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THE GREEK ORTHODOX THEOLOGICAL REVIEW Vol. 44. Nos. 1-4,
1999
Late Byzantine Canonical Views on theDissolution of Marriage
FR. PATRICK VISCUSO
Canon law often affirms the ideal of lifelong marriage and
fidel-ity. Regulations prohibiting or justifying the dissolution of
maritalunions reflect underlying viewpoints concerning gender and
sexualbehavior. This study will treat the views of late Byzantine
canonistsconcerning the dissolution of marriage. These canonists
will includeMatthew Blastares (ca. 1335), whose nomokanon. The
AlphabeticalCollection, enjoyed great popularity during the
fourteenth century;as well as Theodore Balsamon (c. 1140 - c.
1195), John Zonaras (deathafter 1189), and Alexios Aristenos
(twelfth century), whose commen-taries and works remain canonical
references for the Orthodox church.
THE GROUNDS FOR DIVORCE
The Alphabetical Collection was a popular legal work of the
four-teenth century surviving in a large number of manuscripts
andtranslated contemporaneously for use in the Serbian Empire
ofStephen Dushan.' Divorce legislation occupies a large section
con-stituting an entire chapter and including citations of imperial
law.^Dissolution of marriage occurs legally for causes that have
arisenfrom actions by one or both of the parties to the union.
According tothese causes, the divorce is either penalized or
unpenalized.
At the outset of his discussion, Blastares states that divorce
bymutual consent was formerly blameless according to "ancient
lawsand long-held custom." Such dissolutions took the form of the
hus-band saying to his spouse, "Wife, manage your own affairs," and
thewife, "Husband, manage your own affairs." This type of divorce
was
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274 The Greek Orthodox Theological Review: 44/1-4, 1999
"abolished by Christians" through the enumeration by "the
piousemperors" of causes for the dissolution of marriage, without
which"it is illicit to separate." According to Blastares, "the
civil law," andespecially "the novel of Justinian which expressly
sets forth the causesfor which the husband or the wife sends a
libellus of repudiation, i.e.,a bill of divorce, to the spouse,"
treats divorce "most completely."^
There are six main causes listed for divorce that arises from
theactions of the wife. Each is taken from imperial legislation
and, withthe exception of the last cause, also listed in another
legal work im-portant for the study of canon and civil law, the
Nomokanon ofFourteen Titles.^ They are cited as follows:
1.) If the wife is implicated in any plotting against the
Empire, anddid not reveal this to her own husband.^
2.) If an accusation of adultery were to be made against the
wife, andshe were to be convicted as an adulteress according to the
law.*
3.) If she plotted against the life of her husband in any manner
what-soever, or consented for others to do this, and did not reveal
it.'
4.) If she attends banquets or bathes with strange men, against
thewill of the husband.*
5.) If she stays outside of the home against the will of the
husband,unless she happens to be with her own parents, or he drives
her outwithout the aforesaid causes, and parents not existing for
her, shespends the night outside.'
6.) If she attends horse races, theatres, or hunts, in order to
be seen,without her husband's knowledge or against his
prohibition.'
Eor these causes, the husband is able to repudiate the wife
andgain the dowry. The wife can be accepted back by the husband
dur-ing the two-year period after the repudiation, although this
wouldmean that he "condones the crime."
In turn, there are five causes that arise from the husband's
actions,for which the wife is able to send a libellus of
repudiation. Likewise,these are also based on imperial legislation,
and are as follows:
1.) If the husband himself conspires against the Empire, or
after be-
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Viscuso: Canonical Views on the Dissolution of Marriage
275coming aware of others that conspire, he does not reveal this to
theemperor either in person or by any other persons."
2.) If the husband plots against the life of the wife in any
mannerwhatsoever.'^
3.) If the husband plots against the chastity of the wife by
endeavor-ing to deliver her up to other men in order to be
debauched.'^
4.) If, after the husband accuses her of adultery, he does not
prove it.'**
5.) If the husband has carnal relations with another woman in
thesame house, or in the same city, and after being warned by the
wife,her parents, or any other person, he does not wish to
abstain.''
These causes are listed in the Nomokanon of Fourteen Titles
aswell.'*^ On account of them, the wife is able to send a bill of
repudia-tion, obtain her dowry, and gain "the husband's gift on
account of themarriage," the antenuptial gift. Ownership of the
gift is held on be-half of the children, or if there are no
offspring from the marriage, itis kept by the wife.
Unpenalized dissolution of marriage arises from three main
causes,which are also derived from imperial legislation. These
causes are:impotence of the husband for three years, entrance by
either spouseinto religious life, and the capture and uncertain
fate of either spousefor five years.'' In the first case, the
antenuptial gift remains with thehusband and no loss of property
occurs for either party. Entrance intothe religious life is treated
with regard to property relations in thesame way as the death of a
spouse. On this point, Blastares cites fromthe fifth chapter of
Justinian's twenty-second novel:
Wherefore, the one contracting would fix by agreement a benefit
tooccur in case of the other's death. This benefit is necessary for
theparty left behind by the other (either husband or wife can
establish it),since he that chooses one mode of life instead of
another is thought tobe dead for his spouse.'*
However, remarriage of the spouse left in the world is not
dis-cussed. Although, if both husband and wife enter religious
life, andone remarries or fornicates, the children receive all of
that partner'sproperty, and in lieu of offspring, the state
treasury.'^
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276 The Greek Orthodox Theological Review: 44/1-4, 1999
Finally, Blastares covers the penalties for a divorce that
occursillegally, without any of the causes set forth by the law.
