Divorce

Do Jesus’ Words on Divorce (Lk. 16:18) Admit of no Exception?
by John Wijngaards
published in the theological magazine Jeevadhara vol 4 (1975) pp. 399-411

During the last eight centuries the Catholic Church did not permit divorce between two Catholics who have been living together in a valid sacramental marriage. The indissolubility of such a marriage has for some become a touchstone of genuine Catholic teaching, lt is an essential part of doctrine, they maintain, and in evidence for this, they will point to a declaration made by Jesus concerning divorce in Mk 10: 11-12 end Lk 16,18:

“Everyone who divorces his wife and marries another commits adultery. And he who marries a woman divorced from her husband commits adultery” (Lk. 16. 18; Mk. 10, 11-12).

The other New Testament passages which deal with divorce and which mention exceptions to the general indissolubility (“adultery”: Mt 5, 32; 19, 9; “if the unbelieving partner desires to separate”: 1 Cor 7, 15), are explained in such a way that they would not seem to contradict the absoluteness of Jesus’ statement. The whole conviction could be summed up in these words: “Christ himself once for all abolished divorce between Christians. Even the Church cannot change this divinely promulgated law.”

This conviction, however widespread in certain quarters, is a sad misunderstanding of the true teaching of the Gospels and of the authority of the Church. From a Scriptural point of view, Jesus’ statement cannot be validly interpreted as an absolute law, binding the future church without any exceptions. In all such statements of Jesus the Gospel presupposes that the Church of future ages has the power and the duty to make specific legislation which will often have to modify the absoluteness of the ideal expressed by him. With regard to divorce itself, the New Testament Church already introduced such modifications on its authority. It thereby illustrated that the Church of today can and should introduce new legislation when this is required by the pastoral situation of our times.

One of the major sources of confusion is the literalistic interpretation given to one or other passage. It is connected to a one-sided idea of what fidelity to Jesus’ teaching means. An attempt to illustrate this will be made in three examples in which we may contrast one of Jesus’ absolute statements and the authoritative interpretation of the Church. The New Testament passages dealing with divorce will then be examined according to the same principle.

SECTION ONE: JESUS’ ABSOLUTE WORDS AND CHURCH LEGISLATION

No Gospel text presents Jesus as a lawgiver in the strict sense of the term. It is true that in the Sermon on the Mount (Mt. 5-7) Jesus’ teaching is contrasted with the laws of the Old Covenant. But even here he does not give precise legal prescriptions, but an outline of the Christian ideal, Jesus himself summarizes his commandments,’ as “you should love one another as I have loved you’’ (Jn 15, 12), This is not a legal clause but a principle on which future laws could be built. Jesus’ words in the Sermon on the Mount are of the same nature. Leaving one’s gift at the altar one should be reconciled to an angry brother (Mt 5, 24), one should pluck out one’s right eye when tempted to sin rather than indulge in it (Mt 5, 29), and go one mile with him who forces a person to go for two miles (Mt 5,41). These are not ”Laws” in any accepted legal sense, but descriptions of the ideal person Jesus wants his disciple to be.

The Christian conscience has always understood that the words of Jesus should not be taken literally as strict laws. Who has ever cut off his right hand and thrown it away “because it causes him to sin” (Mt 5, 30)? Who has ever maintained that we should indiscriminately give to any one who begs although Jesus says “Give to him who begs from you” (Mt 5, 42) ? Who does not know that a “laying up of treasures” is a necessity in organized work even though Christ seems to forbid it (Mt 6,19)? Our Christian conscience tells us that these words of Christ have to be understood in the deeper spiritual sense, and not taken as statutes of a rigid code.

The taking of oaths

In some cases the need of an implicit interpretation may not be so obvious. Consider Jesus’ condemnation of oaths:

“I say to you, not to swear at all, either by heaven, for it is throne of God, or by the earth, as it is his footstool, or by Jerusalem, as it is the city of the Great King. And do not swear by your head, for you cannot make one hair white or black. Let what you say be simply ‘yes” or “no”. Anything more than this comes from evil” (5, 34-37).

