By Robert Shaw
In the Mosaic law marriage was expressly forbidden within certain degrees of consanguinity or affinity (Lev. 17); and by the laws of our country the prohibition is extended to the same degrees. Marriages contracted within these degrees are in themselves justly deemed invalid, and may properly be dissolved.
Moses permitted the Jews, "because of the hardness of their hearts," to put away their wives, to prevent greater evils; but in the New Testament a divorce is only permitted in case of adultery, or of wilful and obstinate desertion. There can be no question that adultery is a just ground for "the innocent party to sue out a divorce, and, after the divorce, to marry another, as if the offending party were dead;" for Christ has plainly decided this case (Matt. 5:32): "I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery; and whosoever shall marry her that is divorced, committeth adultery." But whether the wilful and obstinate desertion of one of the parties sets the other party at liberty to marry again, may admit of dispute. Many divines of great name have maintained the affirmative, and have thought the case to be expressly determined by the Apostle Paul (1 Cor. 7:15): "If the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases." At verse 11, the apostle plainly declares, that the party who wilfully and obstinately deserted the other, was not at liberty to marry again during the other's life. But at verse 15, he appears to declare that the party who was deserted, after using due means for the return of the party deserting, was free to marry again. And the decision seems just; for by irreclaimable desertion the marriage bond is broken, and the ends for which marriage was appointed are effectually defeated; and it is not reasonable that the innocent party should be denied all relief. Our Confession, accordingly, teaches that not only adultery, but also "such wilful desertion as can no way be remedied by the Church or civil magistrate, is cause sufficient for dissolving the bond of marriage;" and the law of Scotland also allows of divorce in case of wilful and irreclaimable desertion. It ought to be observed, however, that even adultery does not, ipso facto, dissolve the bond of marriage, nor may it be dissolved by consent of parties. The violation of the marriage vow only invests the injured party with a right to demand the dissolution of it by the competent authority; and if he chooses to exercise that right, the divorce must be effected "by a public and orderly course of proceeding."