These penal-ties include confinement of both spouses to a monastery
with loss ofall property, which in turn is given to either the
family or the monas-tery depending on whether the ascendants or
descendants acquiescedto the illegal repudiation. If reconciliation
takes place before the con-finement, no penalties apply. Likewise,
if one of the parties "wishesthe marriage to be restored, and if
the other were to not consent, thepunishments prevail against the
one that does not assent." This dis-cussion appears to be a
synopsis of eleventh chapter of Justinian'sone hundred
thirty-fourth novel.^
The author discusses remarriage of the divorced only once whenhe
states:
Neither can the wife separate from her husband by her own free
will,nor he from her, without the judgment and vote of judges, as
this isdecreed by various Justinianian novels. Thus, he that
marries thewoman who was not so separated, is an adulterer.^ '
Separation and successive marriage without such a decision
re-sults in adultery.
In accordance with the novels of Justinian, actions for divorce
takeplace in civil courts, although some provision is made for the
inter-vention of episcopal authority. If Blastares' statement is
taken literally,divorce decrees would fall within the jurisdiction
of the state, unlessa bishop and the episcopal court became
involved under certain cir-cumstances. For example, such instances
might have occurred if bothparties agreed to submit their
differences to the latter's judgment, orsuspicions arose regarding
the decision rendered by the magistrate,or a clergyman was involved
as a defendant.^^
This is not to say that the Church before or during Blastares'
pe-riod did not issue decrees of divorce, or claim jurisdiction
overmatrimonial matters. The decisions of Demetrios Chomatianos,
Arch-bishop of Ochrida, provide evidence that in the thirteenth
century,episcopal courts granted decrees of divorce based on
certain of thecauses listed above.^ ^
However, Blastares does not refer to any decree of divorce
beinggranted by an episcopal authority based on the listed causes.
No ex-plicit mention is made of ecclesiastical or civil
jurisdiction overmatrimonial matters. In addition, his entire
discussion of divorce is
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Viscuso: Canonical Views on the Dissolution of Marriage
277placed under the heading of "law," which throughout the work
indi-cates a legal source taken from imperial as opposed to
ecclesiasticallegislation. Dissolution is treated entirely from the
point of view ofcivil legislation, and no citation is made of any
ecclesiastical canon.^''
AN INCONSISTENCY WITH THE UNIQUENESS OF MARRIAGE.Despite the
fact that there is provision for divorce, the marital union
is considered a "consortium for an entire lifetime," according
to thedefinition of marriage framed by the jurist Herennius
Modestinus(third century) and cited as such by Blastares.^^ The
unique nature ofthis lifelong relationship is affirmed in
Blastares' synopsis of St. Gre-gory of Nyssa's fourth canon:
For God gave one helper to man, and has fitted one head onto
woman...For each man, any vessel which is not his own belongs to
another,even if it does not have acknowledged ownership.^ ^
The question of second and third marriages is treated by
para-phrasing a passage from St. Gregory the Theologian's
Homilythirty-seven:
Gregory the Great who is surnamed the Theologian, stated, 'The
firstmarriage is legal, the second is a concession, the third is a
transgres-sion of law, and one beyond this, the life of a swine,
which does noteven have many examples of its
The headship of the husband is portrayed as unique to the wife
insame way as that of Christ is to the Church. The mystery of
maritalunion is based on its likeness to the union between the only
Bride-groom and the Church, his Body. The nature of this mystery is
viewedas precluding a second marriage. ^ *
In spite of this, a second union is permitted as a
"concession"for the widowed:
However, the Divine Apostle Paul, who perceived the instability
ofnature, permitted young widows, if they wished, to enter upon
mar-riages again.^ ^ The Divine Fathers who were not ignorant
concerningthe arising of the fleshly spirit, did not deem it
fitting to impede thosemen who choose to marry a second time.
However, they did not allowthem to have second marriages without
criticism.'"
Given the concerns expressed for "instability of nature" and
"the
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278 The Greek Orthodox Theological Review: 44/1-4, 1999
arising of the fleshly spirit," the concession appears to have
beenmade in order to satiate the passions, and thus avoid the
greater evilsof fornication or adultery.^'
The third union is a concession similar to that in the case of
thesecond, an indulgence made to fleshly desire, but motivated by
ahigher degree of licentiousness as a "fornication which has been
tem-pered, i.e., not dissolved, but reduced, limited to one woman,"
and asentailing canonical penalties.^^ Although in the case of a
childlessman, procreation is presented as a worthy reason for such
matrimony.^ ^The application of a shorter penance in such a case
appears to indi-cate that the licentiousness thought to be involved
is perhaps to alesser degree or for an ultimately better end; the
begetting of off-spring.^ '* Unions beyond the third are not given
the name of marriage,but are regarded as polygamy, the "life of a
swine" (xoLQcbdrig piog).
According to the synopsis of Basil's ninth canon in iht
Alphabeti-cal Collection, it is regarded as "consistent with the
Lord's decision"that a cause of adultery would "equally dissolve a
marriage for bothmen and women."^^ Nevertheless, this is not the
case since, "theChurch's practice commands that husbands who commit
adultery orfornicate be kept by their wives." This alludes to the
classification ofan extramarital affair of the wife as adultery
(adulterium) and that ofthe husband with a single woman as
fornication (stuprum), a distinc-tion adopted from pagan Roman
civil law.^ ^
The ninth canon concentrates on the obligations of the wife.
Theyare enjoined to remain with their husbands even when their
spousesare unfaithful:
Indeed, if a husband was angry with the wife, and were to beat
her,she must be patient. Or if she were to suffer a loss in
property, evensee her dowry spent, or even become jealous because
her husbandwas fornicating with other women, it is not permissible
for her to beseparated from the husband because of these things.
Certainly if whenone of the cohabitants happens to be an
unbeliever, it has not beenallowed for the other to be separated,
according to the blessed Paul,on account of the uncertainty of the
outcome...how would she thatdissolves the union because of another
reason, be free from blame?Therefore, she that illegally abandons
her husband, if she cohabitswith another man, is reckoned an
adulteress.''
This is almost identical to Zonaras' version of the same
legisla-tion.^ ^ Blastares' synopsis accurately reports Basil as
stating that on
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Viscuso: Canonical Views on the Dissolution of Marriage 279basis
of prevailing custom, the wife must endure the fornication andeven
the adultery of her husband. The acceptance of this discrimina-tion
is described in Blastares' synopsis of Nyssa, as a "concession"to
the "weaker."^'
Within this section of the work, adultery is presented as the
onlygrounds for divorce granted by the Lord Himself. In considering
thecircumstances of its use, the focus is on the maintenance of
purity.Consequently, Blastares states that the defilement of a
clergyman ora candidate for ordination results from intercourse
with a wife whohas been unfaithful. The prevention of further
impurity underliesBlastares' recommendation that the separation of
such couples takeplace if the clergyman is to retain his schema^^
The avoidance ofsuch pollution also provides the canonist's
justification for recom-mending that laymen divorce their
unfaithful spouses:
He that does not divorce his own adulterous wife is a
brothel-keeper.'"
The pollution of the marriage union by an adulterous wife is
re-garded by Blastares as a dishonoring of marriage, and
consequentlydivorce is recommended in order to uphold the honor of
the marriagebed.
Divorce in the case of adultery is thus justified on the basis
of theLord's commandment in Scripture and on reverence for the
maritalbond. Other grounds by extension may have been viewed
theologi-cally as situations leading to adultery, and thus
consistent with theexception granted in Scripture. This would not
be true for the civilgrounds of treason and attempted murder taken
directly from impe-rial law. It may be argued that these are
instances in which the maritalunion is dishonored. However, the
concept of honor in Blastares'thought is identified with the purity
of the marriage bed. Defilementis presented in terms of impure
sexual activity.
The allowing of divorce for reasons other than adultery is
incon-sistent with Blastares' theological thought concerning the
lifelongand unique nature of each marital union, according to
which, Godhas "fitted" one man as one head onto each woman.
Separation in thecase of unfaithfulness may be seen as in
conformity with the Lord'scommandment, but if the uniqueness of
marriage is consistently af-firmed the possibility of remarriage
even in these cases would not beallowed. The contracting of
additional marriages even by the wid-owed is viewed as an increase
of licentiousness and indulgence of
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280 The Greek Orthodox Theological Review: 44/1-4, 1999
passions.The classification of adultery as a civil grounds of
divorce in the
Alphabetical Collection would in fact allow remarriage in such
cases,a contingency not provided for in the older church
legislation deal-ing with dissolution, namely, St. Basil's
canons."*^ In fact, provisionsof any grounds for divorce and
subsequent remarriage would repre-sent an inconsistency with the
Cappadocian legislation.
Several explanations may be suggested for this incongruity.
Thefirst is that divorce legislation was purely a civil matter, and
thatsuch laws were listed either as a convenience for clergy
serving inthe civil courts or merely as a matter of information, in
order to presentthe imperial laws in force but unaccepted by the
Church. The factthat the legislation appears under the heading of
"Law" in Blastares'work might be brought forward to support this
position. The casecould be made that the heading indicates that
these laws were de-rived from a civil source and hence not
necessarily accepted by theChurch.
However, Blastares never introduces a disclaimer in any
sectionbefore these laws. In the preface to the Alphabetical
Collection, hestates that the civil legislation included in the
collection will be con-sistent with the Church's teaching.''^ While
it is conceivable thatperhaps a few laws may have been added which
were inconsistentwith the Church's practice or teaching, divorce is
an important ques-tion and forms a major section of t\\&
Alphabetical Collection. It seemsunlikely that such legislation
would be included if the author did notconsider it in conformity
with the Church's teaching.
Perhaps a second explanation is revealed in the discussion of
di-vorce that immediately follows the Cappadocian legislation:
So much then for Basil. According to the novel of Justinian
publishedlater, which comprises chapter thirteen of the present
letter, the fol-lowing also has been reckoned among the other
causes on account ofwhich it is permissible for women to dissolve
their marriage; if thehusband lies with another woman, clearly in
the same house and city,and if after his own wife's kin censure and
enjoin him, he was notpersuaded to abstain from intercourse with
her. Thus, under these cir-cumstances, the novel permits wives to
dissolve their marriages onaccount of jealousy."*^The latter
grounds of divorce are set forth in the emperor Justinian
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Viscuso: Canonical Views on the Dissolution of Marriage 281the
Great's one hundred seventeenth novel. Blastares presents
thepractice of his own age as contradicting the ecclesiastical
customrecorded in canon nine. He indicates that since Basil's time,
the fol-lowing has occurred: causes of divorce were stipulated for
bothspouses, these causes include the extramarital affairs of the
husband,and divorce also has become permitted for the wife.
Ecclesiasticalcustom which existed in Basil's period was partly
abrogated by newimperial legislation, more specifically, the novel
of Justinian. In par-ticular, with the stipulation of causes for
divorce, the extramaritalaffairs of the husband formerly not a
grounds for dissolution weremade so under the provisions of the
Justinianian legislation.'*^
These points are presented in a similar and more explicit
fashionby the commentaries of Zonaras, Balsamon and Aristenos.
