Divorce, Annulment & Communion
An Orthodox Theologian Weighs In
By David Bentley Hart
Neither, for several centuries after the Apostolic Age, did any Christian theological authority think of marriage as a sacrament in our sense. Augustine (354–430) thought it might be described as a sacramentum in the proper acceptation of the Latin word: a solemn and binding oath before God. But even then, although he took the term chiefly from Jerome’s rendering of Ephesians 5:32, he certainly did not number matrimony among the saving “mysteries” of the church, alongside baptism and the Eucharist. Neither did anyone else, for many, many years. Even the great Church Fathers tended to treat marriage as little more than a civil institution, no different in kind for Christians than for non-Christians. One need only look, for example, at John Chrysostom’s fifty-sixth homily (on the second chapter of Genesis) to see how unacquainted even a late-fourth-century theologian of the highest eminence was with any concept of “holy” matrimony. And, inasmuch as they thought of marriage chiefly as a natural fact rather than as a sacred vocation, the Christians of late antiquity did not treat it as a theological topic.
In his Commentary on Matthew, for example, Origen (ca. 184–253) notes that many of the bishops of his time permitted both divorce and remarriage among the faithful. Canon 11 of the Council of Arles (314) recommends that a divorced man not remarry so long as his former wife still lives, but also grants that, for healthy young men incapable of the continence this would require of them, remarriage may prove necessary. Basil the Great (ca. 330–379) instructed Amphilochius of Iconium to allow men abandoned by their wives to remarry without penalty...Even Augustine, while firmly convinced that marriage should as a rule be indissoluble, nonetheless confessed in his Retractiones that he had no final answer on the issue.
To be honest, many modern believers would be shocked to learn how late in Christian history a clear concept of marriage as a religious institution evolved, and how long it took for it to be absolutely distinguished from what would come to be thought of as common-law unions, or for the church to insist on its solemnization in all cases. They would be even more disturbed, I imagine (as much on democratic principles as religious), to discover that throughout much of the Middle Ages the whole issue of wedlock certified by the church concerned mostly the aristocracy, inasmuch as marriage was chiefly a matter of property, inheritance, and politics. As far as we can tell, among the peasantry of many lands, and for many centuries, marital union was a remarkably mercurial sort of arrangement, one that coalesced and dissolved with considerable informality, as circumstances dictated. And the clergy did not, for the most part, give a damn.
Really, when one looks at it closely, in light of both the empirical facts and the abstract principles of the matter, the distinction between divorce and annulment is specious all the way down. For one thing, as regards actual cases on the ground, anyone who has seen a sufficient number of annulments at close quarters (and I have witnessed quite a few) knows that they are not only fairly easy to obtain for those willing to make the effort, but that the terms governing them are applied with such plasticity that it is difficult to see how any marriage could fail to meet the standards. True, abusus non tollit usum (abuse does not do away with proper use); but, in fact, there really is no abuse involved. The very concept of annulment, as something ontologically distinct from divorce, is logically incoherent, and really can be taken seriously only by a mind so absolutely indoctrinated to believe that the Roman Catholic Church does not tolerate divorce and remarriage that no evidence to the contrary can alter that conviction.
The very premise that a marriage can be pronounced null and void, in effect retroactively (since that same marriage would be regarded as real and legitimate if suit for annulment had never been brought forward), on the grounds of some original defect of intention that means it was never a real marriage to begin with (though again, it would be considered a real marriage if that defect were never exposed), basically provides a license to regard every marriage as provisional only. After all, in what union of a man and a woman could one not detect some crucial defect of original intention if one were to seek it? Moreover, if one looks at the criteria customarily used to prove that a marriage was never really a marriage, they scarcely differ at all from the criteria that the Orthodox Church—in principle, at least—is supposed to accept as legitimate grounds for divorce. And what is a divorce, after all, other than a recognition that the original marriage was contracted in ignorance and without full mutual commitment to everything a true marriage is?
It might make Catholics feel better about their Eastern brethren if the Orthodox Church called these separations “annulments,” and issued formal absolutions from wedding vows under such terms. I have to say, however, that I am glad it does neither. To my mind, the concept of annulment is not only specious and logically contradictory, but also somewhat insidious—in fact, often rather cynical and cruel. It is terrible enough when a marriage—something on which a man and a woman, at what is usually a fairly innocent moment in their lives, have staked their futures and their hopes for happiness—falls apart. It is somehow all the more terrible when, solely for the sake of avoiding institutional embarrassment, we are asked to indulge in the fiction that it was never a real marriage to begin with.
I know of a woman whose well-connected husband managed to obtain an annulment without her consent, and on grounds that would have scarcely qualified him as a plaintiff before a secular divorce court. And I happen to know that, of the two, he was the far more culpable in the matter. What she found bitterest of all in the final settlement was that, according to her church, no one was obliged to admit that her life as a wife and mother of twenty-six years—in a union freely contracted, sacramentally solemnized, physically and fruitfully consummated—had broken apart.
https://www.commonwealmagazine.org/divorce-annulment-communion
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