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Question: 62 [<< | >>]
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:
(1) Whether it is lawful for a husband to put his wife away on account
of fornication?
(2) Whether he is bound to do so?
(3) Whether he may put her away at his own judgment?
(4) Whether in this matter husband and wife are of equal condition?
(5) Whether, after being divorced, they must remain unmarried?
(6) Whether they can be reconciled after being divorced?
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Question: 62 [<< | >>]
Article: 1 [<< | >>]
Objection 1: It would seem unlawful for a husband to put away his wife on
account of fornication. For we must not return evil for evil. But the
husband, by putting away his wife on account of fornication, seemingly
returns evil for evil. Therefore this is not lawful.
Objection 2: Further, the sin is greater if both commit fornication, than if
one only commits it. But if both commit fornication, they cannot be
divorced on that account. Neither therefore can they be, if only one
commits fornication.
Objection 3: Further, spiritual fornication and certain other sins are more
grievous than carnal fornication. But separation from bed cannot be
motived by those sins. Neither therefore can it be done on account of
fornication.
Objection 4: Further, the unnatural vice is further removed from the marriage
goods than fornication is, the manner of which is natural. Therefore it
ought to have been a cause of separation rather than fornication.
On the contrary, are the words of Mt. 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.
I answer that, 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.
Reply to Objection 1: A husband sins if through vindictive anger he puts away his
wife who has committed fornication, but he does not sin if he does so in
order to avoid losing his good name, lest he seem to share in her guilt,
or in order to correct his wife's sin, or in order to avoid the
uncertainty of her offspring.
Reply to Objection 2: Divorce on account of fornication is effected by the one
accusing the other. And since no one can accuse who is guilty of the same
crime, a divorce cannot be pronounced when both have committed
fornication, although marriage is more sinned against when both are
guilty of fornication that when only one is.
Reply to Objection 3: Fornication is directly opposed to the good of marriage,
since by it the certainty of offspring is destroyed, faith is broken, and
marriage ceases to have its signification when the body of one spouse is
given to several others. Wherefore other sins, though perhaps they be
more grievous than fornication, are not motives for a divorce. Since,
however, unbelief which is called spiritual fornication, is also opposed
to the good of marriage consisting in the rearing of the offspring to the
worship of God, it is also a motive for divorce, yet not in the same way
as bodily fornication. Because one may take steps for procuring a divorce
on account of one act of carnal fornication, not, however, on account of
one act of unbelief, but on account of inveterate unbelief which is a
proof of obstinacy wherein unbelief is perfected.
Reply to Objection 4: Steps may be taken to procure a divorce on account also of
the unnatural vice: but this is not mentioned in the same way, both
because it is an unmentionable passion, and because it does not so affect
the certainty of offspring.
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Question: 62 [<< | >>]
Article: 2 [<< | >>]
Objection 1: It would seem that the husband is bound by precept to put away
his wife who is guilty of fornication. For since the husband is the head
of his wife, he is bound to correct his wife. Now separation from bed is
prescribed as a correction of the wife who is guilty of fornication.
Therefore he is bound to separate from her.
Objection 2: Further, he who consents with one who sins mortally, is also
guilty of mortal sin. Now the husband who retains a wife guilty of
fornication would seem to consent with her, as stated in the text (Sent.
iv, D, 35). Therefore he sins unless he puts her away.
Objection 3: Further, it is written (@1 Cor. 6:16): "He who is joined to a
harlot is made one body." Now a man cannot at once be a member of a
harlot and a member of Christ (@1 Cor. 6:15). Therefore the husband who
is joined to a wife guilty of fornication ceases to be a member of
Christ, and therefore sins mortally.
Objection 4: Further, just as relationship voids the marriage tie, so does
fornication dissolve the marriage-bed. Now after the husband becomes
cognizant of his consanguinity with his wife, he sins mortally if he has
carnal intercourse with her. Therefore he also sins mortally if he does
so after knowing her to be guilty of fornication.
Objection 5: On the contrary, A gloss on 1 Cor. 7:11, "Let not the husband put
away his wife" says that "Our Lord permitted a wife to be put away on
account of fornication." Therefore it is not a matter of precept.
Objection 6: Further, one can always pardon the sin that another has committed
against oneself. Now the wife, by committing fornication, sinned against
her husband. Therefore the husband may spare her by not putting her away.
I answer that, 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.
Reply to Objection 1: The wife can be corrected for her sin of fornication not
only by this punishment but also by words and blows; wherefore if she be
ready to be corrected otherwise, her husband is not bound to have
recourse to the aforesaid punishment in order to correct her.
Reply to Objection 2: The husband seems to consent with her when he retains her,
notwithstanding that she persists in her past sin: if, however, she has
mended her ways, he does not consent with her.