After re-cording the salient points of the ninth canon, Zonaras
observes:
But this great Father states that these things prevail according
to theecclesiastical custom at that time. And from the novel of the
EmperorJustinian promulgated later concerning the dissolution of
marriage,which is situated in book twenty-eight, title seven of the
Basilika, thefollowing is reckoned amongst the causes by which it
is permissiblefor women to dissolve marriage; if the husband lies
with anotherwoman in the same house or city, and after being warned
on the partof the wife, he does not desist from sexual intercourse
with that woman,it is permitted for wives to dissolve marriage on
account of jealousy.**^The citation of the Basilika indicates that
the Justinianian legisla-
tion was adopted into practice by Zonaras' time and had replaced
the"custom" or practice described by Basil.
Balsamon's commentary on the same canon makes this
pointclearer:
The Saint after being asked, what ought to happen to the spouses
ifone of them might enter another marriage, or even fornicate, made
areply from various writings and the custom held at that time.
How-ever, since the one hundred seventeenth Justinianian novel
situated inthe seventh title of the twenty-eighth book, all but
transformed (oxeSov^lexexiJJicoaev) everything in such a canon,
read ye this, and likewisethe one hundred eleventh novel. And
plainly from the first chapter ofthe same title up to also the
sixth, learn ye by how many ways mar-riages are dissolved, and how
presently the adulterous spouses or evenfornicators are punished by
the civil law.**'
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282 The Greek Orthodox Theological Review: 44/1-4, 1999
Aristenos definitively summarizes this discussion:
And the canon contains these things because it was also
permitted bythe laws at that time, for the spouses to be separated
from one anotherby formulas of words, without even a just cause.
However, presently,neither a husband nor a wife is able to dissolve
the marriage, unless ajust cause exists, of which the novel of
Justinian ordains by law.'**The comments of these four canonists
illustrate the Orthodox
Church's acceptance of the civil legislation concerning the
causes ofdivorce and the inclusion of the husband's fornication
among thesecauses.
In turn, the Basilian legislation, which originally applied to
allmarital separations, is reinterpreted to apply to cases of
expulsions.Consequently, this legislation is grouped in the
Alphabetical Collec-tion under the heading "Concerning
expulsions..." rather than placedunder divorce. In the light of the
Justinianian legislation, these ex-pulsions are, as Zonaras states
above, "divorces without cause" and"without the decision of
judges." Expulsions are separations whichare caused through illegal
abandonment and desertion.
In the same manner that the Orthodox church accepted the
classi-fication from pagan Roman law of an extramarital affair of
the wifeas adultery and that of the husband with a single woman as
fornica-tion, the acceptance of grounds for divorce and marriage
was aconcession to a practice deeply embedded in the legal
institutions ofthe Empire as a result of "ancient laws and
long-held custom." WhenBlastares speaks of the abolition of divorce
by consent, this may beinterpreted as meaning that faced with the
existing legal and socialconditions the Church attempted to
implement its teachings by com-promise.''^ According to this
interpretation, divorce freely granted bythe state prior to the
Christian emperors became more restricted un-der the Church's
influence.^"
This explanation is supported by the evidence of the
canonicalcommentators that Blastares uses as sources. Both Balsamon
andZonaras explain the strictness of Basil's legislation in light
of theease of divorce that existed during his time.^' They also
state that thesame license no longer exists, and that the
legislation of the Justinianon divorce was requested by the Church
through the one hundredsixth canon of Carthage." In their canonical
commentaries, bothcanonists include the civil grounds for divorce
as legitimate causes
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Viscuso: Canonical Views on the Dissolution of Marriage
283consistent with the teachings of the councils. They appear to
implythat since Basil's time, the Church succeeded in having pagan
di-vorce legislation replaced with laws which have her approval,
andthat given these stipulated causes, the stricter teaching of
theCappadocian is no longer necessary.^^
While Blastares does not state such things explicitly, the
presenceof imperial divorce legislation in the midst of his
canonical treatmentof marriage, his classification of the Basilian
canons as dealing withexpulsion, the contradiction of Basil's
strictness concerning the wife'sability to divorce, and his heavy
reliance on the work of both earliercanonists indicate that he also
views imperial divorce legislation asacceptable to the Church.
At this point it should be emphasized that the legislation
discussedabove concerning the remarriage of the widowed and
divorced isapplied to dissolution cases involving the laity. In
contrast, the disci-pline governing the clergy appears consistent
with a theology ofmarriage that would emphasize the absolute
uniqueness of the firstmarriage bond. While the laity are allowed
to legally divorce andremarry without permanently losing their
status in the Church, thesame legislation is absolutely forbidden
to the clergy.^ '* The latter areheld to the stricter standard of
one marriage, even in the case of thespouse's death. Two marriages
are absolutely forbidden, and consis-tent with Scripture and St.
Basil's legislation the possibility of divorceis allowed only in
cases of the wife's adultery. In the latter instance,remarriage is
not allowed and further active ministry is limited.
This variance in Blastares' discipline of marriage appears to
indi-cate that laity and clergy are governed by different standards
andperhaps by extension different theologies of marriage
concerningdissolution. Unlike the clergy, marriage for the layman
is considereddissoluble, remarriage being permitted for the
divorced and widowed.This appears to imply that each union is not
unique, and that onewife has not been fitted with only one head. In
contrast, theclergyman's union would be regarded as indissoluble
except for adul-tery, and remarriage not permitted under any
circumstances.^^ Thecanonist does not indicate whether the divorce
of clergy would takeplace on the basis of a civil grounds of
adultery. However, if suchadultery was handled purely as a
spiritual matter, it is very possiblethat such cases fell under the
exclusive jurisdiction of an episcopal orecclesiastical court.
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284 The Greek Orthodox Theological Review: 44/1-4, 1999
There thus appears to be a major difference between laity and
clergyin the treatment of divorce, widowhood, and remarriage. The
laityappear to be governed by a theology of marriage in which
conces-sions have been made to the legal and social conditions
ofthe Empire,while the clergy are submitted to a theology
consistent with the unique-ness of marriage affirmed in Blastares'
synopsis ofthe Cappadocianlegislation.
