How can I define communally or worldly

The marriage law. A comparison between "secular" law of the civil code and the Christian-Orthodox canon law

Table of Contents

Preface

1 Marriage - definitional approaches to “secular” law, biological and Christian-theological approaches
The biological definition approach
The “secular” legal definition approach
Christian theological approach to the definition of marriage

2 The “secular” and the Christian Orthodox canonical marriage law in comparison
2.1 Prerequisites for entering into marriage
Requirements according to the German Civil Code
Requirements for marriage according to orthodox legal practice
Interim conclusion

2.2 Rights and duties of the spouses during the existence of the marriage
To the definition of the closed, existing marriage in the BGB
Requirements for the existing marriage from an orthodox point of view
Interim conclusion
2.3 Divorce
The failure and divorce of marriage in the BGB
Divorce according to the Christian Orthodox canonical legal conception

3 conclusion

bibliography

Preface

Marriage is, even in the present, the outwardly visible expression of the intimate bond between man and woman. If two people make a marriage, this happens i. d. Usually with the motivation to maintain this bond for a lifetime. The expression “Until death do us part” has in this context become a symbol of marriage, whether it is religiously or “secularly” motivated.

The status of marriage usually entails extensive rights and obligations for the spouses, which are laid down in various national, state laws but also in the form of religious laws / regulations.

In the following elaboration, a comparison between “secular” and “religious” legislation with regard to marriage law should be sought. The main focus is on the Christian orthodox, canonical regulations of marriage law and exemplarily on the "secular" marriage law in the civil code of the Federal Republic of Germany.

A few definitional approaches to marriage, from a biological-theoretical, legal-theoretical and Christian-theological point of view, should serve as the basis for this. A systematic comparison is then carried out over three stages of the marriage, based on the requirements for marriage, over the existing marriage to divorce, accompanied by comparative interim conclusions. The aim is to identify possible parallels between “secular” and ecclesiastical law, but also to make differences visible.

1 Marriage - definitional approaches to “secular” law, biological and Christian-theological approaches

In order to approach the topic of marriage, it seems sensible to approach the term itself through various definitional approaches. The following section should proceed “step by step”. In a first step, the purely biological approach to explaining marriage should be viewed as a phenomenon of human coexistence, quasi on the level between two individuals. After this first step has been taken, the “secular” legal level is examined, in the sense of the participation of a state-legal influence on the concept of marriage. Finally, in this section, Christian theological approaches to the concept and phenomenon of marriage should follow. The entire section is therefore to be understood as a brief introduction to the topic and is intended to lead to the following comparison of “secular” legal and orthodox Christian issues.

The biological definition approach

If you follow the biological approach, you might think that the main thing is that two individuals, male and female, only come together to care for offspring. Marriage, therefore, is possibly just an instrument for ensuring the offspring's growth, as in the case of higher primates. This would probably do the biological approach for the sake of simplicity. However, there is one point to be observed that contradicts this principle: a marital relationship often lasts longer than just until shortly after one's own offspring have grown up. Medically, this could be explained by the sexual contact (in most cases) between a man and a woman during the marriage. This contact creates a connection between the spouses that is not dissimilar in character to a blood relationship. Nevertheless, one must also admit to the biological view that a lifelong connection to the reproduction of offspring would not be biologically necessary and even genetically desirable.

If you follow the biological approach, you get into a dilemma because, as described above, marriages often last longer than just until the offspring grow up. In order to get out of this dilemma, it is necessary to include psychological and sociological components. Psychological approaches are based in part on the effectiveness of "eros" in the human psyche, the erotic attraction between men and women. Based on this approach and including the biological component, the picture emerges that as long as "Eros" exists, marriage will exist. Should the "eros" expire, marriage also expires. The "eros" implies that the continuity of the marriage can only be secured through its existence. Historically, this may not always have been true. In particular sociology, marriage also has a socially secure function. In the state of marriage, families combined to form economic and caring units over several generations. In the present, this model has generally lost its importance. It would be wrong, however, to write off the family-building effect of marriage completely. In the present, sociological approaches in this regard are based on the feeling of togetherness within the family community, the marital community and less on economically motivated backgrounds.

