Canon Law of Marriage Indissolubility of Marriage in 406 Two Synods of North Africa, Called the 11Th Council of Carthage Stated
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Canon law of marriage Indissolubility of Marriage In 406 two Synods of North Africa, called the 11th Council of Carthage stated, " we decree that according to the evangelic and apostolic discipline neither a husband dismissed by his wife, nor a wife dismissed by her husband may marry another; but that they are to remain as they are or to be reconciled to one another. if they despise this law they ought to be subjected to penance. and on this subject a imperial law out to be promulgated." the canon's teaching on indissolubility appears to be absolute i.e. it does not allow for any exception. this is important because they was and still is, a debate over Matther 19:9 which has Jesus saying, "Now i say this to you: anyone who divorces his wife- I am not speaking of an illicit marriage- marries another is guilty of adultery. the expression illicit marriage is a translation of the Greek word proneia( ). it is possible to translate the this word as adultery. thus the text from Matthew could mean that anyone who divorces his wife and marries another is guilty of adultery except in the case of him divorcing his wife because she has committed adultery. but this Greek word porneia can have at least three other meanings: a relationship that is not really a marriage because of some legal impediment; a betrothal; an incestous union which is not a true marriage. in all these cases the man would be able to divorce his wife and marry another without being guilty of adultery for the simple reason that his first marriage was not a real marriage. However we translate the word porneia, the canon from the 11th cough of Carthage does not refer to any exception to the rule that a divorced person may not remarry. In 790s, the Council of Friuli was convened in northweast Italy. The 10th canon of the council explicitly teaches that the bond of marriage is indissoluble. it also states that there is not exception to this rule, not even in the case of adultery. with regard to Matthew's gospel the canon states that a sudy of Saint Jerome shows that the gospel teaches that a man whose wife has committed adultery is free to dismiss her, but he must not remarry because his first marriage still exists. Hence there was no exception at all to the indissolubility of marriage. In summery, from within the church of the Roman Empire, there emerged slowly two principles about marriage and consent. the first is based upon Roman civil law, namely that consent makes marriage. thus marriage does not begin with consummation, or the reception of a priest's blessing. the second principle namely that once marital consent has been given it cannot be withdrawn generally disagreed with Roman civil law. this second principle reaffirms that the understanding that marriage is indissoluble. Eventually the church authorities made it clear that this indissolubility does not allow for exceptions such as cases involving adultery. Archbishop HIncmar of Rheims and his emphasis on consummation. When pope Nicholas 1 wrote his reply to the Bulgarian church he has a very important contemporary Archbishop Hincmar of Rheims, who bel office from 845 until his death in 882. While Pope Nicholas was upholding the centrality of consent alone with regard to the validity of marriage, Hincmar was teaching that marital consent must be followed by sexual intercourse without which the marriage is incomplete. in his time there was a marriage case in which he was asked to give a theological judgement. the case involved Aquitanian nobleman named Stephen. He married the daughter of Regimund another aristocrat. After the wedding ceremony Stephen said that he could not consummate the marriage. He explained that prior to the wedding he had had an affair with a close relation of his intended wife. He thus argued that the marriage was invalid because of the the impediment of affinity. Furthermore, his conscience forbade him to consummate the marriage. the case had two impotent elements. first there was the alleged impediemtn of affinity which if proved, would have resulted in the marriage being declared null and void. the second was the fact of non- consummation. with regard to the first element, Stephen refused to name the relative of his wife with whom he had had the affair. as a result, the existence of the impediment of affinity could not be proved. therefore if Stephen wanted to be declared free from the obligation of the marriage, his only hope was the fact that the marriage had not been consummated. accordingly in 860 he referred the matter to the bishops assembled at the Synod of Touzy. They in turn asked incmar for his opinion. In response Hincmar wrote " concerning the marriage of Stephen and the daughter of Count Regimund". In it he give reason why he believes that although a marriage begins with the wedding ceremony, it is not complete until it has been consummated sexually. for Hincmar sexual intercourse between spouses makes their marriage share in the bond that exists between Christ and his church. he bases his argument on Augustine: "not all weddings make the conjugal bond, such as those which are not followed by the union of sexes. Marriages do not have in themselves the symbolism of Christ and the church as the blessed Augustine says if the spouses do not avail themselves of each other maritally- that is if the union of the sexes has not followed up the marriages." 12th century Trance: Marriage is centred on Love and created by Consent. Despite Archbishop Hincmar's emphasis on the role of sexual intercourse within marriage, most of the Church's tradition acknowledged that it is the consent of the couple that brings a marriage into existence. this understanding had been present in the Roman Empire before Christ and was adopted by the Church though out the Empire. Even in the Germanic regions consent came to be understood as the factor necessary to bring a marriage into existence although external proof was required. this appreciation of mutual consent reached a climax in 12th century France. three great thinkers Ivo of Chartres, Hugh of Saint Victor and Peter Lombard wrote about the necessity and the sufficiency of marital consent. Ivo who was bishop of Chartres from 1091 sought in his writing divorce and remarriage. Ivo used authorities such as Pope Gregory 11 who permitted divorce and remarriage when one of the spouses is impotent to argue that impotence is a ground for dissolving a marriage. Ivo however did not consider impotence to be an impediment to marriage which would make any attempted marriage null and void from the beginning. instead he accepts that such a marriage can exist but that it can be dissolved in order to allow remarriage. Ivo expands the question of impotence to the lack of sexual intercourse generally. Ivo cites canon 27 of the Frankish Council of Verberies which was held around 756. this canon allows the wife to leave her husband if she swears by the cross that she never had sexual intercourse with him. the central issue here is no longer impotence but intercourse. although reference is made to the possibility of separating no mention is made of remarriage. remarriage would be an indication that the first marriage is actually dissolved. It however seems that Ivo regards impotence to be a ground for dissolution and thus remarriage. For Ivo consent alone brings a marriage into existence. For a genuine marriage to exist, the couple must be of equal standing. if one party is free and the other other party is a slave, a marriage cannot exist between them because they cannot share in the symbolism of the relationship between christ and his church. Ivo was accused by one bishop of Evreux of dissolving certain marriages between free men and slaves and vis-versa. In his response he refutes the claim stating that he was not dissolving such marriages because they had never existed in the first place. when a slave did not divulge his or her state and entered the union with the free party, the free party lost his status and became a person of a lower rank. For Ivo true love could not wish the other to lose their status of being free hence the marriage could not stand. however if the free party knows of the servile rank of the other at the time of marriage the marriage after consent holds good. "but if a free man has taken a slave girl in marriage, he does not have the freedom to dismiss her if, first knowing her condition and consenting, they have contructed marriage because consent makes marriage not intercourse." the whole of Ivo's argument is based upon the principle of love and so puts love at the centre of marriage. Hugh of Saint Victor: Consent and consummation are important but only consent is necessary. In his work "on the virginity of the blessed virgin Mary", in which he upholds both the virginity of Mary as well as the fullness of her marriage he asks a rhetorical question: " for what is marriage unless it is the lawful fellowship between a man and a woman in which it is clear that each owes himself to the other by mutual consent? hugh primarily describes marriage as fellowship just as Augustine argues that marriage is for companionship and that it is within the companionship of marriage that love and friendship are exchanged. Hugh's definition of states that this fellowship is brought about by the mutual consent of the couple.