Martin Ruther's Theory of Divorce

Abstract

On the development of the law in Germany Luther and his followers gave a great influence. This essay is written to make clear the structure of their theories and the social, political and theoretical foundations on which they are based.Luther criticises the sacramental doctrine of Meadeval Catholicism and comes to the conclusion that of the seven sacraments only three, namely Baptism, Penance and Lord's Supper have been prescribed by God, though Penance might not be called a sacrament. All the other sacraments are denied by him, because they are not founded on the Bible. The sacramental power of the Church has been misused by Popes. And they are mistaken in teaching that a merely external act of the believer can secure the grace of God. Luther lays stress on faith. That is the reason why his religious thought is called a faith-religion in contrast with the sacrament-religion of the Catholic Church.According to Luther, marriage is not a sacrament, but a wordly matter. The question of marriage is subject to temporal authorities, and not to the ecclesiastic authority. Consequently he rejects numerous restrictions concerning marriages decreed in the canon law as unbiblical and cruel, and he thinks they have only been introduced by the Popes for financial reasons. Luther charges some of the impediments to marriage in the canon law, namely the impediments of (1) degrees of consanguinity and affinity which have been extended too widely, (2) different religions, (3) crime, (4) marriage with copula carnalis, (5) monastic vows, (6) ordination, (7) publica honestas. In the canonical theory, there is no marriage, where one of these impediments exists. Therefore, on these grounds a husband and a wife often obtain the same result as when they are divorced. The word divorce was used in the canon law to mean the declaration of the nullity of marriage. Luther sets a limitation to the grounds for the nullity of marriage.Apart from the question of the nullity of marriage we find that the Canonical theory maintains the rule of indissolubility of a valid marriage, only with a simple exception : is granted for the cause of fornication by the court of the Church. But this only known to the Church is a from bed and board which, although it discharges the husband and wife from duty of living together, does not cut marriage ties between them.Luther attacks violently this canonical theory of divorce. While the canon law has only the a menso et toro, Luther grants the a vinclo matrimonii. This is one of the most important differences between the theory of Protestantism and that of Catholic ?? sm.The grounds for which Luther recognizes are adultery and desertion, and either a husband or a wife is permitted to from the other on one of these grounds. In the society where, under the influence of the Catholic doctrine, the opinion prevails that marriage is conceived as monogamous and permanent, the judicial is of a permissive character. As an exception to the general principle of permanency of marriage, a marital relationship may be dissolved before the death of one of the parties, and to the innocent party the way to the initiation of a new marriage is opened. Divorce is not possible without the express permission by a court or a pastor. Where a cause for exists, the court (consistorium, since the question of marriage comes under the jurisdiction of this office of the temporal ruler) has to confirm that th marriage ties are cut off for the cause of and that the existence of this cause is the fact open to the public and then it has to give a permittimus or torelemus, i. e. a licence to a new marriage to the innocent party. Until the age of Enlightenment, Lutheranism maintains this opinion on the question of the system of procedure.Among the theories of Lutheran theologians are two groups ;