Reply to Objection 3: She can no longer be called a harlot since she has repented
of her sin. Wherefore her husband, by being joined to her, does not
become a member of a harlot. We might also reply that he is joined to her
not as a harlot but as his wife.
Reply to Objection 4: There is no parallel, because the effect of consanguinity
is that there is no marriage tie between them, so that carnal intercourse
between them becomes unlawful. Whereas fornication does not remove the
said tie, so that the act remains, in itself, lawful, unless it become
accidentally unlawful, in so far as the husband seems to consent to his
wife's lewdness.
Reply to Objection 5: This permission is to be understood as an absence of
prohibition: and thus it is not in contradistinction with a precept, for
that which is a matter of precept is also not forbidden.
Reply to Objection 6: The wife sins not only against her husband, but also
against herself and against God, wherefore her husband cannot entirely
remit the punishment, unless amendment has followed.
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Question: 62 [<< | >>]
Article: 3 [<< | >>]
Objection 1: It would seem that the husband can on his own judgment put away
his wife on account of fornication. For when sentence has been pronounced
by the judge, it is lawful to carry it out without any further judgment.
But God, the just Judge, has pronounced this judgment, that a husband may
put his wife away on account of fornication. Therefore no further
judgment is required for this.
Objection 2: Further, it is stated (@Mt. 1:19) that Joseph . . . being a just
man . . . "was minded to put" Mary "away privately." Therefore it would
seem that a husband may privately pronounce a divorce without the
judgment of the Church.
Objection 3: Further, if after becoming cognizant of his wife's fornication a
husband has marital intercourse with his wife, he forfeits the action
which he had against the adulteress. Therefore the refusal of the
marriage debt, which pertains to a divorce, ought to precede the judgment
of the Church.
Objection 4: Further, that which cannot be proved ought not to be submitted to
the judgment of the Church. Now the crime of fornication cannot be
proved, since "the eye of the adulterer observeth darkness" (@Job 24:15).
Therefore the divorce in question ought not to be made on the judgment of
the Church.
Objection 5: Further, accusation should be preceded by inscription [*Cf. SS,
Question [33], Article [7]], whereby a person binds himself under the pain of
retaliation, if he fails to bring proof. But this is impossible in this
matter, because then, in every event the husband would obtain his end,
whether he put his wife away, or his wife put him away. Therefore she
ought not to be summoned by accusation to receive the judgment of the
Church.
Objection 6: Further, a man is more bound to his wife than to a stranger. Now
a man ought not to refer to the Church the crime of another, even though
he be a stranger, without previously admonishing him privately (@Mt. 18:15). Much less therefore may the husband bring his wife's crime before
the Church, unless he has previously rebuked her in private.
On the contrary, 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.
I answer that, 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.
Reply to Objection 1: The sentence is an application of the general law to a
particular fact. Wherefore God gave out the law according to which the
sentence of the court has to be pronounced.
Reply to Objection 2: Joseph was minded to put away the Blessed Virgin not as
suspected of fornication, but because in reverence for her sanctity, he
feared to cohabit with her. Moreover there is no parallel, because then
the sentence at law was not only divorce but also stoning, but not now
when the case is brought to the Church for judgment. The Reply to the
Third Objection is clear from what has been said.
Reply to Objection 4: Sometimes when the husband suspects his wife of adultery he
watches her secretly that together with witnesses he may discover her in
the sin of fornication, and so proceed to accusation. Moreover, if he has
no evidence of the fact, there may be strong suspicions of fornication,
which suspicions being proved the fornication seems to be proved: for
instance if they be found together alone, at a time and place which are
open to suspicion, or "nudas cum nuda."
Reply to Objection 5: A husband may accuse his wife of adultery in two ways.
First, he may seek a separation from bed before a spiritual judge, and
then there is no need for an inscription to be made under the pain of
retaliation, since thus the husband would gain his end, as the objection
proves. Secondly, he may seek for the crime to be punished in a secular
court, and then it is necessary for inscription to precede, whereby he
binds himself under pain of retaliation if he fail to prove his case.
Reply to Objection 6: According to a Decretal (Extra, De Simonia, cap. Licet),
"there are three modes of procedure in criminal cases. First, by
inquisition, which should be preceded by notoriety; secondly, by
accusation, which should be preceded by inscription; [*Cf. SS, Question [33],
Article [7]] thirdly, by denunciation, which should be preceded by fraternal
correction." Accordingly the saying of our Lord refers to the case where
the process is by way of denunciation, and not by accusation, because
then the end in view is not only the correction of the guilty party, but
also his punishment, for the safeguarding of the common good, which would
be destroyed if justice were lacking.
