Правило 26 Василия Великого

Fornication is not marriage, and not even the beginning of marriage. Therefore, it is better to separate those who have copulated through fornication as much as possible. If they adhere to cohabitation in every possible way, then let them accept the penance of fornication: but let them remain in marital cohabitation, so that no worse will happen. (Basily Vel. 4, 21, 26, 59, 79, 80). In this rule we are talking about a free man and a free woman who, through fornication, are in carnal cohabitation (κατά πορνείαν συναπτομένους, per fornicationem conjuncti), meanwhile they were not legally married and, therefore, are not husband and wife. Regarding such, Basil the Great says that one must try at all costs to separate them, for fornication is neither marriage, nor the beginning of marriage, or, as Zonara puts it, cannot be considered a reason for marriage (γάμου αφορμή) 61. If it is not possible to separate them or induce them to enter into a legal marriage, then they must be subjected to penance for fornication and allowed to continue living together, so that nothing worse happens (ίνα μή χείρον τι γενηται), i.e. so that, according to Zonara, in the event of a forced separation, they do not begin to meet secretly and sin, or so that a wife, forced to marry another, does not subsequently fall into the sin of adultery, and finally, so that suicide does not occur, which lovers could resort to, seeing that they are prevented from enjoying mutual love 62. In order to properly understand the present injunction, one must remember the time when it was issued, and what concepts then dominated public life, under the auspices of Greco-Roman laws. Many centuries had to pass before the concept was established in Christian society that only the marriage that the church blessed was legal. This was regulated only in the 9th century, when Emperor Leo the Wise published his LXXXIX novella, according to which only that marriage should be considered legal, which the church blessed 63. Until this time, and especially in earlier centuries, marriage was regulated almost exclusively by Greco-Roman law. The provisions of this legislation, in addition to legal marriage (legitimum matrimonium), also allowed another type of cohabitation between two free persons not bound by legal marriage, and such cohabitation in Roman law is called concubinatus (cohabitation). Cohabitation was caused in Roman society by various circumstances, mainly by class differences, which prevented lovers from marrying. Emperor Justinian gave the concubinage a form of legality of sorts. If two people, a man and a woman, publicly, in front of witnesses, express a desire to lead a life together, and if this life together did not contradict the laws, then, according to the legislation of Justinian, it was to be considered permissible and in certain cases the children from such cohabitation could be detailed (legalized), and the concubine (cohabitant) herself had the right to inherit the property remaining after the death of her partner 64. This kind of cohabitation is meant by Basil the Great, in the present rule (26), under the word τό συνοικεσιον (consortium); and just as he generally, when issuing his rules, takes into account the existing requirements of civil legislation, so he does the same here, and, although, from the point of view of the church, he does not want and cannot recognize any legal significance for concubinage, nevertheless, in extreme cases, he tolerates it, so that something worse does not happen. Concubinage, as a legally recognized form of cohabitation between a man and a woman, was deprived of its former meaning only in the middle of the 8th century, when the eclogue of the emperors Leo the Isaurian and Constantine Copronymus 65 was published; Subsequently, in the second half of the 9th century, Emperor Basil the Macedonian issued an order according to which no one has the right to keep a concubina in his house, but must either marry her or expel her from the house 66. This injunction of Emperor Vasily in our Helmsman reads: “Since the ancients have abandoned communication with a concubine who wants to communicate with her, having decided to drink, we should not leave such a law without memory, lest our life be polluted by absurd marriages; We command henceforth that no one else should be like, have a concubine in his house: there is little or no difference from this fornication; but if anyone wants to join in, let the marriage be completed according to legal notice; If he considers himself unworthy, he will marry such a wife by law, and not have any intercourse with her, but let her marry her, and you will understand that she will find someone like herself” 67. When concubinage was deprived by Greco-Roman legislation of any legal meaning and when the aforementioned novella of Emperor Leo the Wise proclaimed the legality of only that marriage that the church blessed, then, of course, the prescription of the present rule of Basil the Great ceased to have force, so that any connection between a man and a woman, except for a legal marriage, certainly had to be dissolved. Zachar., Jus. gr.-rom. III, 185. See Nomocanon in XIV tit., XIII, 5 (Af. Synt., I, 302). Tit. II, p. 8; Wed in Kormchay ch. 49, 2, 8 (cited ed., II, 108). ^ Prochiron (Ό πρόχειρος νόμος) IV, 26. ^ Ch. 48, 4, 27 (cit. ed., II, 89). ^ You might be interested in: