Of the Impediment That Supervenes to Marriage After Its Consummation, Namely Fornication

Of the Impediment That Supervenes to Marriage After Its Consummation, Namely Fornication — St. Thomas Aquinas asks: Whether it is lawful for a husband to put away his wife on account of fornication?; Whether the husband is bound by precept to put away his wife when she is guilty of fornication?; Whether the husband can on his own judgment put away his wife on account of fornication?; Whether in a case of divorce husband and wife should be judged on a par with each other?; Whether a husband can marry again after having a divorce?; Whether husband and wife may be reconciled after being divorced?.

We must now consider the impediment that supervenes upon marriage after its consummation, namely fornication, which is an impediment to a previous marriage as regards the act, although the marriage tie remains. Under this head there are six points of inquiry:

Article 1: Whether it is lawful for a husband to put away his wife on account of fornication?

are the words of Mat. 5:32.

Further, one is not bound to keep faith with one who breaks his faith. But a spouse by fornication breaks the faith due to the other spouse. Therefore one can put the other away on account of fornication.

Our Lord permitted a man to put away his wife on account of fornication, in punishment of the unfaithful party and in favor of the faithful party, so that the latter is not bound to marital intercourse with the unfaithful one. There are however seven cases to be excepted in which it is not lawful to put away a wife who has committed fornication, when either the wife is not to be blamed, or both parties are equally blameworthy. The first is if the husband also has committed fornication; the second is if he has prostituted his wife; the third is if the wife, believing her husband dead on account of his long absence, has married again; the fourth is if another man has fraudulently impersonated her husband in the marriage-bed; the fifth is if she be overcome by force; the sixth is if he has been reconciled to her by having carnal intercourse with her after she has committed adultery; the seventh is if both having been married in the state of unbelief, the husband has given his wife a bill of divorce and she has married again; for then if both be converted the husband is bound to receive her back again.

Article 2: Whether the husband is bound by precept to put away his wife when she is guilty of fornication?

The putting away of a wife guilty of fornication was prescribed in order that the wife might be corrected by means of that punishment. Now a corrective punishment is not required when amendment has already taken place. Wherefore, if the wife repent of her sin, her husband is not bound to put her away: whereas if she repent not, he is bound to do so, lest he seem to consent to her sin, by not having recourse to her due correction.

Article 3: Whether the husband can on his own judgment put away his wife on account of fornication?

No one should avenge himself. But if a husband were by his own judgment to put away his wife on account of fornication, he would avenge himself. Therefore this should not be done.

Further, no man is prosecutor and judge in the same cause. But the husband is the prosecutor by suing his wife for the offense she has committed against him. Therefore he cannot be the judge, and consequently he cannot put her away on his own judgment.

A husband can put away his wife in two ways. First as to bed only, and thus he may put her away on his own judgment, as soon as he has evidence of her fornication: nor is he bound to pay her the marriage debt at her demand, unless he be compelled by the Church, and by paying it thus he nowise prejudices his own case. Secondly, as to bed and board, and in this way she cannot be put away except at the judgment of the Church; and if she has been put away otherwise, he must be compelled to cohabit with her unless the husband can at once prove the wife's fornication. Now this putting away is called a divorce: and consequently it must be admitted that a divorce cannot be pronounced except at the judgment of the Church.

Article 4: Whether in a case of divorce husband and wife should be judged on a par with each other?

In a case of divorce husband and wife are judged on a par with each other, in the sense that the same things are lawful or unlawful to the one as to the other: but they are not judged on a par with each other in reference to those things, since the reason for divorce is greater in one spouse than in the other, although there is sufficient reason for divorce in both. For divorce is a punishment of adultery, in so far as it is opposed to the marriage goods. Now as regards the good of fidelity to which husband and wife are equally bound towards each other, the adultery of one is as great a sin against marriage as the adultery of the other, and this is in either of them a sufficient reason for divorce. But as regards the good of the offspring the wife's adultery is a greater sin against marriage than the husband's wherefore it is a greater reason for divorce in the wife than in the husband: and thus they are under an equal obligation, but not for equal reasons. Nor is this unjust for on either hand there is sufficient reason for the punishment in question, just as there is in two persons condemned to the punishment of death, although one of them may have sinned more grievously than the other.

Article 5: Whether a husband can marry again after having a divorce?

It is written (1 Cor. 7:10,11): "Not I, but the Lord, commandeth that the wife depart not from her husband. and, if she depart, that she remain unmarried."

Further, no one should gain advantage from sin. But the adulteress would if she were allowed to contract another and more desired marriage; and an occasion of adultery would be afforded those who wish to marry again. Therefore it is unlawful both to the wife and to the husband to contract a second marriage.

Nothing supervenient to marriage can dissolve it: wherefore adultery does not make a marriage cease to be valid. For, according to Augustine (De Nup. et Concup. i, 10), "as long as they live they are bound by the marriage tie, which neither divorce nor union with another can destroy." Therefore it is unlawful for one, while the other lives, to marry again.

Article 6: Whether husband and wife may be reconciled after being divorced?

It is written (1 Cor. 7:11): "And if she depart, that she remain unmarried, or be reconciled to her husband."

Further, it is allowable for the husband not to put her away after fornication. Therefore, for the same reason, he can be reconciled to her after divorce.

If the wife has mended her ways by repenting of her sin after the divorce, her husband may become reconciled to her; but if she remain incorrigible in her sin, he must not take her back, for the same reason which forbade him to retain her while she refused to desist from sin.