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
Only two general causes of full divorce on alleged scriptural
authority were thus admitted by Luther and his immediate followers.
Other offenses, except as by logical fiction brought under the
definition of desertion or adultery, were merely accepted as
grounds of temporary separation from bed and board, subject to
reconciliation.[182] On the other hand, the representatives of
the more liberal tendency anticipated in many ways modern ideas
as to the grounds of absolute dissolution of the marriage bond.
Avoiding to some extent the indirect method of attaining practical
ends by juggling with definitions, they were inclined to appeal
for authority directly to Roman imperial legislation; and so,
"since the other direction is connected with the canon law, we have
here a phase of the struggle" between that system and the Roman
jurisprudence.[183] The first step in the liberal direction is
taken by Erasmus, who sustains a rational method of dealing with
the divorce problem through appeal to the teachings of the early
Fathers, notably those of Origen; and this brought him in contact
with the principles of the old Roman law.[184] His influence, as
Richter strongly urges, seems to have been felt by Zwingli, who,
with his disciple Bullinger, argues that in admitting adultery as
a cause of divorce the Scriptures sanction as such all equal or
graver offenses.[185] Accordingly, in the Zurich marriage ordinance
of 1525, "adultery, malicious desertion, and plotting against the
life of a consort are not regarded as the only causes, but rather
as the standard causes of divorce, and to the judge it is left to
decide what others shall be put by their side. And not only this,
but cruelty, madness, leprosy, are mentioned as causes which the
judge can take into account."[186] Lambert of Avignon is likewise
conspicuous for liberal ideas regarding the causes of divorce.
Anticipating the principle so often enforced by modern legislation,
he holds that when a wife is forced by intolerable suffering to
leave the husband who mistreats her and denies her proper support,
this should be counted as repudiation by the man, and not as
desertion by the woman, who should therefore be allowed to contract
another marriage.[187] Similar views are held by Bucer,[188]
Melanchthon,[189] and the jurist Monner.[190] All accept the two
general causes, and each admits several other grounds.
Public-domain text, read in full here on John Shaqi.
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