Tuesday, October 12, 2010
"Vice Pioneers" : Divorce
Henry VIII split from a whole empire to divorce peacefully
Constatine, on the other hand, had a strict "you're stuck with him/her" viewpoint
In light of the news today that two famous couples are headed for divorce (Courney Cox/David Arquette and Christina Aguilerra/Jordan Bratman), it's fitting to take a look at the act for this week's "Vice Pioneers." In keeping with the point of the "Vice Pioneer," this post is sticking to the historical facts of divorce, but it should be noted that the statistics and practices of the act in different countries around the world is the most interesting part. Take a look at the entire Wikipedia page for more info on this growing act of people getting sick of one another.
The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate, and the magistrate could determine whether the reasons given were sufficient.
Divorce was rare in early Roman culture but as their empire grew in power and authority Roman civil law embraced the maxim, “matrimonia debent esse libera” ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. Though civil authority rarely intervened in divorces, social and familial taboos guaranteed that divorce occurred only after serious circumspection. The Christian emperors Constantine and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the sixth century.
After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority. By the ninth or tenth century, the divorce rate had been greatly reduced under the influence of the Christian Church, which considered marriage a sacrament instituted by God and Christ indissoluble by mere human action.
Although divorce, as known today, was generally prohibited after the tenth century, separation of husband and wife and the annulment of marriage were well-known. What is today referred to as “separate maintenance” (or "legal separation") was termed “divorce a mensa et thoro” (“divorce from bed-and-board”). The husband and wife physically separated and were forbidden to live or cohabit together; but their marital relationship did not fully terminate. Civil courts had no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for canonical causes of impediment existing at the time of the marriage. “For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio.” The Church held that the sacrament of marriage produced one person from two, inseparable from each other: “By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything.” Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially.
Secularization in Europe and United States
Marriage later came to be considered a civil contract, and on that basis civil authorities gradually asserted their power to decree a “divorce a vinculo matrimonii,” or “divorce from all the bonds of marriage.” Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse." If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage." Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or “extreme cruelty.”