On the issue of malicious abandonment by one spouse of the other as a basis for divorce [regarding the book by Prof. N.S. Suvorova: Comments on the “draft provisions on reasons for divorce” drawn up by the Special Meeting of the Holy Synod

In the named book 1 prof. N. S. Suvorov took the trouble to present his scientific considerations and criticism of those reasons for divorce that the Special Meeting at the Holy Synod established in its project, which has already been published and duly welcomed by public opinion. The project meets the urgent needs of the time in such a way that it deserves nothing but greetings and arouses the desire for speedy legislative approval. But, of course, every review about him from private individuals deserves nothing but gratitude, especially from such competent judges as a venerable professor at Moscow University. True, in his “remarks” Mr. Suvorov refers to Dov. is unfavorable to the project, finds many shortcomings in it both editorially and in essence, but rigor, when not hostile to truth and truth, is not only not harmful, but also useful, and it seems that the Holy Synod will attentively and favorably react even to the unfavorable reviews of the named learned man to its project. Truth and truth in this great and holy matter are more valuable than anything else. Guided by this impulse, we, for our part, consider it useful to express our comments and judgments about the “remarks” of Mr. Suvorov, however, not about all those reasons for divorce that are accepted by the draft, but only about one - the so-called. "malicious abandonment" The reason for our moderation is that recognition of this particular occasion is especially desirable in the sense of satisfying urgent modern needs, and on the other hand, the fact that Mr. Suvorov dwells on this same occasion with special attention (p. 27). Moreover, we published a special brochure about this issue back in 1904, which, apparently, was not unknown to Mr. Suvorov, although he does not mention it in his book 2), so that we now have a personal incentive to once again revise our previous work and make corrections in it, if Mr. Suvorov’s “scientific considerations” called us to this. In our work, we tried, first of all, to canonically substantiate the so-called. “malicious abandonment” as a sufficient reason for divorce, and with special attention they focused on the rules of St. Basil the Great, especially on his famous 9th rule. One provision of this rather substantial and large rule seemed to us to so clearly and accurately express the canonical sufficiency of “malicious abandonment” as a basis for divorce and to justify the abandoned husband’s remarriage, that we decided to put this provision as the epigraph of our brochure. This provision reads as follows: It seemed to us then, as it seems to us now, after reading Mr. Suvorov’s book, that this provision for any unprejudiced reader, and especially a little knowledge of the Greek language, so clearly and decisively expresses the right of the abandoned husband to seek a divorce on the basis of “abandonment by his wife”, that it is only necessary for the husband seeking divorce, abandoned by his wife, to quote this provision in his petition in one or both texts - and each Spiritual The Consistory will, without hesitation, respect the plaintiff’s request, and the Holy Synod will approve the decision of the Consistory. But this position and the entire 9th rule of the Holy Father seemed far from being so to Professor N.S. Suvorov, who closely examined the Greek text of this rule through his, so to speak, learned glasses. Arming his vision with these glasses, Mr. Suvorov came to the decisive conclusion that neither in this provision, nor in the whole 9th rule, nor in all the rules of St. Basil the Great and in general in all the canons there is no hint of malicious abandonment, which - in general there is no canonical basis for this reason, no, no... “One can only be surprised at how it was possible to find in this rule the idea of the actual abandonment of one spouse by the other, without a previous divorce, as a sufficient basis for the dissolution of a marriage.” So he said! (p. 32). The parable, reader, is simple and quite ordinary: simple, immediate evidence has come into decisive conflict with scientific penetration - and nothing more. What should we do? – You ask. – In my opinion, do the proper thing: do not believe your eyes and your mind, but trust entirely in the scientific insight... in this case, Professor N.S. Suvorov. But isn’t it offensive to your own eyes and to your own mind? - What to do! Our own eyes and minds often deceive us. What moves: the earth or the sun? – of course not... the sun. So it is here. However, I do not insist on this, as you wish; For now, I will be careful not to abandon my eyes in favor of Mr. Suvorov’s insight on the simple grounds that his learned insight arouses in me some doubts, which I decide to share with you, kind reader. 