Matthew Blastares (ca. 1335), whose nomokanon. The Alphabetical Collection, enjoyed great popularity during the fourteenth century; as well as Theodore Balsamon (c. 1140 - c. 1195), John Zonaras (death after 1189), and Alexios Aristenos (twelfth century), whose commentaries and works remain canonical references for the Orthodox church.
THE GROUNDS FOR DIVORCE

The Alphabetical Collection was a popular legal work of the fourteenth century surviving in a large number of manuscripts and translated contemporaneously for use in the Serbian Empire of Stephen Dushan.' Divorce legislation occupies a large section constituting an entire chapter and including citations of imperial law.^ Dissolution of marriage occurs legally for causes that have arisen from actions by one or both of the parties to the union. According to these causes, the divorce is either penalized or unpenalized. At the outset of his discussion, Blastares states that divorce by mutual consent was formerly blameless according to "ancient laws and long-held custom." Such dissolutions took the form of the husband saying to his spouse, "Wife, manage your own affairs," and the wife, "Husband, manage your own affairs." This type of divorce was

273

' 4. for which the wife is able to send a libellus of repudiation."^ There are six main causes listed for divorce that arises from the actions of the wife. and did not reveal it. theatres. and are as follows: 1. The wife can be accepted back by the husband during the two-year period after the repudiation.) If the wife is implicated in any plotting against the Empire.) If she stays outside of the home against the will of the husband. there are five causes that arise from the husband's actions. or hunts. unless she happens to be with her own parents. i. or consented for others to do this.) If she attends banquets or bathes with strange men.'° Eor these causes. the Nomokanon of Fourteen Titles. a bill of divorce.) If the husband himself conspires against the Empire.' 6. the husband is able to repudiate the wife and gain the dowry. against the will of the husband.^ They are cited as follows: 1. in order to be seen." According to Blastares.) If she plotted against the life of her husband in any manner whatsoever.* 5.e. Each is taken from imperial legislation and. without which "it is illicit to separate. these are also based on imperial legislation. 1999 "abolished by Christians" through the enumeration by "the pious emperors" of causes for the dissolution of marriage. she spends the night outside. or he drives her out without the aforesaid causes.) If she attends horse races.. and parents not existing for her. also listed in another legal work important for the study of canon and civil law. "the civil law. and did not reveal this to her own husband. without her husband's knowledge or against his prohibition. although this would mean that he "condones the crime." treats divorce "most completely. with the exception of the last cause." and especially "the novel of Justinian which expressly sets forth the causes for which the husband or the wife sends a libellus of repudiation. or after be- .* 3. Likewise. to the spouse." In turn.) If an accusation of adultery were to be made against the wife.^ 2.274 The Greek Orthodox Theological Review: 44/1-4. and she were to be convicted as an adulteress according to the law.

and after being warned by the wife. the children receive all of that partner's property. the antenuptial gift remains with the husband and no loss of property occurs for either party. he does not prove it. the one contracting would fix by agreement a benefit to occur in case of the other's death. it is kept by the wife. which are also derived from imperial legislation. the state treasury.'^ 3.) If.'* However. or if there are no offspring from the marriage. and in lieu of offspring.'^ . and the capture and uncertain fate of either spouse for five years.) If the husband has carnal relations with another woman in the same house.) If the husband plots against the life of the wife in any manner whatsoever. Although. he does not wish to abstain.'** 5. Entrance into the religious life is treated with regard to property relations in the same way as the death of a spouse. or any other person.'^ 4. This benefit is necessary for the party left behind by the other (either husband or wife can establish it). he does not reveal this to the emperor either in person or by any other persons.'' In the first case. These causes are: impotence of the husband for three years. Unpenalized dissolution of marriage arises from three main causes. and one remarries or fornicates. her parents. and gain "the husband's gift on account of the marriage. if both husband and wife enter religious life. obtain her dowry. On this point.'*^ On account of them.) If the husband plots against the chastity of the wife by endeavoring to deliver her up to other men in order to be debauched. entrance by either spouse into religious life. after the husband accuses her of adultery. or in the same city. Ownership of the gift is held on behalf of the children.Viscuso: Canonical Views on the Dissolution of Marriage 275 coming aware of others that conspire. Blastares cites from the fifth chapter of Justinian's twenty-second novel: Wherefore." the antenuptial gift. since he that chooses one mode of life instead of another is thought to be dead for his spouse. remarriage of the spouse left in the world is not discussed.'' These causes are listed in the Nomokanon of Fourteen Titles as well. the wife is able to send a bill of repudiation." 2.

Thus.^^ However. Blastares covers the penalties for a divorce that occurs illegally. These penalties include confinement of both spouses to a monastery with loss of all property. The decisions of Demetrios Chomatianos. is an adulterer. If reconciliation takes place before the confinement. and if the other were to not consent. his entire discussion of divorce is . In addition. In accordance with the novels of Justinian. he that marries the woman who was not so separated. no penalties apply. actions for divorce take place in civil courts. Blastares does not refer to any decree of divorce being granted by an episcopal authority based on the listed causes." This discussion appears to be a synopsis of eleventh chapter of Justinian's one hundred thirty-fourth novel. unless a bishop and the episcopal court became involved under certain circumstances. If Blastares' statement is taken literally. without the judgment and vote of judges. without any of the causes set forth by the law. episcopal courts granted decrees of divorce based on certain of the causes listed above. Likewise. No explicit mention is made of ecclesiastical or civil jurisdiction over matrimonial matters. Archbishop of Ochrida. provide evidence that in the thirteenth century. or a clergyman was involved as a defendant. 1999 Finally. although some provision is made for the intervention of episcopal authority. which in turn is given to either the family or the monastery depending on whether the ascendants or descendants acquiesced to the illegal repudiation. or claim jurisdiction over matrimonial matters.^' Separation and successive marriage without such a decision results in adultery. or suspicions arose regarding the decision rendered by the magistrate. nor he from her. divorce decrees would fall within the jurisdiction of the state. if one of the parties "wishes the marriage to be restored. such instances might have occurred if both parties agreed to submit their differences to the latter's judgment. as this is decreed by various Justinianian novels. the punishments prevail against the one that does not assent. For example.^° The author discusses remarriage of the divorced only once when he states: Neither can the wife separate from her husband by her own free will.276 The Greek Orthodox Theological Review: 44/1-4.^^ This is not to say that the Church before or during Blastares' period did not issue decrees of divorce.

his Body. who perceived the instability of nature. Dissolution is treated entirely from the point of view of civil legislation. Gregory the Theologian's Homily thirty-seven: Gregory the Great who is surnamed the Theologian. For each man. The mystery of marital union is based on its likeness to the union between the only Bridegroom and the Church. Despite the fact that there is provision for divorce. if they wished. they did not allow them to have second marriages without criticism. and no citation is made of any ecclesiastical canon. Gregory of Nyssa's fourth canon: For God gave one helper to man. the marital union is considered a "consortium for an entire lifetime. stated. any vessel which is not his own belongs to another. to enter upon marriages again. and one beyond this. which does not even have many examples of its The headship of the husband is portrayed as unique to the wife in same way as that of Christ is to the Church.. the life of a swine. did not deem it fitting to impede those men who choose to marry a second time.^^ The Divine Fathers who were not ignorant concerning the arising of the fleshly spirit.^^ The question of second and third marriages is treated by paraphrasing a passage from St. 'The first marriage is legal. However.^'' AN INCONSISTENCY WITH THE UNIQUENESS OF MARRIAGE.Viscuso: Canonical Views on the Dissolution of Marriage 277 placed under the heading of "law. the third is a transgression of law. the second is a concession.^^ The unique nature of this lifelong relationship is affirmed in Blastares' synopsis of St.'" Given the concerns expressed for "instability of nature" and "the . and has fitted one head onto woman. The nature of this mystery is viewed as precluding a second marriage.. ^* In spite of this. permitted young widows. the Divine Apostle Paul." according to the definition of marriage framed by the jurist Herennius Modestinus (third century) and cited as such by Blastares. a second union is permitted as a "concession" for the widowed: However. even if it does not have acknowledged ownership." which throughout the work indicates a legal source taken from imperial as opposed to ecclesiastical legislation.

"the Church's practice commands that husbands who commit adultery or fornicate be kept by their wives. Certainly if when one of the cohabitants happens to be an unbeliever.^' The third union is a concession similar to that in the case of the second.e. According to the synopsis of Basil's ninth canon in iht Alphabetical Collection."^^ Nevertheless.. procreation is presented as a worthy reason for such matrimony. but are regarded as polygamy. Or if she were to suffer a loss in property. but reduced. a distinction adopted from pagan Roman civil law.^^ The ninth canon concentrates on the obligations of the wife.^^ Blastares' synopsis accurately reports Basil as stating that on .." and as entailing canonical penalties." the concession appears to have been made in order to satiate the passions.. it is regarded as "consistent with the Lord's decision" that a cause of adultery would "equally dissolve a marriage for both men and women.^^ Although in the case of a childless man. and thus avoid the greater evils of fornication or adultery. an indulgence made to fleshly desire. she that illegally abandons her husband. she must be patient. the "life of a swine" (xoLQcbdrig piog). according to the blessed Paul. even see her dowry spent.278 The Greek Orthodox Theological Review: 44/1-4. if she cohabits with another man. it has not been allowed for the other to be separated.'' This is almost identical to Zonaras' version of the same legislation. and were to beat her.^'* Unions beyond the third are not given the name of marriage." This alludes to the classification of an extramarital affair of the wife as adultery (adulterium) and that of the husband with a single woman as fornication (stuprum). this is not the case since. They are enjoined to remain with their husbands even when their spouses are unfaithful: Indeed. or even become jealous because her husband was fornicating with other women. on account of the uncertainty of the outcome. is reckoned an adulteress. be free from blame? Therefore. it is not permissible for her to be separated from the husband because of these things. but motivated by a higher degree of licentiousness as a "fornication which has been tempered. if a husband was angry with the wife.how would she that dissolves the union because of another reason. not dissolved. i. 1999 arising of the fleshly spirit. the begetting of offspring. limited to one woman.^^ The application of a shorter penance in such a case appears to indicate that the licentiousness thought to be involved is perhaps to a lesser degree or for an ultimately better end.

