Henry VIII’s

First “Divorce”

Henry VIII and Catherine of Aragon

When Henry VIII decided that he needed to get a "divorce" from his wife Catherine of Aragon so he could marry his mistress Anne Boleyn he, at least at the beginning, did not intend to cause profound changes in English society and church he simply wanted to “divorce” Catherine so he could marry another women so that he could have more, preferably male children.

Henry had married Catherine in 1509 shortly after the death of his father Henry VII. Catherine had been married, briefly, to Arthur Henry VIII’s elder brother. Arthur had died in 1502 shortly after being married to Catherine. In fact the marriage was from November 14 1501 to April 2, 1502 when Arthur died of a type of plague. Arthur was at the time 15 years old and Catherine 16.1 Their ages are important as will be mentioned later.

After Arthur’s death Henry VII, king of England and Arthur’s father refused to either return the dowry that had come with Catherine from Catherine’s father Ferdinand of Spain or to marry Catherine to Henry VIII. Instead Henry VII procrastinated and delayed. The result was that Catherine stayed in England for years waiting for her situation to clear up. Henry VII delayed paying back the dowry and marrying her to Henry VIII. In fact Henry VII kept her a virtual prisoner. In fact at one point Ferdinand was so exasperated by the treatment of his daughter by Henry VII that in order to increase her status and credibility he made her the official Spanish Ambassador to England in 1507.2

Finally shortly after Henry VII death in 1509 Catherine married Henry VIII.

At the time Henry seems to have had no reservations about the marriage those only came later when Catherine failed to have any surviving male children.

In order to marry Catherine Henry VIII required a dispensation from the Pope that set aside certain Biblical laws. The first was from Leviticus:

Thou shall not uncover the nakedness of thy brother’s wife: it is thy brother’s nakedness.

And:

If a man shall take his brother’s wife it is an impurity: he hath uncovered his brother’s nakedness they shall be childless.3

Seems pretty clear however it runs against a passage from Deuteronomy that says:

When brethren dwell together, and one of them dieth without children, the wife of the deceased shall not marry to another; but his brother shall take her, and raise up seed for his brother.4

The rational for requiring the dispensation was that by marrying, or in fact having carnal knowledge of a woman who had been married to his brother someone would in effect be committing incest. In this case he would be sleeping with his sister in law and has such committing incest by affiliation if not by direct biological relationship. Thus the same would be true of a widow marrying her dead husband’s brother or a little more extreme a step mother marrying one of her step sons after her husband’s death.

When by 1526 it was clear that Catherine of Aragon would not despite repeated pregnancies bear a son Henry started casting about for a reason to divorce Catherine. Of course Henry did have a heir, his daughter Mary, but although England had three times seen the throne inherited through the female line, Henry did not want a women to become Queen Regent. That the Tudor, i.e., Henry’s own claim to the throne was through the female line made no difference.5

The prolonged civil war during the reign of King Stephen who disputed the throne with Matilda during the twelfth century had soured English attitudes towards a women actually reigning.6

Thus Henry cast about for reason’s to get rid of his then wife Catherine of Aragon. He came upon the two above verses in Leviticus and they agreed with what he wanted and of course he was convinced that he had no son because he had sinned in marrying Catherine and God was punishing him.7

Now first of all Henry had to get around the Papal dispensation that had been granted so that he could marry Catherine because of her previous marriage to his elder brother Arthur. As indicated above this was considered a type of incest in the technical sense. Henry and his lawyers argued that Papal dispensation could not dispense with holy and sacred divine law has outlined in Leviticus hence the Pope had no authority to grant a dispensation to marry in the case of marrying your brother’s widow.

There were all sorts of problems with this position given that Papal dispensations had been given for all sorts of reasons and for a long period of time. In fact because of the close familial relationships between various European and Noble families Papal dispensations in order to marry were routine.

Although Henry VIII and his lawyers had a valid argument in the above. The above argument was rendered moot by that lovely verse from Deuteronomy. In effect the piece precisely described what happened. Arthur died young and without issue so Henry married the widow.

Thus although the two verses in Leviticus lay down a prohibition, Deuteronomy lays down an exception that fits perfectly what happened in Henry VIII’s case. So guess what the marriage was valid. In fact the custom of a brother marrying a dead brother’s childless widow is common worldwide and is technically called the Levirate. It is a custom that occurs worldwide.

