Of the Bill of Divorce

Of the Bill of Divorce — St. Thomas Aquinas asks: Whether inseparableness of the wife is of natural law?; Whether it may have been lawful by dispensation to put away a wife?; Whether it was lawful to divorce a wife under the Mosaic law?; Whether it was lawful for a divorced wife to have another husband?; Whether a husband could lawfully take back the wife he had divorced?; Whether the reason for divorce was hatred for the wife?; Whether the causes of divorce had to be written in the bill?.

We must now consider the bill of divorce, under which head there are seven points of inquiry:

Article 1: Whether inseparableness of the wife is of natural law?

Those things which were assigned to nature when it was well established in its beginning belong especially to the law of nature. Now the indissolubility of marriage is one of these things according to Mat. 19:4,6. Therefore it is of natural law.

Further, it is of natural law that man should not oppose himself to God. Yet man would, in a way, oppose himself to God if he were to sunder "what God hath joined together." Since then the indissolubility of marriage is gathered from this passage (Mat. 19:6) it would seem that it is of natural law.

By the intention of nature marriage is directed to the rearing of the offspring, not merely for a time, but throughout its whole life. Hence it is of natural law that parents should lay up for their children, and that children should be their parents' heirs (2 Cor. 12:14). Therefore, since the offspring is the common good of husband and wife, the dictate of the natural law requires the latter to live together for ever inseparably: and so the indissolubility of marriage is of natural law.

Article 2: Whether it may have been lawful by dispensation to put away a wife?

Abraham carnally knew Agar with the disposition of a husband towards his wife, as stated above (,3). Now by Divine command he sent her away, and yet sinned not. Therefore it could be lawful by dispensation for a man to put away his wife.

In the commandments, especially those which in some way are of natural law, a dispensation is like a change in the natural course of things: and this course is subject to a twofold change. First, by some natural cause whereby another natural cause is hindered from following its course: it is thus in all things that happen by chance less frequently in nature. In this way, however, there is no variation in the course of those natural things which happen always, but only in the course of those which happen frequently. Secondly, by a cause altogether supernatural, as in the case of miracles: and in this way there can be a variation in the course of nature, not only in the course which is appointed for the majority of cases, but also in the course which is appointed for all cases, as instanced by the sun standing still at the time of Josue, and by its turning back at the time of Ezechias, and by the miraculous eclipse at the time of Christ's Passion [*Jos. 10:14; 4 Kings 20:10; Is. 38:8; Mat. 27:15]. In like manner the reason for a dispensation from a precept of the law of nature is sometimes found in the lower causes, and in this way a dispensation may bear upon the secondary precepts of the natural law, but not on the first precepts because these are always existent as it were, as stated above () in reference to the plurality of wives and so forth. But sometimes this reason is found in the higher causes, and then a dispensation may be given by God even from the first precepts of the natural law, for the sake of signifying or showing some Divine mystery, as instanced in the dispensation vouchsafed to Abraham in the slaying of his innocent son. Such dispensations, however, are not granted to all generally, but to certain individual persons, as also happens in regard to miracles. Accordingly, if the indissolubility of marriage is contained among the first precepts of the natural law, it could only be a matter of dispensation in this second way; but, if it be one of the second precepts of the natural law, it could be a matter of dispensation even in the first way. Now it would seem to belong rather to the secondary precepts of the natural law. For the indissolubility of marriage is not directed to the good of the offspring, which is the principal end of marriage, except in so far as parents have to provide for their children for their whole life, by due preparation of those things that are necessary in life. Now this preparation does not pertain to the first intention of nature, in respect of which all things are common. And therefore it would seem that to put away one's wife is not contrary to the first intention of nature, and consequently that it is contrary not to the first but to the second precepts of the natural law. Therefore, seemingly, it can be a matter of dispensation even in the first way.

Article 3: Whether it was lawful to divorce a wife under the Mosaic law?

