Malicious abandonment by one spouse of the other as grounds for divorce

“A husband abandoned by his wife is worthy of leniency and the woman who cohabits with him is not condemned.” St. Basil led. right 9. Malicious abandonment (malitiosa desertion) by one spouse of the other, as a reason or ground for divorce, is a crime against marital fidelity, expressed in the fact that the wife leaves her husband’s house (or the husband leaves his wife and family), lives separately and, despite admonitions from the abandoned person, persists in living separately from him. In Western Europe, this crime has been recognized as a basis for divorce since the Reformation in those states in which Protestantism was established 1 . In the canon law of the Eastern Church it has been recognized in this capacity since the 4th century, as well as in Byzantine civil law. It was recognized in the same way in ancient Russian law, as well as throughout the entire 18th century, and was excluded from the grounds for marital divorce as recently as the beginning of the 19th century. In other matters, it is still retained in our legislation on divorces between persons of the Evangelical Lutheran, Augsburg and Reformed confessions. Here, among other things, the following definitions are given that deserve interest: “in divorces based on malicious abandonment, it must be satisfied that the abandonment is malicious. An unknown absence for a year is considered malicious abandonment. When requesting a divorce in this case, the parties must ask the consistory to summon the absent person in the specified manner; divorce is granted here one year after the call is made. A wife who has left her husband without permission must, upon returning, present evidence of her blameless behavior during the absence, otherwise the husband may demand a divorce 2 . At present, when our divorce law and process are being reviewed in a specially established commission under the Holy Synod in order to improve them, we consider it timely to draw the attention of readers to the above phenomenon in the history of our law, and we aim to prove: 1. That the abandonment by one spouse of the other as a basis for seeking a divorce from the person who left the person and the right to enter into a new marriage has solid canonical and historical grounds. 2. That the calling of this crime as a basis for divorce is required by the conditions of modern life. In the canon law of the Eastern Church, the arbitrary abandonment by a wife of her husband for the first time is established as a basis for dissolution of marriage and for the husband abandoned by his wife to enter into a second marriage in the rules of St. Basil the Great 9th, 35 and 46. “The Lord’s saying - we read in the 9th canon - that it is not permissible to leave marriage except in the words of an adulteress, according to reason it is equally befitting for both husbands and wives. But that is not the case. We find many strict sayings about wives. The Apostle says: For the filthy man who cleaves to himself is one body (1 Cor. 6:16). And Jeremiah: the wife will yet be to another husband, and will not return to her husband, but having become defiled, she will become defiled (chapter 3, 1). And again: keep the adulterer foolish and wicked (Proverbs 18:23). Custom commands wives to restrain their husbands, although they commit adultery and are in fornication. Therefore, I don’t know whether someone living with a husband abandoned by his wife can directly be called an adulteress: for here the accusation falls on the one who left her husband, for what reason she departed from the marriage. For also because it was beaten and did not endure the blows: it was more appropriate to endure it than to be separated from your partner. Also because she could not bear the loss of her property: this excuse is not worthy of respect. Also because her husband lives in fornication, we do not observe this in church custom: but the wife is not commanded to separate from an unfaithful husband, but to remain with him, out of uncertainty of what will follow. What do you think, wife, what else is there to save your husband? (1 Cor. 7:16). Therefore, a wife who has left her husband is an adulterer has still moved on to another husband, and a husband who has been abandoned is worthy of leniency and the one who cohabitates with him is not condemned ( τοιούτ ῳ οὐ κατακρ ί νεται ) . Also, the husband, having departed from his wife, will understand differently: then he himself is an adulterer, because he commits adultery, and she who lives with him is an adulteress: because she has attracted someone else’s husband to herself” (right 9). Right 35th. “Even if a husband is abandoned by his wife, then it is appropriate to look at the guilt of abandonment: and if she appears to have abandoned her without reason: then he is worthy of leniency, and she is worthy of penance. The condescension will be for him if he is in communion with the church.” To clarify the meaning of these rules, it is then necessary to keep in mind the 46th rule of the same church father: “She married the man who was abandoned for a time by her wife out of ignorance, and then, because the first wife returned to him, the woman who was released committed fornication through such a union, however. out of ignorance. Therefore, marriage will not be forbidden to her, but it would be better for her to remain this way” (right 46). All three rules speak of an event in married life that is similar in one aspect, but different in all other respects: its similar or common side is the wife’s abandonment of her husband and his house. But in the first, this abandonment is clearly malicious - combined with betrayal of her husband for another (with adultery), in the second - abandonment without specifying a reason or purpose, but resulting in the actual destruction of the marriage union, in the third - temporary separation of the wife from her husband and his home, not connected either with a malicious or criminal intention to break the marriage union, or even with any quarrel between the spouses, therefore the marriage union between them is restored upon the return of the wife, although during her absence her husband managed to enter into a criminal relationship with a third-party woman. Which of these three events can serve as grounds for divorce and for granting the husband the right to enter into a new marriage? We answer: both are the first - only the latter does not give this right, as it does not contain anything criminal against fidelity to the marital union on the part of the wife, who only temporarily left her husband and - probably - with his consent. Since for a reader brought up in the legal concepts of our time, such a statement may seem unfounded, we consider it necessary to present the reasons. The first type of abandonment of a husband by a wife, coupled with the criminal purpose of adultery, may arouse less bewilderment: “the wife who left her husband is an adulterer and has also moved on to another husband.” The tone of the rule is so categorical that it does not raise any doubts. However, the reader may object, in order to achieve a divorce according to this rule, it is necessary to prove not only the fact of the wife’s abandonment of her husband, but also her criminal connection with another. So, the main strength is in this last one? – However, such an understanding of the rule will not be correct. What the rule brings to the forefront is the wife’s arbitrary abandonment of her husband, which is why it strives to prove that, according to established church custom, a wife does not have the right to arbitrarily leave her husband on any grounds, no matter how unbearable her life with him may be. Her entry into a relationship with another is considered only as a circumstance aggravating her first guilt - her arbitrary abandonment of her husband. For the second guilt she is tried as an adulterer. As for the consequences of the first guilt, one thing is certain: for a husband, leaving his wife opens up the possibility of entering into a new marriage: he is worthy of leniency (if he enters into a second marriage), and the woman cohabiting with him is not condemned. Thus, in order to obtain the right to enter into a new marriage, it is enough for a husband to state only the fact that his wife left him. And for what purpose she left her husband - whether for the purpose of adultery, or simply to live undead only with her husband - this is not taken into account. So, according to what was established during St. Basil the Great church custom. The Holy Father does not fully approve of such a view, and in canon 35 he orders that attention be paid to the reason for the wife’s abandonment of her husband and decrees that the latter is only worthy of leniency if he turns out to be abandoned by his wife without a sufficient reason on his part: then he is not subject to excommunication even if he enters into a new marriage, although - as a second wife - he, as a general rule, should have been subject to two years of imprisonment. penance. At that time, the unauthorized abandonment of her husband by a wife was considered such a serious crime! But what should the church court do if it turns out that the wife left her husband for a sufficient reason? The Holy Father does not give a direct answer to this question. But from the context of rule 35 and from comparing it with the 9th rule, one must conclude that the husband, who himself was the cause of abandonment by his wife, is not worthy of leniency. In what respect? – in relation to a second marriage or church fellowship? – I agree with the idea of ​​the rules - in both respects, although the church at that time could not deprive the right to marry; she had only the approval or disapproval of the marriage at her disposal. In the latter case, she could then subject herself to penance, i.e. deprive c. communication. The correctness of our interpretation of the rules under consideration is confirmed by the interpretations of the Byzantine exegetes Balsamon and Aristin. The latter, in the interpretation of the 35th rule, says: “She who left her husband and withdrew from him without reason must be subject to penance, and even more so if she marries another husband: for then she is condemned as an adulterer, in accordance with the 9th rule (of this holy father). And the husband left by her is worthy of leniency and therefore is not subject to penance if he takes another.” We will not give interpretations of Balsamon, as they are in complete agreement with the just given interpretation of Aristinus, which is very important for us not only for its categoricalness and clarity, but also because it was only placed in our printed helmsman’s book, as well as in the most ancient handwritten helmsmen, and thus was important in understanding the rules of St. Basil the Great by our Russian hierarchs. But we cannot ignore the original interpretation of Zonara, which contradicts the interpretation of Aristin. This is the interpretation: if she left her husband, if she left without a blessed reason, she is subject to penance, and the husband is forgiven, not so as to take advantage of another, but so as not to be excommunicated from the church. And in the 9th rule of St. the father did not recognize as legitimate reasons for a wife to depart from marriage either beatings from her husband, or damage to property, or fornication, to which the husband may perhaps indulge, or even if he is unfaithful (i.e. not a Christian"). If you follow this interpretation, it turns out that according to the 9th rule, a husband left by his wife is worthy of leniency if he takes another, and the latter is not condemned, and according to the 35th rule, he should not cohabit with another. So. Thus, if we recognize this interpretation as correct, then we will condemn St. Basil the Great in contradiction to himself. This consideration alone should lead us to reject the interpretation of Zonara. But the latter also deserves this due to its internal inconsistency. Zonara says that a husband innocently abandoned by his wife is forgiven not so as to take advantage of another, but so as not to be excommunicated from the church. But why, in this case, is he saying goodbye? Decidedly unclear. It’s a different matter if in the 35th rule we mean a husband innocently abandoned by his wife and cohabiting with another: then it will be understandable to forgive him for this cohabitation, which consists in leaving him in communion with