This post continues my series on Jesus, divorce, and remarriage, where I’m examining Jesus’ words beginning with this question: Did Jesus believe that marriage is indissoluble? Here are my posts so far:
Jesus on Divorce and Remarriage: Introduction (JDR-1)
Hyper-Literalism, Could vs. Should, and a Guiding Question (JDR-2)
“Cleave” Does Not Imply an Unbreakable Bond (JDR-3)
“One Flesh” Does Not Imply an Unbreakable Bond (JDR-4)
“God Has Joined Together” Does Not Imply an Unbreakable Bond (JDR-5)
Genesis 2:24 as God’s Creation Norm for Marriage (JDR-6)
“Let Not Man Separate” Implies a Breakable Bond (JDR-7)
Summary of this post: I ask whether Jesus’ statement that “Moses allowed” divorce provides any clues about whether marriage is indissoluble. After showing that Jesus was not pitting Moses against God, I survey what God’s law said about divorce. Some laws narrowly commanded divorce; others narrowly forbade it. Multiple laws assumed divorce and that divorce dissolves a marriage. The famous Deuteronomy 24 passage prohibited a man from remarrying his former wife who had meanwhile been married to another. This passage is joined by others that likewise grouped divorce and death as equally and truly ending marriage.
Introduction: Was Marriage Indissoluble Under the Law of Moses?
Jesus wrapped up his summary of God’s creation design for marriage in Matthew 19:3-6 with a strong command: “What therefore God has joined together, let not man separate.”
The Pharisees were not satisfied with this response. They countered with a question, alluding again to Deuteronomy 24:1: “Why then did Moses command one to give a certificate of divorce and to send her away?” (Matt. 19:7). Doesn’t this mention of a “certificate of divorce” imply that it is “lawful” (Matt. 19:3) to divorce a wife?
Jesus’ rebuttal focused again on God’s creation design for marriage: “Because of your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so” (Matt. 19:8). In other words, yes, it may have been “lawful” under the law of Moses to divorce, but that same law, in its record of the creation, shows that divorce was not part of God’s original and unchanging design. In short, the should of marriage permanence remains clear, despite the certificates of divorce allowed under Moses.
But does Moses’ allowance of divorce indicate anything about whether a marriage could be dissolved by anything other than death? Do the practices of divorce and remarriage under the law of Moses suggest that divorce was always only a legal fiction? Or do they suggest that marriages really could be dissolved, despite God’s creation intent?
As I address these questions in this post, I will focus on the first main clause in Jesus’ sentence: “Moses allowed you to divorce your wives.” From the perspective of what was uppermost in Jesus’ mind, the other two clauses are even more important (“Because of your hardness of heart… but from the beginning it was not so”). I plan to address those clauses directly in a future post or two. First, however, I want to consider what we can learn from Jesus’ acknowledgement that Moses allowed divorce.
So, what does the law of Moses say about divorce? And do its laws about divorce give any indication as to whether marriage is indissoluble or not? Let’s survey some of the most important evidence for clues.
The Law of Moses: Two Possible Misunderstandings
Two likely misunderstandings must be cleared up right away. First, Jesus is not pitting Moses against God. Jesus is not saying “God forbade divorce but Moses dishonored God by allowing it anyway.” Jesus is never recorded as speaking negatively of Moses. He believed the law of Moses came from God himself; in fact, in this very conversation with the Pharisees Jesus has already attributed an editorial comment from Moses (“Therefore, what God has joined…”) to God (“he who created them”).
The suggestion that Jesus’ words “Moses allowed” are describing “a merely human deviation from the divine purpose” is “a very modern inference,” as commentator R. T. France noted. Rather, “the laws given by Moses were understood to be the laws of God; ‘Moses’ means the Pentateuch, the God-given body of law which is Israel’s highest authority.” Thus, whatever commands we find in Moses’ law must be seen as coming from God himself.
Second, we should note that the law cited by the Pharisees, which is found in Deuteronomy 24:1-4, is really a law about remarriage, not divorce. This law is essentially a long “if” followed by a short “then” command. A summary version could read, “If a man divorces his wife, she remarries, and her second marriage comes to an end, then the man may not take her back as his wife again.” Thus, Dean Taylor rightly wrote of this passage, “Moses did not institute divorce, he merely regulated against a type of remarriage.” That said, it remains true, as Jesus acknowledged, that this law of Moses did “allow” divorce.