CONCLUSION
In conclusion, the canonical writings of the Byzantine
canonistMatthew Blastares affirm the uniqueness of a marital union
in whichGod had "fitted one head onto woman" on the basis of the
fourthcanon of St. Gregory of Nyssa, the canonical letters of St.
Basil theGreat, and the views of St. Gregory the Theologian. In
accordancewith this legislation, there was an implication that
except in the caseof adultery marriage is indissoluble consistent
with divine law. Nev-ertheless, Blastares and other late canonists,
such as John Zonaras,Alexios Aristenos, and Theodore Balsamon, also
allowed groundsfor divorce which permitted remarriage and were
taken directly fromimperial legislation.
Several explanations may be suggested for this inconsistency.
Onepossibility might be that divorce legislation was purely a civil
matterand that such laws were listed in late canonical sources
either as aconvenience for clergy serving in civil courts or merely
as a matterof information. The most likely explanation is that the
inclusion ofsuch grounds was a concession made to Roman imperial
legislationand the perceived spiritual weakness of the laity.
There existed a sharp division between what was expected of
clergyand laity. This variance in the discipline reflected two
different ap-proaches to marriage, one representing an older
patristic legislationin which the indissolubility of the nuptial
union was affirmed, whilethe other reflecting a Roman legal
tradition permitting dissolution;an apparent contradiction left
unresolved.
NOTES
' The full title of this nomokanon is, Evvxay^ia xaxa aroixsiov
rcSvEfi7ieQLEiXr}fXfiEvo)v djiaadjv vnoOeaewv xou; legolg xal
deioig xavoai novqOev rea/ua xai avvreOev rep iv legojuovaxotg
iXaxiorq) MaxOaiu) {An alphabeticalcollection of all subjects that
are contained in the sacred and divine canons, prepared
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Viscuso: Canonical Views on the Dissolution of Marriage 285and
at the same time organized by Matthew the least amongst
hieromonks). Thishandbook of theology and canon will be referred to
as the Alphabetical Collectionthroughout this study. A text of this
nomokanon occupies the sixth volume of the canonicalcollection,
G.A. Rhalles and M. Potles, Hvvxay^a xwv OEUOV xai kgajv xavovcov,
6vols. (Athens: G. Chartophylax, 1852-1859). For basic secondary
material on Blastaresand his canonical work, see Patrick Viscuso,
"A Late Byzantine Theology of CanonLaw," The Greek Orthodox
Theological Review 34 (1989): 203-219.
^G. 13.^ i s most probably refers to Justinian, Novel 117\ the
Hebrew practice of repudiation
is also recalled, a reference most probably to Jeremiah 3:1
(LXX).Rhalles and Potles, 1:295; for the significance of this
nomokanon, see A. Kazhdan,
The Oxford Dictionary of Byzantium, 3 vols. (Oxford: Oxford
University Press), 3:1491.
Kode 5.17.8 3; Justinian, Novel22.15 2; Justinian,Novel 117.8.
\,Epanagoge21. 5,1. Zepos and P. Zepos, Ius Graecoromanum, 8 vols.
(1931, reprint, Darmstadt:Scientia Aalen, 1962), 2: 303; Prochiron
11. 6, Zepos, 2: 147; Basilika 28. 7. 1, H.J.Scheltema and N. Van
der Wai, Basilicorum Libri LX, Series A, vols (1953-88)4:1357.
^Code 5.17.8 3; Justinian, Novel 22.15 2; Justinian, Novel
117.8.2; Epanagoge21. 5, Zepos 2: 303-304; Prochiron 11.7, Zepos,
2: 147; Basilika 28. 7. 1, Scheltema,A4: 1357-1358.
"^Code 5.17. 8 3; Justinian, Novel 22.15 2; Justinian, Novel
117.8.3; Epanagoge21. 5, Zepos 2: 304; Prochiron 11.8, Zepos, 2:
147; Basilika 28. 7. 1, Scheltema, A4:1359.
*Code 5.17.8 3; Justinian, Novel 22.15 2; Justinian, Novel
117.8.4; Epanagoge21. 5, Zepos 2: 304; Prochiron 11.9, Zepos, 2:
147; Basilika 28. 7. 1, Scheltema, A4:1359.
^Code 5.17. 8 3; Justinian, Novel 22.15 2; Justinian, Novel 117.
8. 5; Epanagoge21.5, Zepos 2: 304; Prochiron 11.10, Zepos, 2:147;
Basilika 28.7. 1, Scheltema, A4:1359.
^Code 5.17.8 3; Justinian, Novel 22.15 2; Justinian, Novel
117.8.6; Epanagoge21.5, Zepos 2: 304; Prochiron 11.11, Zepos,
2:147-148; Basilika 28.7.1, Scheltema,A4: 1359.
"CoJe5.17.82;Justinian,yVove/22.151;Justinian,Nove/777.9.
\,Epanagoge21. 6, Zepos 2: 305; Prvchiron 11.14, Zepos, 2:148;
Basilika 28. 7. 1, Scheltema, A4:1359.
^Kode 5.17.8 2; Justinian, Novel 22.15 1; Justinian, Novel
117.9.2; Epanagoge21. 6, Zepos 2: 305; Prochiron 11.15, Zepos,
2:148; Basilika 28.7. 1, Scheltema, A4:1359.
"Justinian, Novel 117.9.3; Epanagoge 21.6, Zepos 2:305;
Prochiron 11.16, Zepos,2: 148; Basilika 28.7.1, Scheltema, A4:
1359.
