In our previous video, we had gone over the patristic evidence indicating that in certain cases, remarriage, after divorce and while the first spouse was alive was a practice accepted by many Church Fathers and thereby the Catholic position on the indissolubility of marriage was not the consensus of the Church. The evidence we reviewed included everything from Roman and Frankish synods to doctors of the Church such as St. Basil the Great, St. Gregory the Theologian, and St. Cyril of Alexandria.
In this video, we will briefly discuss the purpose and use of annulments within both Orthodoxy and Catholicism, how marriage is a Eucharistic union and icon of the Church, and whether or not marriage in the Orthodox Church is considered indissoluble.
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Annulments and Marriage as a Contract
It is often times assumed that only the Catholic Church has annulments, but that is incorrect as the Orthodox Church also has them, though we utilize them far less and for far more reasonable causes. The reason is that in the Catholic understanding, marriage is a legal contract and, as in the case of all legal contracts, it is in force insofar as the participating parties are alive. As canon 1141 in the current Catholic Code of Canon Law states:
“A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death.”
Code of Canon Law, Canon 1141
“Ratum et consummatum” means a valid and consummated marriage. What this means is that those Catholics who desire to end their marriages must find some sort of defect in the ritual, the consent, or even the partner’s pre-marriage standing that would nullify the marriage thereby releasing both partners from it. Examples of what makes a Catholic marriage valid are provided by the United States Conference of Catholic Bishops and are broken down into six categories.
1) The spouses are free to marry;
2) They are capable of giving their consent to marry;
3) They freely exchange their consent;
4) In consenting to marry, they have the intention to marry for life, to be faithful to one another and be open to children;
5) They intend the good of each other; and
6) Their consent is given in the presence of two witnesses and before a properly authorized Church minister. Exceptions to the last requirement must be approved by Church authority.
USCCB “Marriage and Family Life Ministries: Annulments”
If any of these are not met, the marriage is annullable. As can be seen, only numbers 1 and 6 are objective standards. The rest of them are highly subjective and therefore highly manipulatable. A full list of reasons for an annulment are listed in Title VII of the Catholic Code of Canon Law, canons 1055 through 1165. The problem is when something like canon 1095 is introduced, which states:
The following are incapable of contracting marriage:
Those who lack the sufficient use of reason;
Those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted;
Those who are not able to assume the essential obligations of marriage for causes of a psychic nature.
Code of Canon Law, Canon 1095
The problem with this canon is that most people, even very pious and committed ones, are incapable of realizing what they are getting themselves into when they say “I do.” Marriages are hard, they’re complex, and no one is really “ready” to be married because you cannot know what it is like and what you will encounter until you’re already married. This canon plays into that and is used as the “catch all” or “cover all” reason when none of the other reasons, many of them legitimate reasons to annul a marriage, cannot be applied. Case in point, if one spouse commits adultery or abandons the other spouse, an annulment cannot be granted because it was not a defect prior to the marriage being contracted. So, the annulment tribunal and person seeking the annulment will typically go to canon 1095 and say that one or both of the persons were too immature to contract a marriage, were not capable of understanding what the vows actually meant, perhaps that they were too impulsive, and voila! Canon 1095 applies and an annulment can be granted. But notice that it is not because of the offense that actually broke the marriage, which was adultery, prolonged abandonment, or one’s spouse trying to kill them. The idea is that if you can find a defect in the contract, the contract can be annulled and both persons freed to contract new, and hopefully valid, marriages.
This ultimately means that you do not know if your marriage is valid until you apply for an annulment. Further, the loopholes present in the annulment requirements, specifically canon 1095, ensure that pretty much any marriage can be annulled and it is declared that you were never even married. One might refer to this phenomenon as “Schrödinger’s marriage.” What is truly strange is that children of annulled marriages are still somehow considered legitimate according to canon 1137 of the Code of Canon Law.