Laws Requiring Divorce
What is less well known is that in some cases the law of Moses actually required divorce. For example, in Exodus 21:11 a master-husband was instructed to give his Hebrew slave-wife her food, clothing, and marital rights, without diminishing them if he took another woman. If he withheld these rights, the law commanded that “she shall go out for nothing” (Ex. 21:11; cf. Ex. 21:26). Similarly, Deuteronomy 21:14 commanded that if a man “no longer delight in” his wife whom he had taken as a captive in war, he must “let her go where she wants” without selling her or treating her as a slave.
Both these passages contain linguistic links to the famous divorce and remarriage passage in Deuteronomy 24:1-4, links suggesting that these passages are talking about full divorce, complete with the right to remarry. They also appear to be talking about real marriage, despite the wife being originally secured by either slavery (temporary indentured servitude of a fellow Hebrew) or captivity (of a foreign enemy). If either of these seems least likely to qualify as real marriage, it would be the captive wife. Yet the Deuteronomy passage says explicitly, “you may… be her husband, and she shall be your wife” (Deut. 21:13). Further, that passage occurs right before a paragraph that demands that unloved “wives” be given equal rights as loved ones, a command that parallels the one in Exodus 21:11.
If a wife taken as a slave or captive had a right to secure a divorce if her husband would not provide for or “delight in” her, then surely a wife gained by more normal means had equal rights or better. Thus, Jews in Jesus’ day applied this passage to all marriages. They “recognized that the obligations of Exodus 21:10-11 could form the basis of a claim for divorce,” and “rabbinic literature preserves detailed discussions concerning the exact limits for gaining a divorce on the grounds” in that passage.
It is worth noting that some of the authors who have been influential for conservative Anabaptists on the topic of divorce (Coblentz, Webb, Wenham, etc.) do not even mention Exodus 21:11 or Deuteronomy 21:14. Several make statements that are clearly false in light of these passages. For example, Cornes wrote the following in his summary of the OT law:
Any individual law which specifically legislates about divorce only limits its availability. The law must therefore be seen as restraining divorce rather than enabling it.
Wenham and Heth likewise exclaimed, “There is, in fact, no legislation respecting grounds for divorce in Old Testament law!”
Kuruvilla, drawing on Cornes, made a similar claim, even extending it to include the entire OT:
Throughout the Old Testament, there is no “enabling legislation” for divorce. Instead, Old Testament laws merely restrict a practice that was already ongoing… Nowhere in the Old Testament are any statements given that “enable” divorce or remarriage.
Contrary to these claims, Exodus and Deuteronomy both clearly command that if a husband refused to care for his (slave or captive) wife, he must grant her the freedom of a divorce. Would God, through Moses, have commanded that wives of abusive husbands be freed to remarry if he thought that their first marriages remained undissolved?
Laws Prohibiting Divorce
Other laws provided for women by protecting them from wrongful divorce. For example, what if a husband took a wife, decided he didn’t like her after having sex with her for the first time, and then tried to get rid of her by falsely accussing her of not being a virgin? Such a man was to be whipped and fined, and “he may not divorce her all his days.” He had to provide for her for life, without exception, for he had “brought a bad name upon a virgin of Israel” and put her in danger of wrongful capital punishment (Deut. 22:19). Similarly, the rule for a man who raped an unbetrothed virgin was that he had to marry her and “may not divorce her all his days” (Deut. 22:29).
As far as I can discover, author Rubel Shelly is right in saying that these are “the only two specific situations named in which a man could not divorce his wife” under the law of Moses. And presumably, if a wife in these two situations was later uncared for, she could go to court to sue for either provision or her own right of divorce under the precedent of Exodus 21:11 or Deuteronomy 21:14.
How widely was divorce practiced in OT Israel? Given the pattern of Israel’s other sins, Instone-Brewer is probably right in saying “we must assume that divorce was as prevalent in Israel then as in other ancient Near Eastern societies.” What is clear is that divorce was widely “allowed” under the law of Moses and sometimes even commanded. Was God allowing something that was a legal fiction, or was he allowing (and sometimes commanding) something that was real, even though it fell short of his original design for marriage?
A Law Prohibiting Remarriage
Deuteronomy 24:1-4 supports this picture of easily-available divorce. I’ve already summarized the basic point of the passage, and I’ll reinforce that summary now by emphasizing that the Jews in Jesus’ day entirely missed the point of the passage when they mined it in search of valid grounds for divorce. The passage does not provide grounds for divorce but restrictions against a certain kind of remarriage.