'"Justinian, Novel 117.9.4; Epanagoge 21.6, Zepos 2:305;
Prochiron 11.17, Zepos,2: 148; Bo i^/Jika 28.7.1, Scheltema, A4:
1359.
"Justinian, Novel 117.9.5; Epanagoge 21.6, Zepos 2:305;
Prochiron 11.18, Zepos,2: 149; Basi7i)ta 28.7. 1, Scheltema, A4:
1360.
'^Rhalles and Potles, 1: 295.'^Impotence {Nomokanon of Fourteen
Titles 13. 4, Rhalles and Potles, 1: 296; cf.
Justinian, Novel 22.6; Epanagoge 21.2, Zepos, 2: 300-301;
Prochiron 11.2, Zepos, 2:
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286 The Greek Orthodox Theological Review: 44/1-4, 1999
145-146; Basilika 28.7.4, Scheltema, A4: 1363); religious life
(Justinian, Novel 22.5;Epanagoge 21. 1, Zepos, 2: 300; Basilika 28.
7. 4, Scheltema, A4: 1362-1363;Nomokanon of Fourteen Titles 13. 4,
Rhalles and Potles, 1: 297); capture (Justinian,Novel 22. 4;
Epanagoge 21. 3, Zepos, 2: 30\; Prvchiron 11.3, Zepos, 2: 146;
Basilika28.7.4, Scheltema, A4:1363; Nomokanon of Fourteen Titles
13.4, Rhalles and Potles,1:297).
'^Justinian, Novel 22.5; Epanagoge 21.1, Zepos, 2:300; Basilika
28.7.4, Scheltema,A4: 1362-1363; Nomokanon of Fourteen Titles 13.4,
Rhalles and Potles, 1: 297.
''Justinian, Novel 117.10; Prochiron 11.4, Zepos, 2:146;
Prvchiron auctum, Zepos7: 111; cf. Epanagoge21. schol. 6,Zepos, 2:
301-302.
^Basilika 28.7.6, Scheltema, A4:1364-1365; the text is also
discussed by Balsamonin Rhalles and Potles, 4: 200-202.
^^Alphabetical Collection G. 13. Law, Rhalles and Potles, 6:
176.^ ^ i s jurisdiction is particularly exemplified in Justinian,
Novel 117. 8, where the
civil judge hears cases dealing with divorce, and when
appropriate, refers the guiltyparty to the local bishop for
ecclesiastical punishment, cf. Justinian, Code 1.4.7;
Justinian,Novel 86. 7; Justinian, Novel 86. 2; Justinian, Novel
123.
^In addition to grounds arising from adultery, other causes were
also recognized,see J.B. Pitra, ed., Analecta Sacra et Classica
Spicilegio Solesmensi Parata, 6 vols.(Paris: Roger et Chemowitz,
1891), 6: 511-514 (attempt on the life of the husband),553-556 (the
wife staying outside of the home), 557-558 (attempt on the life of
thehusband); for a variety of views, see also A. P.
Christofilopoulos, '"H SixaioSoaiaTdjv ExxXTiataoTixobv
SLxaoTTiQuov xa td tfiv Pu^avrivfiv JISQIO8OV,"
'EnexrjQu;'EraiQEUxg Bvt,avTLV(bv Ijiovdcbv 18 (1948): 192-201; D.
Simon, "ByzantinischeProvinzialjustiz," Byzantinische Zeitschrift
79 (1986): 310-343; Michael Angold, Churchand Society in Byzantium
under the Comneni 1081-1261, Cambridge: CambridgeUniversity Press,
1995.
^"Several explanations may be suggested for the inclusion of a
section consisting ofthe civil law's treatment of dissolution. The
first is that Blastares recognized only thestate's jurisdiction
over matrimonial matters. This should be immediately discounted
inview of the Church's involvement in all other aspects of marriage
as revealed throughoutthe rest of the Alphabetical Collection.
Consequently, the author's observation concerningthe novels of
Justinian, most likely, should not be taken literally since this
would implythe state's exclusive control of these affairs. Rather,
its meaning may lie in the mainpoint that divorce must not take
place by mutual consent, but by the causes listed in
theJustinianian legislation. The establishment of cause would hence
necessitate the decisionof "judges" basing their opinion on these
novels. The second explanation is that theChurch accepted a great
part of this legislation for her own treatment of dissolution,
andthis was refiected in Blastares' work. The acceptance of civil
law appears to be supportedby the inclusion of this legislation in
the Nomokanon of Fourteen Titles, and its extensivecitation by
Balsamon and Zonaras in their commentaries on ecclesiastical
canons. Forexample, Rhalles and Potles, 2: 7-8,64-65,506-510; 3:
548-549; 4: 121-123,200-202.Finally, the extensive inclusion of
civil law may lie in the use of the AlphabeticalCollection as a
legal manual for the civil courts of the fourteenth century, which
weregoverned by both imperial and ecclesiastical legislation. This
does not appear to beproven or disproven by anything Blastares
states, and remains a possibility.
^Code 9.32.4; Digest 23.2.1; cf. Institutes 1.9.1; Epanagoge
16.1, Zepos, 2:274;
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Viscuso: Canonical Views on the Dissolution of Marriage
287Prochiron 4.1, Zepos, 2: 124; Basilika 28. 4. 1, Scheltema, A4:
1325; Nomokanon ofFourteen Titles 12.13, Rhalles and Potles, 1:271;
cf. Balsamon's commentary on Trullo72, Rhalles and Potles, 2:
472:
The civil law defines marriage as a sharing and consortium of
both divineand human law. Accordingly therefore, the Holy Fathers
determined that anOrthodox man is not legally joined to a heretical
woman, or the contrari-wise.
