Patriarch Theodore Balsamon ca. 12th
If a rural priest might perform a benediction of a third marriage, while knowing that it was a third marriage, may he be punished, or as a peasant shall he be deemed worthy of pardon?
The one ignorant of the fact, whoever he may be, is worthy of pardon in accordance with the laws. The one who is ignorant of the law is not pardoned. Since by the new legislation of the celebrated emperor Lord Konstantinos Porphyrogennetos, the third marriage is sometimes permitted, and sometimes not permitted (for those who have children from the first or second marriage, and those who exceed forty years of age, are not able to contract a third union), we say that the priest who had performed a benediction of such an impeded third marriage is to be defrocked, because he was ignorant of the law’s main points. However, peasants, who are ignorant of the law’s fine points, are pardoned sometimes, since legal matters are not clear to all men. (Canonical Questions of the Most Holy Patriarch of Alexandria, Lord Markos, and the Answers for them by the Most Holy Patriarch of Antioch, Lord Theodoros Balsamon. excerpted from Viscuso, “A Guide to the Church Under Islam” p. 133)
Hieromonk Matthew Blastares ca. 14th century
Basil the Great in his fourth canon states, “We hold the custom of five years’ excommunication for trigamists when the marriage is clearly not dissolved. However, we no longer call such an affair marriage, but polygamy, or rather fornication that has been tempered, i.e., not dissolved, but reduced; limited to one woman. Wherefore, the Lord also said to the Samaritan woman, who had five husbands in turn, “He whom you have now is not your husband,” because they that go beyond the limit of digamy are no longer worthy to be called by the name of husband or wife.” However, he states that “it is not altogether necessary to bar them from the Church, but only for their punishment to be spent in the places of the hearers and of those that stand, not however, in that of the weepers.”
But also, again in canon fifty, he states, “There is clearly no ecclesiastical law of third marriage. Nevertheless, we view such things as defilements of the Church. However, we do not submit them to public condemnations because they are more preferable than unrestrained fornication.” Thus, we do not condemn the practice so as to also dissolve them, but according to the Tomos of Union which will be discussed shortly, by its decisions and command, we accept these marriages.
Gregory the Great, who is surnamed the Theologian, stated, “The first marriage is legal, the second is a concession, the third is a transgression of law, and one beyond this, the life of a swine, which does not have many examples of its evil.” (Homily 37.8)
Concerning the Tomos of Union
At this time, three marriages were recognized by ancient laws. Emperor Leo the Wise, who entered into a fourth marriage, was subjected to anathema by Patriarch Nicholas [I Mystikos], who required the emperor to quit himself of this union. Because the patriarch was absolutely inflexible, the emperor expelled Nicholas from the Church, and appointed as patriarch Euthymios Synkellos, a holy man. However, Euthymios, with a majority of hierarchs, contending not only tetragamy, but also trigamy to be illegal, with all zeal hindered the emperor who wished to decree that marriage be extended as far as the fourth for those who so desired. On account of this, a schism arose in the Church, which also sustained the dispute over the throne between Leo VI’s son Constantine Porphryogennetos and the latter’s father-in-law Romanos. At this time, in the year 6428 [920 AD], the so-called Tomos of Union was brought forth, which determined when it is fitting to concede a third marriage for some, excellently places reins on shameless desires of the passions, and it is annually read during July on the ambon. Thus, it states the following toward the end:
“Men who have reached forty years of age, and who cast themselves into a third marriage, inasmuch as they are defilements of the Church, we rule that they are to be excommunicated for five years, and after this expires, they are to approach for Communion once a year, on the venerable day of saving Pascha, after purifying themselves as much as possible by the fast for Pascha. The priest who dares, contrary to the decision, to deem some of these worthy of Holy Communion, will be risking his own rank. We command these things when there are no children from previous marriages. But if in fact there are children, the third marriage will be forbidden. But if a man is thirty and has received a succession of offspring from previous marriages, and nevertheless now joins himself to a third woman on account of the licentiousness of fleshly desire, let him be excommunicated for four years. Afterward, let him partake of Communion three times a year: on the Resurrection Day of Pascha, the Dormition of the undefiled Theotokos, and the feast day of the Lord’s Nativity because the fasts before these days are believed to purify most of the stain absorbed by him. However, if he is childless, this man is worthy of pardon if he chooses a third marriage on account of a desire to procreate children; and, excluded from Communion for three years, he should be treated with customary penalty.” (An Alphabetical Collection of All Subjects That are Contained in the Sacred and Divine Canons, prepared and at the same time organized by Matthew, the least among Hieromonks. excerpted from Viscuso, “Sexuality, Marriage, and Celibacy in Byzantine Law” pp. 97-99)