1. The scientific insight of Mr. Suvorov arouses doubts in me, first of all, from the formal side - from the methodological side; It seems to me precisely that in this case we have to deal not with scientificism, but with scholasticism, or simply with scholasticism. The point is this: Mr. Suvorov looks at “malicious abandonment” through the eyes of textbooks and civil law courses, which precisely say “when, where and under what circumstances malicious or malicious abandonment took an independent place among the reasons for divorce, for example. in Germany, France, Austria” (page 39 et seq.). Well, as for eg. ancient Rus' or Byzantium, then there is no trace of this mentioned in any textbook, concludes Mr. Suvorov - it was not there and the “compilers of the project” want to introduce something completely new, “unparalleledly original” even for Western Europe (p. 42). I don’t know about you, reader, but such scientific logic does not seem convincing to me; after all, with this logic one can just come to the following conclusion: since I am not registered in the police station, I don’t exist, I really didn’t exist, and no, no, no... The science of our Orthodox church law, despite the “course” and “textbook” of Prof. himself. Suvorov, still in such a young state, she still does not fully embrace and illuminate the legal facts and relations of our past, that it is impossible and not prudent to rely so entirely on textbooks and courses, as Mr. Suvorov demands. Of course, there can be no dispute that the term “malicious abandonment”, “malitiosa desertio, bössliche Verlassung” “abandon” cannot be found in the monuments of our church law, Old Russian and Byzantine, and in particular in the rules of St. Basil the Great; but it would be extremely unreasonable to conclude from this that these monuments do not contain any mention of those life phenomena to which the names listed in the textbooks correspond. Familiarization with the monuments of our law and Byzantine law “irresistibly” convinces that the so-called “malicious abandonment” in textbooks was both recognized in legislation and applied in judicial practice as a sufficient basis for divorce, but only under other names, for example. “escape”, “concealment”, etc. 3 This same vital phenomenon is also meant by St. Basil the Great in his 9th and other rules and calling it εγκατάλειψις (abandonment). This “encatalipsis” essentially means the same thing as “malicious abandonment” (malitiosa desertio) and if St. Basil the Great did not use this last term in his rules, but used the word “encatalipsis,” then this happened for the simple reason that he wrote his rules in Greek, and not in Russian 4 . We consider it unnecessary to further clarify the methodological inconsistency or scholasticism of Mr. Suvorov’s scientific methods. At least for me personally, it is so clear, it does not serve to reveal truth and truth, that I would never exchange it for my own eyes, and you, the reader, as you wish... 2. The philological work of Prof. seems to me to be just as scholastic. Suvorov, which he dedicated to the 9th rule of St. Basil the Great. That this philological work is nothing more than a scholastic exercise on a given topic (l’extemporale) is easy to see if you compare pp. 29–32 of Prof. Suvorov from pp. 76–77 of the book Tsakhariye: History of Greco-Roman Law, ed. 3 5 and consider the logical structure of the philological work of Mr. Suvorov. Its logical construction, based on pp. 29–32 of Tsakhariye’s book, presents the following syllogisms in a condensed form. a) By “abandonment” as a reason for divorce, in science and legislation we mean the actual abandonment of a husband by a wife, or a wife by a husband, without any “act of public or private” in which an “expression of will” regarding the termination of a marriage would be expressed, and without observing one or another divorce form: what kind of abandonment is referred to in the 9th rule of Basil the Great, legal or factual? (pp. 28–29). (First premise). b) Resolving the question posed, Mr. Suvorov notes in the 9th rule the Greek words and expressions that correspond to the Russian word for a wife to abandon her husband. These words: ἀπολνοάοης τὸ ν ἄνδρκ (left her husband), ἀπέστη τοῦ γάμου (left the marriage), διαζεχθῆναι συνοιποῦντος (to divorce a cohabitant), χωριζεσθαι (to separate), ἀποοτάς τῆς γνναίκὸς ἐπ ἄλλην ἢ λθε (having left his wife, he will take another wife), γάμον ἐξιστασθαι (to leave the marriage) 6. But these terms and expressions are technical for expressing legal abandonment, or the act of expressing the will to end a marriage (Cf. Zach. p. 76, note 171), and do not at all serve to designate actual abandonment. To