Viscuso: Canonical Views on the Dissolution of Marriage 279 basis of prevailing custom. The allowing of divorce for reasons other than adultery is inconsistent with Blastares' theological thought concerning the lifelong and unique nature of each marital union. Other grounds by extension may have been viewed theologically as situations leading to adultery. In considering the circumstances of its use. Consequently. Blastares states that the defilement of a clergyman or a candidate for ordination results from intercourse with a wife who has been unfaithful. Divorce in the case of adultery is thus justified on the basis of the Lord's commandment in Scripture and on reverence for the marital bond. the wife must endure the fornication and even the adultery of her husband.'" The pollution of the marriage union by an adulterous wife is regarded by Blastares as a dishonoring of marriage. but if the uniqueness of marriage is consistently affirmed the possibility of remarriage even in these cases would not be allowed. adultery is presented as the only grounds for divorce granted by the Lord Himself. However. as a "concession" to the "weaker. the focus is on the maintenance of purity. The prevention of further impurity underlies Blastares' recommendation that the separation of such couples take place if the clergyman is to retain his schema^^ The avoidance of such pollution also provides the canonist's justification for recommending that laymen divorce their unfaithful spouses: He that does not divorce his own adulterous wife is a brothel-keeper. and consequently divorce is recommended in order to uphold the honor of the marriage bed. The contracting of additional marriages even by the widowed is viewed as an increase of licentiousness and indulgence of . It may be argued that these are instances in which the marital union is dishonored. Separation in the case of unfaithfulness may be seen as in conformity with the Lord's commandment. the concept of honor in Blastares' thought is identified with the purity of the marriage bed."^' Within this section of the work. The acceptance of this discrimination is described in Blastares' synopsis of Nyssa. according to which. and thus consistent with the exception granted in Scripture. This would not be true for the civil grounds of treason and attempted murder taken directly from imperial law. God has "fitted" one man as one head onto each woman. Defilement is presented in terms of impure sexual activity.

and that such laws were listed either as a convenience for clergy serving in the civil courts or merely as a matter of information. Blastares never introduces a disclaimer in any section before these laws. clearly in the same house and city. namely. he states that the civil legislation included in the collection will be consistent with the Church's teaching. It seems unlikely that such legislation would be included if the author did not consider it in conformity with the Church's teaching. he was not persuaded to abstain from intercourse with her. The fact that the legislation appears under the heading of "Law" in Blastares' work might be brought forward to support this position. under these circumstances. 1999 passions. The classification of adultery as a civil grounds of divorce in the Alphabetical Collection would in fact allow remarriage in such cases. the following also has been reckoned among the other causes on account of which it is permissible for women to dissolve their marriage.280 The Greek Orthodox Theological Review: 44/1-4. divorce is an important question and forms a major section of t\\& Alphabetical Collection. Several explanations may be suggested for this incongruity. The case could be made that the heading indicates that these laws were derived from a civil source and hence not necessarily accepted by the Church."*^ In fact. However. In the preface to the Alphabetical Collection.''^ While it is conceivable that perhaps a few laws may have been added which were inconsistent with the Church's practice or teaching."*^ The latter grounds of divorce are set forth in the emperor Justinian . The first is that divorce legislation was purely a civil matter. Perhaps a second explanation is revealed in the discussion of divorce that immediately follows the Cappadocian legislation: So much then for Basil. Basil's canons. Thus. According to the novel of Justinian published later. in order to present the imperial laws in force but unaccepted by the Church. provisions of any grounds for divorce and subsequent remarriage would represent an inconsistency with the Cappadocian legislation. and if after his own wife's kin censure and enjoin him. if the husband lies with another woman. St. a contingency not provided for in the older church legislation dealing with dissolution. the novel permits wives to dissolve their marriages on account of jealousy. which comprises chapter thirteen of the present letter.

Viscuso: Canonical Views on the Dissolution of Marriage 281 the Great's one hundred seventeenth novel.'*^ These points are presented in a similar and more explicit fashion by the commentaries of Zonaras. since the one hundred seventeenth Justinianian novel situated in the seventh title of the twenty-eighth book. read ye this. and how presently the adulterous spouses or even fornicators are punished by the civil law. In particular. or even fornicate.**^ The citation of the Basilika indicates that the Justinianian legislation was adopted into practice by Zonaras' time and had replaced the "custom" or practice described by Basil. and after being warned on the part of the wife. it is permitted for wives to dissolve marriage on account of jealousy. and likewise the one hundred eleventh novel. and divorce also has become permitted for the wife. the extramarital affairs of the husband formerly not a grounds for dissolution were made so under the provisions of the Justinianian legislation. Balsamon and Aristenos.**' . all but transformed (oxeSov ^lexexiJJicoaev) everything in such a canon. After recording the salient points of the ninth canon. learn ye by how many ways marriages are dissolved. the following is reckoned amongst the causes by which it is permissible for women to dissolve marriage. he does not desist from sexual intercourse with that woman. more specifically. which is situated in book twenty-eight. these causes include the extramarital affairs of the husband. However. with the stipulation of causes for divorce. He indicates that since Basil's time. the novel of Justinian. what ought to happen to the spouses if one of them might enter another marriage. the following has occurred: causes of divorce were stipulated for both spouses. title seven of the Basilika. Ecclesiastical custom which existed in Basil's period was partly abrogated by new imperial legislation. And plainly from the first chapter of the same title up to also the sixth. made a reply from various writings and the custom held at that time. Balsamon's commentary on the same canon makes this point clearer: The Saint after being asked. And from the novel of the Emperor Justinian promulgated later concerning the dissolution of marriage. if the husband lies with another woman in the same house or city. Blastares presents the practice of his own age as contradicting the ecclesiastical custom recorded in canon nine. Zonaras observes: But this great Father states that these things prevail according to the ecclesiastical custom at that time.

