The Christian Origins of the Law of Marriage and Divorce in the Western Legal Tradition

Abstract

Building on the Bible, Greek philosophy, and Roman law, Christianity defined many of the basic rules and procedures of marital formation and dissolution in the Western legal tradition that remained in place until the liberal reforms of the past century and a half. Christians regarded marriage as a natural, social, material, and spiritual union, created by God for the mutual love and protection of spouses, their procreation and education of children, and the social and economic stability of church, state, and society. Catholics viewed marriage as an indissoluble sacrament subject primarily to the canon laws of the church. Protestants viewed marriage variously as a dissoluble social estate, covenant, or domestic commonwealth subject primarily to the secular laws of the state. Both Catholic canon law and Protestant civil law, however, had comparable rules that defined the freedom, fitness, and capacity that parties needed to marry each other. Both distinguished engagement and marital contracts, and the property exchanges that attached to each stage. Both stipulated the requirements of marital consent by the couple, their parents, their peers, and authorities in church and state. Both set out marriage liturgies for weddings. Both provided procedures for annulment on proof of an impediment to the marriage. Catholics allowed estranged couples the right to separation of bed and board on proof of hard fault but no right to remarry until the death of the other spouse. Protestants allowed either party to file for divorce and to remarry thereafter. Both Catholics and Protestants, however, made legal provision for child custody, support and alimony during the couple's separation, and also preserved the wife's dower claims to her estranged husband's estate. While these traditional marriage rules and procedures have faced formidable opposition and now fomented ample church divisions with the sexual liberalization of Western law and culture, they have found strong new expression in many Christian lands in the Global South.

Keywords: Engagement, Marriage, Wedding, Divorce, Remarriage, Marital Property, Dower, Children, Sacrament, Covenant, Impediments, Annulment, Sex