What is incredible is that Catholics will go through all of this to avoid allowing divorce but as Fr. Kevin Schembri, points out in his book on divorce and remarriage, at the Council of Florence, the Catholic Church was fine with allowing the Orthodox Church to retain its practice of divorce remarriage in specific cases:
During the Council, Pope Eugene IV asked the Orthodox theologians, who were present in Florence, about their practice of divorce. The Greek delegates did not answer and asked that the Emperor should be question on this. […] Towards the end of the Council, Pope Eugene IV raised the question one more time, to which the Greek bishops replied that marriages in the East were only dissolved for valid reason and in good faith. It is noteworthy that the Pope and the Latin fathers did not consider the answer of the Byzantine bishops to be so important as to cause the rupture of the renewed union.
“Oikonomia, Divorce and Remarriage” Schembri, p. 211-2
It was actually with the Armenians, not with the Greeks, that the indissolubility of marriage was defined at Florence and despite that, the Pope was fine with allowing the Greek bishops to continue their practice.
Now, in the Orthodox Church, annulments do exist but they are granted for cases in which there truly could not be a valid marriage. Cases such as one partner already being married, a person forced into marriage with the threat of violence, or persons who are actually relatives. Broadly speaking, other instances that would allow for an annulment would be a marriage between relatives closer than third cousins, marriages that were entered into under duress, marriages contracted by men already ordained, and marriages between Orthodox and non-Christians. Notable examples of canons allowing for annulments are canon 22 of St. Basil the Great and canons 72 and 93 of Trullo.
One of the oddities of Byzantine canon law that is regularly pointed out is that they considered relationships by baptism to be just as, if not more binding than relationships by blood and so any relationship by baptism was considered as being included within those degrees of consanguinity. For example, a godson could not marry his godfather’s daughter as she would be considered his sister. Even in the past, this was rarely enforced but the instances we do know of were in cases in which it was used as an excuse to end an existing marriage among the royalty. St, Basil’s canons 68, 75, 76, 78, 79, and 87 as well as canons 53 and 54 of Trullo. This was not unique to Byzantine canon law though, as Pope Nicholas, when writing his response to Khan Boris of Bulgaria’s questions in 866, states in the second chapter of his letter that relationships by baptism preclude marriage. Further, Pope Nicholas even cites the law code of Justinian pointing out that if relationships by adoption preclude marriage, even more so should spiritual relationships preclude it.
But when we consider the myriad of reasons for annulments in the Catholic Church, reasons that all but guarantee almost all Catholic marriages can be annulled, we cannot help but consider the relatively limited reasons divorces are granted in the Orthodox Church. The Catholic priest, Fr. Kevin Schembri writes:
In Orthodoxy, the grounds for divorce are grouped in categories on the basis of analogy, that is, on their similarity to one of the main causes of separation mentioned in the Scriptures.
“Oikonomia, Divorce and Remarriage” Schembri, p. 214
Fr. Schembri breaks them down into death, adultery, and iniquity and all of these find their root in Novella 117 of the Emperor St. Justinian in the 6th century. But these nine or so points from the mid-500s form more or less the same list of reasons the Orthodox Church currently uses for recognizing divorces:
In 542, Justinian promulgated Novella 117, which according to scholars <<constitutes the basic element of the future Byzantine nomocanonic synthesis>>. Eventually, the grounds for divorce outlined in this legislation acquired recognition in the Eastern Church and were introduced in the Byzantine nomocanon in the 9th century.
“Oikonomia, Divorce and Remarriage” Schembri, p. 188
When Fr. Schembri mentions the Byzantine nomocanon of the 9th century, he is referring to the nomocanon of St. Photios the Great, Patriarch of Constantinople – a saint not only in the Orthodox Church, but also in numerous Byzantine Catholic churches. St. Photios acted primarily as a general editor publishing the new nomocanon in 883.
Even had these laws been purely secular, as Fr. Schembri points out, there was little to no protest from the Church concerning most laws permitting remarriage after divorce and the Church was wont to protest at the drop of a hat about immorality in the legal code:
While both Church and State were of one accord concerning the illegality of a divortium ex consensu (divorce by mutual consent), there was no dissension between them regarding other justifiable grounds for divorce. Zhishman writes that if such grounds were offensive to the Church and were a disregard to the ecclesial practice, Emperor Justinian (527-565), with his high regard for the Church, would not have promulgated Novella 117, and other Emperors would not have increased the number of causes of divorces without any fear. Yet, the clergy did not oppose such promulgations, and neither Pope Vigilius (538-555) nor Patriarch Menas (536-552) protested to Novella 117.