'** The comments of these four canonists illustrate the Orthodox Church's acceptance of the civil legislation concerning the causes of divorce and the inclusion of the husband's fornication among these causes. Both Balsamon and Zonaras explain the strictness of Basil's legislation in light of the ease of divorce that existed during his time.282 The Greek Orthodox Theological Review: 44/1-4. the acceptance of grounds for divorce and marriage was a concession to a practice deeply embedded in the legal institutions of the Empire as a result of "ancient laws and long-held custom. without even a just cause. However. neither a husband nor a wife is able to dissolve the marriage. In turn." In their canonical commentaries. In the same manner that the Orthodox church accepted the classification from pagan Roman law of an extramarital affair of the wife as adultery and that of the husband with a single woman as fornication. presently. for the spouses to be separated from one another by formulas of words. both canonists include the civil grounds for divorce as legitimate causes . divorce freely granted by the state prior to the Christian emperors became more restricted under the Church's influence. is reinterpreted to apply to cases of expulsions. which originally applied to all marital separations. and that the legislation of the Justinian on divorce was requested by the Church through the one hundred sixth canon of Carthage. "divorces without cause" and "without the decision of judges. the Basilian legislation." rather than placed under divorce. unless a just cause exists. as Zonaras states above.^' They also state that the same license no longer exists.''^ According to this interpretation. In the light of the Justinianian legislation. Consequently. this may be interpreted as meaning that faced with the existing legal and social conditions the Church attempted to implement its teachings by compromise. 1999 Aristenos definitively summarizes this discussion: And the canon contains these things because it was also permitted by the laws at that time.. these expulsions are.. this legislation is grouped in the Alphabetical Collection under the heading "Concerning expulsions.^" This explanation is supported by the evidence of the canonical commentators that Blastares uses as sources." Expulsions are separations which are caused through illegal abandonment and desertion. of which the novel of Justinian ordains by law." When Blastares speaks of the abolition of divorce by consent.

^^ While Blastares does not state such things explicitly. This variance in Blastares' discipline of marriage appears to indicate that laity and clergy are governed by different standards and perhaps by extension different theologies of marriage concerning dissolution. This appears to imply that each union is not unique.^'* The latter are held to the stricter standard of one marriage. However. and his heavy reliance on the work of both earlier canonists indicate that he also views imperial divorce legislation as acceptable to the Church. the contradiction of Basil's strictness concerning the wife's ability to divorce. the Church succeeded in having pagan divorce legislation replaced with laws which have her approval. even in the case of the spouse's death. In contrast. While the laity are allowed to legally divorce and remarry without permanently losing their status in the Church. Unlike the clergy. the clergyman's union would be regarded as indissoluble except for adultery. remarriage is not allowed and further active ministry is limited. the discipline governing the clergy appears consistent with a theology of marriage that would emphasize the absolute uniqueness of the first marriage bond.^^ The canonist does not indicate whether the divorce of clergy would take place on the basis of a civil grounds of adultery. if such adultery was handled purely as a spiritual matter. . and that given these stipulated causes. In contrast. At this point it should be emphasized that the legislation discussed above concerning the remarriage of the widowed and divorced is applied to dissolution cases involving the laity. the presence of imperial divorce legislation in the midst of his canonical treatment of marriage. and remarriage not permitted under any circumstances. In the latter instance. the same legislation is absolutely forbidden to the clergy. Two marriages are absolutely forbidden. the stricter teaching of the Cappadocian is no longer necessary. his classification of the Basilian canons as dealing with expulsion. marriage for the layman is considered dissoluble. and consistent with Scripture and St. They appear to imply that since Basil's time. Basil's legislation the possibility of divorce is allowed only in cases of the wife's adultery. it is very possible that such cases fell under the exclusive jurisdiction of an episcopal or ecclesiastical court. and that one wife has not been fitted with only one head. remarriage being permitted for the divorced and widowed.Viscuso: Canonical Views on the Dissolution of Marriage 283 consistent with the teachings of the councils.

an apparent contradiction left unresolved. CONCLUSION In conclusion. 1999 There thus appears to be a major difference between laity and clergy in the treatment of divorce. The most likely explanation is that the inclusion of such grounds was a concession made to Roman imperial legislation and the perceived spiritual weakness of the laity. Basil the Great. Alexios Aristenos.284 The Greek Orthodox Theological Review: 44/1-4. and the views of St. prepared . Nevertheless. NOTES ' The full title of this nomokanon is. the canonical writings of the Byzantine canonist Matthew Blastares affirm the uniqueness of a marital union in which God had "fitted one head onto woman" on the basis of the fourth canon of St. This variance in the discipline reflected two different approaches to marriage. Several explanations may be suggested for this inconsistency. one representing an older patristic legislation in which the indissolubility of the nuptial union was affirmed. while the clergy are submitted to a theology consistent with the uniqueness of marriage affirmed in Blastares' synopsis ofthe Cappadocian legislation. and remarriage. while the other reflecting a Roman legal tradition permitting dissolution. there was an implication that except in the case of adultery marriage is indissoluble consistent with divine law. One possibility might be that divorce legislation was purely a civil matter and that such laws were listed in late canonical sources either as a convenience for clergy serving in civil courts or merely as a matter of information. Blastares and other late canonists. There existed a sharp division between what was expected of clergy and laity. Evvxay^ia xaxa aroixsiov rcSv Efi7ieQLEiXr}fXfiEvo)v djiaadjv vnoOeaewv xou. also allowed grounds for divorce which permitted remarriage and were taken directly from imperial legislation. Gregory of Nyssa. the canonical letters of St. such as John Zonaras. The laity appear to be governed by a theology of marriage in which concessions have been made to the legal and social conditions ofthe Empire. In accordance with this legislation. Gregory the Theologian. legolg xal deioig xavoai novqOev re a/ua xai avvreOev rep iv legojuovaxotg iXaxiorq) MaxOaiu) {An alphabetical collection of all subjects that are contained in the sacred and divine canons. and Theodore Balsamon. widowhood.