the church; With this assumption, the contradiction between the 35th and 9th rules of St. disappears. father. The interpretations of Zonara are generally distinguished by their remarkable accuracy in conveying the meaning of the rules and in this respect in many cases surpass the interpretations of other Byzantine scholiasts. How can one explain the failure of his present scholia? In our opinion, the real scholia is a distortion of the original text of Zonara, made by copyists or publishers 3 . It is worthy of attention that St. the father in both rules discusses not so much the question of the right of a husband abandoned by his wife to a new marriage, but rather about this marriage as an event already given, but subject to moral assessment from the Gospel point of view. And this is very natural. From the point of view of civil law of that time, the right of a husband abandoned by his wife to marry another woman did not raise doubts. From the point of view of this right, the wife was considered so attached to her husband’s house that her arbitrary leaving of her husband’s house itself destroyed the marriage and freed her from her husband’s power, just as, conversely, the bride’s stay for a year in the groom’s house without any rituals secured her in the latter’s power 4 . With the dominance of such views of civil law and freedom of marital divorce, which were the subject of private, and not public, law, on the part of such zealots of evangelical discipline as St. Basil the Great, it was necessary to act, of course, not by transforming marriage civil legislation - which they did not yet have the opportunity to do - but only through moral influence directly on the lives of Christians, through exhortations, pastoral suggestion and penances. They assessed the norms of written and ordinary civil law, and even more so the Christian leadership that relied on them, from the point of view of the Gospel teaching and the moral teaching of the Old Testament, thus creating Christian or church discipline and placing it as the basis of the church court. What, from the point of view of this discipline, deserved approval in the norms of civil and customary law, was adopted by them - what contradicted was subjected to open condemnation, just as the behavior and actions that corresponded to them, even if legal, were subject to the same condemnation. St. The father nowhere even raises a question about the legality or illegality of a certain type of cohabitation, but only about moral dignity from the evangelical point of view: “I don’t know,” he says, for example, “whether someone living with a husband abandoned by his wife can be called an adulteress: for here the accusation falls on the one who left her husband,” and based on this consideration he says decisively that she is not condemned and he is worthy of leniency for cohabitation with her. At present, the tolerance towards husbands and severity towards women, which is expressed in the 46th rule of St., is positively amazing. Basil the Great. On the husband's bigamy here St. the father looks, apparently, completely indifferently, as a completely natural and legal matter, but at the woman who cohabited with him, who cohabited out of ignorance of the existence of a legal wife, as a harlot, and although he excuses the sin of her ignorance, he nevertheless advises her better not to marry upon the return of her first wife, obviously bearing in mind the words of the Savior: whoever understands a prostitute commits adultery. But why doesn’t he treat his husband’s actual second marriage so strictly, calling it only fornication? The answer is clear from the 9th rule: - on the basis of established church custom, according to which a wife must be faithful to her husband, even one living in fornication (for example, during her absence from home). Only a husband who completely leaves his wife and marries another woman is both an adulterer himself and she an adulterer. From this we get the following very important conclusion for us: from the moral point of view, which St. follows. Basil the Great, a husband’s decisive abandonment of his wife for a relationship with another is an incomparably more serious sin than a casual relationship, a temporary fall from another without leaving his wife. In the same way, the abandonment by a wife of her husband and his house is an incomparably more serious crime than an accidental fall while not leaving her husband 5 . If we now apply this conclusion to the solution of the question: whether malicious abandonment by one spouse of the other constitutes a morally legitimate reason for divorce from the point of view of the rules of St. Basil the Great, then we will have to answer with all decisiveness: yes, it does. It is even a more legitimate reason than an accidental fall, even if proven. How far this point of view is from the point of view of our Charter of Spiritual Consistories, which requires for the dissolution of a marriage due to adultery only proof of sexual intercourse, proven by eyewitnesses! It remains for us to draw the attention of readers to one more feature of the views of St. Basil the Great on this issue, usually ignored by our jurists and canonists. St. Basil the Great, like the civil Byzantine law of subsequent times (before 870), in his definitions about the so-called. “unknown absences” as a basis for divorce, mean the absence of only the husband and, under certain conditions, grant the wife the right to enter into a new marriage on this basis, and not as established by the current law, recognizing equally the unknown absence of the wife as a reason for divorce for the husband. The 31st rule says: the wife of a husband who is absent and in obscurity, and who enters into cohabitation with another before his death is certified, commits adultery. Rule 36: “The wives of soldiers who are in obscurity, who were married to others, are subject to the same judgment as those who did not wait for the return of their absent husbands. However, here the matter is worthy of some leniency, since the conclusion of death is more likely.” There is not a word about the unknown absence of a wife in either these or other rules. In the laws of the Imperial Constantine and Justinian have decrees regarding the wives of soldiers, giving them the right, after certain years of unknown absence of their husbands, to a second marriage. But there are no regulations regarding the unknown absence of a wife. Only Justinian's 22nd novella makes a remarkable exception for spouses in captivity: here a uniform 5-year waiting period is assigned to husband and wife 6 . What does this mean? – Yes, that according to the discipline of that time, it was enough for a husband to state a very short absence of his wife from his home in order to secure the right to marry another; and the wife was obliged to wait for her husband to leave the house until she could prove his death with reliable evidence. It is beyond our task to enter into the historical reasons for the establishment of such a discipline. But we consider it very important to point out this fact. The result of our consideration of the rules of St. Basil the Great gives the following provisions. The reasons for divorce are: 1) Adultery of one of the spouses 2) Abandonment (more or less long and complete) by the wife of her husband without guilt on his part. 3) The unknown absence of the husband, under the assumption of his death. These provisions established by us were considered, so to speak, axioms of canon law for those Byzantine emperors who attempted to reform divorce law under the influence of the Gospel teaching and canon law. The series of such emperors actually begins with Justinian. In new 117th malicious abandonment by the wife of her husband as a reason for divorce is expressed as follows: “If the wife feasted with strangers or washed with them in the bathhouse against the will of her husband.” “If, against the will of her husband, she remained outside the home not with her parents, except in the case where the husband himself kicked her out other than the specified reasons.” At a superficial glance, such a formulation of malicious abandonment as a serious crime, placed on a par with adultery and attempt on life, may seem strange, and may even cause various reproaches of the legislator for frivolity, or for his biased attitude towards male power. Well, what’s criminal, perhaps another reader will say, is that the wife spent several nights outside her husband’s house, or even spent a whole season “on the waters” (at a resort), quarreling with him, “against his will”: is it really because of this empty reason to dissolve the marriage? – Such legislation leads to loose morals, an increase in divorces, or to the strengthening of marital despotism... But, on the other hand, it is not only possible, but it seems and should be looked at at this legislation from a completely different point of view. As an external act, the wife’s indicated actions are, of course, neither crimes nor even misdeeds: but their whole essence is in the inner lining - in the intention with which they are committed. The malice of the intention - their dolus - is very great: the basis of these acts can be, on the one hand, a decisive hatred of a husband who loves his wife, who is jealous of her behavior, and on the other, the wife’s sympathy for a stranger: these acts, which are not criminal in appearance, can serve as a solid basis for the assumption of an adulterous goal. The judge’s job is to weigh them from this point of view and reveal: they are random, incorrectly assessed by a jealous husband, the fruit of a misunderstanding, or serve as an expression of criminal intent and hide a criminal attitude, a criminal relationship of an unfaithful wife and infidelity to her husband. In this case, the court pronounces a sentence of dissolution on the basis of “the word of the adulterer.” We will return to this subject, and now we will only note that this legislation deserves to be taken seriously because of its longevity and its remarkably long-lasting effect: it was adopted into the Byzantine church nomocanon, was repeated many times without change by later Byzantine legislators and was invariably rewritten in our helmsmen's books: was all this done only out of frivolity, or out of desire to protect marital despotism? In the legislation of Justinian we find another type of abandonment by one spouse of another (it makes no difference: by the wife - the husband, and by the husband - the wife), not malicious, but committed with a laudable purpose - bona desertio - for the sake of entering monasticism. “A marriage is dissolved with impunity if one of the spouses becomes a monk.” In this case, “we command that both the husband and the wife, in the event of their transition to a better life, be allowed to dissolve cohabitation and separate, but only on the condition that the abandoned party is left with some small consolation, namely: the benefit that, by agreement, in the event of the death of one of the spouses, the other receives, must be given to the person abandoned by the other, whether the husband or wife ends up in this position, because he (i.e., the person entering the monastery) seems to be dying for former cohabitant, choosing another path of life instead of one" 7 . And this reason for divorce remained in force in Byzantine civil and church law along with the above, with the only difference being that the property rights of the person left behind or “some small consolation” were slightly modified. But for this, his right to enter into a new marriage remained undoubted - which we will have occasion to talk about later. The legislator's motive for granting the left person the right to inherit in the property of the person left behind is interesting; the latter is thought of as “dead” for the abandoned cohabitant, but after all, can’t a wife who left her husband, his home and family (for a supposed relationship with another) be thought of as if she died for cohabitation with her abandoned husband? As we have noted, “malicious abandonment” as a basis for divorce was firmly established in the legislation of the Byzantine emperors. There was once in the history of Byzantine civil law on the issue of divorce a moment at which it was excluded from the grounds for divorce. This moment lasted from 740 to 870, during which the code of Leo the Isaurian was in force, currently known in science under the name “Eclogues of the Laws” of this Emperor. On the issue that