Jesus says explicitly “Do not swear at all”. If this is taken as an absolute command (as it seerns to be when we are guided solely by the ring of his words), we would never be allowed, under any circumstance, to take an oath. However, this has not been the interpretation in the Church. If we take the official Canon Law of the Church as our norm, in its final version as prornulgated by Pope Benedict XV which is still valid today, we find that much attention is given to the taking of oaths. In canon 1366ss, the conditions for the validity of oaths are spelled out Not only is the taking of oaths permitted but the law of the Church mentions nineteen cases in which one has to take an oath. These cases are of frequent occurrence: clerics before ordination, diocesan consultors, officers workmg in the episcopal curia, those with offices in an ecclesiastical court, religious meeting in a Chapter, and those who administer Church property, are all required to take an oath. Notwithstanding the absolute statement of Jesus, the Church has, in fact, made the taking of oaths an ordinary element of its administration.

An interesting example is the case of priests (Canons) with the duty of attending choir services in our capitular churches. The law lays down (Cn 395 par 4) that someone should be appointed to keep a register in which the absence of the defaulting Canons from choir services is to be noted. This person (called the “punctator”) should take up his office “after having taken an oath before the Chapter or its president with the promise to fulfil his duty faithfully”.

No doubt the lesser Church laws in question testify to a zest in legalistic specification that was far from the mind of Christ. Small wonder that the Church law is being revised after Vatican II. At the same time it would be audacious to presume that the Church was wrong in allowing the taking of oaths at all. Facts prove that the universal prohibition of Mt 5, 34-37 has not been allowed but has even prescribed the taking of oaths in certain circumstances.

Precedence of Church dignitaries

In the foregoing example we have seen how a statement of Jesus can be modified in the Church by a later interpretation May such an interpretation be tolerated ? That it should be is seen from another example in which the New Testament Church itself modified one of Jesus’ pronouncements. He abhorred the vanity and pride of the Pharisees.

“They love the places of honour at feasts and best seats in the synagogues, and salutations in the marketplaces, and being called Rabbi by men. But you are not to be called Rabbi, for you have one teacher and you are all brethren. And call no man your father on earth for you have one Father who is in heaven. Neither be called master, for you have one master, the Christ” (Mt 23. 6-7).

These words of Jesus seem to decree that in his Church there should be no honorific titles, nor any privilege of precedence. In actual practice we find, in the Church, many titles of honour. Canon Law, apart from solidly establishing the principle of precedence (Cn 106), lays down individual privileges in this regard in fifteen separate statutes. These rules of precedence embrace not only the various ranks of the hierarchy but also the various kinds of priests (deans, parish priests, assistants, chaplains, religious, etc.) and divers pious associations. Judging by the norms of these laws, one might say that everyone’s proper place of precedence, according to presumed dignity and honour, has been fixed once and for all. Again the practice seems directly opposed to the words of Jesus

It is undeniable that taking pride in an ecclesiastical title, or claiming precedence on account of it, goes counter to the spirit laid down by Jesus: “He who is greatest among you will be your servant” (Mt 23, 11), On the other hand, proper order in the Church does often demand a clear understanding of where authority lies. Although an exaggerated insistence on titles and precedence violates the spirit of the Gospel, enlightened following of the rules laid down by tradition can prevent much confusion and strife. The laws of the Church were formulated after many centuries of experience and are not the outcome of misguided legalism.

In fact, the justification for establishing titles and precedence can be found in the decisions of the earliest Church themselves. Already at the time of St. Paul we find the need for clearly defined leadership. Even during his first missionary journey Paul “appointed elders presbuteroi in every community” (Acts 14, 23). In writing to the Corinthians, Paul presupposes some hierarchical arrangement when he says: ‘God has appointed in the church first apostles, second prophets, third teachers, then workers of miracles, then healers then helpers, administrators, speakers in various kind of tongues” (I Cor 12, 28). In his letter to Timothy he distinguishes bishops (I Tim 3, 1-7) from deacons (I Tim 3, 8-13) and “elders” (1 Tim 5, ,7-22). It is clear that while establishing these offices, and laying down their duties and privileges, Paul was preparing the way for later ecclesiastical dignities.

The words of Jesus regarding the attitude of those who minister in the church, have thus been interpreted by the early Church itself as referring to the spirit of service, not to matters of external organization. The growth of the Church required that the authority and leadership of certain successors of the Apostles should be clearly visible. Honorific titles and some preferential treatment in public would seem necessary concomitants of such a recognition. The early Church did not think that the introduction of this practice was contrary to Jesus’ words, however absolute they seem at first.

Apostolic means of transport

At times the New Testament community asserted its legislative authority by explicitly modifying Jesus’ words. An illustration can be taken from his injunction on apostolic poverty:

“Do not take anything with you for the journey, no staff, no bag, no bread, no money. And do not have two tunics.” (Lk 9, 3).