Now before I go any further; given that Henry was so obviously determined to get rid of Catherine of Aragon has a wife why was Catherine so opposed to the “divorce”? Several reasons can be given. First Catherine was a relative of the Habsburgs and was devoted to the interests of her nephew Charles V, Holy Roman Emperor and King of Spain and dissolving the marriage would damage her family’s interests. Secondly to have her marriage declared invalid would have been profoundly, personally humiliating to Catherine. Finally, perhaps the most important reason; having the marriage declared invalid would bastardize Henry VIII and Catherine of Aragon’s only surviving child Mary.

Let us explore reason three which was, in my opinion, the most important reason. It must be remembered that what Henry VIII sought was not the modern idea of "divorce" which is the breakup of a valid marriage but an annulment which would declare that the marriage was never valid to begin with. That it would in effect declare that Catherine and Henry had been living in sin for c. two decades. That the profoundly religious Catherine bridled at this should not have been a surprise. Further in declaring that the marriage was void from the beginning it bastardized Mary. That among various things made Mary and her heirs with no valid claim to the throne and was a vicious social stigma on top of that at the time. Modern Historians tend to ignore that what making the marriage invalid did to Mary was likely the chief source of Catherine’s profound opposition to the "divorce", and frankly it is a pretty good reason. That Henry VIII seems to not have a clue that his wife would not just after some initial opposition roll over and do has he liked is amazing.

To get back to the law Henry’s case was further damaged by examples of the levirate in Holy Scripture where God clearly punishes those who fail to perform their levirate duty.

For example from Genesis:

6 And Judah took a wife for Er his firstborn, whose name was Tamar.

⁷ And Er, Judah's firstborn, was wicked in the sight of the Lord; and the Lord slew him.

⁸ And Judah said unto Onan, Go in unto thy brother's wife, and marry her, and raise up seed to thy brother.

⁹ And Onan knew that the seed should not be his; and it came to pass, when he went in unto his brother's wife, that he spilled it on the ground, lest that he should give seed to his brother.

¹⁰ And the thing which he did displeased the Lord: wherefore he slew him also.

¹¹ Then said Judah to Tamar his daughter in law, Remain a widow at thy father's house, till Shelah my son be grown: for he said, Lest peradventure he die also, as his brethren did. And Tamar went and dwelt in her father's house.

¹² And in process of time the daughter of Shuah Judah's wife died; and Judah was comforted, and went up unto his sheepshearers to Timnath, he and his friend Hirah the Adullamite.

¹³ And it was told Tamar, saying, Behold thy father in law goeth up to Timnath to shear his sheep.

¹⁴ And she put her widow's garments off from her, and covered her with a veil, and wrapped herself, and sat in an open place, which is by the way to Timnath; for she saw that Shelah was grown, and she was not given unto him to wife.

¹⁵ When Judah saw her, he thought her to be a harlot; because she had covered her face.

¹⁶ And he turned unto her by the way, and said, Go to, I pray thee, let me come in unto thee; (for he knew not that she was his daughter in law.) And she said, What wilt thou give me, that thou mayest come in unto me?

¹⁷ And he said, I will send thee a kid from the flock. And she said, Wilt thou give me a pledge, till thou send it?

¹⁸ And he said, What pledge shall I give thee? And she said, Thy signet, and thy bracelets, and thy staff that is in thine hand. And he gave it her, and came in unto her, and she conceived by him.

¹⁹ And she arose, and went away, and laid by her veil from her, and put on the garments of her widowhood.

²⁰ And Judah sent the kid by the hand of his friend the Adullamite, to receive his pledge from the woman's hand: but he found her not.

²¹ Then he asked the men of that place, saying, Where is the harlot, that was openly by the way side? And they said, There was no harlot in this place.

²² And he returned to Judah, and said, I cannot find her; and also the men of the place said, that there was no harlot in this place.

²³ And Judah said, Let her take it to her, lest we be shamed: behold, I sent this kid, and thou hast not found her.

²⁴ And it came to pass about three months after, that it was told Judah, saying, Tamar thy daughter in law hath played the harlot; and also, behold, she is with child by whoredom. And Judah said, Bring her forth, and let her be burnt.

²⁵ When she was brought forth, she sent to her father in law, saying, By the man, whose these are, am I with child: and she said, Discern, I pray thee, whose are these, the signet, and bracelets, and staff.

²⁶ And Judah acknowledged them, and said, She hath been more righteous than I; because that I gave her not to Shelah my son. And he knew her again no more.8

The whole point of the passage is that God approves of the levirate and punishes for failure to fulfill it, further Judah is castigated for NOT fulfilling it by not allowing one of his sons to marry Tamar.