Let me quote the passage in full and then we’ll look for clues about marriage permanence.
When a man takes a wife and marries her, if then she finds no favor in his eyes because he has found some indecency in her, and he writes her a certificate of divorce and puts it in her hand and sends her out of his house, and she departs out of his house, 2 and if she goes and becomes another man’s wife, 3 and the latter man hates her and writes her a certificate of divorce and puts it in her hand and sends her out of his house, or if the latter man dies, who took her to be his wife, 4 then her former husband, who sent her away, may not take her again to be his wife, after she has been defiled, for that is an abomination before the Lord. And you shall not bring sin upon the land that the Lord your God is giving you for an inheritance. (Deut. 24:1-4)
Some things about this passage remain highly debated among commentators. What is “some indecency”? How, exactly, was the wife “defiled”? Why was it wrong for her former husband to take her again as his wife after she had been defiled? What relevance, if any, does this remarriage prohibition have for us today?
I won’t try to answer those questions now. I will point instead to some clear facts that may be clues about whether marriage is indissoluble. In this passage:
- A woman who is remarried is called “another man’s wife”—that is, she is now the “wife” of “another man” besides her former husband (v. 2).
- Her prior husband is called her “former husband” (v. 4), indicating he is no longer her husband.
- A certificate of divorce is expected for ending a second marriage just as surely as a first marriage, suggesting the second marriage was considered just as real as the first (v. 3).
- Divorce and death are presented in parallel as equally ending a marriage (v. 3).
- A woman’s former husband (including her first one) has less right (none!) to claim her as wife than any other man does (v. 4); there is no assumption a first husband has special rights based on a persisting marital union.
Let me get technical for one paragraph. It is worth noting that the Hebrew word (ri’šôn) translated “former” in the phrase “former husband” does not always mean “first” (e.g., Num. 21:26; Ps. 79:8; Is. 42:9). Thus, this law restricts a second husband from remarrying a former wife after she has married a third as surely as it restricts a first husband from remarrying. Therefore, it is not right to say that a first husband is singled out by this law even negatively, by receiving a special prohibition not given to subsequent husbands. (The CSB, NET, NIV, NLT, and multiple other translations are misleading in this regard; KJV, NKJV, NASB, ESV, and others more cautiously read “former.”)
In short, while it is not clear whether the divorces in this passage were legitimate, everything about the passage suggests that divorce was seen as truly ending a marriage—just as truly as by death. Further, remarriage was seen as “putting a seal” on divorce, making any former marriage permanently dissolved.
Laws Grouping the Divorced and the Widowed
Tellingly, several other passages in the law of Moses group divorce and death in a similar way. For example, both widowhood and divorce gave a priest’s daughter equal right to return to her father’s house and eat his priestly food, which she was forbidden to eat while she was married to a layman (Lev. 22:12-13). Similarly, if a married woman made a vow, her husband had a right to make her vow void when he first heard of it. But this law came with an exception: “Any vow of a widow or of a divorced woman, anything by which she has bound herself, shall stand against her” (Num. 30:9). As far as both these laws were concerned, a divorcing husband and a dead husband had equal authority over their former wives—none.
The marriage restrictions for a high priest also group divorce and widowhood together:
A widow, or a divorced woman, or a woman who has been defiled, or a prostitute, these he shall not marry. But he shall take as his wife a virgin of his own people (Lev. 21:14).
The restriction against marrying a widow was a matter of ritualistic cleanliness, not a timeless moral requirement (1 Cor. 7:39). It functioned like other restrictions in this passage, such as the one forbidding the high priest from making himself unclean by caring for the dead bodies of close relatives (Lev. 21:11). Similarly, the NT strongly implies that there is nothing immoral about marrying someone who was formerly sexually immoral (“a woman who has been defiled, or a prostitute”) but who is now “sanctified” (1 Cor. 6:9-11).
Given this context, it appears that the law against priests marrying divorced women (cf. Lev. 21:7) was also a ritualistic restriction, not a moral one. Commentator Wenham suggests this restriction was designed to protect a priest’s reputation and also to ensure his wife’s children were really his own, thus protecting the priestly line.