on this point there are two opinions. For some say that under the Law those who put away their wives, after giving them a bill of divorce, were not excused from sin, although they were excused from the punishment which they should have suffered according to the Law: and that for this reason Moses is stated to have permitted the bill of divorce. Accordingly they reckon four kinds of permission: one by absence of precept, so that when a greater good is not prescribed, a lesser good is said to be permitted: thus the Apostle by not prescribing virginity, permitted marriage (1 Cor. 7). The second is by absence of prohibition: thus venial sins are said to be permitted because they are not forbidden. The third is by absence of prevention, and thus all sins are said to be permitted by God, in so far as He does not prevent them whereas He can. The fourth is by omission of punishment, and in this way the bill of divorce was permitted in the Law, not indeed for the sake of obtaining a greater good, as was the dispensation to have several wives, but for the sake of preventing a greater evil, namely wife-murder to which the Jews were prone on account of the corruption of their irascible appetite. Even so they were allowed to lend money for usury to strangers, on account of corruption in their concupiscible appetite, lest they should exact usury of their brethren; and again on account of the corruption of suspicion in the reason they were allowed the sacrifice of jealousy, lest mere suspicion should corrupt their judgment. But because the Old Law, though it did not confer grace, was given that it might indicate sin, as the saints are agreed in saying, others are of opinion that if it had been a sin for a man to put away his wife, this ought to have been indicated to him, at least by the law or the prophets: "Show My people their wicked doings" (Is. 58:1): else they would seem to have been neglected, if those things which are necessary for salvation and which they knew not were never made known to them: and this cannot be admitted, because the righteousness of the Law observed at the time of the Law would merit eternal life. For this reason they say that although to put away one's wife is wrong in itself, it nevertheless became lawful by God's permitting it, and they confirm this by the authority of Chrysostom, who says [*Hom. xxxii in the Opus Imperfectum falsely ascribed to St. John Chrysostom] that "the Lawgiver by permitting divorce removed the guilt from the sin." Although this opinion has some probability the former is more generally held: wherefore we must reply to the arguments on both sides [*Cf. ; ; Contra Gentes iii, cap. 123].

Article 4: Whether it was lawful for a divorced wife to have another husband?

According to the first above mentioned opinion (), she sinned by marrying another husband after being divorced, because her first marriage still held good. For "the woman . . . whilst her husband liveth, is bound to the law of her husband" (Rom. 7:2): and she could not have several husbands at one time. But according to the second opinion, just as it was lawful by virtue of the Divine dispensation for a husband to divorce his wife, so could the wife marry another husband, because the indissolubility of marriage was removed by reason of the divine dispensation: and as long as that indissolubility remains the saying of the Apostle holds.

Accordingly to reply to the arguments on either side:

Article 5: Whether a husband could lawfully take back the wife he had divorced?

It is said (Dt. 24:4) that "the former husband cannot take her again," etc.

In the law concerning the bill of divorce two things were permitted, namely for the husband to put away the wife, and for the divorced wife to take another husband; and two things were commanded, namely that the bill of divorce should be written, and secondly that the husband who divorced his wife could not take her back. According to those who hold the first opinion () this was done in punishment of the woman who married again, and that it was by this sin that she was defiled: but according to the others it was done that a husband might not be too ready to divorce his wife if he could nowise take her back afterwards.

Article 6: Whether the reason for divorce was hatred for the wife?

It is the general opinion of holy men that the reason for permission being given to divorce a wife was the avoidance of wife-murder. Now the proximate cause of murder is hatred: wherefore the proximate cause of divorce was hatred. But hatred proceeds, like love, from a cause. Wherefore we must assign to divorce certain remote causes which were a cause of hatred. For Augustine says in his gloss (De Serm. Dom. in Monte i, 14): "In the Law there were many causes for divorcing a wife: Christ admitted none but fornication: and He commands other grievances to be borne for conjugal fidelity and chastity." Such causes are imperfections either of body, as sickness or some notable deformity, or in soul as fornication or the like which amounts to moral depravity. Some, however, restrict these causes within narrower limits, saying with sufficient probability that it was not lawful to divorce a wife except for some cause subsequent to the marriage; and that not even then could it be done for any such cause, but only for such as could hinder the good of the offspring, whether in body as barrenness, or leprosy and the like, or in soul, for instance if she were a woman of wicked habits which her children through continual contact with her would imitate. There is however a gloss on Dt. 24:1, "If . . . she find not favor in his eyes," which would seem to restrict them yet more, namely to sin, by saying that there "uncleanness" denotes sin: but "sin" in the gloss refers not only to the morality of the soul but also to the condition of the body. Accordingly we grant the first two objections.

Article 7: Whether the causes of divorce had to be written in the bill?

The causes for divorce were either sufficient or not. If they were sufficient, the wife was debarred from a second marriage, though this was allowed her by the Law. If they were insufficient, the divorce was proved to be unjust, and therefore could not be effected. Therefore the causes for divorce were by no means particularized in the bill.

The causes for divorce were not particularized in the bill, but were indicated in a general way, so as to prove the justice of the divorce. According to Josephus (Antiq. iv, 6) this was in order that the woman, having the written bill of divorce, might take another husband, else she would not have been believed. Wherefore according to him it was written in this wise: "I promise never to have thee with me again." But according to Augustine (Contra Faust. xix, 26) the bill was put into writing in order to cause a delay, and that the husband might be dissuaded by the counsel of the notaries to refrain from his purpose of divorce.

This suffices for the Replies to the Objections.