viscuso, patrick late byzantin canon disolution marriage

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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"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-

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.'^


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

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


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

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


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

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.**'


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

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.


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

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:


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.

^Âlphabetical 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.

În 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 Puâvrivfiv 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;

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.

Âlphabetical 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.

Î Corinthians 7: 8-9; compare also I Timothy 5: 11-12.Âlphabetical Collection G. 4. Concerning digamist laity, Rhalles and Potles, 6:

156.'În this particular case, the term "Fathers" is perhaps being identified with St. Gregory

the Theologian.^Âlphabetical 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 .îxov) 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.


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^"Âlphabetical 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.

^Âlphabetical 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.

^Âlphabetical 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.

'^Âlphabetical 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.

Âlphabetical Collection G. 16. Basil 9, 21, 35,77, Rhalles and Potles, 6: 187.

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.

viscuso, patrick late byzantin canon disolution marriage

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