Once more we are struck by the absoluteness of Jesus’ demand (see also Lk. 10, 4; Mt. 10, 9-10). Its severity stands out all the more when we know that Rabbis at the time of Jesus were much more lenient than he was. Although it was generally accepted that a person who fasted should not wear sandals or make use of a walking stick, the Scribes exempted explicitly all those who had to go on a journey. On no account could they imagine a person going outside a city and travelling far, leave behind such minimum equipment. But Jesus demanded this observance of his Apostles as a sign of their total detachment.

In ordinary Church practice today priests wear shoes and use all other normal amenities necessary for travel. Every minister of Christ has the duty of showing in his clothes and his general behaviour that simplicity and lack of worldly interest that should characterize a spiritual person. This is generally understood to be the meaning of Christ’s injunction. It would be considered incorrect if one were to deduce from Lk. 3 that Jesus had forbidden the wearing of shoes. Common sense and the practical necessity of daily life led the Church to the proper interpretation

The same factors which determine this interpretation in our own days were already at work in the early Church. The Apostles too, and their immediate successors experienced the impossibility of fulfilling Jesus’ words according to the letter. Walking around barefoot on the sun-beaten roads of the Middle East was a penance that could only result in hindering free movement and an effective apostolate. The early Church faced up to the conflict between this practical experience and the words of Christ. Would Christ have allowed the wearing of sandals? Would what he said in the protected region of Galilee also apply to the semi-deserts of Asia Minor? Fortunately, there were Apostles who could authoritatively interpret the mind of Christ. To them had been given the power to loosen or to bind in the name of Christ (Mt 18, 18). To them had been promised the Holy Spirit who would make them understand the true meaning of all that Christ had taught (Jn 14, 26). It was to the Apostles that people in the early Church turned for an authoritative statement on the meaning of Jesus’ orders to his ministers.

The Gospel of Mark contains the answer, a decision which may well go back to an authentic interpretation by Peter himself. In accordance with the accepted practice in those days, the decision was added to the words of Christ in the form of a modification. “He charged them to take nothing for their journey except a staff.. No bread, no bag, no money in their purse, but to wear sandals, and not to put on two tunics” (Mk 6, 8-9).

Two modifications have been made to the words of Jesus: both sandals and the staff are allowed. Mark reports Jesus’ words in this form not because he does not know that Jesus had in fact also forbidden the use of the staff and sandals but because, on the strength of the interpretation of a person like Peter, he knew it to be the mind of Jesus that these were allowed for his contemporaries. In other words: following an explicit decision on Church authority in his days and under guidance of the Holy Spirit, the author of St. mark’s Gospel relativizes the words of Jesus by explicitly allowing two exceptions.

Summary

What we can learn from the analysis of the texts that have been considered may be put together in this way:

(a) Even though Jesus seems to be speaking in absolute and exclusive terms, we should not rush to the conclusion that no exception is possible. Jesus proclaimed principles of the Christian ideal. He did not define specific laws.

(b) The practice of the Church helps us to understand Jesus’ words. Having received all authority from him the Church can give an authoritative interpretation which correctly expresses the mind of Christ.

(c) The Church took authoritative decisions even during apostolic times. Some of them have been explicitly incorporated in Christian doctrine as modifications of the words of Jesus.

SECTION TWO: THE CHURCH’S POWER TO ALLOW DIVORCE

In Lk 16, 18 and Mk 10, 11-12 Jesus is quoted as categorically rejecting divorce on any ground. There is no reason to doubt the accuracy of this report. his contemporaries were divided on the grounds sufficient for divorce. Dt. 24, 1 stated that a man could divorce his wife “because he had found something indecent in her.” Followers of Rabbi Shammai maintained that this referred to adultery. The disciples of Hillel, on the other hand, permitted divorce even for less serious reasons, such as a woman’s inability to cook. Against this background Jesus’ reply is clear. Instead of entering into the discussion and identifying himself with either of the two schools, He rejects the attitude of the Jews altogether. He scolds them for their hardness of heart which produced such legalistic disputes. True to his characteristic impatience with; half-hearted solutions, He proclaims a new ideal of marriage. It is a bond that unites two persons for life. .Man should not interfere with this. The question of divorce obstructs the perfect ideal of Christian marriage (Mk 10, 1-12).

