Divorce and Remarriage
By THE BISHOP OF EXETER From 1066 to the Reformation there can be no doubt that divorce with the right to remarry was unknown in England. The ecclesiastical law of England was governed by the common canon law of the West, and it was a characteristic of that law that it asserted the indissolubility of marriage and made no provision for divorce a vinculo. In this it differed, as is well known, from the law of the Eastern Church. There had been earlier attempts to introduce into the West some- thing of the Eastern marriage discipline. The Penitential attributed to Theodore of Tarsus, Archbishop of Canterbury in the seventh cen- tury, contains one of these attempts, and it is possible, therefore, and even probable, that in Saxon England there was some provision made for marriage after divorce. But with the .Norman Conquest the common canon law became estab- lished in England and from then to the Reforma- tion divorce a vincula was unknown.
With the Reformation came a violent reaction from the complexity of the marriage law which, by reason of the number of impediments to ,marriage, had placed the validity of almost any marriage in doubt. The Continental Reformers sought a return to a marriage law based on what can be proved from Scripture. Consequently, they allowed only Scriptural impediments to marriage —e.g. the prohibited degrees of kindred and affinity to be found in Leviticus—and, on the authority of a text in Matthew, they permitted remarriage to the innocent partner in a divorce for adultery. Many of them went further and permitted remarriage after a divorce for other reasons than adultery. The hitherto unquestioned principle that by the law of God marriage is indissoluble except by death was thus flatly denied The influence of the Continental Reformers spread to England and produced an acute division of opinion within the Church. Some .held to the old doctrine and maintained that the `Matthxan exception' must be interpreted in accordance with those other passages in the New Testament in which our Lord is clearly shown as forbidding all divorce and remarriage without exception. The MatthIcan exception could, therefore, only mean, at most, that He allowed a divorce on the ground of adultery, but not that He allowed remarriage. Others maintained that the Mattlman exception represents our Lord's full and considered teach- *DIVORCE AND RE-MARRIAGE IN ANGLICANISM. By Arthur Robert Winnett. (Macmillan, 30s.) ing on marriage and that the other passages must be interpreted in the light of Matthew. On this view, our Lord himself had taught that there was one exception to the law of indissolubility, and it was lawful for the Church, as the proper inter- preter of. His mind and will, to declare that there are others. This division of opinion persisted in the Church of England and still exists.
An attempt was made in the sixteenth century to alter the law and to bring it into line with the views of the Continental Reformers. The attempt failed. The law remained firmly based on the old doctrine of the absolute indissolubility of marriage. This is clear from the wording of the canons of 1603-04, from the practice of the ecclesiastical courts and from the wording of the Marriage Service in the Prayer Book. Further, in the early years of the seventeenth century the Court of Star Chamber held, on the advice of Archbishop Whitgift and others, that a marriage contracted after divorce was void, on the ground that divorces granted by the ecclesiastical courts were only a mensa et thoro and not a vinculo.
However, from time to time Private Bills were passed through Parliament authorising re- marriage after divorce. Between 1670, the date of the first of such Private Acts, and 1857 there were 317 passed in all. In these cases the parties to the divorce were subsequently remarried in church. There was no other way in which they could remarry. And it may be said that the Church acquiesced, though in the case of the remarriage of the guilty partner and in particular in the case of the remarriage of the guilty partner to the co-respondent, the Church acted more or less under protest.
The Divorce Act of 1857 transferred the hear- ing of matrimonial causes from the ecclesiastical courts to a new, secular court established under the Act and authorised that court to grant a divorce a vincula on the ground of adultery by the wife and of adultery with cruelty by the husband. The Act was, on the whole, accepted by the Church as being equitable when compared with the existing practice of obtaining a divorce with the right to remarriage by means of a Pri- vate Act of. Parliament. But it was resented, because it gave to the guilty party a right to re- marry. This was thought to be an incitement to adultery. Yet the old division of opinion was clearly apparent. There were many who opposed the Act on principle as being contrary to the divine law of the indissolubility of marriage.
Those who accepted and approved the Act, accepted and approved it grudgingly as a con- cession to 'the hardness of men's hearts' and bitterly opposed the giving of the right of re- marriage to the guilty party.