Zepos 2: 304. A4: 1359.8 §3. Novel 117. 2: . 4. G.9. 1.15 §2.17.14. Novel 117. Zepos. A4: 1357-1358.15 §2. 7. 2: 148. A text of this nomokanon occupies the sixth volume of the canonical collection. Potles.6. 1962). 1.17. Justinian.8. Novel 22. 6. Prochiron 11. Novel 117. 8 vols. 2: 147. Scheltema. 2: 147.1. Darmstadt: Scientia Aalen. Novel 117. Scheltema.8 §3. Series A. 2: 147.8 §3. Zepos 2: 305. Prochiron 11.7. Prochiron 11.7. Rhalles and M.2.17. 7. Novel22. Zepos 2: 304. Novel 22. 1852-1859). Justinian. Basilika 28.7.15 §2. *Code 5. Justinian.4. 3: 1491. Scheltema.8. ^Kode 5.15.7. Zepos.11. Basilika 28.Epanagoge 21. Basilika 28.Justinian.15§1. Basi7i)ta 28.3. Basilika 28. A4: 1359.6. Zepos. A4: 1359. 8 §3. Prochiron 11. 13. A4: 1359. H. 6. Zepos. Zepos. Zepos. "^Code 5.7. 2: 149. Basilika 28. Scheltema. ^ i s most probably refers to Justinian.1.10.17. Epanagoge 21.15 §2. Zepos.Viscuso: Canonical Views on the Dissolution of Marriage 285 and at the same time organized by Matthew the least amongst hieromonks).1.5. A4: 1359. Zepos and P. 1: 296. Kazhdan. Novel 117. "Justinian. Justinian.2. "CoJe5.7. (Athens: G. This handbook of theology and canon will be referred to as the Alphabetical Collection throughout this study. 5. A4: 1360. Zepos 2:305. Zepos 2: 304. ^G.17. Novel 117. Basilika 28. 8 §3. Justinian. Novel 117\ the Hebrew practice of repudiation is also recalled. "Justinian.8. Prochiron 11. 2:148.6. for the significance of this nomokanon. 2:148. Epanagoge 21." The Greek Orthodox Theological Review 34 (1989): 203-219. ^°Code 5. Van der Wai. Zepos.9. Zepos 2: 305.9.8§2. Epanagoge 21. Justinian. Epanagoge 21. Scheltema.8. Scheltema.15 §2. Basilika 28. Scheltema. Novel 22. A4: 1359. Zepos. Epanagoge 21. Zepos. (1931.15 §2. 5.5. 7. Justinian. 2: 148. 2: 303. 7. Prochiron 11.9. 7. 6. The Oxford Dictionary of Byzantium. Justinian. \. Scheltema.8.17. 2: 147. reprint. A4: 1359. 1.17. Justinian. 1:295. Prochiron 11. Justinian. 2:147-148. 5. \. Prochiron 11. Scheltema. Justinian. Justinian. Zepos. Bo^i/Jika 28. Zepos 2: 304.Epanagoge 21.Novel 117. Zepos. Kode 5. 5. 1. vols (1953-88)4:1357.9.J.6.A. 6 vols.16.4. Zepos 2: 303-304. Basilicorum Libri LX. Zepos. see A. a reference most probably to Jeremiah 3:1 (LXX). Justinian. 2: 300-301.7. Basilika 28.6. Novel 22. 8. Epanagoge 21. '^Rhalles and Potles.2.5.17. Basilika 28. ••Rhalles and Potles. Novel 117. 1. Justinian. Novel 22. 5. Scheltema. Rhalles and Potles. Prochiron 11. 3 vols.Nove/777. Chartophylax. Ius Graecoromanum. Novel 117. "A Late Byzantine Theology of Canon Law. 2:147. Epanagoge 21. A4: 1359. Epanagoge 21. Novel 22.8 §2. Zepos 2:305. Novel 22. ^Code 5.3.yVove/22. see Patrick Viscuso. Scheltema and N. cf.1.8 §3. 1. (Oxford: Oxford University Press). For basic secondary material on Blastares and his canonical work. '^Impotence {Nomokanon of Fourteen Titles 13. '"Justinian. 1. 1. 1: 295. Prochiron 11.2.18. Epanagoge 21. Novel 117.9. Prvchiron 11. Hvvxay^a xwv OEUOV xai kgajv xavovcov. ^Code 5.Justinian. Zepos. Epanagoge 21. Justinian.15 § 1.8. Prochiron 11. Zepos 2:305.17.