This basic ideal will remain valid for all times. The making and breaking of marriages is not some secondary matter that man can indulge in at will. Christian partners should not enter into the marriage contract with the possibility of a future divorce in mind, as many of Jesus’ contemporaries did. A climate of permissiveness, which tolerates divorce in a haphazard way, will affect the very nature of marriage itself. “Man must not separate, what God has joined together” (Mk. 10, 9).

The exceptive clause in Matthew

In Matthew’s gospel Jesus dismisses divorce but seems to allow one exception.

“I say to you that everyone who divorces his wife, except on the ground of unchastity, makes her an adulteress and whoever marries a divorced woman commits adultery” (Mt. 5, 32).

“And I say to you whoever divorces his wife, except for unchastity, and marries another commits adultery” (Mt. 19, 9).

According to the ordinary and straightforward interpretation of these words, Jesus allows divorce in the case of unchastity” (Greek: “porneia”). In their anxiety to harmonize the statements in Matthew with those in Mark and Luke, many Catholic exegetes have attempted amazing philological hat-tricks to prove that the exceptive clause did not mean an exception. Some like Patrizi (1), Prat (2) and Bonsirven (3), maintain that the “unchastity” meant by Jesus was concubinage or an invalid marriage between close relatives which should, of course, be broken up. (But surely the question was about divorce in real marriages?) Others. like St. Thomas (4), thought that the permitted exception refers only to the dismissal of the wife, not to a real divorce: Jesus only allows the husband to send away the wife without divorce, on account of adultery. (But doesn’t the technical term in the passage denote divorce and not only a separation which, in any case, was not known to the Jews?). Caietanus held that the clause has a “negative”, not an exception sense (5): Jesus only says he does not speak about adultery (Isn’t this far-fetched?). Recently Vawter proposed a new translation: ” notwithstanding unchastity”. With this phrase Jesus is supposed to have referred to Dt. 24 1 in the the sense that, notwithstanding the Old Testament Law, he abolished all divorce (6). (Isn’t the evidence for this extraordinary interpretation far too flimsy ?) Why are we so afraid to face up to the obvious meaning of God’s word? Modern scripture research offers a much more simple and truthful solution (7). In the Palestinian Church, for which St. Matthew’s Gospel was writteo, the rejection of all divorce was experienced as an obstacle to the fulness of Christian life. Under the guidance of the Holy Spirit (let us never forget this:) the Apostles decided that divorce, although normally not allowed as proclaimed by Jesus in his “ideal”, should be tolerated in the case of proved adultery. This, they knew, was the mind of Jesus. In accordance with the accepted practice of their times, they added to his words a modification in the form of the exceptive clause.

1. F. PATRIZ1, De Interpretatione S. Scripturae, Rome 1844,

2. F PRAT, Jesus Christ. Sa Vie, sa Doctrine, son Oevrre Vol. II, Par s 1933, pg. 85.

3. J. BONSIRVEN, Le Divorce dans le Nouveau Testament Tournai 1948.

4. THOMAS AQUINAS, Catena Aurea in Quattuor Evangelia Commentarium in Quattuor Evangelia; ed. L. Vives, Paris vol. 16-20 as locum.

5. CAIETANUS , In Quattuor Evangelia Commentarii, Lyons 1556, ad locum

6. B. VAWTER, “The Divorce Clauses in Mt. ,5, 32 and 19,9″, Catholic Biblical Qnarterly 16 (1954) pas. 155-167.

7. R. BULTMANN, The History of the Synoptic Tradition New York 1968, pas. 132-136; J. DUPONT, Mariage et Divorce dans L’ Evangile5 Bruges 1959; L. SABOURIN, The Divorce Clauses (Mt. 5, 32, 19, 9)’’, Biblical Theology Bulletin 2 (1972)pgs. 80-86.

8. A publication and commentary of the texts can be found in V. J. POSPISHIL, Divorce and Remarriage. Towards a New Catholic Teaching, London 1967, esp. pgs. 141-195.

Matthew’s Gospel, therefore, explicitly admits of adultery as a legitimate ground for divorce. This was the interpretation officially followed by Church law in the formative years of the second. third, fourth and fifth centuries8, Origen says: “Our Lord has permitted divorce of the marriage bond solely in thecase of a wife convicted of misconduct”. St. Basil prescribes that a husband may re-marry if he has dismissed his wife on account of adultery. St. Asterius wrote “marriage can be dissolved for no cause whatever, except because of death and adultery”. St Epiphanius says that fornication, adultery and other misdeeds of the wife are valid motives for divorce. Also the local Church Councils of Arles (314 AD), Vannes (461) and Agde (506) state that marriages can be dissolved if the guilt of the wife has been proved in an ecclesiastical court.