concerns us, this code is of so much interest that we cannot help but draw the reader’s attention to it. Contrary to Justinian's legislation, the Eclogue of Leo the Isaurian recognizes only the following grounds for divorce: 2) The husband’s inability to cohabitate; 3) Malice against the life of one of the spouses 4) Leprosy of one or the other 8 It is interesting, of course, to know what motives guided the legislator in narrowing the scope of grounds for divorce. The legislator did not hide them, but expressed them very clearly. He prefaced his legislative definition with the following reasoning: “Divine wisdom, having created a wife from the flesh of her husband, did not dissolve the marriage of the primordial couple even after the Fall. She also affirmed the indissolubility of marriage in her word in the New Testament, when in response to the question of the Pharisees - whether it is worthy for a man to let his wife go for any fault - she answered that “what is bound by God cannot be separated from a person except by the word of a prodigal. Subsequently and submissively, we cannot legislate anything else more than we want." 9 Then, after calculating the reasons for divorce, the legislator concluded his definition with the following words: "Without such guilt, it is impossible to separate those who are in marriage, according to what is written: as God has joined together, let not man be separated" 10 . The motives - as can be clearly seen - are theological - moral and very impressive: the legislator wants to follow and submit to the wisdom of God and will not legitimize anything above and beyond what She has legitimized. But - as often happens - such a good intention and motivation was not destined to be fulfilled. Comparing the motive with the definition, we do not find harmony or correspondence here: in his definition, the legislator was not consistent and disobedient to the commandment of God, but exceeded it. Divine wisdom has legalized not to dissolve a marriage for any other reason other than the words of the adulterer, and our legislator - theologian, Leo the Isaurian, legalized that it is possible to dissolve a marriage due to the husband’s inability to cohabitate in marriage, and due to leprosy and malicious intent on life; The result was thus a combination of God's commandment with human arbitrariness. Leo the Isaurian is known to have been a very free-thinking theologian and a very liberal legislator; Due to these characteristic features of his personality, he was an extreme reformer both in church affairs and in the field of civil law. In the church, he declared himself Caesar, priest and supreme shepherd 11, and opened a cruel persecution of icon veneration and monasticism; in the field of civil law - an extreme reformer of Justinian's legislation, finding it too cruel and intending to create legislation that was more humane. Unfortunately, his liberalism was not combined with wisdom, and therefore his legislation, instead of humanity, surpassed the legislation of Justinian in cruelty and barbarity. The lack of legislative wisdom of Leo the Isaurian on this issue was reflected in the incorrect interpretation and application of the Gospel commandment and in insufficient attention to the legislation of Justinian, in the inability to appreciate the good elements in it. He understood the Gospel word “is it the word of a prodigal” (adulterous - according to the accepted reading) (as well as the current Consistory Rule) in the sense of a crude empirical fact (obviously provable only among animals) and completely ignored the very clear signs of depraved behavior - in the full sense of the guilt of adultery, indicated by Justinian and generalized in the understanding of malitiosa desertion - malicious abandonment. In fact, is it really possible that the life of a wife separated from her husband for the sake of having a fun time in the circle of men in public meetings, circuses, bathing, having left her husband, his home and, perhaps, children, is a less serious violation of marital fidelity than leprosy or even an accidental fact of a criminal relationship that can be forgiven by the husband? Is the wife’s stubborn refusal to return to her husband, her blatant mockery of him in the circle of his fellow citizens, acquaintances, friends and enemies, is such an attitude for him a less grave evil than an unknown absence, than the very death of his beloved wife? Didn’t she, with her depraved behavior combined with her disgust for her husband, die for him, just as she died for him when she disappeared into oblivion, or when she turned to a better life - she became a monk? Where is the care of the legislator for the fulfillment of the Gospel commandment by his subjects? Here is only pathetic and short-sighted boasting of one’s zeal for following divine wisdom. Could it be that Emperor Justinian and St. Basil the Great were less aware of the Gospel commandment than Leo the Isaurian and were less zealous in its application? Nobody, of course, believes this. What's the matter? – The fact that they understood the Gospel commandment more broadly and deeply than Leo the Isaurian and were more attentive to the conditions of life, inventing possible ways of applying it to life, on the one hand, preventing the cunning tricks of circumventing it by malicious people, and on the other, being warmer and more sympathetic to human weakness, to the physical and moral requirements of human nature and thus being ardently jealous of the fulfillment of the divine law, they made his yoke bearable, and did not turn it into an inhuman law, only praising it and their zeal for it. This is the wisdom of the legislator, his tact to indicate, in relation to the conditions of life, the best way to apply the great principles of divine truth, and not limit ourselves to their praise and cruel punishment for their non-application - as was done in the eclogue of Leo the Isaurian. In itself, the legislation of the Eclogue on the issue that occupies us would not be worth such attention as we are paying to it; it would not be worth such attention in terms of its historical significance (in 780 the Eclogue was abolished), it has deep interest for us as a moment in the history of Byzantine law, strikingly similar to the moment in the history of our church-civil law, which began in 1809 and is being experienced at the present time. We will move on to depicting this last moment in due course, and now we will continue our review of Byzantine legislation. The Code of Emperor Basil the Great, which replaced the Eclogue of Leo the Isaurian and was known under the name Prochiran (hand book of laws), returned, on the issue that concerns us, to Justinian's law and not only completely reproduced it, but also took further steps to equalize the duties of marital fidelity in relation to husband and wife. We cite passages from it on the question of interest to us regarding the text of the Helmsman’s Book: The husband has the right to demand a divorce: “Even if (the wife) and her husband do not want to be with outside husbands, I rush into the bathhouse with them. If I don’t want her husband to leave her house, she will sleep the night, unless she happens to live with her parents. If he goes out on horseback, or for disgrace, or for fishing, he acts like these disgraces, ignorant or rebuking men. If anyone, for the same reason as mentioned before, should drive his wife away from his home, as if she had no money from her parents, who may have been possessed by them, and sleep a single night out of need, we command that no man should have any such power to separate from his wife for the sake of guilt, since he himself is guilty of this 12.” Accordingly, the wife is authorized to seek a divorce: “Even if a husband writes about his wife’s adultery, he does not prove the adultery; It is appropriate for a wife, if she also wants, for the sake of guilt, to separate from her husband and take away her wreath and prenuptial gift for such slander... If a husband lives in his own house and lives in it with his wife, having offended her, he finds himself with another while staying in his own house, or while living in the same city in another house with another wife, he is often convicted, and has been taught and punished once and twice, and has been reproached, either from his own, or from his wife’s parent, or from others, or from some other reliable witness, and such there will be no crime left; it is proper for a wife to resolve the marriage for such a crime and collect the pre-nuptial gift for such a violation” 13. As a legislative code, the Prochiron of Emperor Basil the Macedonian officially abolished the Eclogue of Leo the Isaurian; from the moment of its publication, the latter should have lost legislative force. In reality, however, this did not happen: the Eclogue continued, as evidenced by many copies of it, to be rewritten and supplemented along with other legislative codes, in particular along with the prochiron itself - which is the case of our pilot books, both handwritten and printed, in which these two codes are placed side by side (chap. 48 and 49). However, this should not be said about the entire eclogue: it was precisely its definitions about the reasons for the dissolution of marriage that hardly retained their legislative significance, since they stood in sharp contradiction with canon law, and Justinian law, and with the legislation of the later prochiron. Vasiliki 14, Hexateuch of Armenopoulus 15, Syntagma of Matthew Blastar 16 on the issue under consideration adhere to Justinian's law and prochiron. Commentators on the nomocanon - Zonara, Arnstin and Balsamon also adhere to Justinian's legislation on this issue and do not mention the eclogue at all. The good qualities of the law make themselves felt not so much by its theoretical perfection, but by its practical application in life. It happens that a law, apparently perfect in principle and impeccable in form, passes by life, remaining a dead letter, and life fits in, so to speak, by itself, in complete contradiction to it; and conversely, a law that is less perfect in both respects is grafted into life more easily and deeply, producing a beneficial influence on it. Let us assume for a moment that the theologian and lawyer is not convinced by our arguments in favor of the fundamental superiority of Justinian's law over the law of Leo the Isaurian. From a theoretical point of view, the latter’s law is captivating as if by zeal for greater compliance with the Gospel - by restricting divorce; on the contrary, Justinian’s law is apparently more liberal, contributes to an increase in the number of divorces and cases, is less beneficial for life, and in its external form it seems petty and casuistic. How can this be? Which of the two laws being compared should be preferred? Fortunately for us, the divorce practice of the Eastern Church has preserved for us some examples of the application of the Justinian law under consideration on malicious abandonment by one spouse of another, and in them gave us the opportunity to confirm the soundness of our theoretical arguments - with the facts themselves. We are referring to three divorce proceedings on the basis of malitiosa desertio, resolved by the famous canonist of the Eastern Church, His Eminence Dimitri Archbishop and Primate of Bulgaria (XIII century) 17 1. The head of the palace of the imperial camp Bolesley John, before His Eminence, accused his wife Irina of living in Prilap for six months without his knowledge, and demanded a divorce. At the same time, it was necessary to present his wife and confirm with testimony her unauthorized separation from him, and on this day he presented a written certificate from the reverent priests of Prilap, namely: the preacher Romanus and the protector Theodore, testifying that the wife of John behaved freely and unbridled during the above-mentioned time, so that her husband who came found her and wanted to bring her to court, which happened in a village called Boda. But when she was being led, this woman threw herself into a deep flowing river, and if through the efforts and hands of the elder of this village, the venerable Mr. Gregory of Le Havre and his subordinates, she had not been immediately pulled out of the water, she would have died, but she soon came to her senses and uttered a short word that even if she now escaped the danger of drowning by throwing herself in front of everyone, then later, taking advantage of the opportunity when no one would see her, she still you will go to the kingdom of the dead; the document confirms this. John stated: due to such circumstances, I did not consider it possible to use force against the said wife in order, as they say, to drag her to court, therefore I demanded a divorce in her absence and pointed to the witnesses: the most God-loving archon (dean) of the churches Andrian Avtorian, the most pious primicerium of the readers of the left choir Michael Sverius, the most pious priest and periodeut Leontius and others, who said that they know for sure that Irina not only arbitrarily retired to Prilap, leaving her husband, and has been living there for so long, but even before leaving, she was not distinguished by good behavior in her husband’s house, dishonoring the home every day. So, when this was accurately certified by the mistress of the spiritual Dicastery, she decreed the dissolution of the marriage of John and Irina on the basis of the (117th) Justinian novella, found in book 28 Vasilik, title (7) ch. 1st 18, which legalizes, among other things, that a husband can send a letter of divorce to his wife if she, without his knowledge, spends at least one night not in his or in her parents’ house, but in someone else’s house. For the said Irina turned out to be guilty of the fact that she spent not only one night outside her husband’s house, but lived in another country for a long, six-month period, which constitutes sufficient grounds to find her guilty and pronounce a decision to divorce her” 19. 