The result is clear Henry VIII had a real problem trying to argue that the marriage was invalid according to divine law.

So how did Henry VIII and his lawyers try to get around the very clear exception to the rule in Leviticus that oh so clearly applied to the case at hand?

Well it was little more than variations of the idea that the exception in Deuteronomy no longer applied that it was superseded by Leviticus in that it only applied to the Jews or some other such limitation, such has Christ’s coming abrogated the Deuteronomy exception. Another truly weak argument was that only God could order directly the Deuteronomy exception. Of course this then led to the problem that therefore could not the Pope as Vicar of Christ then grant such a dispensation?9

Although a few, and I mean few, Church Canon lawyers and theologians agreed with Henry VIII’s position that all such marriages were invalid and the Deuteronomy exception no longer valid, the vast majority of such lawyers and experts at the time felt that that yes the rule in Leviticus was indeed binding except in cases involving the Deuteronomy exception further that the Pope could indeed grant such a dispensation.

Thus Henry VIII and his lawyers had what can only be described has a pathetically weak case for disputing the validity of the marriage on grounds that it violated scripture and canon law, and / or that the Pope had no authority to issue a dispensation for the marriage.

Henry VIII cast about for support for his position and ended up with very little support from anyone. He even went to Rabbis and tested out Martin Luther. Martin Luther simply said his marriage to Catherine was valid and suggested as a solution to Henry VIII’s problem, bigamy!10

And Catherine put a monkey wrench in the proceeding that gummed up Henry VIII’s claim to the divorce even more. Catherine claimed that her marriage with Arthur had never been consummated! If that was the case. The law was very clear that the Leviticus rule did not apply at all.

At the time Henry VIII and his lawyers relied on tittle tattle, gossip and the memories of old, surviving servants of Catherine and Arthur to claim that the marriage was in fact consummated. Aside from the obvious problem of much time having gone by and people memories perhaps being a bit less than clear cut this faces the problem that it is all too clear that the testimony, as in other of Henry VIII’s show trials, was manufactured to suit Henry’s purpose.

Catherine claimed that publicly that she was still a virgin when she married Henry VIII and challenged Henry publicly to deny it. Now given what we know about physical virginity whether or not Catherine had an intact hymen is hardly credible evidence that she was or was not a virgin either way. Still in a contest about who was lying it is certainly more likely Henry was lying than Catherine.

Now some modern scholars contend that Catherine was lying to advance the interests of her family and to preserve for various reasons her marriage to Henry VIII.11 That claim is although possible is not probable.

The big problem with the idea that Catherine was lying was that after Arthur had died in 1502 Catherine was maintaining that the marriage had not been consummated. If Catherine had waited until Henry VIII wanted the divorce to makes this claim it would certainly look like a bold faced lie to put one more obstacle in the way of the attempt by Henry VIII to get a divorce. But it wasn’t Catherine maintained right from even before marrying Henry VIII that her marriage with Arthur had not been consummated.

This is not unlikely. Not only was Arthur rather sickly and ill for much of his brief marriage to Catherine, (4 & 1/2 months), and thus not likely to be able to physically consummate it much of the time; it was commonly expected that people who married young would wait before fully consummating a marriage. Considering that Catherine was 16 and Arthur was 15 years old it would not have been surprising if they had waited for say a year or two. And it should be pointed out fully "consummating" a marriage meant penis / vagina intercourse at the time. So frankly Arthur and Catherine could have had sex with Catherine staying a technical virgin and yes not consummating the marriage according to canon / biblical law.

Catherine’s claim that the marriage was not consummated was at the time ignored by all parties and the Papal dispensation issued by Pope Julius II so Catherine could marry Henry VIII just assumed that the marriage had been consummated fully.12

Thus Catherine was not so to speak pulling it out of her ass when she claimed the marriage to Arthur had not been consummated. It is probable that indeed the marriage to Arthur had not been consummated and therefore Henry VIII’s Leviticus based objections had no basis at all.

Thus Henry VIII’s plans for a “divorce” failed all the way down the line legally speaking.

1. The Pope did indeed have the legal power to issue the dispensation and had done so in the past.

2. Regardless of the merits of point 1, the Deuteronomy exception, to the rule in Leviticus, the so-called, Levirate applied in this case.