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Question: 62 [<< | >>]
Article: 4 [<< | >>]
Objection 1: It would seem that, in a case of divorce, husband and wife ought
not to be judged on a par with each other. For divorce under the New Law
takes the place of the divorce [repudium] recognized by the Old Law (@Mt. 5:31,32). Now in the "repudium" husband and wife were not judged on a par
with each other, since the husband could put away his wife, but not "vice
versa." Therefore neither in divorce ought they to be judged on a par
with each other.
Objection 2: Further, it is more opposed to the natural law that a wife have
several husbands than that a husband have several wives: wherefore the
latter has been sometimes lawful, but the former never. Therefore the
wife sins more grievously in adultery than the husband, and consequently
they ought not to be judged on a par with each other.
Objection 3: Further, where there is greater injury to one's neighbor, there
is a greater sin. Now the adulterous wife does a greater injury to her
husband, than does the adulterous husband to his wife, since a wife's
adultery involves uncertainty of the offspring, whereas the husband's
adultery does not. Therefore the wife's sin is the greater, and so they
ought not to be judged on a par with each other.
Objection 4: Further, divorce is prescribed in order to punish the crime of
adultery. Now it belongs to the husband who is the head of the wife (1
Cor. 11:3) to correct his wife, rather than "vice versa." Therefore they
should not be judged on a par with each other for the purpose of divorce,
but the husband ought to have the preference.
Objection 5: On the contrary, It would seem in this matter the wife ought to
have the preference. For the more frail the sinner the more is his sin
deserving of pardon. Now there is greater frailty in women than in men,
for which reason Chrysostom [*Hom. xl in the Opus Imperfectum falsely
ascribed to St. John Chrysostom] says that "lust is a passion proper to
women," and the Philosopher says (Ethic. vii, 7) that "properly speaking
women are not said to be continent on account of their being easily
inclined to concupiscence," for neither can dumb animals be continent,
because they have nothing to stand in the way of their desires. Therefore
women are rather to be spared in the punishment of divorce.
Objection 6: Further, the husband is placed as the head of the woman in order
to correct her. Therefore his sin is greater than the woman's and so he
should be punished the more.
I answer that, 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.
Reply to Objection 1: The only reason why divorce was permitted, was to avoid
murder. And since there was more danger of this in men than in women, the
husband was allowed to put away his wife by a bill of divorce, but not
"vice versa."
Reply to Objection 2:and 3: These arguments are based on the fact that in
comparison with the good of the offspring there is more reason for
divorce in an adulterous wife than in an adulterous husband. It does not
follow, however, that they are not judged on a par with each other.
Reply to Objection 4: Although the husband is the head of the wife, he is her
pilot as it were, and is no more her judge than she is his. Consequently
in matters that have to be submitted to a judge, the husband has no more
power over his wife, than she over him.
Reply to Objection 5: In adultery there is the same sinful character as in simple
fornication, and something more which aggravates it, namely the lesion to
marriage. Accordingly if we consider that which is common to adultery and
fornication, the sin of the husband and that of the wife are compared the
one to the other as that which exceeds to that which is exceeded, for in
women the humors are more abundant, wherefore they are more inclined to
be led by their concupiscences, whereas in man there is abundance of heat
which excites concupiscence. Simply speaking, however, other things being
equal, a man sins more grievously in simple fornication than a woman,
because he has more of the good of reason, which prevails over all
movements of bodily passions. But as regards the lesion to marriage which
adultery adds to fornication and for which reason it is an occasion for
divorce, the woman sins more grievously than the man, as appears from
what we have said above. And since it is more grievous than simple
fornication, it follows that, simply speaking, the adulterous wife sins
more grievously than the adulterous husband, other things being equal.
Reply to Objection 6: Although the control which the husband receives over his
wife is an aggravating circumstance, nevertheless the sin is yet more
aggravated by this circumstance which draws the sin to another species,
namely by the lesion to marriage, which lesion becomes a kind of
injustice, through the fraudulent substitution of another's child.
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Question: 62 [<< | >>]
Article: 5 [<< | >>]
Objection 1: It would seem that a husband can marry again after having a
divorce. For no one is bound to perpetual continence. Now in some cases
the husband is bound to put away his wife forever on account of
fornication, as stated above (Article [2]). Therefore seemingly at least in this
case he can marry again.
Objection 2: Further, a sinner should not be given a greater occasion of sin.
But if she who is put away on account of the sin of fornication is not
allowed to seek another marriage, she is given a greater occasion of sin:
for it is improbable that one who was not continent during marriage will
be able to be continent afterwards. Therefore it would seem lawful for
her to marry again.
Objection 3: Further, the wife is not bound to the husband save as regards the
payment of the marriage debt and cohabitation. But she is freed from both
obligations by divorce. Therefore "she is loosed from the law of her
husband" [*Rm. 7:2]. Therefore she can marry again; and the same applies
to her husband.