2. A young man named Theodore Chloropodos, a lower craftsman by occupation, presented His Eminence with a complaint that he had entered into the usual marriage with Irina, the daughter of Michael Bodaniatus, a fellow craftsman like himself, and was now mourning the failure of such a marriage. He said that his wife, having hated him, reveals extreme hatred for him: for she avoids him, resists cohabitation with him, like turning away from a snake, and having reached these words, he stopped his speech and asked to free him from such wife’s hatred of him, and more from misfortune, in order to restore his wife to her former relationship with him, for he said that he wanted a union with her. Then Irina appeared with her parents. Called to answer her husband’s accusations of her hatred of him, she did not express anything else, except that if they did not divorce her from him, then she would not stop either at deep waters, or at high rocks, or at a rope to end her life, for she said that she absolutely did not want to live with Theodore. And her parents announced that they themselves grieved over such a misfortune that happened among these young spouses, and said that they often, with admonitions, force, and even whips, brought Irina, who had fled from her husband, back to him, but she, having lived with him for a day, two, three, or even more, then ran away from him again, and having run away, she wanders for a long time in other people’s houses. And after this accusation was examined with such care and it was announced to Irina that she must inevitably return to her husband, and she with decisive stubbornness refused to live with him, Theodore’s sister Maria, helping her brother, revealed one hitherto silent circumstance and said that Irina, being in love with Georgy Kholovr and passionately drawn to him, refuses the marital bed with her husband and, staying alone in other people's houses, she lives not only for days, but for whole weeks, and therefore it is clear to share her sympathies from her husband with a stranger. And her parents said that they knew that there were rumors about their daughter before her marriage to the named Theodore, that she was in connection with Kholovr, which they did not want and agreed with Theodore, at the same time they admitted that Irina often left Theodore for as long as 7 months and lived in other people’s houses. Irina, asked if she loved Kholovr, admitted it with color on her face. Therefore, His Eminence drew attention to this and, having seen, on the basis of the research carried out, there was obvious adultery here (for the discovered inclination towards Kholovr nested in Irina’s heart, and the time spent outside the hearth and home of relatives obviously produced hatred), they awarded the dissolution of this marriage. And Theodora, if he wished, gave the freedom to marry another wife, without subjecting him to any condemnation for this. Irina was declared an obvious adulteress, subject to canonical punishments prescribed for adultery. But in view of the great poverty, there was no talk of damages, or a fine, or any punishment, which in these circumstances is determined by civil laws, since instead of punishment on the wife’s side, poverty and the hard work and deprivation it generates is sufficient” 20 3. This day a woman named Anna, who came from Gerespa, appeared to our All-Holy Lord, Primate of all Bulgaria, together with her brother-in-law Mikhail from Tzurk, and declared that she had cohabited with her lawful husband, named Nik (αὐτον ό μος), and having lived with him for a considerable time, then she hated him with extreme hatred, he became so disgusting to her that she could not even bear the sight of him and therefore took every opportunity to avoid him, living away from him. Driven by such hatred, she came to the idea of ​​ending her life - and wanted to free herself from it by throwing herself off a cliff, or into a river, or by hanging herself. Why, so to speak, so that this passion of hatred does not prevail in its strength and does not lead to this extreme intent, she is forced to completely renounce her named husband, that is, in order to heal the wound of hatred and prevent reckless intent by retreating from him. That's what Anna said. Since her husband, Niko, was also present, he was asked whether what she said was true, and said the following: Revealing the sorrow of his heart with an embarrassed look and a downcast gaze, he responded in a few words that the situation was as Anna had expressed it, and at the same time declared that he, too, was forced to demand a divorce from Anna, since, he said, he could not bear her hatred any longer, move from place to place, looking for her, and for this purpose endure not only hard work and a suffering life, but also reproach from people. When Niko said this, His Eminence, having examined the circumstances of the case and making sure that the reason for the hatred is very important and gives reason to expect the birth of further danger, and what is even more important is the distance of Anna, as leading to suspicion of an unlawful relationship (for this is why the laws of good emperors order that a husband be given a divorce to his wife who is staying outside his home and the house of relatives, in other people’s houses), decided to divorce between Nick and Anna for the sake of the above. reasons and to avert further evil from them, and from now on these persons must be so separated that each one can then do as he wants” 21. So excellently the Bulgarian archbishop of the 12th - 13th centuries used Justinian's laws on malitiosa desertio for a peaceful resolution of human grief and suffering generated by an unhappy marriage! I simply cannot believe that such wise decisions came from the episcopal constory of the 13th century. Let us move on to consider malitiosa desertio as a basis for divorce in the history of Russian church law. Along with the introduction of Christianity, we began to assimilate the Byzantine nomocanon; the legislation of the latter gradually, although with great effort, entered the Russian consciousness and some of its definitions over time acquired the meaning of norms that were not subject to dispute or doubt. Among such provisions is malitiosa desertio, as a basis for divorce. In our opinion, the clarity and categoricalness of their formulation in the presentation of the 35th rule of St. has no small significance in strengthening these definitions in our legal consciousness. Basil the Great, whose high ecclesiastical authority, of course, was never in doubt. In the Helmsman, this rule and Aristine’s interpretation of it are expressed as follows. “Rule 35: if a wife leaves her husband without guilt, she is guilty; he, having endured, is not guilty of eating.” Interpretation: She who leaves her husband and leaves him without guilt will be prohibited, and even more so will marry another husband, then it will be like an adulterer; the husband left by her is worthy of forgiveness: and for this reason he will understand another wife without prohibition to eat.” The clarity and categorical nature of the rule are such that if there were no other rules and laws on this subject in the helmsman’s book, the right of a husband abandoned by his wife to a second marriage would not need further strengthening. But Justinian’s law was also included in Kormchaya even twice: in chapters 44 and 48. And in other rules and interpretations to them, this right of the husband was interpreted in such a categorical form that for the attentive reader of the Helmsman it acquired the meaning of an axiom. And it is noteworthy that despite the darkness of the translation in general, the Pilot’s Book regarding this particular position is distinguished by clarity throughout 22. Along with this axiom, our canonists of ancient Rus' also adopted another principle, clearly expressed in the 35th rule of St. Basil the Great, namely: in judgments about the fact of the wife’s abandonment of her husband, “it is appropriate to look at the guilt of abandonment.” Only a husband innocently abandoned by his wife received an indisputable right to a second marriage upon the dissolution of his marriage with the wife who abandoned him. This very important provision has become so tenacious that it remains in force to this day in our judicial practice, but only when discussing another event in marital life, namely the unknown absence of one of the spouses 23 . But as undoubted and clear are the traces of the vitality of these two provisions of the ancient Russian canonical consciousness, firmly embedded in the main source of ancient Russian law, the evidence of their application in judicial practice is so insufficient and sometimes vague. There are two reasons for this; the first lies in some peculiar forms in which, thanks to the peculiarities of our morals, malitiosa desertio was expressed, the second lies in the insufficient development of the data of our everyday historical material, either resting in the archives, or not correctly illuminated and outright ignored. The peculiarities of our morals that influenced the originality of the form of expression malitiosa desertio in ancient Rus' include: a) the low value and social position of women, which depended on the widespread prevalence of slavery, which gave scope to lead a harem life, and b) the high view of ascetic deeds and dov that had taken root in Rus'. contemptuous of sexual relations, even if regulated by legal marriage. Due to the first reason, husbands had little personal regard for their wives: what a disaster if a wife she doesn’t particularly like runs away from her husband, or is otherwise tormented in some way! There will be another and a third; and it is possible to keep your beloved wife in a strong mansion. Hence, quite often the husbands themselves made efforts to ensure that their wives who were not nice and liked would leave them - they ran away from them... Due to the second reason, a piously-ascetically minded husband, having lived more or less a long time in marriage, began to be burdened by worldly vanity, to desire monastic achievement and, under the influence of this desire, left his wife, went to a monastery, became there not only a monk, but even a hieromonk, and the wife he left behind freely married. This desertio bona - abandonment of a spouse for the sake of monastic life has generally taken root among us very strongly. In this form desertionis bonae and husbands tried to clothe abandonment by their wives, whom they did not like, forcing them to go to a monastery and take monastic vows, either directly or by indirect means - making life in their home unbearable for them. In general, the monastery in ancient Russia served as some kind of inevitable correlative of married life. Having taken into account these features of our morals, we will have to admit that abandonment by spouses of their spouses in one form or another as grounds for marital divorce was practiced very widely