3. Virtually all learned opinion at the time agreed with points 1 and or 2.

4. Regardless of points 1, 2, and 3 Catherine’s marriage to Arthur had in all probability not been consummated so that the rule in Leviticus didn’t apply to begin with.

Such was Henry VIII’s weak case. To add to his problems the Pope, Clement VII, was in the power of Charles V and because Charles V was not likely to want the Pope to grant the "divorce"; Henry’s chances of getting the Pope to grant the "divorce" were minimal.13

So Henry VIII repudiated the Papacy and started the Reformation in England because he could not get the Pope to grant a "divorce". Henry wanted a "divorce" so he could get married again so he could have sons who would succeed him and thus avoid a woman becoming Queen Regent of England.

Henry eventually got the son he so desperately wanted but Edward VI only reigned c. 6 ½ years and died young. All of Henry’s efforts did not prevent the event he dreaded the most the accession of his daughter Mary as Mary I Queen Regent of England and even more ironic the women Henry divorced Catherine of Aragon to marry, Anne Boleyn, who he later divorced and executed because she bore no sons but only a daughter Elizabeth; that daughter eventually took the throne and became one of the greatest of England’s rulers.

In fact Henry VIII not only tried to bastardize Mary by declaring his marriage with Catherine of Aragon void from the beginning he did the same with Elizabeth. Before he had Anne executed for adulterous treason he had his pet churchmen declared his marriage to Anne void based the Leviticus rule in that since Henry had had carnal knowledge of Anne’s sister Mary Boleyn he had committed technical incest which could not be dispensed with and therefore the marriage was void and Elizabeth bastardized. That this did not occur to Henry VIII when he married Anne Boleyn probably shows just how much Henry VIII’s moral concerns were driven by expediency.14

It ironic that in the end there does appear to be a valid basis for a “divorce" ending Henry VIII’s marriage to Catherine of Aragon and it relies on the argument that the Papal dispensation was flawed not because the Pope could not give the dispensation but because of flaws in the dispensation itself.

To put it bluntly the dispensation assumed that the marriage of Arthur and Catherine  had been consummated and thus gave dispensation assuming that to be the case. If the marriage had not been consummated than the dispensation was defective has lacking what is called “public honesty” and the marriage of Henry VIII and Catherine could be voided. This is because it would be assumed that, without some sort of official, public legal dispensation, that the marriage had been consummated and therefore the correct dispensation had to be granted on the basis of non-consummation of the marriage. What is interesting is that because this defect is technical it would not have declared the marriage void from the beginning merely voidable and thus it would have remained a “real” marriage further it would have meant that Mary, Catherine and Henry VIII’s daughter, was legitimate. As such this would have been a lot less insulting to both Catherine and Mary than Henry VIII’s actual claim to a "divorce" and thus vastly more likely to be accepted by Catherine and frankly by the Pope. Sadly Henry VIII and his lawyers threw in this one as an afterthought only very late in the game.15

In the end Henry VIII separated England from the church of Rome to avoid outcomes that proved in the end impossible to thwart. In this case the accession of a female ruler(s) and the extinction of the Tudor dynasty.

1. Catherine of Aragon, Wikipedia Here.

2. IBID.

3. King James Bible, Leviticus, ch. 17 v. 16, ch. 20 v. 21.

4. King James Bible, Deuteronomy, ch. 25 v. 5.

5. Henry VII, Henry VIII’s father claim to the throne was through the Female Line, further Henry VIII had through his mother, Elizabeth of York, a claim to the throne, which is why Henry VII married her. The two previous claims to the English throne through the female line were Henry II’s right to the throne through his mother Matilda in 1154. Edward of York’s claim was through his grandmother. Anne de Mortimer. Edward, who became Edward IV, became king during the war of the Roses in 1461. Henry VII became king in 1485.

6. See Stephen, King of England, Wikipedia Here.

7. Scarisbrick, J. J., Henry VIII, University of California Press, Berkeley, 1968, pp. 150-155.

8. King James Bible, Genesis, ch. 38, v. 6-26.

9. Scarisbrick, pp. 168-174.

10. IBID, pp. 163-197.

11. See for example Starkey, David, Six Wives, Harper Perennial, New York, 2004.

12. Scarisbrick, pp. 6-9.

13. IBID, pp. 198-240.

14. Somerset, Anne, Elizabeth I, Fontana, New York, 1992, p. 8.

15. Scarisbrick, pp. 8, 184-197, 204, 286-287.

Pierre Cloutier