Quinisext Council, Canon 93.
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After her husband’s departure and when he has vanished, yet before becoming convinced of his death, any woman that cohabits with another man is committing adultery. Likewise the wives of soldiers, who, when their husbands have disappeared, get married (again), are subject to the same rule precisely as those who fail to await the return of their husband when he has left home. Nevertheless, in this case there is room for condoning their conduct because there is more suspicion of death. The woman, on the other hand, who has unwittingly married a man who has been temporarily abandoned by his wife, and has been left afterwards because of his former wife’s return to him, is indeed guilty of having committed fornication, but unknowingly. Though she shall not be denied the right to marry, yet it would be better if she should remain as she is. If the soldier should ever return in time whose wife on account of his protracted absence has taken another husband, he shall have the right, if he so should choose, to take back again his own wife, a pardon being granted to her on account of lack of knowledge and to the man who has cohabited with her in the course of a second marriage.[231]
Interpretation.
This Canon is composed of three Canons of St. Basil the Great (for its beginning is word for word his c. XXXI) saying that if the husband of a woman departs and does not come back for a long time, and she, before hearing and being informed that her husband has died, takes another man she is an adulteress[232]; (the part following this is word for word the same as c. XXXVI of St. Basil. Likewise if the wives of soldiers get married a second time, on account of not having heard that their husbands are coming back, are adulteresses. However, these women who marry a second time have some claim to pardon (more, that is to say, than have wives of non-soldiers who have married a second time) inasmuch as their husbands, being soldiers and engaged in wars are more to be suspected of having died than of being still alive).[233] That woman, on the other hand, who (this part of the Canon is word for word c. XLVI of Basil) takes to husband that man who was left a long time before by his wife, without knowing that he was married, and who afterwards lets him go when his former wife returns to him, has indeed committed fornication, but quite unwittingly, and she is not to be condemned as adulteress. Hence she shall not be prevented from taking a lawful husband if she wish to do so. It would be better, however, and safer for her not to get married. The rest of the Canon is a decree framed by the Council itself. But if the soldier should return from war after years whose wife has got married a second time because of his having been many years in foreign lands, he, I say, if he so wish, can take back his wife, pardoning both her and her second husband because they married without knowing that he was still alive.[234]
Notes
[231] That is why King David too took back his wife Melchol who had contracted a second marriage with Phaltiel, after pardoning both of them, because, according to Theodoret, Saul harried them into marriage and Melchol took that second husband against her will (II Sam. 3:14). Note also that in case the wife of the returned soldier, if she does not want him, is in no way or manner pardoned and allowed to keep the second man, since both she and he are called adulterers.
[232] That is why Nicetas of Heracleia says: “If a man departs from his wife for another land and there acquires a concubine, and his wife waits three years with fortitude for him (to return), and he fails to come back, her husband himself shall be separated from his concubine, but not also from his wife; his wife, on the other hand, cannot take another husband, but must remain as she is. For she is free to contract a second marriage only when her husband dies, according to the Apostle (page 310 of the Corpus Juris Graecoromani), and while he is alive. The Novella of Leo decrees that if one party of a matrimonial couple be enslaved, the party who remains free cannot remarry. But if he should remarry, he has a right to recover the party who has been enslaved when she is liberated (from bondage), and to dissolve the (second) marriage.
[233] In agreement with the present Canon Justinian Novella 117, contained in Title VII of Book XXVIII of the Basilica (in Photius, Title XIII, ch. 3), saying: “If a soldier or scholarian or foederatus or anyone else under arms is on a campaign and at war no matter for how many years, his wife must wail for him to return even though she has received no letters from him. But if she be told that he has died, she shall not get married unless she herself or her parents inquire of the Priors and Chartularies and of the Tribune of that battalion to which her husband belonged, who shall affirm in writing with the Gospels as witnesses that her husband actually died; then, after receiving the letter from them shall not get married for a year thereafter. If, on the other hand, she does not get married in this manner, she shall be punished as an adulteress herself, and the man who takes her shall likewise be punished as an adulterer; and they shall pay ten pounds of gold to the soldier who was her real husband when he returns from war; and he has a right, if he so desire, to take his own wife back again.”
[234] Blastaris says that these Fathers decreed that those women should be entitled to a pardon for a second marriage who are ready to let their second husband go and who do not insist on adhering to the sin of the second marriage committed unwittingly. Not, however, that those who refuse to do so shall be pardoned, who do not care to divorce their second husbands (Gamma, ch. 5).
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