“Oikonomia, Divorce and Remarriage” Schembri, p. 191
The pertinent section of the Law Code of Justinian offers the following reasons for divorce:
(1) We clearly enumerate the causes of repudiation by this most salutary law, for as We (with proper limitations) forbid marriage to be dissolved without good cause, so that where one of the parties is compelled by necessity, or the other is oppressed by some misfortune, We desire that he or she shall be liberated by Our aid, when this becomes necessary.
(2) Therefore, if a woman should ascertain that her husband is an  adulterer,  a homicide, a poisoner,  or one who is plotting anything against Our government;  or has been convicted of perjury or forgery,  or is a violator of sepulchres, or has stolen anything from sacred buildings; or is a robber or a harborer of robbers, a cattle thief or  a kidnapper; or,  in contempt of his house and of her, [refer to 1] or in her presence, has consorted with dissolute women (which is especially exasperating to females who are chaste);  or if he has attempted to deprive her of life by poison, or by the sword, or in any other way;  or if she should prove that he had beaten her (which is not allowed in the case of freeborn women), We then grant her permission to avail herself of the necessary aid of repudiation, and to present legal reasons for divorce.
Law Code of Justinian. Book V, Title 17:8:2
We added the numbering in for clarity but as can be seen, the reasons to dissolve a marriage can be gathered into nine or so points that are further reduced to three. Further, when one understands the Byzantines saw their government as a manifestation of God’s kingdom on earth, the logic behind reasons such as treason becomes clearer. Likewise, perjury and forgery would result in undermining the validity of the legal system, which causes the decay of society.
When compared with the reasons for divorce in the Russian Orthodox Church, the connection is plain. For example, the Russian Orthodox Church includes the following reasons for divorce:
Apostasy from Orthodox Christianity, adultery, sexual perversion, permanent impotence existing prior to marriage, leprosy and syphilis; absent spouse for three years (two due to war or disaster), criminal sentence that removes civic rights from the spouse, life threat on the spouse or the children, incest, prostitution or abuse of the dependent spouse, contracting another marriage; insanity, intentional and total abandonment of a spouse, alcoholism or drug addiction that is medically confirmed, abortion committed without the consent of the husband.
Adapted from the Moscow Department of External Church Relations’ document ‘The Basis of the Social Concept’ X.3
It should be noted that an abortion committed with the consent of the husband is not a cause for divorce but will simply garner both partners an excommunication.
Other Orthodox Churches have almost identical requirements and when one compares them to the legal code of Justinian and Nomocanon of 883, it can be seen that our practice is ancient and was well known to the West, specifically Rome, for most of the first millennium and the West never saw it as a reason to break communion.
But one must wonder, what is the use in going through the dishonest mental gymnastics allowed by the annulment tribunals rather than just honestly admitting one partner broke the marriage bond and married life is therefore no longer possible with them but that the first millennium Church allowed for remarriage in certain circumstances? Wouldn’t it just be better to do away with annulments in all except those cases where a marriage was actually invalid and then allow divorce in situations in which there has been a grievous crime between the spouses?
In the Catholic line of thinking, it would be better to continue on with the charade of annulments while having “marital indissolubility” on paper but this is a symptom of a larger issue within the Catholic Church: regardless of how long the traditional Catholic mass is banned by the person whom they have to be obedient to, regardless of how the reasons for an annulment have proliferated to a point at which nearly anyone can receive one, regardless of how poorly clerical celibacy is working out in reality, they don’t care that the system isn’t working – it does not matter that the building is on fire – what matters to them is the architectural prints say the building is fine. In other words, they are in love with a Church on paper that is stripped of its traditional liturgy and is swung one way and then the other by the whims of an autocrat who answers to no one.
