I’ve been thinking a bit about this topic lately, and since it came up recently in the comments to this post, I thought I’d focus the discussion on this article of the late Melkite Catholic Archbishop Elias Zoghby. It’s come up before here at Eirenikon. The text of the article comes from the blog Torn Notebook (part 1 and part 2) – and, by the way, the comments there are well worth reading through.
Archbishop Elias Zoghby, A Voice from the Byzantine East, R. Bernard trans., (Newton, MA: Eparchy of Newton, 1992), pp. 163-169.
The Indissolubility of Marriage
The problem which probably causes more anguish to young married people than birth control is that of the innocent spouse in the prime of life (usually the young lady, so we shall use the feminine form throughout this chapter to denote the wronged spouse) who is deserted by her partner and contracts a new union. The innocent party goes to her parish priest or bishop for a solution but hears: “I can do nothing for you. Pray and resign yourself to living alone for the rest of your life because you cannot marry again and expect to remain in the good graces of the Church.”
Such an unrealistic response is an insult to the young person’s inherent dignity! Furthermore, it presupposes an heroic virtue, a rare faith and an exceptional temperament. This almost abnormal way of life is not for everyone. After all, the young person was married in the first place because she didn’t feel called to perpetual continence. Now she is being cornered into contracting a new and illegitimate union outside the Church so as to avoid physical and emotional pressure. This good and normal Catholic now “officially” becomes a renegade and is even tortured by her own conscience. Only one course of action is left open: either become an exceptional soul overnight or perish!
Nothing but common sense tells us that perpetual continence is not the answer for the majority of Christians in such a predicament. In other words, we Church officials know that we are leaving these young and innocent victims without an answer. We ask them to depend upon that faith which works miracles, but we forget such faith is not given to everyone. Many of us, even we who are priests and bishops, still have a long struggle and a great amount of prayer ahead of us before we will even be able to approach it, let alone attain it!
The question presented us today by these disturbed people is, therefore, the following: “Does the Church have the right to tell an innocent member of the laity, whatever the nature of the problem disturbing him: ‘Solve it yourself! I have no solution for your case,’ or indeed can the Church provide in this case an exceptional solution which she knows to be suited only for a tiny minority?”
The Church has certainly received sufficient authority from Christ, its founder, to offer all its children the means of salvation proportionate to their strength. Heroism, the state of perfection—these have never been imposed by Christ under pain of eternal perdition. “If you wish to be perfect,” Christ says, but only “if you wish…”.
The Church, therefore, has sufficient authority to protect the innocent party against the consequences of the other partner’s wrongdoing. It does not seem normal that perpetual continence, which belongs to the state of perfection alone, can be imposed upon the innocent spouse as an obloigation or a punishment simply because the other spouse has proven to be false! The Eastern Churches have always known that they possessed the authority to help the innocent victim and, what is more, they have always made use of it.
The marriage bond has certainly been rendered indissoluble by the positive law of Christ. Yet, as the Gospel of St. Matthew points out: “except in circumstances of adultery” (cf. Matthew 5.32, 9.6). It is the duty of the Church to make sense of this parenthetical clause. If the Church of Rome has interpreted it in a restrictive sense, this is not true in the Christian East where the Church has interpreted it, from the very first centuries of its existence, in favor of possible remarriage for the innocent spouse.
It is true that the Council of Trent, in its twenty-fourth session (canon 7 of De Matrimonio) sanctioned the restrictive Roman interpretation, but it is well known that the final formula adopted by Trent for this canon had been purposely altered so as not to exclude the Eastern Christian tradition. This tradition followed (and still follows) a practice contrary to that of the Church of Rome. History gives credit for this act to the representatives from the area of Venice  who were well acquainted with the Greek tradition, which was founded upon the interpretation of the Greek Fathers and even of some Western Fathers, such as St. Ambrose of Milan.
We know how the Eastern Fathers tried to discourage widows and widowers from contracting second marriages, following in this the counsel of the Apostle Paul; but they never intended to deprive the innocent spouse, who had been unjustly abandoned, of the right to remarry. This tradition, preserved in and exercised by the East, was in no way dissolved in the six centuries of union. There is no reason why it could not be brought back into use today and adopted by Western Catholics. The progress of patristic studies has, in effect, put in bold relief the doctrines of the Eastern Fathers who were no less competent moralists and exegetes than the Western Fathers.
Pastoral solicitude for the wronged is suggested in another way by Western canonists. By means of a subtle casuistry, which sometimes borders upon acrobatics, they have devoted themselves with diligent application to uncovering every impediment capable of vitiating the marriage bond. This is done because of their pastoral concern. Sometimes, for example, it happens that somebody suddenly discovers an impediment of affinity after ten or twenty years of marriage (one which was unsuspected all the while!) and now this impediment is permitted to afford a complete resolution of the “problem” as if by magic! Though canon lawyers find this state of affairs both natural and normal, those of us who are pastors have come to realize that our people are very often confused and scandalized by this.