Objection 4: Further, it is said (@Mt. 19:9): "Whosoever shall put away his
wife, except it be for fornication, and shall marry another committeth
adultery." Therefore seemingly he does not commit adultery if he marry
again after putting away his wife on account of fornication, and
consequently this will be a true marriage.
On the contrary, 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.
I answer that, 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.
Reply to Objection 1: Although no one is absolutely bound to continence, he may
be bound accidentally; for instance, if his wife contract an incurable
disease that is incompatible with carnal intercourse. And it is the same
if she labor under a spiritual disease, namely fornication, so as to be
incorrigible.
Reply to Objection 2: The very shame of having been divorced ought to keep her
from sin: and if it cannot keep her from sin, it is a lesser evil that
she alone sin than that her husband take part in her sin.
Reply to Objection 3: Although after divorce the wife is not bound to her husband
as regards paying him the marriage debt and cohabiting with him, the
marriage tie, whereby she was bound to this, remains, and consequently
she cannot marry again during her husband's lifetime. She can, however,
take a vow of continence, against her husband's will, unless it seem that
the Church has been deceived by false witnesses in pronouncing the
divorce; for in that case, even if she has made her vow of profession she
ought to be restored to her husband, and would be bound to pay the
marriage debt, but it would be unlawful for her to demand it.
Reply to Objection 4: The exception expressed in our Lord's words refers to the
putting away of the wife. Hence the objection is based on a false
interpretation.
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Question: 62 [<< | >>]
Article: 6 [<< | >>]
Objection 1: It would seem that husband and wife may not be reconciled after
being divorced. For the law contains the rule (Can. Quod bene semel,
Caus. vi, qu. iv): "That which has been once well decided must not be
subsequently withdrawn." Now it has been decided by the judgment of the
Church that they ought to be separated. Therefore they cannot
subsequently be reconciled.
Objection 2: Further, if it were allowable for them to be reconciled, the
husband would seem bound to receive his wife, especially after she has
repented. But he is not bound, for the wife, in defending herself before
the judge, cannot allege her repentance against her husband's accusation
of fornication. Therefore in no way is reconciliation allowable.
Objection 3: Further, if reconciliation were allowable, it would seem that the
adulterous wife is bound to return to her husband if her husband asks
her. But she is not bound, since they are separated by the Church.
Therefore, etc.
Objection 4: Further, if it were lawful to be reconciled to an adulterous
wife, this would especially be the case when the husband is found to have
committed adultery after the divorce. But in this case the wife cannot
compel him to be reconciled, since the divorce has been justly
pronounced. Therefore she may nowise be reconciled.
Objection 5: Further, if a husband whose adultery is unknown put away his
wife, who is convicted of adultery by the sentence of the Church, the
divorce would seem to have been pronounced unjustly. And yet the husband
is not bound to be reconciled to his wife, because she is unable to prove
his adultery in court. Much less, therefore, is reconciliation allowable
when the divorce has been granted justly.
On the contrary, 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.
I answer that, 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.
Reply to Objection 1: The sentence of the Church in pronouncing the divorce did
not bind them to separate, but allowed them to do so. Therefore
reconciliation may be effected or ensue without any withdrawal of the
previous sentence.
Reply to Objection 2: The wife's repentance should induce the husband not to
accuse or put away the wife who is guilty of fornication. He cannot,
however, be compelled to this course of action, nor can his wife oppose
her repentance to his accusation, because although she is no longer
guilty, neither in act nor in the stain of sin, there still remains
something of the debt of punishment, and though this has been taken away
in the sight of God, there still remains the debt of punishment to be
inflicted by the judgment of man, because man sees not the heart as God
does.
Reply to Objection 3: That which is done in a person's favor does him no
prejudice. Wherefore since the divorce has been granted in favor of the
husband, it does not deprive him of the right of asking for the marriage
debt, or of asking his wife to return to him. Hence his wife is bound to
pay the debt, and to return to him, if he ask her, unless with his
consent she has taken a vow of continence.
Reply to Objection 4: According to strict law, a husband who was previously innocent should not be compelled to receive an adulterous wife on account of his having committed adultery after the divorce. But according to equity, the judge is bound by virtue of his office first of all to admonish him to beware of imperiling his own soul and of scandalizing others; although the wife may not herself seek reconciliation.
Reply to Objection 5: If the husband's adultery is secret, this does not deprive
his adulterous wife of the right to allege it in self-defense, although
she cannot prove it. Wherefore the husband sins by seeking a divorce, and
if, after the sentence of divorce, his wife asks for the marriage debt or
for a reconciliation, the husband is bound to both.