Cited by Blastares as a "Definition of Marriage," Alphabetical
Collection G. 2.Definition of Maniage, Rhalles and Potles, 6:
153-154.
^Alphabetical Collection M. 14. Gregory of Nyssa 4, Rhalles and
Potles, 6: 374.^''Alphabetical Collection G. 4. Gregory the
Theologian, Rhalles and Potles, 6: 158.^Tor a closer examination of
Blastares' thought on the nature of the marital union as
well as remarriage of the widowed, see Patrick Viscuso, "Purity
and Sexual Defilementin Late Byzantine Canon Law," Orientalia
Christiana Periodica 57 (1991): 399-408;and idem, "The Formation of
Marriage in Late Byzantium," St. Vladimir's TheologicalQuarterly 35
(1991): 309-325.
^I Corinthians 7: 8-9; compare also I Timothy 5:
11-12.^Alphabetical Collection G. 4. Concerning digamist laity,
Rhalles and Potles, 6:
156.'^In this particular case, the term "Fathers" is perhaps
being identified with St. Gregory
the Theologian.^^Alphabetical Collection G. 4. Concerning
Trigamists, Rhalles and Potles, 6: 158."The restrictions on third
marriage appear to refiect the view expressed by the
Theologian concerning marriage in general, St. Gregory the
Theologian, Homily 37.9,Moreschini and Gallay, 290:
When marriage is only this; marriage, wedlock and a desire for a
successionof children, marriage is good, for it brings into
existence more of those thatare pleasing to God. But when it
inflames matter, surrounds us with thorns,and reveals itself as a
path of vice, then I too proclaim, 'It is better not tomarry'
(Matthew 19: 10).In comparing virginity to marriage, St. Gregory
speaks of the former as better
(xaW .^ixov) than matrimony, but also characterizes the latter
as good, since without itvirgins and celibates would not be brought
forth into the world, (St. Gregory Theologian,Homily 57.10,
Moreschini and Gallay, 292). Unlike St. Gregory the Theologian,
Blastaresdoes not make a general statement concerning procreation
as a justification for allmarriage. However, in speaking of marital
relations with one's vessel or wife, he statesthat the "law of
nature would allow its righteous use," {Alphabetical Collection M.
14.Gregory of Nyssa 4, Rhalles and Potles, 6:374). The "law of
nature" in this context mayonly refer to relations in general, with
no other end in view than the "legal abatement"of "natural
tyranny." In the case of third marriages, the worthiness ascribed
to procreationdoes not prevent Blastares from forbidding such
unions for men over forty who alreadyhave children, {Alphabetical
Collection G. 4. Concerning the Tomos of Union, Rhallesand Potles,
6: 159). In the latter case, the prohibition is perhaps based on
the interest ofthe offspring from previous unions, e.g., in regard
to inheritance. This at least appears tobe one of the main reasons
that Blastares holds polygamy to be worse than fornication.
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288 The Greek Orthodox Theological Review: 44/1-4, 1999
Alphabetical Collection G. 4, Rhalles and Potles, 6: 161:
For the one who fornicates only wrongs himself, willingly
throwing himselfinto the pit of licentiousness. However, he that
contracts perhaps a fourth orfifth marriage for himself, exults
over what the canons forbid, and wrongshis legitimate children by
sowing illegitimate ones among the latter.
Furthermore, although Blastares holds that the impotence of the
husband is a groundsof divorce, the infertility of the wife is not
made a cause for repudiation by her spouse.Procreation in this case
does not appear to be made a condition nor thus provide
ajustification for the existence of a legal marriage. The
justification of marriage as a"legal abatement" for sexual needs is
similar to an opinion expressed by St. JohnChrysostom that
matrimony exists principally in order to remedy fornication, (see
above,St. John Chrysostom, On the Apostolic Saying, "But on account
of fornication let eachman have his own wife," P.G., 5\.2\2).
According to the Saint, one of the earlier aimsof marriage was to
provide offspring who would then serve as a remnant andremembrance
of their father's life, in this way furnishing a comfort for death.
TheResurrection is said to have displaced childbearing as a purpose
of marriage. See alsoEvelyne Patlagean, "Sur la limitation de la
fecondit6 dans la haute 6poque byzantine,"Annales economies,
societes, civilisations 24 (1969): 1353-1369. Patlagean does
notintroduce the factor of the Resurrection in her theological
analysis of early Byzantinethought concerning birth control and
marriage. She states that prevailing thought in thefourth century
Empire was the following (Patlagean, 1357):
"La procreation n'est done pas la justification unique ou
suffisante du mariage.L'6tat le plus 61ev6, le plus souhaitable est
la virginit6, libre des peines de lavie chamelle, et promise h une
f61icit6 spirituelle dont l'^loge hant la litt^raturedu temps. Le
mariage, institu6 apr^s la chute, preserve du p6ch6 les
etresordinaires qui n'en supporteraient pas l'asc^se, k condition
toutefois de nepas degen6rer h son tour en une licence qui, pour
etre 16gitime, n'en seraitpas moins coupable. Sa veritable fin est
Ih, et non dans une multiplicationd6sormais superflue des etres
humains."
^The use of means to prevent conception is not discussed by
Blastares. However, itcan be speculated that if the canonist had
the opportunity to comment, the questionmight be framed in terms of
the promotion of passions, sin, and defilement, rather thanthe
prevention of procreation. Given Blastares' attitudes regarding the
unchaste natureof otherwise legal marital relations before the
reception of the Eucharist or afterconsecration to the episcopate,
and the implication that celibacy is more chaste thanmarriage, the
promotion of pleasure in sexual activity by spouses would probably
beseen by him as a licentious and "evil" use of the "reciprocal
members" in "a scheme forsensual pleasure," (Alphabetical
Collection G. 20. Laodicea 30, Rhalles and Potles, 6:196). On this
basis, Blastares very possibly might have condemned contraceptives.
