The Reformation of Marriage Law in Martin Luther's Germany: Its Significance Then and Now
John Witte Jr.
Emory University School of Law
Journal of Law and Religion, Vol. 4, 1987
The sixteenth-century Lutheran Reformation rejected the Catholic sacramental theology and canon laws of marriage that had dominated the West for more than half a millennium. For Martin Luther and his colleagues, marriage was a social estate of the earthly kingdom of creation, not a sacred estate of the heavenly kingdom of redemption. Though divinely ordained and spiritual important, marriage was directed primarily to natural human ends of mutual love of husband and wife, mutual protection of both from sexual sin and temptation, and mutual procreation and nurture of children. Clergy and laity, widows and widowers should marry unless they have the rare gift of continence, Lutherans insisted. To reject God’s gift of marriage, or to require celibacy for priest and monastics, was to court the sins and crimes of destructive lust.
As part of the earthly kingdom, marriage was subject to the civil law of the state, not to the canon law of the church. The Lutheran state authorities in Germany and Scandinavia retained many of the canon laws of the church and the classical Roman laws that the canon law had earlier absorbed. But changes in marriage theology also yielded changes in marriage law. Because the Lutheran reformers rejected the subordination of marriage to celibacy, they rejected laws that forbade clerical and monastic marriage, that denied remarriage to those who had married a cleric or monastic, and that permitted vows of chastity to annul promises of marriage. Because they rejected the sacramental nature of marriage, the reformers rejected impediments of crime and heresy and prohibitions against divorce in the modern sense. Marriage was for them the community of the couple in the present, not their sacramental union in the life to come. Where that community was broken, for one of a number of specific reasons, such as adultery, desertion, or habitual abuse of spouse or children, the couple could sue for divorce, leaving at least the innocent party with the right to remarry. Because persons by their lustful nature were in need of God's remedy of marriage, the reformers removed numerous impediments to marriage not countenanced by Scripture. Because of their emphasis on the Godly responsibility of the prince, the pedagogical role of the church and the family, and the priestly calling of all believers, the reformers insisted that both marriage and divorce be public. The validity of marriage promises depended upon parental consent, witnesses, church consecration and registration, and priestly instruction. Couples who wished to divorce had to announce their intentions in the church and community and to petition a civil judge to dissolve the bond.
Number of Pages in PDF File: 59
Keywords: Martin Luther, Protestantism, Catholicism, Marriage, Divorce, Remarriage, Impediments, Annulment, Celibacy, Monasticism, Protestantism, Canon Law, Civil Law, Germany, Scandinavia, Two Kingdoms, Uses of the LawAccepted Paper Series
Date posted: May 27, 2011 ; Last revised: October 1, 2014
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