among us, more than any other reason. The most striking evidence of this situation seems to us to be the following, which are quite well known, but attract little attention to our modern canonists. A very striking example of malitiosa desertio is given by our lawyers Nevolin, Lyubavsky; and Zagorovsky from Herberstein: “Several years ago, a certain Prince Vasily Belsky fled from Lithuania to Muscovy: when his friends for a long time kept his young wife, whom he had recently married (for they thought that he would return again out of love and longing for his young wife), Belsky gave the matter of the absence of his wife to the decision of the Metropolitan and the Metropolitan, after consulting, told him: “since it is not your fault, but rather the fault of his wife and relatives her, that you cannot live with her, then I give you the leniency of the law (legis gratiam tibi facio) and remove you from her.” Soon after this, Belsky married another wife, who came from the family of the Ryazan princes” 24 The words of the Metropolitan: “I give you the leniency of the law, since it is not your fault, but your wife’s” - how vividly reminiscent of the words of the rules of St. Basil the Great: “one who is abandoned by his wife is worthy of leniency and the woman cohabiting with him is not condemned... But it is appropriate to look at the guilt of abandonment” 25 ... As for the second type of abandonment by spouses of each other - desertio bona - “for the sake of the life of the world”, as a reason for divorce, the legalization in this regard is expressed in the following formula: “A husband who has separated from his friend Mnishe for the sake of life, his wife, who is still separated from him, is married to someone else, he is not forbidden to come to the priesthood: no matter what, if you have sinned, but even more so, this is forbidden to the priesthood.” The rules of this metropolitan enjoyed great authority, judging by their prevalence in the Helmsmen's books. And you can find a great many examples of following this rule. Many princes and boyars often lived in family life all their lives, and died in monasteries as monks and schema-monks, leaving behind their wives and children. In this case, the Old Russian hierarch is not at all concerned about the question: can a wife left by her husband enter into a second marriage - this is a matter of decisions, but only whether her first and second husband can come to the priesthood. Regarding the abuse of desertionis bonae by husbands to get rid of unloved wives, Kotoshikhin gives a vivid picture (about Russia during the reign of Alexei Mikhailovich): “And how, after the wedding and after dinner, he goes to sleep with her, and then, by her candle, he sees that it’s good to live with her forever, but always cry and suffer, and therefore he plans to do it to her so that she cuts her hair; but if he doesn’t do it of his own free will, he doesn’t cut her hair, and he beats her and tortures her in every possible way and won’t sleep with her until she wants to cut her hair herself. And it will happen that the wife is disgusted, does not tolerate beatings and torture, complains to his relatives that he does not live in council with her, and beats and torments, and those relatives beat the patriarch or the great authorities with their foreheads, and according to this petition the authorities order to find the courtyard people and their neighbors, according to their souls: and there will be truth for him, and that person will be sent into humility, into a monastery for six months or a year, and his wife will remain in the house; and how he will serve the prescribed months in the monastery, or until that time his wife will begin to beat him with her forehead so that he will be free, and they will free him and order him to live with her according to the law; will not listen to him either, and they will be divorced and their bellies will be divided in half, and until the age of seven they will marry someone else, and the other will not be allowed to marry another; a man, seeing his wife crippled or unconscientious, departing from her, will cut his hair; and other husbands or wives do a lot of this, ordering poisons to be poisoned” 26 . Usually our historians of everyday life and law cite this tirade as proof of the rudeness of family morals, the cruel treatment of husbands with their wives, etc. And they, of course, have the right to do this. But we allow ourselves to note that this tirade also reveals for us something different and gratifying, namely: it reveals the remarkable participation of our church hierarchy, our ancient Russian pastorate in family misfortunes, remarkable energy in the fight against rude morals, cruelty and licentiousness, and their witty application of those legal norms, which they read in their “God-inspired helmsman’s book, in Greek called nomocanon,” the life-giving legal principles of which were often overshadowed for them by the “cloud of wisdom of the Hellenic language” and the gross distortions of the scribes. This tirade clearly reveals that the ancient Russian hierarchy, in the fight against the rudeness of morals, widely and successfully practiced the primordial power, which belongs to it by divine right, to subdue a cruel husband by monastic imprisonment with temporary separation of him from his martyr wife, and subject him to seven years of penance and, in extreme cases, to dissolve an unhappy marriage, granting both the right, after “pleasant punishment,” to try their luck in entering into new marriages. No less clearly, this tirade reveals the vital significance of desertionis bonae as a measure taken by the latter to get rid of a hated wife or husband. Throughout the entire 18th century, malitiosa desertio was clearly recognized as a cause of divorce, either under the name of “escape” or “unauthorized separation from each other” and was invariably placed among the grounds for divorce. So in the law of 1722 April. 12 (I. P. S. 3. No. 3693) contains the following list of grounds or “guilt” for marital divorces: 1) Reasons for adultery and petitions for marriage against each other. 2) Discussion about their escapes and unauthorized absences from each other.” In the “Order” of the Holy Synod to a deputy appointed to the Law Drafting Commission in 1767, the reasons for marital divorce are outlined in the following order: Intention for the life of one of the spouses Infliction of beatings and torture on her by her husband.” 27 The legislation of Peter I dealt a decisive blow only to desertionis bonae - the dissolution of marriage for the sake of the monastic life of one of the spouses. In the addition to the regulations (about monks) we read the following: “Do not accept a husband from a living wife into the monastery. The custom is that a husband and wife, by mutual consent, dissolve their marriage in order for the husband to become a monk and for the wife to be free and marry her husband. Such a divorce seems right to ordinary people, but it completely contradicts the word of God if it is done only on this basis. But even if there were a sufficient reason for divorce, nevertheless, a husband should not arbitrarily divorce his wife, but ask his (diocesan) bishop about this, who, having thoroughly examined the matter, should write about this to the Holy Synod to consider this matter and make a determination, and without the decision of the Synod, divorces should not be carried out. If a husband and wife, by mutual agreement, wished to accept the monastic rank, then, in addition to other circumstances, pay attention to the age of the wife, whether she has reached 50 or 60 years old and whether these spouses have children, and in what manner they leave them.” 28 This law remains in force to this day and bona desertio currently seems an unthinkable phenomenon, and for example. a husband, due to decrepitude or ascetic mood, who has lost all affection for his cheerful half, must still remain her husband: is such a situation more in accordance with the Word of God than allowing a husband to leave his wife for the sake of a man’s life? This is not what the Greek and Russian hierarchs thought... It is noteworthy, however, that the new law did not quickly displace the second not only from the consciousness of the masses, but even from the consciousness of the Holy Synod. An interesting fact in this regard is the Synodal decision of 1726 on November 7. "St. The Governing Synod unanimously sentenced - this decision reads - the peasant woman Elizaveta Leontyeva, who, after her first husband Vareolomy, who left her without permission and went into monasticism, was forced to become a wanderer and who, having previously lived fornicate with Ivan Kulubakin, then married him - to be considered a legal wife, despite the fact that this marriage was concluded at the life of the first spouse who illegally dissolved the marriage. Having given this decision, Prof. Zagorovsky comments on it as follows: “The Synod took a curious point of view, motivating its decision: “in the Helmsman’s Book it is printed as follows: The seventh rule of the Apostle of Saints: having created the need for the maiden, let him go away, and let her have wretchedness,” similarly, the first rule of St. Paul in ten explains: “he who is faithful to a slave has a concubine, either he will remain her, or according to the law gets married; If she is still free, she will legally take her as a wife; no matter how much longer, she will be rejected.” “It is obvious,” Mr. Zagorovsky concludes, “that this motive is not relevant and is far from consistent with the canon’s view of the consequences of adultery, for example. with the 9th rule of Basil the Great" 29. We find this decision and its motives interesting in another respect. In pronouncing its verdict, the Holy Synod was guided by the clear meaning of canon law, namely 9 rights. St. Basil the Great, recognizing “a wife abandoned by her husband” and “forced to wander” worthy of leniency and not condemning her for her relationship with her partner. It seems strange why the Holy Synod did not directly refer to this rule, having, however, adopted its motive, but turned to the Apostolic Rules for reinforcement, which really do not go to the point? (Elizaveta Leontieva was not a maiden, but a straw widow). Was this reference made with the aim of weakening the law of 1722 prohibiting bonadesertio and marriage of a woman abandoned by her husband for the sake of a monastic life? If this is so, then such a circumvention of an unjust law only honors the sense of right that guided the Holy Synod in this case? But even more strange to us is the judgment of Prof. Zagorovsky that the said motive “does not agree with the canon’s view of the consequences of adultery, for example. with the 9th rule of St. Basil the Great." Where did Mr. Zagorovsky find adultery here? In the said rule of St. Vasily to say directly: I don’t know whether someone living with an abandoned husband can be called an adulteress (mutatis mutandis = living with an abandoned wife). G. Zagorovsky is ready to accuse, which means St. Vasily V. in liberalism. The prohibition to tonsure a husband from a living wife and back into monasticism actually followed not at all due to an abstract theological motive, but a more vital one, namely: 1) due to the general disposition of the legislator towards monasticism and 2) due to quite common abuses, namely frequent cases of forced or forced tonsure on the part of husbands who wanted to get rid of their unloved halves by this means. 