Can the Orthodox Way End the Divorce and Remarriage Debate?

wedding_of_nicholas_ii_and_alexandra_feodorovna_by_laurits_tuxen_1895_hermitage

On his flight back to Rome from World Youth Day in Brazil (2013), Pope Francis speaking about the season of mercy and the Church as a mother dispensing mercy, praised the pastoral practice of the Orthodox Churches on marriage and divorce, the pastoral care for the divorced and remarried Orthodox faithful and the possibility of giving Communion to couples who have contracted second marriages after divorce. The Holy Father specified: “with reference to the issue of giving Communion to persons in a second union (because those who are divorced can receive Communion, there is no problem, but when they are in a second union, they can’t…), I believe that we need to look at this within the larger context of the entire pastoral care of marriage.” He added: “… the Orthodox have a different practice. They follow the theology of what they call oikonomia, and they give a second chance, they allow it. But I believe that this problem—and here I close the parenthesis—must be studied within the context of the pastoral care of marriage.”

The theology or the principle of oikonomia followed by the Orthodox Churches allows these Churches to dissolve first marriages and bless a second or a third marriage on a case-by-case basis and under specific conditions. Cardinal Walter Kasper is one of the proponents in support of the Orthodox principle of oikonomia. What is the Orthodox understanding of the indissolubility of marriage? What are the differences in the pastoral care of marriage in East and West? A familiarity with the development of Orthodox theology and pastoral practice on marriage, divorce, and Communion for divorced and remarried couples should discourage any Catholic attempt to adopt Eastern practices.

How the Civil Law Entered Church Law
St. Neilos, one of the most celebrated eleventh-century Italo-Greek saints of Calabria, was married before he became a monk. According to his vita Neilos “was not strong enough to escape their (young girls’) manifold snares, but just like a stag wounded in the heart, he was captured by one of them who surpassed the others in her comeliness and natural beauty… He then entered the yoke of marriage with her, and their first-born child was a girl.” Getting a consensus divorce from one’s spouse was common practice well before the time of St. Neilos. Emperor Justinian’s (527-565) legislation prescribed specific causes for divorce and remarriage. Entering a monastery or religious life by reciprocal agreement among the spouses was considered a valid reason for divorce, and this applied to men and women who, during marriage, chose a religious life and habitation in a monastery. Additionally, husbands could divorce their wives in cases of treason against the emperor, committing adultery, plotting to kill their spouses, etc. Wives were also granted divorces if their husbands pressured them to commit adultery or if husbands accused them of adultery but failed to provide evidence.

The Orthodox Church, due to historical circumstances particular to the Eastern Roman Empire, tried to live in harmony or symphonia with the civil authorities, and probably this is the reason why civil divorce and remarriage was borrowed and entered Church Law. Novella 117 of the year 542 is probably an example of the compromise between Roman-civil and Church Law permitting divorce and remarriage in cases of adultery or for entering a monastery. Divorce and remarriage entered Orthodox Church Law via canon 87 of the Council in 692 in Trullo, (the decisions of which the Catholic Church does not recognize), which prescribed several cases for divorce and remarriage: the culpable “must be weepers for a year, hearers for two years, prostrators for three years, and in the seventh year to stand with the faithful and thus be counted worthy of the Oblation.” Almost two centuries after Trullo, in 883 the Patriarch of Constantinople St. Photius in his Nomocanon, collection of Church Laws incorporated a list of special causes for divorce and remarriage borrowed from the Justinian-civil law, while affirming the Orthodox Church’s understanding of the indissolubility of marriage.

In the centuries that followed and due to historical circumstances of the symphonia between Church and State, civil law progressively entered and was applied in the Church Law. In the ninth century, the Church was declared the only legal institution recognized by the state to celebrate marriages. The sacramental-Church marriage blended with and validated civil marriage. One could not get married without the Church’s blessing. Consequently, Church tribunals received exclusive rights by the state to examine and dissolve marriages. This was more a curse than a blessing for the Church, and forced the Church to conform its practices to State law, which recognized divorce and remarriage. The Church was pressured to “lower the bar” and bless second or third marriages. In contrast, the Church in the West developed a different model—separation between Church and State, which was different from the symphonia.

Because the Orthodox Church is to be understood in terms of a communion of autocephalous or autonomous churches, each with its own hierarchy and constitution, the practices of divorce and contracting second or third marriages are different in different Orthodox churches. Russian, Rumanian, Bulgarian, Serbian and Albanian practices for divorce and re-marriage in the Church vary reflecting the Church-State relations in these countries. Not one rule applies to all Orthodox churches. This is different from the Catholic Church and its unity in interpretation of divorce and remarriage. For example, while adultery is consistently considered a cause for divorce and remarriage “I say to you: whoever divorces his wife, except for unchastity, and marries another, commits adultery, and he who marries a divorced woman commits adultery,” (Matt 19:9) by all Orthodox churches, other country-specific causes entered Church Law. Chronic alcoholism or drug addiction and abortion procured by the wife with no consent from the husband were included as causes for divorce by the Bishops’ Council of the Russian Orthodox Church in 2000. In sum, the Orthodox churches, while recognizing the sacredness and indissolubility of a sacramental marriage, have historically and under specific circumstances accepted divorce and second and third marriages blessed by the Church. This is different from the Catholic Church’s understanding and interpretation of a sacramental, indissoluble marriage.

The Orthodox Marriage and Holy Communion
Orthodoxy does not view marriage as a contract but as a mystery (sacraments are considered mysteries by the Orthodox Church) from which grace is received, and because it is a mystery various interpretations of the scriptures might apply. The “Crowning,” the climax of the Orthodox wedding ceremony, which takes place after the exchanging of the rings, is a powerful and focal point of the sacrament of matrimony. The priest takes two wedding crowns, blesses the bride and groom in the name of the Father, and the Son, and the Holy Spirit, and then places the crowns upon their heads. The Koumbara (sponsors) then interchange the crowns three times as a witness to the sealing of the union. The priest will then ask God to bless a Common Cup that contains wine. The crowns remain with the couple in life as in death. In many Orthodox churches, it is common practice that when the first of the spouses dies the wedding crowns are buried with him or her. For the Orthodox Church, the first marriage is considered the only sacramental marriage and is dissolved only with the death of one of the souses applying the “until death do us part” dictum. Consequently, only the first marriage can contain the perfect meaning and significance which Christ has given to marriage.

An important observation which is different and misunderstood as Holy Communion by Catholics is the Common Cup offered to the spouses. The Common Cup signifies that from this moment on all things are shared equally. Note this is a Common Cup, not Holy Communion or Eucharist. The rite of “crowning” is separate from Communion in the Orthodox Church. For the Catholic Church the true seal of marriage is the receiving of Holy Communion by the husband and wife at the end of the wedding ceremony within Mass which is encouraged in the Catholic Church, but this is not the case with Orthodox Churches.

Second or Third Marriages Blessed by the Church
The celebration of second and third marriages in the Orthodox Churches is different from the celebration of the first-sacramental marriage. The Orthodox Church historically has drawn a distinction between the two rites celebrated in first and subsequent marriages. The rite of the first marriage is joyous and celebratory; for the second and third marriages, the rite is penitential as these marriages are granted and blessed by the Church out of Christ’s mercy for human weakness. The couple celebrating second and third marriages share the Common Cup, not the actual Communion.

Receiving Communion after a second and third marriage in the Orthodox Churches follows a strict period of discernment and penance. Rigorous penances are prescribed, especially for the guilty party. The couple cannot approach Communion for several years as they journey together in repentance under the guidance of the priest. Pope Benedict XVI described Communion as “the banquet of the reconciled” and not the sinners. So, the couple approaches Communion only when and if they are fully reconciled with the Church. This explains why an Orthodox couple if divorced and civilly remarried (so not remarried in the Church) cannot receive Communion, as they by their civil marriage have “denied” their membership in the Church and have not gone through the discernment, integration and reconciliation process.

The Orthodox pastoral practice thus departs from the Western Church in these respects: the case-by-case discernment; personalized attention to the divorced and remarried couples offered by Orthodox priests to reconcile; and the care the Orthodox priests show in accompanying remarrying couples through Penance, Reconciliation and preparation to receive Holy Communion. In my view, however, the Orthodox Churches, due to their diversity, do not have a clear cut, juridical doctrine regarding the indissolubility of marriage. The Orthodox Church is “… opposed to divorce in principle and sees it as a failure and an evil,” as Fr. Stanley Harankas, a priest of the Greek Orthodox Archdiocese of America and Professor of Orthodox Theology at Holy Cross Greek writes. The Orthodox understanding is that “Jesus did not prohibit all divorces,” according to Fr. Harankas, so there are some exceptions to the general rule and that is how they interpret “whoever divorces his wife (unless the marriage is unlawful) and marries another commits adultery” (Matt 19:9).

However, the Orthodox way does not represent a feasible way out for Catholic understanding and pastoral practice of, “‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So they are no longer two, but one flesh. Therefore, what God has joined together, no human being must separate” (Matt 19:5-6). The history, interpretation of the same tradition and Sacred Scripture, and the Church-state relations are different in Orthodoxy. The Catholic Church teaching on divorce, remarriage and reception of the Holy Communion is re-affirmed in the 1994 document by the Congregation for the Doctrine of the Faith that those who are divorced and remarried without a Decree of Nullity for the first marriage are in irregular unions that prevents these couples from Holy Communion.

Editor’s note: The image above is a detail from “The Wedding of Nicholas II and Alexandra Feodorovna” painted by Laurits Tuxen in 1895.

Ines A. Murzaku

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Ines A. Murzaku is Professor of Church History, Department of Religion, Seton Hall University in New Jersey and until June 2016 was the Founding Chair of the Department of Catholic Studies. She earned a doctorate from the Pontifical Oriental Institute in Rome and has held visiting positions at the Universities of Bologna and Calabria in Italy and University of Münster in Germany. Her research has been published in multiple articles and five books the most recent Monasticism in Eastern Europe and the Former Soviet Republics (2016).

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