THE PROBLEM OF ‘DIVORCE’
Nick Turner asks what’s in a word
The problem of the word ‘divorce’, for our forthcoming deliberations at Sacred Synod regarding marriage and marriage discipline, is that its connotations are so broad, so vague and so rarely shared by all who use it. It is one of those terms that spreads confusion and misunderstanding each time it is spoken. Our deliberations next March are about marriage; it would be unfortunate if they were to be derailed by this devil of a word.
How might we come to a clear, agreed definition of divorce that would avoid this endless misunderstanding? The starting point has to be the biblical text, in this case Deuteronomy 24.1–4. Moses states that if a man sends his wife away, he ‘shall give her a certificate of release’ (v1), a clear, written document that will allow her to marry another. This ‘bill of divorcement’ is the woman’s guarantee of her freedom (v2). The release is definitive and irrevocable; the first husband cannot claim her back if she remarries, nor can he remarry her if her second husband were to die (v4).
The understanding of divorce, which the Pharisees were to discuss with Our Lord, was that it is a complete release, permitting a second marriage; it is a concession, principally for the woman, mitigating the effects of the breakdown of the first marriage. There is much more that can be said about the Mosaic law, but so far this is simple and uncontroversial. Whence come the problems?
The wrong definitions
I suggest three examples, one legal, one historical, one biblical. Each has added unhelpful connotations and value judgements. The legal confusion comes from the CofE's Ecclesiastical Canons of 1604. Canon 107 states that the only permitted form of divorce is a thoro et mensa, and that ‘the parties so separated shall live chastely and continently; neither shall they, during each other's life, contract matrimony with any other person’. In other words, ‘divorce’ here means what modern law would more accurately term a legal separation.
The great historical confusion comes from good king Henry. What he sought, when Catherine of Aragon failed to provide him with a male heir, was the annulment of that marriage to his brother’s widow. Parliament gave what the Pope refused, but it was always an annulment and not, in the strict definition, a divorce.
The biblical instance is a bit more controversial. Herod and Herodias divorced their respective partners in order to marry each other; the divorce assisted their adultery. The point made by John the Baptist, and Jesus after him, was that adultery remains adultery even after a divorce; a certificate of release does not remove, decontaminate or alter an act of adultery.
The wrong connotations
Now consider the connotations that have arisen from these three mis-definitions. In the first, divorce is seen as the separation, the putting asunder, not as the legal release permitting a further marriage. Why is the word used in the second context? No-nonsense Protestantism had, and still has, a visceral hatred of Roman annulments. Call everything a divorce and one can avoid all talk of ecclesiastical tribunals; it is a simplification that has vastly complicated rational debate. And the third? This one, through Jesus’ condemnation, has made the essentially legal word ‘divorce’ a vehicle for value judgements, so that the word is now rarely used in neutral terms, but carries as part of its definition the element of Christian condemnation; the word ‘divorce’ no longer exists without the element of adultery stuck to it.
Who does what?
As if this was not complicated enough, consider who does what. The secular, legal system makes a formal end to a civil contract. In its own terms, it is neutral; it has the power to set up marriage contracts and the power to dissolve them.
The Church sets great store by the institution, is keen to enhance the status of marriage, and to keep God’s rightful place as its author. As a divine institution, a Christian/sacramental marriage cannot die; a supposed marriage may on examination be annulled if it is found to be invalid, but a genuine marriage cannot be ended by man; the attitude to divorce is therefore wholly negative.
As part of the Church and part of the state, the CofE has, historically, maintained both the above positions, while taking no direct responsibility for either. Hence the problems that we have seen, not only in Scott-Joynt’s pamphlet but every other statement or proposal of the past half century.
The key texts
It is one thing to grasp how vastly confused is the term ‘divorce’ (of which the above is only the briefest of sketches), it is another to know where clarity and authority are to be found. The dominical texts, the words of Our Saviour himself, in particular the two key passages, Matthew 19.3–9 and Mark 10.2–12, must be freed from this first confusion.
Is the word ‘divorce’ necessary to a proper translation and criticism of these passages (or the other dominical texts, Matthew 1.18–20; Matthew 5.31–2; Luke 16.18)? Contrary to most modern translations, the answer, I believe, is an emphatic no. The use of the word ‘divorce’ is anachronistic: it applies expectations of a twentieth-century legal system to first-century Palestine; it adds connotations of condemnation and adultery (which derive from the Christian context) back into the mouth of Jesus, so that he becomes not so much the author of Church teaching, but an unwitting prophet for it.
I am encouraged that the learned, Anglican and literal translation of the Revised Version never uses the verb ‘divorce’ in any of these texts. ‘Is it lawful for a man to put away his wife?’ is a far more accurate translation, and allows Jesus’ reply to make sense. It uses the title ‘bill of divorcement’; a modern variant might be ‘certificate of release’.
It will be part of the task of Sacred Synod to support or initiate serious biblical study on these texts. Once again this is only the briefest of sketches, the principal point being that the word ‘divorce’ should be not regarded as coming from the mouth of Jesus.
The denotation (the core definition) of divorce is the (secular or Mosaic) legal termination of a marriage contract. So that we are able to discuss the issues of marriage and marriage discipline with the greatest possible clarity and the greatest possible faithfulness to the tradition we have received, from the Lord Jesus himself, let us, as far as we possibly can, avoid using the word ‘divorce’ in any other context.
Nicholas Turner ministers at the Church of St Oswald with Our Lady, Boughton-in-Airedale
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