Christian Marriage in a Pagan Society
In Pagan Roman and Greek society, marriages were a private affair much like a business transaction. Marriages were more often than not celebrated in homes and were not performed by pagan religious figures though pagan rituals infused the marriage celebrations themselves. Even within the Jewish community, marriages were an affair between families and though religious figures could be present to impart blessings, they were not required. In all, it appears as though the general trend in the ancient world was that the agreement between the two parties and the transfer of the woman to the man’s home were what made a marriage. The evidence indicates that the early Christians simply utilized the same system present in their cultural milieus but without the overtly pagan practices:
Fragmentary comments characterized Christian communities in the first three centuries of the faith’s existence rather than a developed theology and practice of marriage. If we confine our search for evidence to the area of the Mediterranean world that was part of the Roman Empire, we must conclude that marriage was still thought of in Roman legal terms as being contracted by parties. The prior knowledge and consent of the bishop as head of the particular Church was also regarded as expected. Such a practice constitutes little more than an extension into a Christian community’s life of the common expectation in Roman law that regarded marriage not as a public or state affair, but an ordering of relationships in families.
Roeber, “Mixed Marriages” p. 97-8
This is backed up by Reynolds, who in his ground breaking study, “Marriage in the Western Church,” states:
“There is no evidence that the Church required any special rite or even that Christians customarily observed one. Thus persons who were already married before they converted to Christianity entered the body of Christ as married persons. By becoming baptized, they committed themselves to do whatever the Gospel required in respect of marriage, including Jesus’ teaching against divorce and remarriage, a teaching that was markedly at variance with contemporaneous Judaic and Roman law.
Reynolds “Marriage in the Western Church” p. xvii-xix
Even after the conversion of Constantine, little, if anything changed in the direction of Christian marriage on a legal level until the Codex Theodosianus of 438, which stated that in order for a couple to be considered married, they had to state before a group of witnesses that they wanted to be married. Reynolds points out that, at roughly the same time in the West, the first evidence of nuptial liturgies appear:
First, in its earliest form, the nuptial liturgy of Rome involved the veiling of the bride and groom together. This veil, which the priest applied with his blessing, was distinct from the veil that the bride wore to her wedding (the Roman flammeum and its descendants). In due course, the practice of veiling the couple spread throughout the Latin West. An early witness to it is Paulinus of Nola (d. 431), who describes how the bishop, ‘joining the heads of them both under the conjugal peace, veils them with his right hand and sanctifies them with a prayer.’ Isidore of Seville, as we have seen, notes two distinct nuptial veils: the mafors worn by the bride to signify her subjection to her husband; and the vitta that the priest placed upon the couple after blessing them.
Reynolds “Marriage in the Western Church” p. 381
In the East, by the mid-6th century, Novellae 74 and 117 of Emperor St. Justinian the Great presented an outline for a church ritual that would fulfill the state’s requirements for a marriage. The novellae prescribed that the ritual had to be celebrated before a cleric inside of a church and include promises to live together as husband and wife at which point the prospective spouses would kiss a Bible. But this was still not the only way for Christian couples to form a marriage, it was simply one way among many.
Nearly two centuries after St. Justinian’s law code approved this ritual as fulfilling state requirements for a marriage, Emperor Leo III, known as Leo “the Isaurian,” published the Ecloga in 726, in which a marriage could be contracted with merely a Church blessing. Prior to this, that was allowed simply for the wealthy while the commoners had to go through the legal system. The Emperor Constantine V, in the mid-8th century, allowed marriage to be considered valid by four different forms, one of which was a church blessing. Leo VI, known more commonly as “Leo the Wise” at the end of the 9th century and beginning of the 10th century published the Eisagoge which allowed a Christian marriage to be contracted either by the signing of a contract, a blessing, or even a crowning. This differed little from previous legislation and really only recognized what was the norm.
This is despite the fact that Greek missionaries in Bulgaria seem to have been insisting that all marriages be blessed. It is not clear why they were insisting on this but there are two likely reasons. The first is that the Bulgarian bureaucracy was not nearly as developed as the Byzantine one and, therefore, marriages were rarely registered with any governing authority that could enforce them. In the mind of the Greek missionaries, a church blessing would probably have meant that the marriage would be recorded in the church records. Second, in a culture that was in the very early stages of conversion to Christianity, a marriage in a church would have meant a marriage celebration under the eye of a Christian cleric who would have forbade any openly and obvious pagan elements being used in the ceremony.
In the eyes of the Greek clerics, Greek culture had been so thoroughly Christianized that such a precaution was not necessarily mandatory amongst Greeks while it was amongst a group that still had one foot in the pagan world. If that was the case, it went over the head of Pope Nicholas who when he wrote a reply to the questions posed by the Bulgarian Khan Boris, Pope Nicholas, in the third chapter, states a blessing is not necessary as the Greek missionaries were, according to Khan Boris, insisting on.
Further, Pope Nicholas gives a brief description of what constituted a marriage service in Rome stating it included the wearing of crowns for both spouses and the wearing of a veil for the wife but only if it were her first marriage, as well as some form of vows. But, Pope Nicholas makes clear, this ceremony is not needed. Rather, he emphasizes, all that is required to form a marriage is consent between the two:
[…] after the betrothal is celebrated — which is the promised pact of future marriage made with the consent of both those who contract the pact and those under whose power they are — the betrothed man joins the bride to himself with vows through the finger marked by him with the ring of faith and the betrothed man hands over to her a dowry pleasing to both people along with a document containing this agreement in the presence of those invited by both parties. Then, either soon after or at an appropriate time, namely in order that no such thing be presumed to be done before the time defined by law, both are brought to the wedding. First, they are stationed by the hand of the priest in the church of the Lord along with offerings which they should offer to God and so at last they receive the blessing and the celestial veil, on the model, namely, of the Lord who, after placing the first people in paradise, said to them: Increase and multiply, etc. Tobias, before he had come together with his wife, is also described as having prayed to God with this same prayer.
The person who passes into a second marriage, however, does not receive this veil. When they leave the church after this, they wear crowns on their heads, which are always kept by custom in the church. And so, after the wedding is celebrated, they are directed to lead their own life with God disposing over the rest. These are the wedding vows, these are the solemn agreements of married people, as well as those which at present do not come to mind. But we do not claim that it is a sin if all of these things do not occur in a marriage agreement, as you say the Greeks told you, especially since so great a lack of wealth usually oppresses people that it offers them no help in preparing these things. And for this reason, according to the laws, the consent alone of those whose union is at issue, is enough [to make a marriage]. Yet if this consent alone is perchance lacking in the wedding, all the rest, even if it is consummated with intercourse itself, is in vain, as the great teacher John Chrysostom attests, who says: Not intercourse but will makes marriage.
Letter of Pope Nicholas to Khan Boris of Bulgaria, Ch. 3
What Pope Nicholas is stating outright is that even as late as the year 866, a Christian marriage was typically a secular affair done between two Christians. This was not due to any breakdown in Christian society in the West as it was a similar situation in the East according to none other than Pope Nicholas’s contemporary and archnemesis, St. Photius the Great:
The well-known legal collection, known as Epanogoge, describing in detail the relations between Church and State – and whose author is most probably the great patriarch Photius (857-867, 877-886) still offers to Christians three alternativers for concluding marriage; “Marriage,” writes Photius, “is an alliance between husband and wife and their union for their entire life; it is accomplished by a blessing, or by a crowning, or by an agreement. (XVI, 1).
“Marriage” Meyendorff, p. 25
So we see that even in the East, it was a variety of practices as opposed to one consistent practice. It was not until the year 893 that the Byzantine Empire legislated that only a Church wedding would be counted as a legitimate wedding. But what this means is that prior to 893, the Church’s position in regards to marriage was largely to ratify civil marriages for its members. The earliest possible indication of this is in the letter of St. Ignatius of Antioch to St. Polycarp of Smyrna:
But it becomes both men and women who marry, to form their union with the approval of the bishop, that their marriage may be according to God, and not after their own lust. Let all things be done to the honour of God.
St. Ignatius of Antioch, Epistle to St. Polycarp, Ch. 5
Notice it does not state it is formed “by the bishop” but rather “with the approval” of the bishop, which indicates it is not something the bishop does but something he ratifies. Regardless of whether or not this is the first instance of the Church ratifying civil marriages, the scant documentation of marriage ceremonies for Christians almost assures us of it. As Fr. Keven Schembri points out:
With the passage of time, the early Church began to take on the role of ratifying civil marriages. This ratification took place in various ways, such as the custom of exchanging the marital consent with the consent of the bishop, the presence of members of the clergy at Christian weddings, and the newly wed couple’s partaking of the Eucharist.
