Having a (roughly) shared 1,000-year history, the Catholic Church and the Eastern Orthodox churches have many doctrines in common, from our teachings on apostolic succession and the Holy Eucharist to our mutual veneration of the Virgin Mary and the saints. However, there remain important theological disagreements between us. One of those is the question of whether or not a divorced spouse, who truly was sacramentally married, may remarry while the “former” spouse is still alive.
The modern Orthodox churches, taking their inspiration from Roman civil law, answer in the affirmative: “While the [Eastern Orthodox] Church stands opposed to divorce, the Church, in its concern for the salvation of its people, does permit divorced individuals to marry a second and even a third time” (Orthodox Church in America, “Divorce and Remarriage”). As Fr. Patrick Viscuso, an Orthodox professor of canon law at the Antiochian House of Studies, observes in his book Orthodox Canon Law, the later “Byzantine canonical sources” that discuss the “grounds” of divorce and remarriage were based not on the New Testament, but on “the legislative work of the Byzantine Emperor Justinian the Great” (56). Indeed, Viscuso documents how three of the most renowned medieval Eastern Orthodox canonists, John Zonaras, Theodore Balsamon, and Alexios Aristenos, all treated Emperor Justinian’s civil code as a valid canonical interpretation of St. Basil the Great’s very odd allowance of remarriage after divorce (58).
In his Letter 188 to Amphilochius, Canon IX, Basil (d. 379) upholds the “custom” that whereas a man whose wife divorces him is “pardonable, and the woman who lives with such a man is not condemned,” the same is not true for women. Rather, even if a woman’s husband is “living in fornication,” Basil says that “if she leaves her husband and goes to another, [she] is an adulteress.” As Viscuso points out, Basil’s double standard for men and women “alludes to the Roman civil law distinction of the extramarital affair of a married woman as adultery (adulterium) and that of a husband with a single consort as fornication (stuprum)” (56). This inconsistency suggests why medieval Orthodox canonists would abandon a strict adherence to Basil’s Canon IX and instead follow later Roman law, which established more equity between men and women when it came to remarrying after divorce.
Indeed, A. Andrew Das, a Lutheran professor of religious studies at Elmhurst University, in his recent book Remarriage in Early Christianity, attests that after the Code of Justinian, “the legal corpus” of the Roman Empire “treat[ed] remarriage after divorce as commonplace” for both men and women (56, Kindle ed.). Viscuso provides a list of reasons why, according to Justinian, husbands and wives could divorce their spouses and remarry. A husband could divorce his wife if she “plott[ed] against the empire” or dared to “atten[d] horse races, theaters, or hunts” without his permission (57). A wife could also divorce her husband if he “conspire[d] against the empire” or merely “accuse[d] her of adultery” without proving it (57). These are among the justifications for divorce and remarriage that Orthodox canonists have regarded as authoritative since at least the twelfth and thirteenth century, and Orthodox theologians still regard them as representative of their churches’ view today, at least in spirit (see Fr. John Meyendorff, Marriage: An Orthodox Perspective, 55-6).
Clearly, Eastern Orthodoxy’s adherence to Roman civil law on the question of divorce and remarriage stands in great contrast to the Catholic Church’s teaching on this subject. Whereas the Byzantine East would go on to appropriate Basil’s Canon IX by applying his permission to remarry consistently to both men and women, the Catholic West can be seen as applying Basil’s ban on remarriage after divorce consistently between the sexes. In this way, the Catholic Church follows the marital teachings of ancient and apostolic Christianity more closely than the Orthodox churches do today.
To see this, consider the witness of the New Testament. Here St. Luke records Jesus’ teachings on divorce and remarriage in a clear manner: “Everyone who divorces his wife and marries another commits adultery, and he who marries a woman divorced from her husband commits adultery” (16:18). This same, incredibly countercultural, teaching is repeated in Mark 10:11-12 and Matthew 5:32 and 19:9, and it’s alluded to in 1 Corinthians 7:10-11 and Romans 7:2-3.
However, Matthew’s rendition of this teaching is famous for its slight deviation from the others: “whoever divorces his wife, except for unchastity [in other translations, ‘except on the ground of sexual immorality’], and marries another, commits adultery; and he who marries a divorced woman, commits adultery.” Although it’s a far cry from allowing divorce because a man’s wife attended the theater without his permission, many Orthodox theologians nonetheless latch on to Matthew’s so-called “exception clause” to defend their church’s allowance of divorce and remarriage. But is that really how the ancient Church harmonized the New Testament’s teachings on this subject? No.
Instead, as Das concludes in chapter six of his book, “the ante-Nicene authors [Christian writers prior to 325] simply never countenance any party of divorce—whether innocent or not, whether the divorce was legitimate or not—marrying again unless the former spouse has died” (434, Kindle ed.]). This is evident, for example, from the Shepherd of Hermas, one of the earliest Christian writings we possess outside the New Testament (ca. A.D. 90-150). In the narrative of this work, Hermas asks his angelic teacher what a “husband [is] to do if his wife continue[s] in her vicious practices [of adultery].” The angel responds by instructing Hermas, “The husband should put her away, and remain by himself. But if he put his wife away and marry another, he also commits adultery” (II, 4.1). As Das observes, whereas Roman law at the time went so far as to “penaliz[e] those who did not remarry” after divorce, “the Shepherd of Hermas counterculturally forbids it” (384). For Hermas, although adultery is lawful ground for a husband to divorce his wife, it’s not a justification for remarriage.