B. Rhalles and Potles.286 The Greek Orthodox Theological Review: 44/1-4. Zepos. for a variety of views. Prochiron 11. Basilika 28. Nomokanon of Fourteen Titles 13. cf. The establishment of cause would hence necessitate the decision of "judges" basing their opinion on these novels.32. Novel 117. 2. Church and Society in Byzantium under the Comneni 1081-1261.1. 7. 'EraiQEUxg Bvt.1. Zepos. 1999 145-146. and its extensive citation by Balsamon and Zonaras in their commentaries on ecclesiastical canons. For example. where the civil judge hears cases dealing with divorce. Prvchiron auctum. A4:1364-1365. Rhalles and Potles. Novel 86. 2:300. 6: 511-514 (attempt on the life of the husband). ^^Alphabetical Collection G. refers the guilty party to the local bishop for ecclesiastical punishment. (Paris: Roger et Chemowitz.506-510. the extensive inclusion of civil law may lie in the use of the Alphabetical Collection as a legal manual for the civil courts of the fourteenth century. Novel 22. 2: 7-8. A4: 1362-1363. Basilika 28.2. Justinian. .7. Digest 23. 2: 146. The acceptance of civil law appears to be supported by the inclusion of this legislation in the Nomokanon ofFourteen Titles. the author's observation concerning the novels of Justinian. 4: 200-202. Analecta Sacra et Classica Spicilegio Solesmensi Parata. Novel 86. see also A.64-65. Christofilopoulos. Scheltema. 3: 548-549. Epanagoge 21. Simon. Epanagoge 21. Novel 123. 4.4.Zepos. 553-556 (the wife staying outside of the home). and remains a possibility.10. should not be taken literally since this would imply the state's exclusive control of these affairs. 6 vols. most likely." Byzantinische Zeitschrift 79 (1986): 310-343. Consequently. The first is that Blastares recognized only the state's jurisdiction over matrimonial matters. 2: 30\. ^Code 9. see J. Zepos. Code 1. ''Justinian. Law. cf. 6: 176. and when appropriate. Justinian. Zepos. Scheltema. The second explanation is that the Church accepted a great part of this legislation for her own treatment of dissolution. 2: 300. 4: 121-123. Basilika 28.7. Zepos 7: 111. but by the causes listed in the Justinianian legislation. 4.4. the text is also discussed by Balsamon in Rhalles and Potles. 1: 297). Rhalles and Potles. 2: 301-302.7.7. Cambridge: Cambridge University Press. which were governed by both imperial and ecclesiastical legislation. Rhalles and Potles. 1: 297. 557-558 (attempt on the life of the husband). 1:297). Nomokanon of Fourteen Titles 13. Zepos.1. A4: 1363).6. Michael Angold. ed.1. Basilika 28. '^Justinian. 2:274.4. 6. 3.4. 1." 'EnexrjQu. Pitra.avTLV(bv Ijiovdcbv 18 (1948): 192-201. Novel 117. D. This does not appear to be proven or disproven by anything Blastares states. Epanagoge 21. Rhalles and Potles. 8.5. A4: 1362-1363. Novel 22. 1995. 13. A4:1363. ^ ^ i s jurisdiction is particularly exemplified in Justinian. religious life (Justinian. Scheltema.9.5. Prvchiron 11. Institutes 1. ^In addition to grounds arising from adultery. Rather.4. its meaning may lie in the main point that divorce must not take place by mutual consent.3. capture (Justinian. Scheltema. Zepos.4. ^"Several explanations may be suggested for the inclusion of a section consisting of the civil law's treatment of dissolution.4. and this was refiected in Blastares' work.200-202.. This should be immediately discounted in view of the Church's involvement in all other aspects of marriage as revealed throughout therestof the Alphabetical Collection. 4. 2:146. Scheltema. cf. 7. "Byzantinische Provinzialjustiz. 1891). Justinian. schol. P.4. Nomokanon of Fourteen Titles 13. Finally. ^Basilika 28. Justinian. Novel 22. Epanagoge21. '"H SixaioSoaia Tdjv ExxXTiataoTixobv SLxaoTTiQuov x a t d tfiv Pu^avrivfiv JISQIO8OV. other causes were also recognized.7. Epanagoge 16.