In fact, divorced and widowed persons were so tightly grouped in Jewish thought that the Hebrew and Greek words translated widow in the Bible were sometimes used to refer to a divorced woman. This broader conception of widowhood in the Hebrew language is found in 2 Samuel 20:3. After David returned to Jerusalem following his defeat of Absalom, he took his ten concubines whom Absalom had defiled and “put them in custody… but did not have relations with them. So they were locked up until the day of their death, living as widows” (NASB).
Similarly, the Greek-speaking Jewish philosopher Philo—during whose lifetime Jesus lived and died—counted a divorced woman as having been widowed in his interpretation of Deuteronomy 24:1-4:
If a woman after parting from her husband for any cause whatever marries another and then again becomes a widow [χηρεύσῃ], whether this second husband is alive or dead, she must not return to her first husband.
Philo’s interpretation affirms our observation that divorced and widowed women were treated very similarly under the law of Moses, both classed as being unmarried.
Conclusion: Marriage Was Dissoluble Under the Law of Moses
As far as I know, these are all the passages in the law of Moses that deal explicitly with human divorce. None of these passages give any indication that divorce did not truly end a marriage. Taken together, they strongly indicate that divorce was seen as fully dissolving a marriage. There is no indication that a man who divorced his wife had any special right to take her back again, and he was expressly forbidden from doing so if she had meanwhile been married to someone else.
Yes, every mention of divorce in the law of Moses is in tension with God’s creation design recorded in the first book of Moses. If every Israelite had lived up to God’s design, no marriage would ever have ended in divorce.
However, it is also true that if every human had lived up to God’s design, no marriages would have been dissolved by death, either. (This includes marriages ended by death as punishment for adultery, a topic I hope to address later.) Tragically, both death and divorce are part of human experience post-Eden, and both are pictured in the law of Moses—God’s law—as truly ending marriage.
Was this picture merely an illusory concession to human practices? What did Jesus mean when he said these divorce allowances were given because of “hardness of heart”? And what about his statement that “from the beginning it was not so”? I plan to turn to these questions in my next posts.
Thanks for reading this long post! I invite you to add your insights or questions in the comments below.
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 It is a sobering truth that merely living up to a law granted as a concession to human weakness does not ensure one is truly pleasing God.
 Even though some of Jesus’ teachings hinted that the law of Moses would come to an end (Matt. 11:13; Mark 7:19; Luke 16:16), he urged people to obey even the details of the law (Matt. 23:23; Luke 11:42) and warned they would be judged by Moses (John 5:45-46; cf. Luke 16:29-31). In the Gospel of Luke, Jesus’ teaching about divorce comes immediately after his statement that “it is easier for heaven and earth to pass away than for one dot of the Law to become void” (Luke 16:17).
 See Matt. 19:4; cf. Matt. 15:3-6.
 R. T. France, The Gospel of Matthew, New International Commentary on the NT (Grand Rapids, MI: Eerdmans, 2007), 719.
 The KJV, unfortunately, obscures the flow of thought, but the NKJV, ESV, and most other modern translations make the if-then structure of Moses’ command clear. The moral logic and current relevance of Moses’ prohibition of a husband remarrying his former wife, however, remain highly debated. Since Jesus didn’t address these questions, I won’t address them in this post, either.
 Dean Taylor, “One Flesh, One Covenant,” Pt. 2 of “Marriage, Divorce, and Remarriage,” The Heartbeat of The Remnant, July/August/September 2007, Ephrata Ministries, p. 5. Available online, accessed 7/14/2022, http://www.ephrataministries.org/pdf/2007-07-one-flesh.pdf.
 The Hebrew word translated “let her go” in Deuteronomy 21:14 (šālaḥ) appears again in Deuteronomy 24:1, which describes a husband who divorces his wife and “sends her” out of his house. Likewise, the word translated “shall go out” in Exodus 21:11 (yāṣā’) appears in Deuteronomy 24:1 (24:2 in some translations) in the phrase “she departs out of his house.” This woman then “goes and becomes another man’s wife” (Deut. 24:2). This shared language implies that in all three passages the woman who is sent away is free to remarry, even though two of the passages never explicitly say so.
 David Instone-Brewer, Divorce and Remarriage in the Bible: The Social and Literary Context (Grand Rapids, MI: Eerdmans, 2002), 102.