If you combine all three components, the biological, the psychological and the sociological, a definition of marriage results which is composed of the will to reproduce, the mutual erotic attraction of man and woman and the desire for community.

The “secular” legal definition approach

With regard to the desired comparison between orthodox canonical church law and “secular” law, the second step is the definition approach from a civil law perspective. Since the development is based on the German Civil Code (BGB) as a reference for “secular” law, the definition of marriage will also be based on this.

Marriage is treated as a legal object within the BGB in §§ 1297-1588 BGB. According to German law, all the features that define a marriage are listed under the generic term “civil marriage”.

In a first step, a demarcation of marriage from other partnerships is made in the BGB and the duration of existence is defined. The length of a marriage is probably the most concise point here. A marriage is concluded for life under German law (§ 1353 BGB). By entering into a marriage for life, it distinguishes itself as a form of cohabitation from other communities that can only exist temporarily. In particular, marriage does not offer the possibility of informal dissolution of the community. Another feature that particularly emphasizes marriage is that it is generally only recognized by the state as a monogamous relationship, as the so-called so-called Monogamy (§ 1306 BGB).

Marriages that are legally concluded in Germany are of a purely state nature. Furthermore, marriage, as a form of cohabitation, between two different-sex partners, is under special state protection. In this context, the German legislature differentiates state marriage from religious marriage.

In terms of definition, the BGB follows the already mentioned biological characteristics of marriage in many respects. Some of the features that the BGB takes up in this context are, among other things, the difference between the sexes of the spouses or the sociological approach of the mutual economic protection of the spouses or the existing family (§ 1360 BGB). Although initially defined that the marriage is concluded for life, it can still be dissolved in its state form, e.g. if the marital peace should be permanently disturbed.

In summary, this means: (1) Marriage is in principle a bond between a man and a woman that is established for life, but it can also be broken again. (2) The state puts state marriage under special protection, as does the spouses themselves. (3) State marriages are independent of religious marriages or the views of the spouses. (4) Existing marriages oblige the spouses to provide mutual or family economic welfare.

Christian theological approach to the definition of marriage

Defining marriage from a Christian theological point of view can only be done generally within the framework of the elaboration. In order not to go beyond the scope of the elaboration, we shall not go into any fundamental differences to the definitions of marriage within the various Christian denominations at this point.

In the Christian understanding, marriage is a covenant made by the consensus of the spouses. This covenant primarily excludes third parties and historically did not necessarily have to be testified to a priest. In the course of historical development, however, the marriage became a sacrament which is donated by the church. Within the Roman Catholic Church, this sacrament is indissoluble for the married couple. With regard to Christian Orthodox practice, reference is made to the relevant section on divorce. Through the ability of marriage to consensus. the sacrament of marriage is administered by the couple themselves. At the moment of the marriage, the spouses then symbolically enter into the connection to Christ and the Church, just as Christ and the Church are connected to one another in the same way.

Further supplementary statements on the Christian understanding of marriage are listed in the course of the following comparison between secular and Christian orthodox canonical marriage law.

2 The “secular” and the Christian Orthodox canonical marriage law in comparison

2.1 Prerequisites for entering into marriage

So that a marriage can be concluded at all, various statements are made in the laws of the various states of the world as well as in the orthodox canons, which are formulated primarily as exclusion criteria for marriage. These criteria and the prerequisites for entering into marriage will be examined in more detail below.

Requirements according to the German Civil Code

With regard to the requirements for entering into marriage, the BGB is divided into three sub-chapters within Sections 1303-1309 BGB. In detail, the BGB deals with the actual marital status, marriage bans and marriage with the participation of a foreigner, with the need to provide a certificate of marital status. In the context of the considerations, the latter only plays a subordinate role, albeit a partially transferable role to "interdenominational" marriages. In the following, the three groups of characteristics will be explained, which the legislature sees as a prerequisite for a marriage to be legally concluded.