Moreschini and Gallay. Rhalles and Potles. Zepos. he states that the "law of nature would allow its righteous use." In the case of third marriages." Alphabetical Collection G. the prohibition is perhaps based on the interest of the offspring from previous unions. surrounds us with thorns. Homily 57. St. Rhalles and Potles. Unlike St. 6:374). marriage is good.9. 4. Gregory the Theologian. for it brings into existence more of those that are pleasing to God. and idem. "Purity and Sexual Defilement in Late Byzantine Canon Law. Nomokanon of Fourteen Titles 12. St. A4: 1325. Definition of Maniage. Rhalles and Potles. Moreschini and Gallay. ^I Corinthians 7: 8-9. then I too proclaim. Concerning Trigamists.ixov) than matrimony. 6: 374. Rhalles and Potles. Rhalles and Potles. in speaking of marital relations with one's vessel or wife. 14. Rhalles and Potles. 4. the term "Fathers" is perhaps being identified with St. 6: 159). 292). Gregory the Theologian." St. 4. wedlock and a desire for a succession of children.13. "The Formation of Marriage in Late Byzantium. since without it virgins and celibates would not be brought forth into the world.Viscuso: Canonical Views on the Dissolution of Marriage 287 Prochiron 4. But when it inflames matter. Gregory of Nyssa 4. 2.. with no other end in view than the "legal abatement" of "natural tyranny. 290: When marriage is only this. The "law of nature" in this context may only refer to relations in general. This at least appears to be one of the main reasons that Blastares holds polygamy to be worse than fornication. 4. 6: 158. 6: 156. 6: 158. Gregory of Nyssa 4. Cited by Blastares as a "Definition of Marriage. Accordingly therefore.10. Blastares does not make a general statement concerning procreation as a justification for all marriage. Vladimir's Theological Quarterly 35 (1991): 309-325. 1. ^Tor a closer examination of Blastares' thought on the nature of the marital union as well as remarriage of the widowed. 2: 472: The civil law defines marriage as a sharing and consortium of both divine and human law.g. 6: 153-154. 4. Concerning digamist laity. 1:271. Gregory speaks of the former as better (xaW^. Homily 37. 14.1. e. Balsamon's commentary on Trullo 72. Basilika 28. see Patrick Viscuso. and reveals itself as a path of vice. In the latter case. ^Alphabetical Collection M. Scheltema. 'It is better not to marry' (Matthew 19: 10). in regard to inheritance. ^^Alphabetical Collection G. {Alphabetical Collection G." Orientalia Christiana Periodica 57 (1991): 399-408. . In comparing virginity to marriage. ^''Alphabetical Collection G. Gregory Theologian. cf. Gregory the Theologian. Rhalles and Potles. ^Alphabetical Collection G. but also characterizes the latter as good. Rhalles and Potles. Rhalles and Potles. However. or the contrariwise. the Holy Fathers determined that an Orthodox man is not legally joined to a heretical woman. the worthiness ascribed to procreation does not prevent Blastares from forbidding such unions for men over forty who already have children. Gregory the Theologian. "The restrictions on third marriage appear to refiect the view expressed by the Theologian concerning marriage in general. marriage. 2: 124. (St." {Alphabetical Collection M. Concerning the Tomos of Union. ^'In this particular case. compare also I Timothy 5: 11-12.

The Resurrection is said to have displaced childbearing as a purpose of marriage. Rhalles and Potles. 5\. Rhalles and Potles. On this basis. libre des peines de la vie chamelle.G. the question might be framed in terms of the promotion of passions. However. 1356-1358. institu6 apr^s la chute. Luke 16: 18. Given Blastares' attitudes regarding the unchaste nature of otherwise legal marital relations before the reception of the Eucharist or after consecration to the episcopate. Rhalles and Potles. Mark 10: 11-12. 262-319. Iusti Coniuges From the Time of Cicero to the Time ofUlpian. 6: 196). L'6tat le plus 61ev6. 1999 Alphabetical Collection G. 28. On the Apostolic Saying. it can be speculated that if the canonist had the opportunity to comment. According to the Saint. although Blastares holds that the impotence of the husband is a grounds of divorce. Both those performing and receiving abortions are condemned as murderers. (Oxford: Clarendon Press. exults over what the canons forbid. societes. and defilement. rather than the prevention of procreation. Blastares very possibly might have condemned contraceptives.288 The Greek Orthodox Theological Review: 44/1-4. the infertility of the wife is not made a cause for repudiation by her spouse.. Le mariage. (see above. She states that prevailing thought in the fourth century Empire was the following (Patlagean. Laodicea 30." ^The use of means to prevent conception is not discussed by Blastares. John Chrysostom that matrimony exists principally in order to remedy fornication. 1357): "La procreation n'est done pas la justification unique ou suffisante du mariage. However. Patlagean does not introduce the factor of the Resurrection in her theological analysis of early Byzantine thought concerning birth control and marriage. See also Patlagean. 20. The justification of marriage as a "legal abatement" for sexual needs is similar to an opinion expressed by St. preserve du p6ch6 les etres ordinaires qui n'en supporteraient pas l'asc^se. "Sur la limitation de la fecondit6 dans la haute 6poque byzantine. le plus souhaitable est la virginit6. k condition toutefois de ne pas degen6rer h son tour en une licence qui. John Chrysostom. 19: 9. in this way furnishing a comfort for death. St. 4. sin. et non dans une multiplication d6sormais superflue des etres humains. Birth control methods such as abortion are treated by the canonist. et promise h une f61icit6 spirituelle dont l'^loge hant la litt^rature du temps. 6: 161: For the one who fornicates only wrongs himself. pour etre 16gitime.2\2). the promotion of pleasure in sexual activity by spouses would probably be seen by him as a licentious and "evil" use of the "reciprocal members" in "a scheme for sensual pleasure. Furthermore. and wrongs his legitimate children by sowing illegitimate ones among the latter. Sa veritable fin est Ih. (Alphabetical Collection G. I Corinthians 7: 10-11. see Susan Treggiari. civilisations 24 (1969): 1353-1369. Roman Marriage. and the implication that celibacy is more chaste than marriage. n'en serait pas moins coupable. 6:199-200). Procreation in this case does not appear to be made a condition nor thus provide a justification for the existence of a legal marriage. 1991). ^For a discussion. willingly throwing himself into the pit of licentiousness. one of the earlier aims of marriage was to provide offspring who would then serve as a remnant and remembrance of their father's life." P." (Alphabetical Collection G." Annales economies. . See also Evelyne Patlagean. "But on account of fornication let each man have his own wife. ^^Matthew 5: 31-32. he that contracts perhaps a fourth or fifth marriage for himself.

