4. Dissolution of Marriage

Dissolution of marriage, according to canon law, which is followed by all modern civil legislations, takes place ipso jure only through death; during the lifetime of both parties a marriage, even though existing simply de facto

1. Classes of Dissolution of Marriage

of an unconsummated marriage by a vow, possible according to the laws of the Roman Catholic Church. In general a distinction must be drawn between a dissolution of the nuptial tie (a vinculo matrimonii), thus permitting remarriage, and mere separation from bed and board (separatio a toro et mensa), which, according to the law of the Roman Catholic Church, can be only for life (perpetua), but according to Protestantism may be merely temporary (temporaria). In the dissolution of marriage distinction must be made between dissolution on account of a marriage impediment (annulment) and dissolution of legal matrimony (divorce, q.v.). The bull Dei miseratione of Benedict XIV. (Nov. 3, 1741) contains strict rules for the proceeding of the ecclesiastical courts with reference to the annulment of marriage; and among these regulations is the very pertinent principle, retained in later civil law, that in all procedure for annulment of marriage there must be an official "Defender of the marriage tie" (q.v.) to protect the interests of the religious or civil community in maintaining the marriage. It is characteristic of Roman Catholic Church law that the entrance of one of the parties into a monastery or a papal dispensation can annul a marriage not yet consummated, and hence not yet sacramental.

2. In the Early Church

Real divorce, as an arbitrary deed of one party, legally permitted under certain conditions by Mosaic and Roman law, is referred to in the well-known sayings of Christ, and is opposed by his words: "What God hath joined together, let not man put asunder." The Church, therefore, has always regarded, and must ever regard, divorce as incompatible with true Christian sentiment. From this the Roman Catholic Church has drawn the inference that the law must treat a consummated (and thus sacramentalized) marriage as so absolutely indissoluble that all divorce, even for adultery, is precluded, even though it may be granted by the courts. Augustine (De fide et operibus, iv. 19) considered it at least doubtful whether in that case sanction might be given to a simple separation of the innocent party, who was not, however, to be permitted to marry again until the death of the guilty party. An African synod of 407 expressly recognized the right of the Church to prevent the remarriage of the guilty party, though only by means of church discipline; since to secure the legal impossibility of such remarriage, the Church could only request the passage of an imperial law. Among the Germanic nations even the Roman Catholic Church allowed real divorces, at least by way of "dissimulation," as late as the ninth century.

As soon as the Western Church obtained entire jurisdiction and legislation concerning marriage, however, every indulgence ceased; although it was clearly recognized that while real divorce was no longer possible, it was imperatively necessary that a separation should be allowed which should maintain the marriage and yet abrogate cohabitation, permanently in case of adultery. The consequences

204