(1) The ability to marry

Sections 1303 - 1304 of the German Civil Code (BGB) fall under the section on marital status. In those paragraphs some of the most important characteristics are listed in practice in order to be able to enter into a marriage under German law. The paragraphs contain, in the broadest sense, definitions of physical characteristics that must be met by the future spouse.

At the beginning of the section, the legal text defines "marriage" and links this in §1303 BGB to the age of majority of the future spouse or the at least sixteen years of age for one spouse, while the other must be of legal age: “(1) A marriage should not be concluded before reaching the age of majority. (2) The family court can grant exemption from this provision upon application if the applicant has reached the age of 16 and his future spouse is of legal age. " For the latter option, the family court has to give its consent or the legal representative of the minor can object to a marriage. According to the general interpretation of the law, these regulations serve to protect spouses who are not of legal age if they cannot support themselves or if a spouse who is not of legal age could become dependent on the adult spouse.

The legislature imposes a further restriction on the ability to marry if there is a legal incapacity. According to the prevailing opinion, a legal incapacity exists if according to § 1304 BGB "(...) the person willing to get married is in a not only temporary state of pathological disturbance of mental activity (...)". With the help of the regulations of §§ 1303 and 1304, the German legislature takes its duty of care towards the citizens of the Federal Republic of Germany into account. The marriage prohibitions, described below, represent an extension of the requirements for marriage beyond the physical.

(2) Marriage prohibitions

The BGB names some constellations within §§ 1306 - 1308 that completely exclude a marriage between two people who want to get married. This section of the BGB mainly includes marriage bans that concern multiple marriages (Section 1306 BGB), marriages with blood relatives in a straight line or half-siblings (Section 1307 BGB) or legal relatives in a straight line (Section 1308 BGB). In particular, Sections 1306 and 1307 are part of the traditional Christian legal conception of Europe, which rejects polygamy and, among other things, possible connections with an incestuous background. On the other hand, § 1308 BGB is valid from the purely “legal” connection, for example in an adoptive relationship. Since such a relationship is not of a natural, blood-related nature, it can be dissolved and a marriage can be entered into with due regard to the other requirements of the marriage.

(3) Providing a certificate of marital eligibility for a foreign person willing to marry

By providing a certificate of marriageability by the foreign person willing to enter into marriage, it is confirmed that there is no obstacle to entering into the marriage on their part in accordance with the laws of the respective home country (Section 1309 BGB).

Requirements for marriage according to orthodox legal practice

Following the requirements for marriage according to the BGB, an overview of the requirements for marriage from an orthodox canonical point of view will now follow. As already briefly discussed in the previous section, “secular” law in Europe is part of a Christian historical tradition. It would now be expected that there are some parallels between canon law and secular law, not just with regard to the requirements for marriage.

In order to clarify possible parallels, a recourse is to the systematics implied by the BGB, consisting of the ability to marry, the prohibition of marriage and the accordingly adjusted point three of mixed marriage.

(1) Eligibility to marry

If you keep the structures of the previous discussion of the topic, the first question that arises is the age that those willing to marry must have reached at the time of marriage. According to the code of Emperor Justinian, the minimum age for marriage was set at fourteen years for the male spouse and twelve years for the female partner. The church followed this rule. Although a minimum age has been set and it is still canonically valid, the Orthodox Churches follow the respective state legislations and usually raise the minimum age to eighteen years in practice. In the period between the canonical and the legal minimum age, there is usually a ban on marriage. In parallel with “secular” law, it is almost the same with regard to the minority of the spouses. In this sense, permission is usually required from the minor's legal representative, which usually has to be given by the father. In this context, historical regulations from the canons of Basil are also mentioned: "Girls who follow a man without their father's consent are accused of fornication by Basil in canons 38 and 40. (...) These marriages are void. " In terms of the right to one's own sexual development, within the framework of European legislation, such a passage is not reflected in the various legal works and these canons are no longer compulsorily applied in practice.

