Legal Definitions - divortium

Divortium is a Latin term historically referring to the dissolution or invalidation of a marriage, primarily understood in two distinct legal contexts: Roman law and Ecclesiastical (Church) law.

• In Roman Law:Divortium referred to the straightforward severance of a marriage tie. Unlike modern divorce, Roman law often did not require specific grounds or reasons for a couple to end their marriage. It was a relatively simple process of mutual agreement or unilateral declaration.

  • Example 1: During the Roman Republic, a wealthy merchant named Lucius and his wife, Julia, decided they no longer wished to be married. Without needing to present any specific fault or reason to a court, they simply declared their intention to separate, thereby ending their marital bond. This act would be considered a divortium under Roman law.

    Explanation: This illustrates the Roman understanding of divortium as a direct and often uncomplicated termination of marriage, where the emphasis was on the severance of the tie itself, rather than on proving specific grounds for the separation.

• In Ecclesiastical Law (Church Law): The term divortium took on a more nuanced meaning, reflecting the Church's view that a valid, sacramental marriage was indissoluble. Therefore, divortium in this context typically referred to either a legal separation or a declaration that a marriage was never valid in the first place.

  • Example 2 (Separation): In 13th-century England, a knight and his lady, Sir Alaric and Lady Eleanor, found their marriage deeply troubled by constant conflict, making cohabitation impossible. They petitioned the ecclesiastical court, which granted them a divortium quoad torum. This decree allowed them to live separately and apart, but they remained legally married in the eyes of the Church and were not permitted to remarry.

    Explanation: This example demonstrates divortium quoad torum, or "separation from bed and board," where the spouses are permitted to live apart, but the marriage itself is not dissolved. The marital bond (vinculum matrimonii) remains intact, reflecting the Church's doctrine of marriage indissolubility.

  • Example 3 (Nullity): A powerful duke, Lord Reginald, married Lady Isabella, unaware that they were second cousins, a relationship forbidden by canon law without a special dispensation. Years later, seeking to end the marriage, Lord Reginald brought this fact to the attention of the Church court. The court, after investigation, issued a divortium quoad vinculum, declaring that the marriage had been invalid from its very beginning due to the prohibited kinship. This meant they were never truly married in the eyes of the Church.

    Explanation: This illustrates divortium quoad vinculum, which is effectively a declaration of nullity. The Church determined that a valid marriage never existed due to a pre-existing impediment, such as prohibited kinship. This was not a dissolution of a valid marriage, but rather an acknowledgment that the marriage was void from the outset.