but leave the man unpunished? And a woman who conducts herself in a foul manner with regard to her husband's bed is an adulteress. 32. Deferrari. could be interpreted as applicable to the divorced as well as the widowed. 9. 21.77. Justinian. ed. nor do I approve the custom. such a grounds appears implied in his position..orders him who is a priest. Gregory the Theologian rejects this custom. Basil 9. and witness superabundantly to their soundness. However. While the Theologian does not explicitly state that divorce is allowed for the wife of an adulterous husband. Rhalles and Potles. and the section of the Alphabetical Collection in which it appears. this has not been allowed for those in the priesthood. 3: 34. Gregory the Theologian regarding second and third marriages. St. "•^Blastares is not clear concerning the number of divorces and remarriages permitted. . Rhalles and Potles. it is difficult to determine if the canonist would allow third marriage of the divorced. '^^Alphabetical Collection Preface. whose wife committed adultery. 2. Laws. is a husband that treats his wife as a prostitute. 6: 374. Gregory the Theologian.. 1926-34).21. 4: 121. being defiled by the intercourse of a woman who has incurred pollution. Homily 37. Nomokanon of Fourteen Titles 1.. St. 62: 424-426. free from censure? I do not accept this legislation. (London: William Heinemann Ltd. 6: 375-6: "The eighth canon of the synod in Neocaesarea. Next I have considered it worthwhile to also join to related chapters of the canons both brief and abridged ones of civil legislation that aid and agree with the sacred canons. in the context of Gregory's homily. ^^Alphabetical Collection M.Although it is possible for a man to receive his adulterous wife without blame and to pardon the sin.35.. Although.Viscuso: Canonical Views on the Dissolution of Marriage 289 ^"^Alphabetical Collection G. the word. schema. cf. discussion of plural marriage is confined to the widowed." In Blastares' writings. Rhalles and Potles. and appears to consider the extramarital affair of either husband or wife to be adultery. 2.. 6: 187. Rhalles and Potles... and trans.6. ^Alphabetical Collection G. Basil Letter 188. In contrast... 6: 5. Without further treatment of this issue by Blastares. ^' Alphabetical Collection M. Roy J. Code 9. 14.. 282-284): For why then did they punish the woman.. see his Homily 5 on I Thessalonians. Gregory of Nyssa 4. Basil 9. ^^Alphabetical Collection M. and the legislation is against women on account of this. 1: 73. is used to refer to outward appearance as well as way of life. (St. and therefore the penalties of the law are harsh. 16. They that made the law were men. either to be divorced from her or if he does not wish to separate to withdraw from the priesthood.God does not so legislate. Neocaesarea 8. 35. St. Saint Basil. '^Rhalles and Potles. 16. The Letters. Rhalles and Potles.. Moreschini and Gallay. Rhalles and Potles. Thus. Rhalles and Potles. John Chrysostom also rejects the practice. 6: 377. His quotation of St. 14. the man would not be worthy since he is impure. 6: 186-188. 14. PG. 4 vols.77.

139: "Sur le point fondamental." in Jean Gaudemet. 4: 123. 'Wife. 4: 121-123. However.290 The Greek Orthodox Theological Review: 44/1 -4. in the past. 4: 122. 6: 190-191. le seul ou la doctrine nouvelle fut profond^ment novatrice. •^Rhalles and Potles. '•'The Church's acceptance of divorce in the Eastern Empire is also considered a compromise by J. "Droit romain et principes canoniques en mati^re de mariage au Bas-Empire. Rhalles and Potles. 3: 548-549. Gaudemet. l'Eglise n'obtint qu'une sorte de compromis. 17. Cerdic Publications. Rhalles and Potles. 1980). it was possible for people both by ancient laws and longheld custom to dissolve cohabitations blamelessly. 6: 176): Indeed. these affairs continued to be regarded as fornications and not adultery. this has been done away with by Christians. manage your own affairs. ^8Rhalles and Potles. "Rhalles and Potles. "^Rhalles and Potles. Societes et Mariage (Strasbourg. the pious emperors enumerated causes by name. ^This assumes that laity who marry after widowhood or divorce also comply with the stipulated penances. The Roman definition of adultery as the illegal sexual relationship of a married woman with a third party continued under law. "Rhalles and Potles. le principe paien subsistant. alone for which it is possible to dissolve marriages.. and it is illicit to separate without one of these. Law. "Indeed. 1999 ••^However. bien qu'affaibli." ^°As summarized in the discussion above (Alphabetical Collection G.But at present. manage your own affairs'. l'indissolubilit^. 13. 'Husband. That it is necessary for the bishop's separated wife to be tonsured. the wife of a priest is not permitted to remarry. 5'Rhalles and Potles. . 4: 122.. so that the husband could say to the wife.' and she to her husband. 4: 121-123. Alphabetical Collection G.