(2) Prohibitions on marriage

The marriage prohibitions under canon law are again very similar to "secular" law.

In canon law as well as in "secular" law, the degree of kinship of those willing to marry is decisive. Of particular importance today are: (1) consanguinity up to the fifth degree, which is dispensable up to then in the event of an intended marriage, (2) affinity up to the fifth degree is dispensable, (3) family relationships through adoption or sponsorship play a subordinate role today Role and are dispensable up to the second grade. There is also a ban on marriage for unmarried priests, provided they are not widowed and a second marriage is permitted in exceptional cases.

The marriage bans are based on the one hand, as in "secular" legislation, on considerations of avoiding incestuous connections, but also on historically grown motives. In order to avoid disputes within several generations of family associations, marriages across several degrees of kinship were forbidden within the canons.

The dispensability in the present, on the other hand, is explained by the fact that the canons in their regulations are no longer considered to be in keeping with the times. A dispensation nevertheless makes it possible in practice to design and adapt the boundaries of the marriage ban in a more contemporary way.

(3) “Mixed” marriages

Listing "mixed" marriage among the marriage requirements is in the nature of the term and the nature of the marriage sought. A “mixed” marriage is to be understood as a marriage in which the spouses are of different denominations, in the context of the considerations, or one of the spouses is Christian Orthodox, while the other is otherwise denominational or non-denominational.

The “problem” that arises from the desired “mixed” marriages for the Orthodox churches is based on the theological principle of striving to preserve the unity of Christianity. The desired unity relates to the unity of the couple to be married within the Eucharist. It is understandable that the individual Orthodox churches refuse to bless marriages between Orthodox Christians and non-Christians or to give them as a sacrament in the context of a Eucharistic celebration. In this matter, too, the churches are adapting to the more modern contemporary requirements of society. In this sense, some Orthodox dioceses are beginning to tolerate “mixed” marriages and to deprive spouses of the promise to raise their future children Orthodox and to cherish the hope that the entire family will find the Christian Orthodox faith. “Mixed” marriages are therefore basically not a real obstacle to marriage, theologically yes, practically in the sense of the Oikonomia, clearly no. The latter should probably depend on the cleric blessing in each case.

Interim conclusion

At this point, a short summary should be made in comparison with the requirements for entering into marriage in the Christian Orthodox as well as in the “secular” sense with regard to the BGB.

If one looks at the formal requirements for entering into a marriage, it can be seen that neither "secular" and canonical law do not differ significantly from one another. Fundamental obstacles to marriage, such as being too close by blood or legal relationship through adoptions, among other things, are almost the same. An orientation of the orthodox application of canon law to the “secular” legal practice is clearly recognizable. The very old canons, some of which no longer correspond to current requirements, are strongly adapted to current marriage requirements through the granting of, for example, dispensations. Otherwise, “secular” law will be used with regard to the age of the eligibility for marriage, taking into account canon law. Due to the historical connection between canonical and “secular” law, a clear parallel development trend, with a time lag within canon law, can be seen in this regard.

2.2 Rights and duties of the spouses during the existence of the marriage

To the definition of the closed, existing marriage in the BGB

In the BGB, the "conjugal partnership" is listed under Section 1353 and is defined as follows: “(1) The marriage is concluded for life. The spouses are obliged to have a marital partnership with one another; they are responsible for one another. "

If one follows the text of the law, the statement consists in the fact that the basis for married life is the common division of a living space or living space. Furthermore, the legislature presupposes a mutual, respectful and mutually respectful treatment of the spouses with one another.