 Authors who discussed divorce in the OT without mentioning either Exodus 21:11 or Deuteronomy 21:14 include John Coblentz (What the Bible Says about Marriage, Divorce, and Remarriage), Finny Kuruvilla (“Until Death Do Us Part”), J. Carl Laney (The Divorce Myth), Joseph A. Webb (Till Death Do Us Part?), Gordon J. Wenham and William E. Heth (Jesus and Divorce) and G. J. Wenham (Jesus, Divorce, and Remarriage: In Their Historical Setting). Andrew Cornes (Divorce and Remarriage: Biblical Principle and Pastoral Practice) discussed only the Deuteronomy passage (p. 137-38). Despite acknowledging it discusses divorce, he surprisingly asserted that it actually discourages divorce. The authors of Divorce and Remarriage: A Permanence View (Wingerd, Elliff, Chrisman, and Burchett) addressed both texts in an appendix (pp. 143-46), but only to explain why they “did not consider” them “relevant to our discussion.” I do not find their reasons compelling.
 Andrew Cornes, Divorce and Remarriage: Biblical Principle and Pastoral Practice (Fearn, Scotland: Christian Focus Publications, 2002), 176-77.
 William E. Heth and Gordan J. Wenham, Jesus and Divorce, updated ed. (Carlisle, England: Paternoster Press, 2002), 107.
 Finny Kuruvilla, “Until Death Do Us Part: Is Remarriage Biblically Sanctioned After Divorce?” (essay), (Anchor Cross Publishing, July 13, 2014), 4-5, https://static1.squarespace.com/static/570e3c2f8259b563851efcf8/t/5911288c4402435d4e08c196/1494296716383/essay_remarriage.pdf. The most obvious passage contradicting Kuruvilla’s broader claim is Ezra 10, where Israel divorced their foreign wives in an act of repentance. Nothing in the passage suggests that these marriages were not real, despite being contrary to God’s law. Nor is there any indication that any subsequent marriages would be legal fictions permitted by God even though the first marriages were not truly dissolved. Rather, the passage is best understood as a case where two shoulds conflicted with each other—the should of marital permanence and the should of marrying only within Israel. Both of these could be broken, and in this case Nehemiah ruled that the latter should took precedent over the former. In the language of the passage, to have “broken faith” with God by marrying foreign women was worse than to subsequently break faith with these women by divorcing them, for the latter was required as part of renewing Israel’s “covenant with… God” (Ezra 10:2-3, 10-11).
 Her father, however, had legal right to refuse to give his daughter to him in marriage (Ex. 22:17).
 Rubel Shelly, Divorce and Remarriage: A Redemptive Theology (Abilene, TX: Leafwood Publishers, 2007), 50.
 David Instone-Brewer, Divorce and Remarriage in the Bible: The Social and Literary Context (Grand Rapids, MI: Eerdmans, 2002), 23.
 This conclusion is reinforced by how Ezekiel repeats these commands in his vision of a renewed priesthood: “They shall not marry a widow or a divorced woman, but only virgins of the offspring of the house of Israel, or a widow who is the widow of a priest” (Ez. 44:22). The final “loophole” in this verse shows that it was not intrinsically wrong for a priest to marry a widow.
 Gordan J. Wenham, The Book of Leviticus, New International Commentary on the OT (Grand Rapids, MI: Eerdmans, 1979), 291-92.
 The Lexham Bible Dictionary provides this definition for both the Hebrew word (אַלְמָנָה, almanah) and the Greek word (χήρα, chēra): “A woman whose husband has died, or who has been parted in some way from her husband” (M. J. Morris, “Widow,” in The Lexham Bible Dictionary, [Bellingham, WA: Lexham Press, 2016].
 Philo, On the Special Laws, III.30, from Philo, Vol. VII, Loeb Classical Library, trans. F. H. Colson, (Cambridge, MA: Harvard University Press, 1998), p. 493. Emphasis added. https://archive.org/details/PhiloSupplement01Genesis/Philo%2007%20Decalogue%2C%20Special%20Laws%20I-III/page/n509/mode/2up.
 Other passages in the law of Moses contain information about marriage that have indirect significance to the question of marriage permanence (such as texts implying the legality of polygamy). There are also narrative portions of the books of Moses that are relevant. These include not only Genesis 1 and 2 and other passages reinforcing marriage faithfulness, but also stories such as the account where God encouraged Abraham to heed Sarah’s desire and “cast out” Hagar (Gen. 21:8-14), his slave whom he had taken “as a wife” (Gen. 16:3). Finally, God predicts his own divorce of Israel (“I will forsake them”), for he knows they will “whore after… foreign gods… and break my covenant that I have made with them” (Deut. 31:16-18).