further confirm the obvious correctness, so to speak, of these independent philological researches, Mr. Suvorov cites the following tirade from the history of Tsakhariye: “Basily the Great, in his 9th canon, makes a concession to the secular law and custom that existed in his time, allowing that at least a husband to whom his wife has sent a letter of divorce can remarry without committing adultery (wenigstens der Mann dem seine Frau den Sclieideberief geschickt hat, wiederheirathen konne ohm dass ein Ehebruch anyenommen werde): this is what the best expert on Byzantine law says, Tzacharie von Lingenthal” (p. 32). c) So, what kind of abandonment are we talking about in the 9th rule: legal or factual? It talks about “leaving a marriage, about leaving a marriage, about a wife dissolving a marital union with her husband and about a husband leaving his wife, i.e., it talks about divorce in the sense of breaking the legal connection between spouses, and not in the sense of the actual abandonment of one spouse by the other.” (p. 30) “One can only be surprised at how it was possible to find in this rule the idea of actually leaving one the spouse of another” (p. 32). As can be seen from here, Mr. Suvorov’s logical construction is correct in form; Moreover, the conclusion and independent philological research are confirmed by the authority of Tsakhariye: what would seem to be missing to reveal the truth? And yet, the “worm of doubt" did not leave us alone and resolutely protested against confidence in the scientific thoroughness of the philological work of Prof. Suvorov. Leaving aside the question of the independence of Mr. Suvorov’s scientific philological research and the degree of dependence of it on the book of Tsaharie F. Lingenthal, we consider it our duty to limit ourselves in this regard to only the following remarks: a) Such examples of translations as γάμον ἐξιστασθαι (to leave a marriage) ohiie dass ein Ehebruch angenommen werde (without committing adultery) are undoubtedly the independent philological work of Prof. Suvorov. b) The above indication in the 9th rule of technical terms to denote “a private act for the legal expression of will on divorce,” or to denote the legal, and not the actual abandonment by one spouse of the other, is also undoubtedly an independent philological work of Mr. Suvorov. Leaving, further, aside the scientific value of Mr. Suvorov’s translation samples, we cannot help but make the following comments regarding Mr. Suvorov’s indication of technical terms in the 9th rule. The instruction is undoubtedly correct, but here’s the strange thing: where was our epigraph given: “abandoned husband” and so on, which we extracted from the 9th rule? Where did the terms ἀφε ί μενος, καταλειφθεὶς, καταλειποῦσα go, denoting actual abandonment, and not legal, undoubtedly found in rule 9, however, Mr. Suvorov did not noticed, or at least not noticed? In response to these questions, in the above-presented logical construction of Mr. Suvorov, nothing is given except a solid rhetorical “figure of silence.” This lack of the second premise of the syllogism has a fatal significance for the decisive conclusion and even more so for the “figure of surprise” inserted into it: how can one find the thought of actual abandonment!!! Checking with simple eyes (and not armed with scientific glasses) the philological analysis of the 9th rule leads to the undoubted conclusion that in the second premise of Mr. Suvorov’s syllogism, only terms denoting legal abandonment were allowed to be indicated, and terms denoting actual abandonment were omitted (intentionally, or due to weakness of vision - another question). As a result of this, Mr. Suvorov’s decisive conclusion must either be decisively rejected as essentially incorrect, or at least corrected as follows: in the 9th rule we are undoubtedly talking about both legal and actual abandonment, and not at all about just the legal one. Accordingly, the figure of Mr. Suvorov’s surprise should be replaced by a more suitable figure, for example. like this: “one can only be surprised at how he, Mr. Suvorov, could not find in the 9th rule not only the thought of actual abandonment, but also Greek and Russian words that clearly express this thought!!...” If we were guided only by the interest of a logical and grammatical competition with Mr. Suvorov, then here we would stop with our counter-remarks to his “remarks” about malicious abandonment as a reason for divorce. But our interest is more serious and deeper... And so, under his influence, we decide to subject to careful consideration that coverage of the 9th canon of St. Vasily Vel., which is given to him by “Tsakhariye himself,” under whose undoubted influence the philological work of the Russian professor of church law that we examined was born. The interpretation of “Tsakhariye himself” deserves attention not only because of its loud authority, but also in essence, precisely because it raises the accusation against St. Basil the Great that he sacrificed the gospel law and the ancient harsh church discipline in favor of secular law and custom. And so our “worm of doubt” raises the question: which of the two is to blame - is the holy father and teacher of the Church for the grave sin of “compliance and allowance” charged against him, or is Tsakhariye F. Lingenthal, the famous expert in Greco-Roman law, for the fact that he incorrectly illuminated the 9th canon, slandered the father and teacher of the Church and brought an Orthodox professor at Moscow University into this sin? Reading the rule carefully, you come to the full conviction that there is not even a hint of any secular law, that is, Roman-pagan, or any other; The rule speaks only about the Gospel law and custom, but about what custom: secular or church? – Again, there can be no doubt that about the church: ῇ τὸ παρατ ή ρημα (we do not see this in church custom). Where did Tsakhariye get the idea that St. Basil the Great makes a concession to secular law and custom - it is absolutely not clear. But perhaps the greatest teacher of the Church made a concession of the Gospel law to this church custom, or to this strict ancient church discipline? And this is by no means impossible to say. The Holy Father not only does not make concessions to this church custom, but on the contrary, comparing the Gospel law with it, he is perplexed as to how it happened that the church custom does not fully correspond to the Gospel law. “The Lord’s saying,” he says, “according to his mind, is equally appropriate for both husbands and wives, but not so in custom.” What kind of concession is there? Then it becomes clear in detail what is the discrepancy between the custom and the Lord’s saying, namely: while the Lord’s saying is equally obligatory for both husband and wife, custom authorizes the husband, in accordance with the law of the Gospel, to renounce marriage with an adulterous wife, and does not allow the wife to renounce marriage for any reason: let the husband waste his property, beat his wife, let him commit fornication on the side (or indulges in the sin of unnatural copulation) 7, even if he is an unbeliever - custom forces the wife not to renounce marriage with him, not to leave him at home, but to live with him; – obviously – contrary to the Lord’s saying. To the adulterous wife, the literal sayings, ἀκριλογ ί α 8 of the divine law are applied in all severity: “keep the adulterer mad and wicked,” etc., and the adulterous husband is given leniency 9 . Taking this into account, it must be said that the famous Byzantine scholar made a very serious mistake in the interpretation of the 9th canon and brought a completely incorrect and absurd accusation against the great father and teacher of the Church. If you look for any kind of “connivance” in the rule, then you can only attribute it to “church custom,” but not to St. Basil the Great, the strict guardian of ancient church discipline: “I am very sick,” he says in the 9th rule, “as the rules of the fathers have been abandoned and all severity has been expelled from the churches.” How can one accuse him of some kind of concession to secular law and custom?!... But let us go further in considering the interpretation of Tsakhariye. What is St. Did Basil the Great make an (imaginary) concession? The fact, Tsakhariye answers, is that he allowed the husband, who received a letter of divorce from his wife, to marry again, without charging this with adultery or “without committing adultery,” according to Mr. Suvorov’s translation. Everything here (i.e. in the words of Tsakhariye) is incorrect and inaccurate. What is wrong here is that St. Basil the Great gives permission to a husband abandoned by his wife to enter into a second marriage. It is not at all clear from the rule that to St. Some husband turned to his father with a request for permission, and if he did, he would probably receive a refusal 10. We are talking about a fact that has happened and how to look at this fact? We’ll see later how exactly it should be looked at. Very inaccurately, then, Tsakhariye conveys the force of the rule when he says about a husband who entered into a second marriage that the latter is not charged with adultery: the rule says about an unmarried woman (widow or girl) who married her abandoned husband: can she be considered an adulteress or not? The difference is very important. Finally, one cannot help but reproach Tsakhariye for the fact that he categorically expresses about his wife who left her husband that she sent him a letter of divorce; the true term of the rule - καταλειποῦβα - does not authorize this. Of course, this is a small thing. But since