If you look at the previous paragraph, §1353 BGB is formulated in a relatively general, fundamental way. In order to do justice to marriage by its nature, with all its obligations and rights, the legislature has formulated those obligations and rights without interfering directly with the personal life of the spouses. Under Sections 1356 - 1360 BGB, the legislature regulates maintenance-related issues of married life within the framework of its duty of care and care. The following questions within the BGB are considered in detail: (1) Housekeeping and gainful employment (Section 1356 BGB) and (2) the obligation to maintain a family (Section 1360 BGB). Sections 1357 - 1359 BGB serve to specify the two previously mentioned paragraphs. In order to deal with the topic and not to go into too much detail, the focus should be on §§ 1356 and 1360 BGB.

Section 1356 regulates the maintenance of the couple or members of the family. In the sense of the paragraph, the housekeeping and the securing of the purchase are to be shared jointly and the spouses have equal rights in this sense. However, the agreements made by mutual agreement of both spouses are decisive. This means that housekeeping can be carried out by both spouses or only by one person. The spouses are equally responsible for securing livelihoods and thus both spouses have the right to pursue gainful employment, taking into account the needs of the spouse or the family. In Section 1360 of the German Civil Code, the above-mentioned facts are specified again and are aimed directly at family maintenance.

The “secular” legislation, apart from maintenance regulations, refrains from intervening more comprehensively in the interests of married life. Regulations that are related to a breakdown of the marriage and which could result in a divorce should remain unaffected by this determination. The facts of the divorce should be given more detailed attention in the corresponding section below.

Requirements for the existing marriage from an orthodox point of view

It is difficult to judge the requirements of a marriage that exists today from a Christian Orthodox point of view. A particular difficulty is the rapid social change of the last twenty-five years in Eastern Europe, as a region with the highest Christian Orthodox population worldwide. Unfortunately, the secondary literature that was available for the preparation of this work did not provide satisfactory information about the requirements Orthodox churches in the present to an existing marriage. The Pan-Orthodox Council, which is very likely to take place in the coming years, could provide more recent information on this.

Historically, marriage was the only institutionalized space in which a sexual relationship could exist morally harmlessly. In this regard, one of the main purposes of marriage itself, including procreation carried out with ecclesiastical blessings, was. At present, however, it is no longer necessarily socially relevant to be married in order to be able to live out one's own sexuality and to be able to start families. This model is based, among other things, on a basic patriarchal orientation of the family. A departure from the traditional, ecclesiastically preferred, patriarchal family ideal took place in Eastern Europe shortly after the October Revolution of 1917. But the social upheavals after the collapse of the Soviet Union revived the old ideal of marriage in the sense of the Orthodox churches in many Eastern European countries. In Russia, for example, unemployment among women rose rapidly after the collapse of the Soviet Union, and old ideals such as the housewife and mother became popular again. Although there are tendencies in this direction, it is necessary that the Orthodox churches adapt to the changes in society. For this reason, no final position on ideal married life from an orthodox point of view should be formulated in this elaboration.

Interim conclusion

With its regulations and norms, the “secular” legislation tries to institutionally protect the married couple and marriage itself, especially in the sense of the state's duty of care, which has already been mentioned. The legislature avoids directly interfering with the self-determination of the spouses and the individual. In contrast to this, the legislature also provides a legal basis for equality between men and women within marriage. The expectations of the Orthodox churches in marriage are for the most part still based on traditional family images. Attempting to make a direct comparison on this question does not seem very sensible at the moment and further developments with regard to the Pan-Orthodox Council would have to be awaited.

2.3 Divorce

The failure and divorce of marriage in the BGB

As already mentioned in section two of the draft, the German case law, ie the “secular” case law, assumes that a marriage is concluded for life (§ 1353 BGB). A failure of the marriage, however, is not necessarily excluded, but rather the possibility of failure is given. The BGB knows three reasons that prove a failure of the marriage: (1) The failure of the marriage (§ 1565 BGB), (2) the presumption of the failure of the marriage (§ 1566 BGB) and (3) the separation (§1567 BGB) ). Furthermore, a divorce judgment is required to divorce the marriage. According to their content, the above-mentioned paragraphs are primarily aimed at a no longer stable cohabitation of the married couple. If one considers that the basic idea for the stability of the marriage, as described in section two, is the sharing of a common living space by the spouses, the basic idea of ​​the legislature is that there must be compelling reasons that make it impossible for the spouses themselves to this condition to maintain. However, the legislature also weighs up whether a spatial separation takes place for pragmatic, for example professional reasons, or personal reasons that make it impossible to continue the marriage. Since a divorce can only take place on application by at least one of the spouses, reasons must be put forward by the competent judge that suggests a failure of the marriage. The relevant legal literature recognizes adultery, one-year spatial, deliberate separation or the abusive exploitation of the marital status by at least one spouse as such reasons. If both spouses are willing to divorce and submit an application for divorce to the competent court, the legislature presumes that the marriage has failed.

Marriage is thus defined for life, but the legislature and “secular” legal practice knows in any case the possible dissolution of the marriage, in particular according to the breakdown principle, i.e. the non-recoverability of the marriage.

Divorce according to the Christian Orthodox canonical legal conception

After divorce was dealt with in "secular" law in the previous section, a last comparative section will now deal with the Christian Orthodox canonical legal conception in this regard.

One could assume that the bond of marriage between man and woman and, in the sense of a theological conception, also between the Church and Jesus Christ is indissoluble. This assumption is in turn based on the principle: "Marriage is a community for all life". Contrary to what might be assumed, the church fathers, among others, “Basil the Great”, in principle, allow a divorce. But divorce is equated with adultery with recourse to the Bible. Amazingly, the church fathers even consider multiple divorces. As a consequence of a divorce, however, a penance would then have to be paid, which is performed, among other things, in the form of an exclusion from the Eucharist for a period of several years.

According to historical canon law, reasons for divorce include abortion with regard to the wife, the wife's overnight stay abroad without the husband's consent, or participation in public games. On the man's part: pimping, adultery with another woman, or falsely accusing the wife of adultery. The dissolution of the marriage according to the breakdown principle is historically documented for some periods of time, including in Russia and the Byzantine Empire, but there is no sufficient continuity for this reason for divorce.

But divorce law, too, is in a phase of change within the Orthodox Churches; it had barely developed further in favor of civil jurisdiction during the tsarist and Soviet times, so canon law is now developing again with greater strength. This becomes clear in relation to the reasons for divorce, which have been added since the turn of the millennium, for example in Russian orthodoxy, such as AIDS diseases or drug and alcohol addiction. Another development can be seen in the equalization of the treatment of men and women in the event of divorce. In some epochs, canon law was very much at a disadvantage to women who are willing to divorce. Currently, women's divorce concerns are recognized on an equal footing in most Orthodox churches.

3 conclusion

The main interest of this elaboration was to highlight parallels and differences between the “secular” and the ecclesiastical Christian orthodox canon law. Already during the basic approach to the topic, some parallels could be established. The basic idea of ​​the lifelong stability of the marriage, which continued through the entire process, should be emphasized.

But not only the lifelong stability of marriage in both legal systems can be seen as a parallel. Further decisive parallels can be found in the requirements for marriage. Obviously, the age of marriage of those willing to marry, which has been practically adapted by the church to national legislation, and the consent of the parents in the case of minors willing to marry, are comparable. Furthermore, marriages between German citizens and foreigners are subject to some restrictions. Restrictions in connection with interdenominational marriages, which may not be blessed and concluded by Orthodox priests in the context of a Eucharistic celebration, would be comparable.

In the area of ​​existing marriage, no clear statement can be made in the area of ​​orthodoxy. Developments in this area are very different locally / nationally from church to church. The upcoming Pan-Orthodox Council could provide more recent developments in this regard.

In the area of ​​divorce law, however, there are some differences. Both “secular” and ecclesiastical law are fundamentally based on the possibility of divorce, but divorce law within orthodoxy is theoretically still very disadvantageous for women.

In conclusion, it should be noted that the parallels are due to the fact that the “secular” as well as the Christian Orthodox canon law are derived from Roman law.

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