“Oikonomia, Divorce and Remarriage” Schembri, p. 15
There is almost no record of what this ratification consisted of in terms of liturgical acts. Only random mentions here and there of it have come down to us and none of those mentions corroborate the others, which indicates the practices were local and probably specific to each bishop or even parish. Fr. Schembri later provides further insight writing:
Over time, the consent of the bishop, the simple blessing which bishops and priests imparted during the wedding feast and the ordinary participation of the newlyweds in the Eucharist developed into a public and solemn rite with longer prayers and hymns. Other customs and rituals – such as the crowning of the spouses, the imposition of the veil, and the joining of hands – were given a Christian meaning and began to be included in the ceremony and conducted by the clergy.
This development intensified when these rituals were transferred into the Divine Liturgy and bishops began to freely add and incorporate various liturgical formulas. In a peculiar passage, Clement of Alexandria (c. 150-215) admonished ornamental fake hair during weddings because it obstructed the blessing from falling directly on the head. In the 4th century, Basil of Caesarea (330-379) spoke of a blessing given to the spouses at the beginning of their conjugal life, while Timothy I of Alexandria (378-384) condemned priestly blessings that were bestowed upon unlawful marriages. A letter of Gregory of Nazianzus shows that Psalm 128, which is still sung nowadays during the nuptial liturgy, was already being used at that time. In two of his letters, Theodore of Stoudios (759-826) spelled a marriage blessing which was said during the Divine Liturgy.
Thus, Christian marriage obtained a priestly character and began to be perceived and experienced as a eucharistic event. The link between these two sacraments grew so deep that by the 9th century, the Eucharist had become the measure of a marriage that was celebrated in the Lord, and the Church did not know of any rite of marriage separate from the Eucharistic liturgy.
“Oikonomia, Divorce and Remarriage” Schembri, p. 16-17
What Fr. Schembri is referring to when he speaks of the 9th century witnessing the link between the Eucharist and wedding is the issuing of novella 89 in the year 893, which stated that only those marriages conducted by the Church were valid marriages. No longer was a mere contract, blessing, or crowning appropriate but an actual church wedding performed by a priest had to take place in order for the state to recognize it. It is worth noting that for almost the entirety of the first millennium, marriage ceremonies were ritually specific to localities and the Church nor was one insisted upon. As Fr. Meyendorff states:
This new reality was not originally expressed in any specific and independent marriage ritual, and its nature did not consist in suppressing the laws which secular society had set. Christians understood the value of the Roman order. They appreciated the progress which some aspects of Roman Law were introducing in human relations. But while accepting all that, they never forgot the specific and totally new experience and commitment which they accepted in Baptism and the Eucharist. What mattered, therefore, was not the particular ceremony use to conclude the marriage, but who was accepting the marriage contract. If the parties were Christian, their marriage was a Christian marriage, involving Christian responsibility and Christian experience. For them, marriage was a sacrament, not simply a legal agreement.
“Marriage” Meyendorff, p. 18
Fr. Meyendorff later continues:
If, as we have seen above, marriage was conceived by the Early Church as a “sacrament,” anticipating the joy of the Kingdom of God, how can we explain the fact that this Church did not use any particular ceremony, or rite, to sanction marriage? Instead, it recognized as normal a marriage concluded according to the laws of secular society. It never tried to abolish these laws nor to destroy the social order which instituted them. The answer to this question is that the difference between a non-Christian and a Christian marriage lies in the fact that the first was concluded between two pagans while the second involved two Christians; it did not lie in the manner in which it was concluded.
“Marriage” Meyendorff, p. 20-21.
So, as we have seen, for most of the first millennium, Christians partook of secular marriages but often had them blessed or ratified by the Church. This was not simply the case in remote villages that might only be visited by a priest every few years but even within the cities.
That then begs the question, how could marriage be a sacrament if no service for it was conducted? Is this a case of doctrinal development in which the Church slowly “sacramentalized” marriage? The answer is no and for several reasons we will discuss throughout this video.
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The contents of the bibliography is the same as that of the first Divorce & Remarriage video and can be found here.