Since 1857, with the growing number of divorces has grown a sharper opposition within the Church and a hardening of opinion against allowing even the innocent party to a divorce to be remarried in church, still less the guilty one. Nor is this simply a mid-twentieth-century development. It is clearly apparent in a report adOpted by the Upper House of the Canterbury Convocation in 1888, and quoted by Mr. Winnett on page 183. It reads as follows : 'It ought, in our judgment, to be clearly and strongly impressed upon the faithful, and upon the clergy as their advisers in matters of discipline and conduct, that the Christian ideal is that of indissoluble marriage; and that the most dutiful and loyal course, even in the case of the innocent• party, is to put aside any. thought of remarriage after divorce. But if any Christian, conscientiously believing him- self or herself to be permitted by our Lord's words to remarry, determine to do so, then en- deavour should be made to dissuade such person from seeking marriage with the rites of the Church, legal provision having been made for marriage by civil process; the language of the Marriage Service is unsuitable for repetition, ex- cept in cases where the marriage-tie has been dissolved by death, or the marriage proved to have been invalid from the beginning.'
It may, I think, be fairly said that the point of view reflected in this quotation is the predominant view in the Church of England and has been con- sistently reaffirmed. It indicates a profound dis- taste for the remarriage of divorced persons in church, and a hardening of opinion against allow- ing it even in the case of the innocent party. For example, the Lambeth Conference of 1888 left 't to the conscience of the individual clergy whether or not to marry in church the innocent party in a divorce for adultery (but only the inno- cent party and only after a divorce for adultery); the Conference of 1908 reaffirmed the resolutions of 1888 with the addition of a statement that even in the case of the innocent party 'it is undesirable' that the remarriage 'should receive the blessing of the Church.' The Conference of 1920 left this matter to the liberty of each constituent church to determine. But the Conference of 1930 recom- mended 'that the marriage of one whose former partner is still living shall not be celebrated according to the rites of the Church.' The Con- ference of 1948 reaffirmed this.
It is sometimes suggested or implied that the present Archbishop of Canterbury is responsible for this hardening of opinion against the re- marrying of even the innocent party in church. It must be clear from these quotations how little truth there is in this. But it is interesting also to note the attitude and opinion of his immediate predecessors. Archbishop Davidson held that the remarriage of the innocent party after divorce was 'contrary to the spirit and intent of our Church if not to its positive enactments.' Arch- bishop Lang, in the House of Lords, affirmed that divorce and remarriage after divorce were incom- patible with the principles of Christ and with the law and formularies of the Church. (Winnett, p. 231.) Archbishop Temple took the same line. (Winnett, pp. 210 and 231.) The present state of opinion in the Church of England may be summed up in this way. There is still an acute division of opinion as to whether marriage' is, strictly, indissoluble or not. This is shown by the careful avoidance of the word 'indissoluble' in recent official pronouncements on marriage and the substitution for it of some such phrase as 'permanent and life-long union.' It is shown also by the way in which the recent Com- mission on Nullity avoided altogether any dis- cussion of the question whether a marriage after divorce should be regarded as valid or as void. It is shown also by the insistence on the part of some of the clergy that they should retain their right to use their own discretion occasionally to remarry a divorced person in church.
But despite this, there is an universal agree- ' ment, in practice, that it is the duty of the Church in loyalty to our Lord to do everything possible to discourage divorce and to manifest its dis- approval of it. And there is a general, if not a nearly universal agreement among the clergy that for that very reason the remarriage of divorced persons ought not to be allowed to take place in church.
The widened grounds for divorce and the in- creased number of divorces have confronted the Church with a very different practical problem from that which it faced before the nineteenth century. And it is not likely that there will be any retreat from the position which it has now taken up. Mr. Winnett's book makes it clear, I think, that whilst there has always, since the Reformation, been a difference of opinion on the doctrine of marriage in the Church of Eng- land, there has been a surprising consistency in its law and official pronouncements and discipline, there has never been much support for the re- marriage of the guilty party in church, and there has always been much opposition to the re- marriage of even the innocent party. The present position, which preserves a discretion to the parish priest to conduct the remarriage of a divorced person if he wills but makes it plain that in general such action is severely discouraged, would seem to reflect fairly accurately both the past history and the present mind of the Church of England.
Previous page