These teachings can also be found in the writings of the early apologist St. Justin Martyr (d. 165). In chapter fifteen of his First Apology, Justin quotes several passages of Matthew’s version of the Sermon on the Mount, likely from memory. One of the last passages he quotes reads this way: “And, ‘Whosoever shall marry her that is divorced from another husband, commits adultery’” (cf. Matt 5:32), from which he concludes, “So that all who, by human law, are twice married, are in the eye of our Master sinners, and those who look upon a woman to lust after her. For not only he who in act commits adultery is rejected by him, but also he who desires to commit adultery.”
Das highlights the significance of the fact that, for Justin, the teaching of Matthew 5:32 on divorce and remarriage can be summarized with just the second half of the verse: “whoever marries a divorced woman commits adultery.” Like the Shepherd of Hermas, Justin did not interpret the Matthean “exception clause” as applying to remarriage (if he was even aware of the exception clause at all). Instead, the exception applies only to divorce, and remarriage is condemned by the fact that marrying “a divorced woman” always constitutes “adultery.”
Throughout the rest of chapter six of Remarriage in Early Christianity, Das cites St. Athenagoras of Athens, St. Theophilus of Antioch, St. Irenaeus of Lyons, Tertullian of Carthage, St. Clement of Alexandria, Origen of Alexandria, and Lactantius, among others, who all, at most, recognized divorce as legitimate only on account of adultery, but never remarriage while the other spouse was still alive. Instead, Origen in the third century summarized the position of ancient Christianity on this subject: “[Those who] permitted a woman to marry, even when her husband was living, [were] doing contrary to what was written, where it is said, ‘A wife is bound for so long time as her husband lives,’ and ‘So then if while her husband lives, she shall be joined to another man she shall be called an adulteress’ [Rom 7:2-3]” (Commentary on the Gospel of Matthew, XIV, 23). This is the traditional understanding of sacramental marriage that was accepted and taught by the earliest generations of Christians.
Nor was it abandoned by the Church in later centuries. St. Jerome (d. 420), for example, taught that even if a wife’s husband commits adultery, “so long as he lives, she may not marry another” (Letter 55 to Amandus, 3). A contemporary of Jerome, St. Augustine of Hippo (d. 430), likewise laid down the principle that “if the husband die, with whom a true marriage was made,” only then is another “true marriage possible by a connection that would before have been adultery” (On Marriage and Concupiscence, I, 11). In the East, St. John Chrysostom (d. 407) similarly taught that those who remarry while their divorced spouse is still alive are subject to divine judgment: “This bond with the true husband is broken only by death. . . . But the civil law permits divorce. God, however, will judge on the last day not according to the civil law but according to the law that he imposed” (De Libello Repudii, 1) (279). Even in the ancient Church of England, St. Bede the Venerable (d. 735) upheld the early Church’s teaching that “there is no cause allowed by the law of God whereby a man may marry another woman while the wife whom he has deserted is still alive” (In S. Marcum, X) (269 at the link above).
Now, this isn’t to say that first millennium Christian sources were unanimous on this point. Indeed, as Orthodox apologists like to remind us, there were many local synods (and even some saints) after Nicaea I and prior to the Great Schism that, in submission to imperial law, allowed Christians to remarry after divorcing their legitimate spouses. However, as briefly shown, there was an equal opposition to such practices during that same time, and the earliest Christian marital practices we know of more closely align with Catholicism’s than Orthodoxy’s. Indeed, the countercultural nature of early Christianity’s ban on remarriage after divorce cannot be stressed enough. Nothing other than the radical teachings of Jesus Christ, as recorded in the New Testament, can explain why the Church adopted such a “strict” attitude throughout the centuries toward remarriage. It also cannot be denied that, as even Orthodox theologians like Viscuso and Meyendorff admit, the later Eastern allowance of remarriage was inspired by Byzantine civil law, not the teachings of Jesus and the apostles.
Ultimately, against the claims of Eastern Orthodox authorities, this isn’t a matter that can be dictated by “concern” for the perceived well-being of the faithful. Rather, whether or not Christians are able to remarry after divorce must be dictated by fidelity to the teachings of apostolic Christianity. Such is truly good for the spiritual well-being of God’s people. When this is done, the loving pastor will come to embrace the teachings of the Catholic Church on the indissolubility of sacramental marriage, in accord with the warning of our Savior: “He who marries a woman divorced from her husband commits adultery”
As Matthew Levering observes, although “every Christian should be greatly moved by the suffering of those who are in ‘irregular’ unions” after divorce, we must nonetheless recognize that, “like all of us, they have a cross to bear that we cannot remove. In the fallen world, suffering, death, and love are not only compatible, but deeply connected. The pastor is not supposed to attempt to remove all forms of suffering from the faithful, but the pastor must accompany his flock and suffer with his flock” (126 [Kindle ed.]).