Alexander Vishnevsky 1
  • 1 National Research University Higher School of Economics, 20 Myasnitskaya Str., Moscow, 101000, Russian Federation

Divorce in Canon Law: Formal Prohibition and Permission in Substance

2011. No. 1. P. 112–119 [issue contents]

Vishnevskiy Alexander - Professor, Department of Entrepreneurial Law, Faculty of Law, National Research University Higher School of Economics, PhD (Law) National Research University Higher School of Economics. E-mail: aavishnevsky@gmail.com
Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.

The article features philosophical and biological factors forming a ground to divorce under modern canon law of Catholic and Orthodox churches. The sources analyzed in the paper are Codex Juris Canonici, Old and New Testaments, commentaries of Russian and foreign theologians, dictionaries. The author is developing the thesis that it is impossible to understand the problem of terminating marriage applying only the tools of legal science. He stresses the problem of rendering philosophical and religious principles in the language of legal norms and strives to prove that the fundamental difficulties originate in particular in mistakes and interferences made in the Bible translations. The paper analyzes common and special in the interpretation by Catholic and Orthodox scholars such categories as man, woman, infidelity, dissipation, soul, flesh etc, and examines the difference in opinions and conclusions of the followers of the two religions. The Orthodox doctrine considers marriage ties sacred and condemns divorce though admits the divorce if the cause is adultery. Canon law of Roman Catholic Church considers adultery as a pretext for separation – transition to separate life but not necessarily to legal divorce. The canon law code contains a sophisticated interpretation of this thesis. It proposes a category of confirmed marriage which does not imply physiological aspect of relations but exclusively the spiritual factor – affinity of souls and their reunion on the marriage bed, which has been predetermined by the God. The marriage effected but not confirmed can be terminated by the Pope due to a fair cause. The marriage confirmed cannot be terminated by any human’s power for any reason.

Citation: Vishnevsky Aleksandrovich Alexander (2011) Rastorzhenie braka v kanonicheskom prave: formal'nyi zapret pri sushchnostnom dopushchenii [Divorce in Canon Law: Formal Prohibition and Permission in Substance] Pravo. Zhurnal Vysshei shkoly ekonomiki, 1, pp. 112-119 (in Russian)
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