Thursday, February 4, 2016

Consanguinity/Affinity Canonical Guidlines for Orthodox Marriage

"Tree of Consanguinity," 12th-c. Medieval Illumination

The pre-conciliar document "The Sacrament of Marriage and its Impediments" (posted here a few days ago), besides being a trenchant stance against the destruction of the family in our modern world, also contained hopeful words for the de-mystification of current Orthodox Canon Law on marriage.  It is well-known that many archaic canons from Orthodox sources such as the Council of Trullo and the Pedalion do not comport with the cultural mores of almost any country in the modern world.  While this is often very understandable and acceptable, given that the Church is meant to be a light to the world and not conform to its standards, it is also the case that for ubiquitous institutions like marriage, the common understanding of a particular culture has always traditionally played some role in Church law that pertains to that culture.

In this case, the archaic canons that stand out most jarringly are those regarding consanguinity (also known as affinity).  According to current canon law (which itself is subject to the oikonomia of one's bishop), marriages are barred to extents that go far beyond the laws of any country.  Just to provide one extreme example, a man cannot marry his wife's second cousin after his wife has died.

As many scholars have noted, these restrictions are indeed the same which in the Middle Ages gave rise to the unfortunate practice of annulling aristocratic marriages that were no longer deemed desirable.  In other words, they were not used to prevent marriage (as few would bother to check for such a complex version of affinity/consanguinity), but rather as a pretext to dissolve inconvenient marriages after the fact.  In the modern world, too, few priests or chanceries would bother to check up on such meticulous restrictions before marrying a couple.

For this reason, it is clear that the ancient practice today serves more as a stumbling block than anything, especially for young Orthodox who desire marriage to other Orthodox from among their peers in a world that is already so prohibitive of this institution.  For this reason, it is hopeful to find that the recent Pre-Conciliar Document "The Sacrament of Marriage and its Impediments" has left room for superseding the archaic affinity restrictions by oikonomia The document does confirm that

"Concerning the impediments to marriage due to kinship by blood, kinship by affinity and adoption and spiritual kinship, the prescriptions of canons (Canons 53 and 54 of the Council of Trullo) and the church practice derived from them are valid as applied today in the autocephalous Local Orthodox Churches and determined and described in their Statutes and respective decisions of their Synods."

However, it also allows that

"The practice used in application of the church Tradition with regard to impediments to marriage should take into account the prescription of the state legislation in force without going beyond the limits of the church oikonomia."

This is to be interpreted as affirming that in an extenuating circumstance, certain couples who before could not be married (except by a priest or bishop willing to bend the rules on his own initiative) can now be married by an officially permitted oikonomia.  Say, for example, that an engaged or married couple desiring to convert to Orthodoxy happens to fall within the old affinity restrictions.  This may be a man wishing to marry his second cousin's spiritual god-sister, or a woman wishing to marry her sister's husband's brother, or any number of marriages permitted under state law but prohibited by old Church law.  This couple could now be married by simple oikonomia if the reasons for allowing marriage constitute a more pressing concern (in this case, not forcing them to make a choice between conversion or marriage) than those prohibiting it.