Tag Archives: Mosaic law

Suffer the Little Children: Aquinas on Divorce

In Mark 10, Jesus is asked by the Pharisees (“to test him”) whether divorce was lawful.  As he responded, the Law of Moses (Deuteronomy 24 and elsewhere) permitted divorce under some conditions.  But Jesus argues more broadly, basing his words on the second chapter of Genesis, “the two will become one flesh.” Therefore, Jesus says, “what God has joined together, let not man put asunder.”

The Mosaic Law on divorce is complex (to say the least; for one thing, it permitted polygamy), but the overriding sense is that it is at best a necessary evil caused by unnecessary (and worse) evils.  Adultery and abuse were the commonly accepted justifications.  Remarriage of divorced persons was permitted in some cases and prohibited in others.

Throughout the Pentateuch (indeed, the entire Bible), many aspects of divorce are addressed, but one omission is glaring: there is not a word about child custody.  The impact on the children receives no more consideration than it does in a modern American courtroom.

In biblical times, the concept of family meant a father, a mother, and their children.  The idea of an intentionally childless married couple did not exist; at least I have not seen any indication of one. Effective contraception did not exist.  Children were valued as workers in support of the family.   Children were valued as caretakers in parental old age. Many other reasons probably factored into what was in all likelihood not a conscious decision (to procreate) at all.

St. Thomas Aquinas comes at the divorce issue from an interesting tack:  the natural law.  The natural law is our fundamental understanding of right and wrong (sometimes called the First Grace, followed by the Mosaic Law and finally Jesus’ Law of Love.) It is the law that Paul ascribes to all, even the gentiles, as innate in our humanity. Here is Thomas:

“By the intention of nature, marriage is directed to the rearing of offspring, not merely for a time, but throughout its whole life…  Therefore since the offspring is the common good of husband and wife, the dictate of the natural law requires the latter [husband and wife] to live together forever inseparably; and so the indissolubility of marriage is of natural law.” (“I answer that”,Q67. Art. 1 Suppl)(emphasis added)

In response to the (very modern-sounding) objection that some couples are infertile, and therefore marriage cannot be directed primarily to offspring, Thomas patiently explains:

“Marriage is chiefly directed to the common good in respect of its principal end, which is the good of the offspring; although in respect of its secondary end it is directed to the good of the parties…Hence marriage laws consider what is expedient for all rather than what may be suitable for one.” (Reply to Obj. 4)

It is worth noting that this is from his Summa Theologiae, which is based on both revelation and reason. He could have based the indissolubility of marriage first and foremost on biblical grounds: Genesis and Matthew/Mark. But instead, he bases his answer on natural law.

One would expect this non-theological approach in his Summa Contra Gentiles, in which he argues from reason and nature, without divine revelation, to attain truth; and one is not disappointed:

“Hence, as law is instituted for the common good, the function of procreation ought to be regulated by laws divine and human. Now the laws laid down ought to proceed on the basis of the dictate of nature…Since then there is in the human species a natural exigency for the union of male and female to be one and indivisible, such unity and indissolubility must needs be ordained by human law. To that ordinance the divine law adds a supernatural reason, derived from the significancy of marriage as a type of the inseparable union of Christ with His Church…” (Chapter CXXIII)

His reasoning is consistent: marriage is a matter of natural law directed at the welfare of children, creating the future and thereby benefiting society. Jesus adds a secondary reason based on scripture (Genesis).

The Catechism (para 1614) makes it clear that the Catholic Church bases its position on scripture alone.  It does not mention children as the principal purpose of marriage (at least I cannot find such mention.) It does so tangentially in its discussion of contraception and openness to fertility, but not in its discussion of divorce.

In other words, the Catechism, like the reality of our present courts and culture, treats divorce as a matter involving two adults and the covenant or contract into which they have entered and from which they now seek to exit.

And the children? Collateral damage. Property to be divided.

Perhaps Thomas, were he writing today, might find that contraception has divided marriages into two kinds (or “species”, to use one of his favorite words): families with children and those (contentedly or intentionally) without. Procreative families and non-procreative ones. His reasoning cited above about infertile couples might have to take into account the very large number of intentionally childless marriages.

The divorce of two childless adults can be many things, from tragic to trivial.  But divorce involving children is another thing: the innocent children are victims: always hurt, traumatized, brutalized. What they experience is the destruction of their family and their world; a destruction inflicted upon them by those same adults who brought them into existence and have the duty to protect them.

We trivialize the suffering of these children by using the same term for both species of divorce. Separation of childless adults is properly called divorce; but divorce with children should be described as it is: family destruction and child abandonment. It is today the one form of child abuse that is not only tolerable but even respectable.

The importance of this issue cannot be exaggerated. The social pathologies that plague western society today may be traced to many causes, but one of the most obvious is the weakening of families.  Poverty in America is traceable almost exclusively to single-parent households. Violent crime is traceable almost exclusively to boys raised in fatherless households.  The enactment of “No-Fault Divorce” laws has been one of the causes of societal breakdown.  It has given men (and increasingly women) a free pass to abandon those most dependent on them, without stigma.

We come now to the current turmoil involving divorced/remarried Catholics. With the present papal incumbent moving to downgrade the seriousness, even the sinfulness, of divorce/remarriage, divorce appears to be viewed everywhere as less of a problem.

In Amoris Laetitia, he devotes much ink to the problem of what to do with remarried divorcees, but very little that I could find on the victimized children.  If the Church moves forward with “normalization” of divorce, it will only be making matters worse.

It goes without saying that there are legitimate reasons for divorce, abuse being the most obvious. The Church to its credit has used the annulment process to deal with marriages so fatally flawed. The Gospel of Matthew also defends divorce for adultery.  Both Mark and Matthew have Jesus basing his words on Genesis.

What seems to be lacking is the natural law, which a return to St. Thomas Aquinas could correct.  The Church might want to consider instead, in light of natural law, the difference between simple divorces and divorces with children.  The Church could lead the way in this, given the extent to which our secular society has decided to act as if the children of divorce are invisible.

The Church should try to address the problem with St. Thomas Aquinas, rather than exacerbate it with Amoris Laetitia.

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