The pauline privilege

In 1 Cor. 7, 15 Paul lays down for the Church in Corinth that a married couple can be divorced, if the husband becomes Christian and the wife wishes to remain a pagan and objects to continuing married life with him (9). Paul states explicitly that this is a modification which he enacts on his own Apostolic authority:

“To the rest I say, not the Lord, that if any brother has a wife who is an unbeliever, and she consents to live with him, he should not divorce her… But if the unbelieving partner desires to separate, let it be so. In such a case the brother or sister is not bound. For God has called us to peace” (1 Cor. 7, 12-15).

lt has been traditional among Catholic authors to minimize the importance of this concession made by Paul. Only between Christians, marriage is a sacrament and Jesus was speaking about the indissolubility of the sacrament, not of marriage as such, they maintain. But this is surely not in agreement with what Jesus himself said. Jesus based the indissolubility of marriage on the fact that God “from the beginning of creation made them male and female” (Mk. 10, 9: Mt. 19, 6) by his very act of creation. Jesus was therefore thinking of the indissolubility of any marriage, including a marriage between unbelievers, or between a believer and an unbeliever. Paul’s exception is a real modification to Jesus’ general statement.

Guided by the example of St. Paul, the Church has continued to allow divorce in special cases involving new converts ‘°. One prominent example concerns polygamists who become Christian. Strictly speaking the first wife of a polygamist is his only legitimate one. In 1537 Paul III granted that a polygamist who became a Christian should receive the right to marry any of his wives, if he did not remember who the first wife was. This in fact, meant that a divorce from the real wife was permitted. In 1571 Pius V allowed a convert polygamist to divorce his first wife and marry any of his other wives, if she consented to become a Christian too. Gregory XllI decreed in 1585 that a convert who was separated from his first wife might contract a new marriage with a Catholic without the consent of his first wife. These and other examples show that the Church has been exercising her authority in making exceptions to the general ideal of indissoluble marriage. She knew that she possessed the power displayed by Paul in 1 Cor. 7, 15.

9. cf. D. L. DUNGAN, [he Sayings of Jesus in the Churches of Paul, Philadelphia 1971 pgs, 83-131.

10. T, L. Bouscaren and A, C. ELLIS, Canon Law: a Text and Commentary, Milwaukee 1951 (on Cn 1125).pgs. 613-620.

The Church can dissolve catholic marriages

The above considerations make it clear that from a biblical point of view the Church must be said to have the power to grant divorce also between Catholics. The general jurisdiction given to Peter (Mt. 16, 18-19) and to the College of Bishops (Mt. 18, 18) includes the power of rectifying or dissolving marriage. However exclusive the words of Jesus may seem in Mk. 10, 11-12 and Lk. 16, 18, the decisions of the earliest Church through the exceptive clause in Mt. 5, 32 and 19, 9 and modification of Paul (l Cor. 7, 15) confirm this power. The way in which the later Church has applied these modifications, adds to the evidence that this interpretation is right.

It is not necessary here to discuss the much misunderstood canon 7 on marriage promulgated by the Council of Trent:

“If any one shall say that the Church errs when she taught or teaches, in accordance with the Evangelical and Apostolic doctrine, that the bond of marriage cannot be dissolved because of adultery of either spouse. .. let him be anathema” (Denz. no. 977).

The whole thrust of the Council’s definitions in this section is against the Protestant contention that the Church has only limited authority over marriage. In view of this position she strongly re-affirms her own power in these matter’. In the discussions preceding this Canon, the Fathers explicitly wanted to avoid a condemnation of earlier Church practice which had allowed divorce for reasons such as adultery. The formulation eventually agreed upon stresses that the Church has the authority to declare that marriages cannot be dissolved on account of adultery, whatever may have been decided in the past. As, in the parallel Canons this definition confirms the authority of the Church rather than explains the Bible text. (11)

The Church may decide that divorce between Catholic partners should not be allowed for the sake of the common good. If she wishes to do so she could also, by the authority given her by Christ, allow exceptions to this general law. The New Testament text convincingly proves that she has this power.

John Wijngaards