this little thing can be misleading - which is what actually happened to Professor Suvorov - it cannot be kept silent about it. After all, Tzaharie is such an authoritative expert on the Greek technical language: how could he allow such inaccuracy? It must be pointed out, because otherwise, that is, if we leave it without indicating it and thereby tacitly admit that Tsakhariye could not have been inaccurate, then the great father and teacher of the Church will have to be accused of the sin of inaccuracy; but that would be really bad. If we now, having pointed out the shortcomings in the interpretation of Tsakhariye, want to establish the positive and precise meaning of rule 9, then we will have to reason like this. The following incident was proposed to the Holy Father for resolution by his co-questioner Amphilochius, Bishop of Iconium: one woman left her husband (by sending or not sending him a letter of divorce - it makes no difference) and married another; the abandoned husband then entered into marriage with an unmarried woman (a widow or a girl - it doesn’t matter). The question is: how can we evaluate the actions of these four individuals from the point of view of the Gospel law and church custom? From the point of view of secular law and custom of that time, the actions of these four persons were both possible and legal, since both marriage and its dissolution constituted the sphere of private law, not public law: it was enough to perform an act of personal expression of will in writing, or even without a letter. But how should the Church look at such acts from the point of view of its discipline? The Holy Father resolves the case this way: 1) a wife who leaves her husband and marries another is certainly an adulteress; 2) the adulterer and the one who married her; 3) a husband abandoned by his wife deserves leniency because he entered into a new marriage; however, it is not absolutely necessary to consider why his first wife left him; 4) the second wife cohabiting with him is certainly innocent: for all the blame here falls on the one who left her husband, who for no reason could not leave her husband. This, in our understanding, is the exact meaning of the 9th rule of St. Basil the Great. Let us express the conviction that our understanding of it will withstand any legal analysis. In conclusion, we consider it not superfluous to quote the St.’s own words. Basil the Great, expressed by him in the preface of his letter to Bishop Amphilochius, where he quite clearly expresses his attitude towards ancient church discipline, or the so-called. ordinary church law. "To the foolish, as it is said in the scripture, when I ask about wisdom, wisdom will be imputed: but the questioning of the wise seems to make the foolish also wise. This, by the grace of God, happens to us every time we receive the writings of your industrious soul. For I become knowledgeable and more reasonable than myself, learning from the question itself much that I did not know before. The concern for the answer is done for “In truth, even now, never preoccupied with the subjects of your questions, I am forced to consider with accuracy and bring to mind what I have heard from the elders, and to come up with my own thoughts in accordance with what I have learned.” So conservative was St. Basil the Great, in relation to the church tradition of his fathers, was already reasonably zealous in relation to the gospel law! But let us assume for a moment an incredible assumption, namely, that St. Was Basil the Great rather liberal or indifferent to the choice of terms for expressing his thoughts, was he inaccurate in expressing his thoughts, and that Tsakhariye more accurately expressed his own thought that only a documented “expression of will” about the dissolution of a marriage by a wife gave the abandoned husband the right to enter into a second marriage? Wouldn’t Mr. Suvorov’s argument gain something through this in favor of his idea that in the 9th rule there is no thought “about actual abandonment,” but only about a formal divorce? That Mr. Suvorov himself attached great importance to the difference between actual and legal abandonment as grounds for divorce - there is no doubt about that. The first, according to his logic, is not enough to dissolve a marriage, but the second is completely sufficient: for there is a “private act in which the will to end the marriage is expressed.” If the wife leaves her husband’s house and lives separately from him, without sending him a letter of divorce, then he is completely helpless in his loneliness and must wait until the wife accepts her “written declaration of will” to him regarding her unwillingness to live with him as a husband. But if, on the contrary, she, having left the house, immediately sends him such a declaration of will, then he has the right