30 As for the malicious abandonment of one another by spouses, it did not raise doubts as a basis for divorce throughout the entire 18th century. We also encounter “malicious abandonment” in the form of “escape and hiding of a wife from her husband” as a ground for divorce at the beginning of the 19th century. In the draft “civil code” of 1809, part 1, chapter 6, section 10, we read the following: “In addition to crimes entailing civil death or eternal exile by force of the court verdict itself, the reasons for divorce can be: 1) an attempt by one spouse on the life of the other; 2) serious offenses entailing a criminal suit; 3) false denunciation of a criminal offense; 4) falsely accusing a wife of adultery; 5) forcible theft of her property; 6) imprisonment and generally deprivation of her personal civil freedom; 7) escape and concealment of the wife from her husband” (§ 274) 31 As can be seen from here, the drafters of the project took very seriously those phenomena in marital and family life, which at that time represented, so to speak, a flagrant evil that required appropriate treatment. As for the legal basis of their project, in this respect they were completely impeccable, having behind them at least only the 48th chapter of the Helmsman’s Book, which legitimized events of lesser importance as grounds for divorce. There seemed to be no reason to doubt the success of the project. In reality, this turned out to be not the case: the project met with such unexpectedly energetic objection from some members of the Holy Synod and especially its chief prosecutor, Prince Golitsyn, that nothing remained of it in subsequent legislation. Where is the reason for this? In our opinion, the reason is that the project was not limited to only establishing the grounds for divorce, but also outlined a new procedure for the divorce process, transferring almost the entire investigative part of the latter to a civil judicial institution. It is this encroachment on the judicial sphere, which from time immemorial belonged to the jurisdiction of the church hierarchy, that we think has reinstated the chief prosecutor against the project under consideration. The draft procedural rules for divorce cases were as follows: “The (indicated) guilt must be proven in a civil court and only then the spiritual authorities, at the request of the innocent spouse, having received a court verdict, resolve the issue of divorce itself. Divorce and the church punishment that follows it do not terminate the action of the criminal court. When a criminal case is opened, the spouses are free from mutual cohabitation. The unknown absence of the wife gives the husband the right to ask for a divorce, since in this case he may assume that the wife has committed adultery (§ 281). But before asking for a divorce, the husband must announce in public notices that his wife has run away, and only then, if she does not appear within six months, ask for a divorce (§ 282). In this case, there is no escape when the wife, having been forced to leave by the crime of her husband, six weeks after the time of absence, initiates a criminal action against him (§ 283). In addition to the listed crimes, adultery that is obvious and proven by one of the spouses gives the other the right to ask for a divorce. The husband's adultery is considered proven if the wife provides evidence that the husband is keeping a concubine in his house, or certifies his guilt with other clear evidence. The adultery of a wife is recognized as evidence when, firstly, it is exposed by obvious evidence (?) and secondly, when she is delivered from the burden ten months after separation from her husband or after the husband, for some reliably established circumstance, could not be the father of the child. A claim for adultery begins in a civil court no later than one year before the husband could know about it reliably, then the case goes to the ecclesiastical department, which, at the request of the innocent party and on the basis of a decision of the civil court, pronounces a verdict of divorce. Reconciliation of the spouses stops the action of the claim. On this basis, the divorce itself due to adultery is preceded by spiritual admonition. If it turns out to be unsuccessful, then the spouses are separated from the table and bed for a year before the divorce, and after a year, at the request of the innocent spouse, a divorce is made.” 32 When the opinion of the Holy Synod on this project was requested, it limited itself to only the following comments, and, moreover, not unanimously expressed: On the reasons for divorce: “On §§ 273–276. In the indigenous (!) church laws there is no other reason for divorce other than the words of adultery. Ev. Mf. 5:32.6. Yes, and those named in those §§ personal crimes between spouses, so that they are the reason for divorce, are found in the same laws, and according to Ap. Paul, 1 Cor. 7:10–11 only procreation is permitted, not divorce. Under § 280, divorce can be requested based on proven adultery, and not on assumption thereof. (?) According to § 281, so that the husband, after a six-month absence of his wife, asks the civil authorities to locate her, and if after 5 years of her residence her residence is not revealed, at that time he can ask for a divorce on the same basis as stated about husbands in § 265.” These are the observations regarding the reasons for divorce. For now, let us note that the last of these remarks dealt a decisive blow to the wife’s malicious abandonment of her husband as a ground for divorce. This event gave the husband only the right to ask for the search for the fugitive. Only her disappearance unknown for 5 years can serve as grounds for divorce. This is where the view now dominant in our legislation originates, therefore to the subject! Regarding procedural reforms, the Holy Synod spoke as follows: “The study of the reasons for divorce due to adultery was subject to spiritual court both under the patriarchs and from the establishment of the Synod, this was confirmed by the Highest Will of the Sovereign Emperor Peter the Great - the confirmation that took place on the 12th day of April 1722 at the reporting points. The Synod is still carrying out these cases and seeing the need for legal proceedings between for litigating spouses to act, most of all, on their conscience, a corresponding resolution is prepared with the addition of a personal trial. And as for the conscience, nothing acts so much as religion, and it is not proper for anyone as much as the ministers of the church to arouse it with the voice of faith: then the Synod believes that cases of divorce due to adultery should be carried out in a spiritual court. But on this last point, the synodal member, the Most Reverend Metropolitan of Novgorod. Ambrose, declared his disagreement in the fact that he proposes to carry out cases of divorce based on adultery on the basis that is laid down in paragraphs 2 and 4 of the order given by the Holy Synod in 1767 to the deputy to draft a new code 33.” No matter how weak these comments were in essence, the Department of Laws, however, took them into account with full attention. He divided his reasoning into two parts: in one he examined the very grounds of divorce, in the other he discussed the form of legal proceedings in divorce cases. As for the question of the grounds for divorce, the department took into account three sources on this subject: the Pilot's Book (in particular, Chapter 48), the order given to a deputy from the Synod in 1767, and the opinion of the Holy Synod, now cited. But after a thorough discussion of these sources, the Department of Laws found: the reasons for divorce set out in the Helmsman’s Book (48 chapters) are too numerous and were probably established in view of the extreme decline of morals of that time (as if morals were better in the Alexander era, especially in aristocratic and landowner circles!); He considered the opinion of the order of 1767 to be the most thorough; on the contrary, the opinion of the Synod of 1810 too narrowed the grounds for divorce. The Department bases its opinion on the fact that limiting the reasons for divorce to adultery alone may entail such constraint in marital unions as has never happened before, and the Department also cites several examples of the extreme inconvenience of such constraint. For example, a husband accuses his wife of adultery and does not prove his accusation; The criminal law, although it will punish him, will not determine the exile, the traces; the wife will have to remain in a union of fidelity with the very husband who betrayed her to dishonor. Considering what has been said, the Department comes to the following result: adulterers should be recognized as the main reason for divorce and a second one should be added to it, called personal crimes of one spouse against the other; These include: 1) an attempt by one spouse on the life of the other, 2) a false denunciation of a criminal offense, 3) a false accusation of a wife by her husband of adultery, 4) a wife’s escape from her husband. Thus, in comparison with the project and order of 1767. The Department of Laws excluded from the reasons for divorce: the forcible theft of the wife’s estate and her imprisonment, and in general the deprivation of civil liberty.” 34 In this edition, the draft was presented by the Department to the general meeting of the State Council. After listening to it, 17 members found it correct and in agreement with church and civil laws, but 10 members of the State Council sided with the opinion of Chief Prosecutor Prince Golitsyn, which then triumphed, forever burying the works of the drafters in the archives. This is a wonderful opinion. “Since marriage is a sacrament of our church, therefore, the existing rules that guide the dissolution of marriage must be ancient; for this we need to turn to the first centuries of Christianity, which church accepted the reasons for divorce.” Then, referring to texts from the Gospel (Matthew 5:32; 19:3–9), he continues: “these two texts are the foundations by which the church was guided both in the first centuries and after its division from the West, which was also observed in Russia after the introduction of Christianity into it, both before the patriarchs and during the patriarchal rule of the church. The Holy Synod also followed, and still follows, the above-mentioned texts as if they were fundamental laws. The Holy Synod never had the right to make a resolution contrary to this. And for this reason, I believe that the 7th article of the Order of 1766, not being based on any text of Holy Scripture, but only made according to the reasoning of the Synod, cannot serve as a fairly solid foundation. That taking into account, the Holy Synod now, to the question put to it, could not respond with anything more than what I submitted to the State Council of the Legislative Department. “Having outlined what concerns the causes of divorce, I ask the State Council to turn its attention to a matter that does not require stateliness, because for so many centuries it has been carried out on principles contrary to the new situation, and if my comments are respected, to decide the following: 1) The department only on divorce should be excluded from the draft Civil Code, saying that it remains on the old basis in the spiritual department. 2) Leave it to the Holy Synod to draft a personal court form for those seeking divorce and submit it to the Legislative Department of the State Council. 3) When the form is approved by the Highest, then carry out divorce affairs according to it in one spiritual department. 4) The Holy Synod should issue a decree excluding inability to cohabitate as a reason for divorce. 5) The reasons presented by the State Council to the Legislative Department, in addition to those accepted by the Holy Synod, shall be referred to the Civil Court and a rule established in the code on how to bring complaints against them. 6) Upon completion of these affairs in the civil department, the offended person is given the right to ask for spiritual diversity, on the basis of St. Apostle Paul: Should (the wife) still be separated, let her remain single, or let her reconcile herself with her husband. (1 Cor. 7:4)." 35 36 Neither one nor the other of these projects was destined to come true: the first was completely eliminated. As for the draft book. Golitsyn, although he was not able to fully penetrate the legislation, his main idea still lives in the current divorce law. Thus, his proposal to exclude the department on divorce from the civil code was accepted with respect by the compilers and editors of the codes of 1835 and 1842. it was only included in the 1857 code. In the same way, the idea of ​​a hitherto unprecedented “constraint in marriage unions,” although it did not fully take hold—the inability to cohabitate in marriage was not excluded from the reasons for divorce—but nevertheless, the number of these latter was so reduced as had never happened before—and precisely under the influence of this Golitsyn tendency, which, apparently, has not lost its value to this day. It is this circumstance that prompts us to enter into its closest consideration. What impresses the reader with it is, without a doubt, the theological toga in which His Serene Highness draped himself, speaking in the State Council as a fighter for the church, for the Gospel law. With the New Testament in his hands, he edifies not only the members of the State Council, but makes it clear to them that the members of the Synod themselves are bad zealots of the “root” laws of the church and, not far from 1767, they invented a “decree contrary to them,” not based on any text of Holy Scripture. And so he, the Most Serene Prince, now took upon himself the feat of advocating for fundamental church laws. Where did such insight come from? We do not have the data to write comments on the opinion of Prince Golitsyn in question and therefore cannot answer this question exactly. But as for the critical assessment of his theology, we do not find any difficulty in indicating its elements and their good quality. Thus, his proposal to introduce in our country “separation from the table and bed” for personal crimes of spouses instead of divorce is a very well-known institution of the Catholic canon, based on the dogma of the indissolubility of marriage as a sacrament. Catholics do not have divorce - because a marriage cannot be dissolved, just like a person once ordained as a deacon, for example. always remains a deacon, even if it renounces Christ - for the grace of consecration is indelible. But the Catholic canon - as circumstances require - will not find it difficult to dissolve any legal marriage. Which way? In two ways: firstly, thanks to the vast variety of conditions for the legality of marriage, a clever businessman - a canonist - always has the opportunity to refute the legality of marriage and declare the marriage does not exist at all. This is the first way. The second way is to condemn uncooperative spouses to separation from the table and bed: here - you see - there is no dissolution of marriage, but only separation of spouses on the basis of 1 Cor. 7:7. Thus, in both cases, the principle of indissolubility of marriage is saved and the spouses are divorced without a divorce. Prince Golitsyn, out of this scholastic wisdom, made a concession to the Gospel only for guilt - adultery. A Catholic would only separate adulterous spouses from the table and the bed, but would not dissolve the marriage, but our chief prosecutor acted in this case on the basis of the “radical laws” of the church: for all other wines, he planned to introduce an entirely Catholic institution 37 . At that time, Catholicism was - may I be allowed to put it this way - a fashionable religion in our aristocratic circles; There is nothing incredible that Prince Golitsyn, using the considered Catholic views, wanted to improve our backward civil and even church law; he could do this all the easier because he could find support for such an enterprise in the same Helmsman’s Book, on the basis of which the majority of members of the legislative board with a good conscience established the above-mentioned reasons for divorce - precisely in chapter 49, containing the eclogue of Leo the Isaurian. The coincidence is amazing. And so it happened that both sides, defending different views on the same subject, resolutely declared that they were acting “in accordance with church and civil laws” that were in force under the patriarchs and before the patriarchs and even further in antiquity, relying some on the 48th and other chapters of the Helmsman’s Book, and others on the 49th. But why did the opinion of the latter, the minorities, prevail? Yes, because it was based on the “root laws” of the church - on the Gospel and could confirm their opinion with the texts of the New Testament. With such a formulation of the controversial issue, it naturally happened that the side that supported the fundamental laws of the church prevailed. Nowadays, after our reference to the history of law, it is not difficult to see how wrong such a statement is; it is not difficult to see that the majority of members of the State Council, supporting the department’s project, were certainly right. Their project was based not only on the “indigenous” church laws, but also on derivative ones, which were the fruit of applying the former to life - the result of careful pastoral care about the application of the indigenous, unconditionally true laws of Gospel morality to the phenomena of life. Meanwhile, Prince Golitsyn, like Leo the Isaurian, daring to be zealots of the fundamental laws of the church, took lightly the attempts to apply these laws to life, which deserve deep respect. The fatal mistake of Prince Golitsyn, Emperor. Leo the Isaurian and the Catholic canons are that they 1) unfairly narrow the concept of the Gospel term “adulterous word” and 2) that they do not want to take into account the specific phenomena of life, with those diverse forms in which a person puts on essentially the same desire, his desire. In fact, is it really only these zealots of the fundamental laws of the church who know that only the “adulterous word” is a sufficient reason for the dissolution of a marriage? Everyone who reads the Gospel knows this. But what is this “adulterous word”? “The fact of copulation, attested by eyewitnesses,” these zealots of the fundamental laws of the church boldly answer. Isn’t such a statement a gross distortion of the Gospel? What will they say in their justification before the words of the Lord as clear as a clear day: “I say to you, that everyone who looks at a woman and desires her has already committed adultery with her in his heart.” (MF. 5:28). So high is the ideal of the virtue of marital chastity, bequeathed and instilled by the Gospel! And who will decide not only to dispute the height of this ideal, but even the great eternal educational significance of this covenant, this commandment, this law? Having it always in his heart, each of the spouses will feel a blush of shame on his face at every moment of lust for another man's husband or another man's wife: the physical nature of both will then act as guardians of this law and whatever political criminal and civil laws may exist regarding adultery and divorce, they would have no meaning for such marriages, the principle of indissolubility of marriage would be implemented only through the operation of this law, not needing the help of others. But are there such marriages? Without a doubt, there are precisely those places where the Gospel is read and revered not as an interesting book, but as God’s Word, as an immutable divine law, as without a doubt there are such marriages that have never even thought of being interested in the question of what kind of civil laws exist on the issue of divorce. This “root law” of marriage, of course, the Church must always preach constantly and take worldwide care to expand the scope of its action. But there are always a lot of other types of marriages, where either both spouses, or one of them, do not heed this law, do not cultivate its operation in their hearts, and, obeying other moral views, not only lose the sense of shame when lust for other people’s husbands or wives, but even cultivate the ability of shamelessness. And to regulate various phenomena in such marriages, in addition to the fundamental Gospel law on marriage, other criminal and citizenship laws are needed, which do not run counter to or contradict it, but help in its application. What does this help to the fundamental law consist of? Briefly and generally speaking, in determining the particular forms of detection of behavior criminal against the obligations of marriage, in which it is clothed or with which it is disguised at one time or another. These forms, of course, can be very diverse, sometimes crude, sometimes refined, and it is the duty of the legislator to be vigilant about the creative development of them by criminal will. And the more carefully legislation notes these forms, the more perfect it is, the more caring its attitude to the fundamental law of marriage. Therefore, legislation characterized by fragmentation, a large number of grounds or reasons for divorce cannot at all be accused of contradicting the Gospel law, which really allows for one reason for divorce - “the word of fornication.” Quite the contrary: legislation that reduces their number can precisely be accused of negligence about the fundamental Gospel law of marriage, as neglecting those plausible forms under which the crime is hidden and, as a result, remains unpunished to offend the innocent party. For clarity, let us recall the above examples, presented at least by the project of 1809. In all these examples, it is not difficult to discern one motive of the criminal (if, of course, he acts in a normal state) - to eliminate his opposite half from cohabitation with himself in order to acquire another: what are all these acts if not different forms of revealing one criminal intention, called in the Gospel “the word adulterous” or “guilt” adulterous? In our opinion, this is so. Therefore, a simple return of our legislation on the issue of grounds for divorce to the draft of 1809 under consideration would be a step forward; of course, the return is not slavish, but principled: for it is possible that at present husbands, for example. They do not practice measures of “imprisonment or deprivation of their civil liberty” on their wives in order to free themselves to use their affections “on the side” from home. Currently, other forms of the same essentially criminal act are possible. Nowadays, this kind of phenomenon is quite common: married spouses, having lived together for more or less a long time, then end their cohabitation and separate. Sometimes this is done by mutual agreement, which is the result of mutual awareness of the impossibility of continuing their life together; sometimes - only by the unilateral decision of one of the spouses, with the desire of the other, more resilient and patient - not to make a scandal and continue cohabitation in the hope that over time a mutual rapprochement will occur. The requirement of the law is that “spouses are obliged to live together” 38, in the past, guaranteed by the right of the husband to install a runaway wife by forced police means, now it only matters as a moral obligation, the fulfillment of which depends on the good will of the spouses. “A wife living separately from her husband” and a “husband” refusing to accept his wife” became common phenomena, not particularly surprising to anyone - they acquired the right of citizenship, so to speak, even in the eyes of the highest guardian and interpreter of laws - the Governing Senate. The only remnant of the legal guarantee of the duty to serve in question is the wife’s right to demand maintenance from her husband who refuses to accept her into cohabitation, and the husband’s right to refuse to provide maintenance to a wife who does not want to cohabit with him 39 . The legal guarantee of the spouses' obligation to live together is thus reduced to money: the wife has money, but the husband is tired, and she, under the protection of the law, freely leaves him, moves to her own apartment and establishes a new home. The same is true for a wealthy husband: he is tired of his wife, he leaves her and, before her eyes, arranges a new cohabitation, allocating a certain amount for the maintenance of his abandoned wife. In reality, in this way, instead of a legal guarantee of family order, what turns out is a legal guarantee of outrageous moral disorder and lies: the wife who left her husband gives birth to children, whom she registers in the name of her legal husband (i.e., fictitious), and this latter is not guaranteed for a single moment of his life from the requirement to give maintenance to his wife if she wants to return to him with children taken on the side, or remain condemned by his wife to celibacy while she is alive. Even for the abandoned wife there is some satisfaction (albeit combined with a grave humiliation of the insult experienced - a requirement for maintenance, but for the abandoned husband - only the burden of a fictitious marriage and shame. The situation is terrible, impossible: and this is supposedly in the name of church law, expressed in the Gospel. As we have shown, the Orthodox Church is far from being reproached for such a distortion of the Gospel: the existing legislation fully supports such fictitious marriages are a misunderstanding that crept into us at the beginning of the 19th century. Meanwhile, the way out of the abnormal situation (fictitious marriage) is simple: prolonged separation is already a fact in itself, obviously convincing everyone of the destruction of the marriage. The ecclesiastical court here does not have to separate the husband from the wife and back - for they have already separated, but only to state that the event of separation has already taken place, the dissolution of the marriage has already taken place. In particular, for the Legislative Power there does not seem to be any formal difficulty in issuing the law we are projecting: for in reality we are not talking about establishing a new law, but about the restoration of the old, based on very stable foundations - canonical or ecclesiastical and civil. From the formal side, this will result in the cleansing of our civil and church law from an alien to their spirit, an extraneous element that crept into our legal consciousness a hundred years ago and among the sources of our law has only the 49th chapter of the Helmsman’s Book, which is nothing more than the eclogue of the Byzantine iconoclast emperor Leo the Isaurian. Let the authority of the Holy One triumph over him. Basil the Great and such famous names in the history of law as Justinian, Basil the Macedonian, Leo the Wise and others. In full accordance with the legislative principles of these authorities, it is possible to include among the grounds for dissolution of marriage malicious abandonment by one spouse of the other, lasting for at least five years. We have chosen this five-year term in accordance with the term of the unknown absence of one of the spouses, which we do not question as a ground for dissolution of marriage. The benefits of the theoretical improvement of the current law we are projecting will be reflected in life with the following consequences: a) It will provide a way out of the terrible situation for many spouses whose cohabitation in their first marriage did not work out for reasons often beyond their control. b) It will serve as a means of curbing the frivolous attitude towards marital responsibilities on the part of flighty husbands and wives, as a constant threat of loss of marital rights. But this measure will increase the number of divorces? - Undoubtedly; but on the other hand, fictitious marriages will disappear, which now serve as a legal cover for debauchery, both voluntary and involuntary - forced by a hopeless situation. K. P. Pobedonostsev: Civil course. rights part III, 85. St. Petersburg. 18S9. Est. Foreign Spanish 256 – 258. Capable: About divorce in Russia, pp. 115–116. M. 1381. Is it not this scholia that the editors of our book of rules had in mind, in which the end of the 35th rule of St. Vasily is conveyed in the following expressions: “condescension will be shown to him in this. may he be in communion with the church.” The corresponding Greek text reads: ἡ συγγν ώ μη τούτ ῳ πρὸς κοινωνεῖν τ ῇ ἐκκλησ ί α δοθ ή σεται (may this indulgence be given to him in communication with the church). That is, the original text does not contain any hint of restricting the right of the abandoned husband to enter into a new marriage. If a woman enters into marriage without observing confarreatio. or coemptio, lived in her husband’s house for a whole year, then the husband acquired manus mariti over her: power was acquired, as it were, by long-term possession over the course of a year. Already in the XII tables there was a law that gave a woman the opportunity to forever avoid submission to her husband’s authority. He decreed that if the wife was absent from home for three nights each year, then she would interrupt the usus (usurpatio trinoctii). Bogolepov, Textbook of the history of Roman law. 244. M. 1895 This is clear from a comparison of the rules under consideration with the 34th rule of St. Basil the Great: “Wives who committed adultery and confessed it, out of piety our fathers forbade them to do anything openly... but commanded them to stand with the faithful without communion until the time of repentance was fulfilled.” There is no such leniency for a wife who has left her husband. See Balsamon's commentary on 93 rights. Trul. cathedral 39 new Leo the Wise canceled this reason for divorce. M. Vlastar, ch. 3. Nov, 22 and 117. Nomocanon of Foyai translated by V. Narbekov, vol. XIII, ch. 4, pp. 523–5247 See Nevolina: Stories of Russian citizens. laws T. 3, St.-Pb. 1857, sor. 245; Zagorovsky, cit. Op. and Helmsman, ch. 49. Helmsman, Ch. 49, gr. 8–9. See the preface of the Eclogue, The Helmsman, Ch. 49. Sn. Words of St. Vas. Great, “if a husband is abandoned by his wife, it is appropriate to look at the guilt of abandonment... (right 35). The helmsman's book, chapter 43, gr. 11 Vasiliki, book. 28, vol. 14 and 4. Narbekov: Nomocanon of Photius, part II p. 522. Kazan. 1899. According to the Russian translation of St. N. Ilyinsky, pp. 123–124. E.E. Golubinsky in “A Brief Essay on the History of Orthodox Churches,” M. 1871 (pp. 123–124) says the following about Dimntria Khomatene: "Dimitri Chomaten - from the Chartophylaxes of Ahrnd under John Kamatera; his successors in the archbishop's see, which he occupied in the last years of the 12th and the first quarter of the 13th century. Belong to the number of the most famous church lawyers of his time. In the Munich royal library (see Hardt vol. 1 no. 62) there is an important handwritten collection of more part of his unpublished, canonical messages and decisions, of which some contain data, as follows, to assume from the inscribed articles and as directly stated by scientists who have seen the collection (Zhishmann: Das Eherecht d. orientalischen Kirsche Wien, 1864, S. 7. note) are very important for the then history of the Bulgarians and Serbs Taking advantage of favorable circumstances, precisely the fact that. The emperor and patriarch of Constantinople were then in distant Nicaea; he sought to place the power of the Archbishop of Achrid at the highest possible degree of independence. In 1222, the despot or appanage ruler of Epirus, Theodore Komien, having decided to assign the imperial title, turned to the Metropolitan of Thessalonica with a request to place the imperial crown on him; when the latter most decisively refused the illegal request, he turned to the Archbishop of Achrid; the latter, Demetrius Khomaten, immediately expressed their readiness, “because,” writes George Acropolis, “the Archbishop of Achrid, as he himself claimed, was completely independent (αὐτον ό μος) and was not obliged to give an account of his affairs to anyone, which is why they had the right to anoint anyone, whenever and wherever to the kingdom.” The Munich Codex No. 62 mentioned here was published in 1891 by Pitrou in the Analecta Sacra et classica spicilegio Solesmensi. Based on this publication, we present our translation of the three mentioned divorce decisions of Archbishop Demetrius Khomaten. The quotation is similar to Balsamon's commentary on the Nomocanon of Photius, vol. XIII, ch. 4, p. 522. Pitra; Analecta, b. 99–100 See chapters 44 and 48 and interpretations on rights, St. Basil the Great 9. and 46. At the request of the currently practiced process for the dissolution of a marriage due to unknown absence, the Spiritual Consistory is first of all concerned with the question of whether the marriage, the dissolution of which is being discussed, was actually concluded, then it is concerned with the questions: exactly when the absent husband or wife left their place of residence and whether an appearance petition was filed for that; in this latter case, a copy certified by the petition is attached. When the diocesan authorities do not encounter doubts about the validity of the petitioner’s marriage with an absent person, then they refer to the local civil authorities about the question of the deputy from the spiritual side, relatives of the absent person and residents, both local and peripheral: do any of them know about his whereabouts, whether there were any rumors about him when he was absent, how he behaved, and whether the petitioner himself gave a reason for leaving him.” – With the discovery of reliable news regarding the place of residence of the absentee, the case is terminated: otherwise, the diocesan authorities impose a decision to dissolve the petitioner’s marriage and allow him to enter into a new marriage.” (Const. Spirit. Consistories §§. 232–235). Reading these paragraphs, you are involuntarily amazed at the behavior of the Consistories and the police acting on their instructions: why such curiosity about marital relations, satisfied by interviewing relatives and devious people? After all, for the Consistory, in this case, it is necessary to state only the fact of an unknown disappearance, why all the other information? We are confident that not a single Consistory official will answer this question satisfactorily. Meanwhile, the matter is explained simply. Such a detailed survey made complete sense - once before, when a lawsuit began for divorce not for unknown absence, but for malicious abandonment, or the wife’s escape from her husband’s house. In this case, it was necessary to know whether the husband himself was to blame for the escape. In general, this whole procedure recalls those times when it was possible to conceal not only wives from their husbands, but also recruits - recruits - from military service. It’s time to hand over these paragraphs to the archives of old cases. N evolin: P.S. works, T.III, p. 250, note. Lyubavsky: Legal monographs and studies T.I, p. 105. S.-Pb. 1867. Zagorovsky: about divorce according to Russian law. Kharkov 1884. p. 147 Rule 12 of Metropolitan John 1080–89. gg. Tsavlov: Monuments of ancient Russian law, Rusk. Histor. Library, vol. VI, pp. 6–7. Nevolin, op. Op. page 80. Pachman: History of civil codification. rights. T. 1, p. 412. Zagorovsky, c. Op. page 382. Complete collection Fasting, according to the Vedas. Ave. Spanish T. II, p. 249 Full Collection Fast. t.V. 1854. Zagorozsky, c. With. 315–316. See eg. The decision of the Holy Synod on the non-consecration of Princess Anastasia Dolgorukova to the monastic rank. Full Collect Post T. I, No. 195, p. 215. Pakhman, c. k., pp. 410–411 Pachman, op. book page 411. Gorchakov: About the secret of marriage. App. pp. 53, 54. Pachman, op. book p. 4] 2–413. The Department made some concession to the Holy Synod in the course of legal proceedings, but it is not of interest to us in this case. Pachman, op. book 414,–415. Readings at the Society of History and Antiquities 1862 Apr. – June book II, pp. 184–186: book. Golitsyns about divorces. Zagorovsky, cit. book pp. 389–391. However, there is nothing enviable here: for since those separated are guaranteed cohabitation, then what remains of their marriage? Since what constitutes the essence of marriage has been destroyed between them, why consider them spouses? Spouses living at different lengths is an anomaly. A different matter is the short-term separation of spouses, practiced by our ancient Russian shepherds as a disciplinary measure for ruined spouses. After listening to both spouses complaining about each other, the good shepherd would sometimes order one to be placed in a monastery, the other in a women’s monastery, and orders to be kept there until they get bored. Well, then, when they get bored and begin to ask for reconciliation, they will take pity and, punishing them, let them go to live together in peace. This truly brilliant pastoral measure would not be superfluous, it seems, even today. This institution is welcomed as desirable by our lawyers. Prof. Zagorovsky for example. notes this part of the draft book. Golitsyn, as a step forward in our civil law. (See op. cit. pp. 392–393). “All duties,” says Mr. Borovikovsky, “unconditionally assigned by law to the husband, are inextricably linked with the same unconditional obligation of the spouses to live together (68/461). Therefore, a wife living separately from her husband does not have the right to demand maintenance for herself (75/291.68/461). Initially, the Senate expressed this provision unconditionally, recognizing as unlawful the awarding of maintenance to a wife even in the case where the husband refuses to live together (70/799). But then it is explained that a wife can be awarded maintenance if she does not live with her husband through his fault (76/41,74/689) and does not voluntarily evade cohabitation with him (86/20,72/407); therefore, if a husband refuses to accept his wife, then he can be awarded maintenance to her, but only conditionally: as long as he avoids living together (76/41, cf. 86/29), but maintenance cannot be awarded as soon as the husband declares a desire for his wife to return to him - (73/185). Borovikovsky: Civil Laws, ed. VI, p. 21. You might be interested in: