A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
Taking the church's own definition of marriage, it seems, after
all, that divorce _a vinculo_ did not in reality quite disappear
from the canon law. It would be a serious error to imagine that the
opportunity for escaping entirely from the bonds of undesirable
wedlock was restricted to the contract _de praesenti_ not followed
by actual conjugal life, which in direct violation of her own theory
the church was constrained to treat as an imperfect marriage. To all
intents and purposes, when judged from a rational modern standpoint,
the decree of nullity was a divorce proper. Practically speaking,
it cannot be doubted that there existed a very wide liberty of
divorce in the Middle Ages, though it existed mainly for those who
were able to pay the ecclesiastical judge for finding a way through
the tortuous maze of forbidden degrees.[157] In a divorce procedure
masquerading under the guise of an action for nullifying spurious
marriages lurked the germs of perjury and fraud. When both persons
were willing to separate, the matter must have been easy enough
by collusion; and when one consort was tired of the other, the
ecclesiastical court for money would be able to find good reasons
for effecting his release.[158] "Spouses who had quarreled began to
investigate their pedigrees and were unlucky if they could discover
no _impedimentum dirimens_" or cause which would have prevented
the contraction of a valid marriage.[159] "The canons prescribing
the prohibited degrees of relationship were marvels of ingenuity.
Spiritual relationships, those gained in baptism, were recognized
no less than natural relationships, and equally with them served
as barriers to legal marriage. Marriage was prohibited within
seven[160] degrees of relationship and affinity; and none but the
astutest students of the law were able to unravel so complicated
a system. The annulling of marriages, which had been contracted
within the prohibited degrees, became a flourishing business of
the Church. No exercise of its power yielded more money, or caused
more scandal. So tangled was the casuistry respecting marriage, at
the beginning of the sixteenth century, that it might be said that,
for a sufficient consideration, a canonical flaw could be found in
almost any marriage."[161]
[Footnote 157: JEAFFRESON, _Brides and Bridals_, II, 299 ff.,
conjectures that during the Middle Ages there must have been many
irregular self-divorces; and he cites the famous case of William
Paynel and Margaret his wife who, in 1302, "petitioned the king
for the dower that was due to her as widow of her first husband
John de Camoys," who with her consent had "openly and before
witnesses 'given, granted, released, and quit-claimed' the said
Margaret to 'her chivalric knight,'" the said William. The court
refused the dower on the ground of desertion and adultery. _Cf._
on this case POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II, 393,
394.]
[Footnote 158: JEAFFRESON, _op. cit._, II, 306-9.]
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