to immediately enter into a new marriage, because the legal marriage bond has been broken and he is free. So, didn’t St. Did Vasily the Great give the same importance to women's expression of will, expressed in letters, as Professor Suvorov gives it? Alas! The same can be said about St. There is no way for Vasily the Great. It was not the form of the wife’s abandonment of her husband that attracted his deep attention - for him it was indifferent whether the wife left her husband with a letter or without a letter, but for what reason did she leave him? “It is appropriate,” he says, “to look at the guilt of abandonment. This means that the speech in the 9th and other rules of St. Vasily is not talking about the form of divorce, but about the reason for divorce: whether it is sufficient or not. That a wife’s letter of divorce breaks the legal connection between husband and wife and creates the husband’s right to enter into a new marriage: this is what secular (pagan) law and custom actually judged in the time of St. Vasily, this is how Professor Suvorov judges: but this is not how the Church of that time and the strict zealot of its discipline, Saint Basil the Great, judged. Since actual or quasi legal abandonment (εγκατάλειψή) is present, and since it was not committed for an insufficient reason, the husband is worthy of leniency if he enters into a new marriage, and his new wife is not condemned. This is how church discipline, clarified by St., then judged. Basil the Great in his rules, in his opinion, was unfairly strict towards a woman. It seems there is nowhere to go further to find in the rules of St. Basil what is not in them. One can only be content with what is in them, namely: they contain with “irresistible” clarity the idea that the wife’s abandonment of her husband is a sufficient reason for the dissolution of the marriage with the one who left her and for entering into a new marriage with a widow or unmarried woman 11! One should say a brochure of 55 pages, but the author himself imperiously prints it on the wrapper: “the price of this book,” so we will call “this book” a book. N. Zaozersky: Malicious abandonment by one spouse of the other as grounds for divorce. 1904, pp. 1–47. Ts. 20 k. This is indicated in my above-mentioned brochure. Ἐγ κατάλειψις = leaving something to someone else. The term is very expressive for the life relationship it denotes: for a wife who leaves her husband, by the fact of her abandonment of her husband and his home, and perhaps his family, leaves the latter to another, or other women: this is worse, more evil than an accidental fall - adultery. In the rule book, instead of “Ἐγ κατάλειψις” there is “A= γχατ ’ λειψις” - probably a typo. Due to its expressiveness and euphony, this patristic term - “encatalypsis” should be turned into a scientific technical one instead of “malicious abandonment” - and an unsatisfactorily clear, and dissonant, and long-form term. Zachariä von Lingenthal, Geschichte des griechisch römischen Rechts 3 Aufl. Berl. 1892. Own translation by Mr. Suvorov. (Page 30). That in reality such vital phenomena took place in the ancient church - we find evidence of this in the “Apology” of St. Justin the philosopher... “One woman - Gov. He - had a dissolute husband and was herself formerly dissolute. When she learned the teachings of Christ, she herself turned to a good life and tried to convince her husband to do the same, expounding to him the teachings (of Christ) and instilling in him, that for those who do not live chastely and in accordance with sound reason, there will be torment in eternal fire. But the husband continued the same debauchery and by his actions alienated his wife from himself: and she, considering it wickedness to continue to share a bed with such a husband, who, against the law of nature and justice, sought in every possible way to satisfy lust, wanted to divorce him, but respecting her advice, which convinced her to endure a little longer, in the hope that My husband will change someday, I forced myself to stay. When her husband went to Alexandria and it became known that there he indulged in even worse things: then she, so that while remaining married and sharing table and bed with him, would not become a participant in his lewdness and impiety, she gave him the so-called divorce and left him.” This and other evidence of the ancient c. discipline are collected in my brochure: On what is ecclesiastical jurisdiction in marriage matters based? 1902, Sergius Lavra, St. 57. “Limestone” is translated by the Old Russian Helmsman See ed. Beneshevich. Wed 21st right. St. Vas. Vel. According to the severity of St. father, it is more accurate to assume that he would advise the abandoned husband to go to a monastery. Comp. our brochure: Malicious abandonment. page 9. You might be interested in: