Folia Canonica 11. (2008)
STUDIES - George D. Gallaro: Oikonomia and Marriage Dissolution in the Christian East
OIKONOMIA AND MARRIAGE DISSOLUTION 119 be adultery to do so” (Question 15). From this answer we can infer that many bishops were tolerating such cases; however, Patriarch Timothy was not convinced of it. He does not say no, but he refrains from saying yes.50 In the Eastern practice of the first five centuries the use of economy tolerating a second and even a third marriage prevailed in the end.51 This took place not only in the case of adultery but also in few other cases considered similar to adultery, such as homicide,52 and deserting the family. However, since this was just tolerated in various places there was no actual legislation; everything was left to the common sense of the bishops who acted as solicitous pastors of souls rather than advocates of strict discipline.53 The Code of Justinian (565) can be considered the real conclusive point. Up to this emperor, the Roman law on marriage was in force. This law admitted divorce by mutual consent or even by decision of one of the parties. The Eastern Church never admitted divorce by mutual consent or a second marriage for such divorcees. The termination of the marriage bond was always considered as an evil act by the Church and dealt with as such. This attitude was in contrast with the laws of the Greek/Roman world to which the Church opposed the Gospel’s teachings, especially the indissolubility of the Christian marriage. It is obvious that to accept divorce by mutual consent was equivalent to say that marriage was not indissoluble. Once the principle of matrimonial indissolubility was embraced and divorce held as evil act, some tolerance of second marriages by economy was thought not to substantially alter Christian ethics. With Emperor Justinian, the Church won the battle, as it were, because the Christian position became law for the whole empire. In fact, Emperor Justinian enacted various laws whereby divorce by mutual consent was forbidden, while it was tolerated in some limited cases as evil. In other words, the State took notice that divorce had taken place, but the Church applied its canonical discipline. By his Novel 117 (chapters 8, 9, 10 and 12), Emperor Justinian, in agreement with Ecumenical Patriarch Menas (f 552), changed the Roman law which allowed divorce by consent (ex consensu) or divorce with the notice of repudiation (libellum ripudiiJ,54 by allowing only one case whereby a marriage 50 Percival, op. cit. Novel 111 of Emperor Leo VI admitted the validity of this type of divorce. However, Timothy’s doubt was always alive in the West, and Leo’s norm was not applied in all cases and places. 51 The method adopted in the marriage of widows was used but with the addition of more serious canonical penalties. 52 We mean attempted homicide against the spouse or the children. 53 In the civil forum, the old Roman laws in this field were not accepted by the Christians. It is easy to notice that the Church Fathers who speak of this subject do not take into account the civil laws; they base their reasoning only on Sacred Scripture. 34 Corpus Juris Civilis, III, Berlin 1963; S. Scott, The Civil Law, Cincinnati 2001, 277ff.