 If the passages I have discussed in this post are overwhelmingly focused on protecting wives, the Mosaic laws about adultery focus on protecting husbands from unfaithful wives. If it was evident a wife had committed adultery, both she and her adulterous partner were to be put to death (Lev. 20:10; Deut. 22:22).
20 thoughts on ““Moses Allowed You to Divorce” Suggests a Breakable Bond (JDR-8)”
I have been meaning for some time to drop you a note of appreciation for the scholarly work you are doing on divorce and remarriage. I’m still puzzled over where you are going, which seems a vital issue to me, otherwise the matter is still the matter which cannot be allowed.
Your initial work on the background of Anabaptist belief on divorce and remarriage was (fill the blanks) time for me. I had been aware of the Anabaptist acceptance of the Erasmus exception, and knew they had abandoned the position at some point. Didn’t know when, but assumed around the early 1900 or so, from info I had coming in through my Stoll relatives at Pathway.
I asked Joe Stoll why the position had been jettisoned, but he didn’t respond. My guess had been the position, allowing divorce and remarriage for adultery was proving unworkable in face of the onslaught of the modern world. From what I could tell, there had been no biblical reasons given, and the reasons used in our present day were clumsy and falling for me. I had therefore concluded the no divorce and remarriage position was being maintained for necessary reasons, not biblical ones.
Which leads me back to the original point. How will you answer the problem? Rampant divorce and remarriage, which is where the exception position has always gone in the modern world, is simply unworkable in a close Anabaptist community.
Thanks again for your quality work,
Thank you, Jerry, for your encouragement. I’m glad if you’ve found my writings helpful.
How will I answer the problem? If I understand you correctly, I think you are identifying the problem as being how divorce and remarriage has become rampant in much of Christianity, which affirms Jesus’ divorce exception.
What is most important to me is that we are faithful to Jesus in our teaching. I am deeply skeptical of letting pragmatic concerns drive our teaching. (By pragmatic concerns I mean things like “But if I teach that tithing isn’t commanded under the new covenant, then our churches won’t get the financial support they need!” Or, “If I teach that Jesus okayed divorce and remarriage in cases of sexual immorality, then unhappy spouses will start claiming their spouses have been unfaithful!”)
As Paul knew very well, the gospel of grace will frequently be abused. Yet this is no reason to enforce extra-biblical or unbiblical rules, which regularly lead to other forms of abuse and frequently lead people to overreaction. Rather, we must keep leading people to Jesus who alone can change hearts.
So, what matters to me is this: Did Jesus really believe that divorce and remarriage in cases of sexual immorality is not adultery? If the answer is Yes, then I do not have authority from Jesus to exclude divorce and remarriage in such situations from being an option to consider.
I do believe, though, that it is extremely wise to not rush into divorce and remarriage even in such situations, but to seek wise, prayerful Christian counsel and the guidance of the Spirit. What is permitted in a general sense is not always wise in a specific sense, and sometimes God calls a person to a personal path of sacrifice that is not required by the “rule” of Scripture. So, I guess my answer is this: Having begun by the Spirit, let us continue by the Spirit.
Whew I’m finally caught up again 😉! This instalment was an interesting read! I thoroughly agree with your methodical look at these passages, not to make divorce a free for all, but to show that when we are trying to prove a belief or point of practice as biblical, the least we can do is not grasp at straws while quoting out of context. It’s a pet peeve of mine.
Reminds me of the word study I did on alcoholic drinks in the bible. A little less exhaustive than what you are doing here. But very revealing all the same.
Thanks and keep it up.
Thanks for the encouragement, Verlin! I’m glad you’re caught up, but that means I must be behind. 🙂
helpful for my personal study of the subject and for teaching ministry.
The fact that some divorces were legitimate and effective does not imply that all were. The words of the Lord condemning (some) remarriages after some divorces as adultery work by denying that the divorces were effective — the adultery implies that the former marriage is still legally intact and in force.
It does not follow, however, that the texts you address in your post refer to the dissolution of marriages that are qualified by being those “God has joined together” as “one flesh” that man may not separate.