It is not the tradition of the Eastern Fathers, as outlined above, more suitable than the impediments to marriage in extending Divine Mercy toward some Christian spouses?  Undoubtedly, inconsiderate action cannot be tolerated here either; abuses are always possible. But, the abuse of authority does not destroy authority.
During this age of ecumenism and dialogue, can the Catholic Church recognize this longstanding tradition of the Eastern Churches? Or, what is more important to it: Can its theologians apply themselves to the study of this problem and provide a remedy for the anguish of the innocent party, permanently abandoned by his or her spouse, and to deliver this person from a danger constituting a grace menace to the soul?
My statements above are of a strictly pastoral nature. My aim is to help the Western Catholic Church discover a solution for the problem faced by so many young marrieds who are doomed to a single life of loneliness should they decide to separate. As it is now, through no fault of their own, they are forced to endure continence as a matter of obligation.
In addition, I have clearly affirmed the immutable principle of the permanency of the married state. In doing this, I have purposely avoided using the word “divorce” because the Catholic use of this word clearly denotes an infraction of the unchangeable principle of the indissolubility of marriage.
The indissolubility is so deeply embedded in the traditions of both East and West, Orthodox as well as Catholic, that it can never be questioned. In effect, the Orthodox tradition itself has always held marriage indissoluble as the union of Christ and His Spouse, the Church, a union which remains the type exemplaire of the monogamous sacramental marriage of Christians. In Orthodox theology, divorce is nothing but a dispensation allowed the innocent party in certain, well-defined instances and from motives of purely pastoral concern, in virtue of what Orthodox theology calls the “principle of economy”, which means “dispensation” or, more accurately, “condescension”. This dispensation does not exclude or set aside the principle of indissolubility. This principle is even used in much the same way as the dispensation of a valid, consummated marriage are allowed by the Western Catholic Church through the Petrine Privilege. We are not speaking here of abuses; they are always possible, but they do not change the theological reality.
Therefore, it is this “dispensation” on behalf of the innocent spouse that I suggest be employed by the Catholic Church of the Western tradition. When I referred to the traditional Eastern interpretation of Matthew 5 and 19, I saw the eventual possibility of additional reasons for dispensations to supplement those already admitted by Western Catholics, such as fornication and the abandonment of one spouse by the other, so as to keep away the peril of damnation which menaces the innocent spouse. Such a dispensation would not cast any doubt upon the indissolubility of the marriage bond any more than do the other dispensations.
Such a proposal is not fruitless, despite what certain militant Roman canonists contend, beacuse it rests upon the indisputable authority of the blessed Fathers and Doctors of the Eastern Churches—these same saints who are annually commemorated in the Roman liturgical calendar—who cannot be accused of having given up truth while interpreting the Lord’s words, or of interpreting the Lord’s words to suit their personal ambitions.
It is the perspective of the universal fidelity of the East, as well as of the West, that the Roman Church has never contested the legitimacy of the Eastern ruling favorable to the remarriage of the innocent marital partner, either after the separation of the two great Christian halves of the Church, or during their long centuries of unity.
To anyone who has observed the Eastern Catholic communities in union with Rome, it goes without saying that in these days—and it grieves me to admit it—almost all of the Eastern Catholic Churches follow contemporary Latin-Roman discipline and practices with regard to remarriage.
As for the Eastern way of viewing divorce and remarriage, objective evidence proves that the Fathers and Doctors of the East who developed the basic tenets of all Christian doctrine could not have been influenced by politics or any other aspect of Byzantine civil or legal tradition in interpreting Christ’s words in Matthew chapters 5 and 19 as they did. To assume this would be to forget what the universal Church owes to their knowledge and holiness.
The Justinian Code which was promulgated toward the end of the sixth century adopted the Eastern discipline on marriage. But it would scarcely have influenced Origen, St. John Chrysostom, St. Basil , St. Epiphanius , and others who lived some 350 years before this Code was ever conceived, as some Latin canonists believe. The Justinian Code merely reflected the doctrine and practices of the Eastern Churches.
As we have seen, long before the schism with Rome, Eastern Christianity adopted the more lenient interpretation of the law (favoring the innocent party) and also put it into practice. And yet the Easterners were never condemned for this—-not during the first thousand years when they were in full and visible communion with the Roman See; not by the Ecumenical Councils over which presided the representatives of the Bishop of Rome and were attended by both Eastern and Western bishops; and not by any other high authorities in the undivided Church. These facts alone should be enough to prove that the Roman Church never contested the legitimacy of the Eastern discipline in this matter.
The Church of the East has always followed this tradition of tolerance of divorce and has remained faithful to it. The West maintained it for many hundreds of years with the positive approval of many of its bishops, popes, and councils, and in fact never attempted to condemn it in the East, even after cessation of its practice in the West.
In conclusion, we reiterate that this is an exegetical, canonical and pastoral problem which cannot be ignored. As for the opportunity of permitting a new reason (or reasons) for dispensation analogous to those already introduced in the Roman Church by reason of the Petrine Privilege, this decision remains in the hands of the Church.