Seealso Patlagean, 1356-1358. Birth control methods such as
abortion are treated by thecanonist. Both those performing and
receiving abortions are condemned as murderers,(Alphabetical
Collection G. 28, Rhalles and Potles, 6:199-200).
^^Matthew 5: 31-32; 19: 9; Mark 10: 11-12; Luke 16: 18; I
Corinthians 7: 10-11.^For a discussion, see Susan Treggiari, Roman
Marriage, Iusti Coniuges From the
Time of Cicero to the Time ofUlpian, (Oxford: Clarendon Press,
1991), 262-319.
-
Viscuso: Canonical Views on the Dissolution of Marriage
289^"^Alphabetical Collection G. 16. Basil 9,21,35,77, Rhalles and
Potles, 6: 186-188;
St. Basil Letter 188, Roy J. Deferrari, ed. and trans.. Saint
Basil, The Letters, 4 vols.(London: William Heinemann Ltd.,
1926-34), 3: 34. In contrast, St. Gregory theTheologian rejects
this custom, and appears to consider the extramarital affair of
eitherhusband or wife to be adultery, (St. Gregory the Theologian,
Homily 37.6, Moreschiniand Gallay, 282-284):
For why then did they punish the woman, but leave the man
unpunished?And a woman who conducts herself in a foul manner with
regard to herhusband's bed is an adulteress, and therefore the
penalties of the law areharsh. However, is a husband that treats
his wife as a prostitute, free fromcensure? I do not accept this
legislation, nor do I approve the custom. Theythat made the law
were men, and the legislation is against women on accountof
this...God does not so legislate...
While the Theologian does not explicitly state that divorce is
allowed for the wife ofan adulterous husband, such a grounds
appears implied in his position. St. JohnChrysostom also rejects
the practice, see his Homily 5 on I Thessalonians. 2, PG,
62:424-426.
'^Rhalles and Potles, 4: 121.'^ Alphabetical Collection M. 14.
Gregory of Nyssa 4, Rhalles and Potles, 6: 374.
^^Alphabetical Collection M. 14. Neocaesarea 8, Rhalles and
Potles, 6: 375-6:
"The eighth canon of the synod in Neocaesarea...orders him who
is a priest,whose wife committed adultery, either to be divorced
from her or if he doesnot wish to separate to withdraw from the
priesthood. Thus, being defiled bythe intercourse of a woman who
has incurred pollution, the man would notbe worthy since he is
impure...Although it is possible for a man to receivehis adulterous
wife without blame and to pardon the sin, this has not beenallowed
for those in the priesthood..."
In Blastares' writings, the word, schema, is used to refer to
outward appearance aswell as way of life.
^^Alphabetical Collection M. 14. Laws, Rhalles and Potles, 6:
377; cf. Justinian,Code 9. 9. 2; Nomokanon of Fourteen Titles 1.
32, Rhalles and Potles, 1: 73.
"^ Blastares is not clear concerning the number of divorces and
remarriages permitted.His quotation of St. Gregory the Theologian
regarding second and third marriages,could be interpreted as
applicable to the divorced as well as the widowed. Although, inthe
context of Gregory's homily, and the section of the Alphabetical
Collection in whichit appears, discussion of plural marriage is
confined to the widowed. Without furthertreatment of this issue by
Blastares, it is difficult to determine if the canonist wouldallow
third marriage of the divorced.
'^^Alphabetical Collection Preface, Rhalles and Potles, 6:
5;
Next I have considered it worthwhile to also join to related
chapters of thecanons both brief and abridged ones of civil
legislation that aid and agreewith the sacred canons, and witness
superabundantly to their soundness.
^Alphabetical Collection G. 16. Basil 9, 21, 35,77, Rhalles and
Potles, 6: 187.
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290 The Greek Orthodox Theological Review: 44/1 -4, 1999
^ However, these affairs continued to be regarded as
fornications and not adultery.The Roman definition of adultery as
the illegal sexual relationship of a married womanwith a third
party continued under law.
^Rhalles and Potles, 4: 122."^Rhalles and Potles, 4:
122.^8Rhalles and Potles, 4: 123.''The Church's acceptance of
divorce in the Eastern Empire is also considered a
compromise by J. Gaudemet, "Droit romain et principes canoniques
en mati^re demariage au Bas-Empire," in Jean Gaudemet, Societes et
Mariage (Strasbourg, CerdicPublications, 1980), 139:
"Sur le point fondamental, le seul ou la doctrine nouvelle fut
profond^mentnovatrice, l'indissolubilit^, l'Eglise n'obtint qu'une
sorte de compromis, leprincipe paien subsistant, bien
qu'affaibli."
^As summarized in the discussion above (Alphabetical Collection
G. 13. Law, Rhallesand Potles, 6: 176):
Indeed, in the past, it was possible for people both by ancient
laws and long-held custom to dissolve cohabitations blamelessly, so
that the husband couldsay to the wife, 'Wife, manage your own
affairs,' and she to her husband,'Husband, manage your own
affairs'...But at present, this has been done awaywith by
Christians. However, the pious emperors enumerated causes by
name,alone for which it is possible to dissolve marriages; and it
is illicit to separatewithout one of these.
5'Rhalles and Potles, 4: 121-123."Rhalles and Potles, 3:
548-549."Rhalles and Potles, 4: 121-123.^This assumes that laity
who marry after widowhood or divorce also comply with
the stipulated penances."Indeed, the wife of a priest is not
permitted to remarry. Alphabetical Collection G.
17. That it is necessary for the bishop's separated wife to be
tonsured, Rhalles andPotles, 6: 190-191.