Folia Canonica 11. (2008)
STUDIES - George D. Gallaro: Oikonomia and Marriage Dissolution in the Christian East
120 GEORGE D. GALLARO was dissolved by mutual consent, namely when one of the two parties entered monastic life.55 56 In all other cases, divorce by consent was forbidden. In the same Novel, Emperor Justinian listed all the individual cases in which marriage was considered dissolved. Thus in chapter ten of the same Novel we read: “While some dissolved their marriage by mutual consent until the present time, now we will not allow it in any way, except if someone should do it out of love for chastity...”36 Even in the case of adultery, Emperor Justinian imposed on the husband (chapter 8) that he should present proofs of the accusations leveled against his wife and wait for the sentence of the judge. Previously the suspicion and the simple accusation were sufficient without need of proofs57. In the year 566, Emperor Justin II brought back the Roman law of divorce by simple mutual consent. However, this law had a brief duration because the Church’s opposition was such that the Justinian law was restored. The Sixth Ecumenical Council of 690-91 dealt with the question of indissolubility in canon 87 by cautiously using ecclesiastical terms, despite the fact that the Justinian law had become the official practice. It is worth reporting the entire text since this is the first official pronouncement of the Church on the subject. “The woman who has left her husband is an adulteress, if she has gone to another, according to the holy and divine Basil, who culled this most aptly from the prophecy of Jeremiah: If a woman becomes another man’s wife, she shall not return to her husband, but being defiled she shall remain defiled; and again: He who keeps an adulteress is foolish and ungodly. If, therefore, it is show that a woman has left her husband without good reason, he deserves allowance, but she a penalty; and allowance shall be given him, that he may be in communion with the Church. However, he who leaves his lawfully wedded wife and takes another is liable to the verdict of adultery, in accordance with the decision of the Lord. It has been canonically decreed by our Fathers that such men are to weep for one year, to listen for two years, to prostrate themselves for three years, and in the seventh year are to stand together with the faithful; thereupon they are deemed worthy to partake of the offering, if they repent with tears.”58 This canon of the Orthodox Churches is still in force. 55 In the case of opting for monastic life even by only one of the two spouses, the marriage is dissolved because the monastic party chooses the real thing against the image. The other party is free and can remarry a second time without being charged with divorce. 56 Scott, op. cit. 57 The reason was that for the Greco-Roman law before Justinian adultery was not exactly a criminal act; therefore, it was sufficient to submit any declaration even without proving anything. However, with Christianity there comes into play the concept that adultery is a criminal act, therefore it is necessary to support the accusation with proofs in order for it to be accepted by the judge who then issues the sentence. 58 Tanner, op. cit. Also see G. Nedungatt-M. Featherstone (eds.), The Council in Trutlo Revisited (Kanonika 6), Rome 1995, 166f. The list of the years of penance by the Church as condemnation for the adultery is the one which was in force in the 7th century as witnessed by
