Roman divorce customs were changed by Christian authorities when the Catholic Church became the official religion of Rome. Christian leaders believed divorce was immoral and marriage should be indissoluble. Catholic scholars believed celibacy was a superior spiritual state to marriage and that it was better to be married than commit the sin of fornication. Early Christian doctrines had a strong influence on divorce laws throughout Europe. In the 4th Century, St. Augustine and others proposed abolishing divorce, although it required centuries for the Church to do that. Charlemagne introduced strict marriage and divorce laws throughout the Holy Roman Empire during the 9th century in return for Papal blessing of his Devine right to rule. According to Catholic teachings, women and sex were the source of original sin. Some early church authorities wrote that fornication was grounds for divorce, although they could not agree on exactly what it was. Some Catholic scholars believed a husband had the right to divorce his wife for adultery, but that she had no right to the same remedy.
Once Constantine converted to the Christian Church in the 4th Century, Roman Emperors began to borrow from church doctrine in forming their secular laws about marriage and divorce and the church gained more and more control over marriage and divorce. Early Christian Emperors began restricting the rights of women to obtain a divorce and limiting the grounds for divorce to serious crimes. For centuries after Rome adopted the Catholic religion, divorce by mutual consent was allowed, but with more limits. Under Justinian Law, women could divorce their Roman husbands if he committed adultery in the same town where they lived, or if he committed murder, fraud, sacrilege, or treason, but a Roman woman had no right to divorce her husband if he was abusive. If a husband abandoned a wife, she was required to wait ten years before she could divorce him.
Catholic authorities believed that celibacy was a superior spiritual state to marriage and from the fourth century on required a celibate priesthood. They also believed celibacy and virginity were ideal states for all believers, sex was sinful, and the only acceptable avenue for sexuality was to produce children within marriage. St. Augustine believed an innocent spouse who divorced his or her spouse for adultery should be allowed to remarry, because the adulterer should be considered civilly dead according to Biblical held that adulterers should be stoned to death. Later church doctrine held that a Catholic marriage could not be dissolved.
Early Catholic doctrine was flexible about penitential toward matrimonial offenses, especially adultery. For example, if a married man had sex with a virgin, his penance was one year on bread and water and sexual abstinence for eighteen months. Some penitential seemed similar to outright divorce. For example, Clement noted that a legal marriage could be dissolved if the parties agreed not to remarry. He prescribed excommunication for any man who divorced his wife and remarried. There were differences in how Catholic doctrine was enforced between the Eastern and Western Roman Empires. Citizens of Eastern Rome and the Germanic laws were allowed to divorce on grounds of adultery, mutual consent, or even unilaterally on occasion.
The doctrine of indissolubility of marriage was finally established by the Council of Trent in the 1560s after generations of debate and uncertainty. Part of the uncertainty about whether divorce was allowed derived from the different types of dissolutions available under canon law. The three were complete dissolution of the marriage, annulment, and judicial separation. Whether a divorced Catholic could remarry was subjected to varying restrictions over the centuries. For example, many legal codes forbid the remarriage of a woman for nine months after her divorce to determine the paternity of any child she produced during that interval. Another restriction passed in a few countries was a permanent bar to remarriage of a spouse guilty of adultery.
Annulment was a judicial declaration that the marriage never existed, so the parties were allowed to remarry within the church. A prominent example of annulment was the dissolution of King Henry’s marriage to his first wife, Catherine of Aragon. Henry was granted an annulment under an arcane interpretation of canon law because the church found matrimonial impediments to the validity of his marriage. Consanguinity (genetic relationship) or affinity (marital relationship) were ways to gain annulment. Another impediment was spiritual, such as when the person who married the couple had participated in his or her own baptism. Finally, if the marriage had not been consummated, it could be annulled. Girls could not legally marry before twelve years of age or boys before fourteen years of age, so marrying too early was grounds for annulment. If a male was impotent, that was a bar to a valid marriage because it could not be consummated. Consent was necessary for a valid marriage so insanity and the resulting inability to give informed consent was an impediment.
Judicial separation was based on a fault or offense by one spouse against the other. Judicial separation did not dissolve or invalidate a Catholic marriage, but the separated individuals were not obligated to live together, as they were obligated to do under canon law. Even though they lived in separate houses and maintained separate economic accounts, they were expected to be sexually faithful so long as either spouse lived. Separated individuals could not remarry until their spouse died. Voluntary unauthorized separations were considered a sin under canon law. Another way to end a marriage within the Catholic Church was to take a vow of chastity, which effectively dissolved the marriage. Strictures against divorce could be avoided by purchasing dispensations from the Church. The sale of dispensations became a very lucrative practice among the clergy and a source of revenue for the church, which could not levy taxes directly. In the struggle between secular rights and church dogma, the people had little or no voice.
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