God, via Moses, allowed or permitted men to divorce their wives in Deut. 24:1-4, but it does not follow that those wives were those “God has joined together” as “one flesh.” To properly read this text requires us to read the context correctly, and for that we need to know the context of how marriages were contracted. A marriage was contracted by a man “taking” a wife, and her father (or family) “giving” her in marriage. This happens when the man offers the marriage contract and the woman (and/of her family) accepts it along with the bride price. At this point, the man and the woman are betrothed. This is an essentially legal and financial transaction: the man at this point creates a new legal “house” and the woman goes into that “house” — she leaves “her father’s house” and joins “her husband’s house.” This is the exact context for the case: “A man takes a woman and marries her” which moves her legally into his “house.” At this point, the spouses have not ratified their marriage contract by means of the wedding ceremony and they have not yet consummated the marriage by means of sexual relations. At this time, if the wife does not find favour in her husband’s eyes, because he found something wrong with her, he may give her a notice of divorce, and put it into her hand, and BY MEANS OF THIS NOTICE ALONE she leaves his legal “house.” This kind of divorce is the General Divorce in the bible, the normal kind of divorce. It requires no grounds, and it requires no charge specifying any grounds other than that her husband doesn’t want her to be his wife anymore, and he does not have to prove anything to anyone. The man is the judge of his own case. The only real legal issue is whether or not the bride price is refundable – and as it is generally not refundable, that is generally no issue either. If the wife divorces her husband or refuses to go through with the wedding, the husband may try to demand the bride-price back in order to get him to sign the notice of divorce, however, the Jewish marriage contracts recovered from Elephantine suggest that this was not a point of leverage for the husband: the divorces were oral, by standing up in the assembly and stating “I hate my wife” or “I hate my husband” and the initiating party would then pay a small penalty (7.5 shekels) but would otherwise recover anything they had brought into the marriage specified in the contract.
Now, is there anything untoward about such divorces? Surely they are lamentable and tragic, yet by no means unlawful nor ineffective. The institution of betrothal is largely for this purpose: to allow for a time of diligence and preparation, for the parties to either confirm their union or to break it off, before they came together sexually and before they started making babies. We still have the same institution today with engagement, and like Deut. 24:1-4, these engagements can be broken off without any legal formalities and generally without any penalties and also without any requirement to state a reason or prove anything to anyone.
Such divorces do indicate hardness of heart, that is, stubbornness. The spouses got married, then some problem erupted, and rather than resolve the problem and forgive the offence, one or both parties was stubborn and refused to do so. In the case in Deut. 24:1-4 the first husband was stubborn in divorcing his wife, and in refusing to take her back afterwards, so that she married another man. This is what the law was for: for this hardness of heart, the woman was prohibited to the man after her second marriage ended.
Nothing in the above analysis says anything about the situation when the husband and the wife ratify their marriage by means of the wedding ceremony, and when they consummate their marriage by having sexual intercourse with each other, and when they may physically live together as a family unit in society and when they start having babies. Of course, the whole point of the wedding ceremony is that it DOES something: it makes them husband and wife in a permanent way, and it gives them security against being divorced. When we discuss and debate divorce we are usually if not always talking about post-wedding divorce, because it is after the wedding that separating the spouses is so problematic. For one, it makes the wedding fail as a ceremony to announce to the world that from that point on the spouses belong to each other till death, for better, for worse.
Ex. 21:11 does not require divorce. The young woman in the case was unmarried when she was sold by her family, but she was sold in order that she be betrothed, either to the master’s son, or some other eligible man. The young woman goes out if or when the arrangement is broken by the master: he does not betroth her to anyone, he may choose another woman for his son, or neglects her entitlements or if she completes the 6-year time requirement or her family comes up with sufficient cash to redeem her. In all these cases she goes out as unmarried as when she came in. There is no divorce and no polygyny in the case. If the master betroths her, he kept the arrangement and the transaction is closed. The value that the master gets from her is her bride-price and/or any service. If he betroths her to his son, he must also treat her as a daughter, i.e. endow her with wealth inside her marriage, and give her an inheritance in this way. If he betroths her to one of his male servants, she still has to work (for the 6 years) although when her husband completes his six years, his labour or wages can go towards freedom for his wife more quickly. The language of “going out” in the context is going out of slavery, not marriage. Marriage, in this context is permanent, and slavery is temporary, for both men and women, with the one exception for the slave who wants to work forever (an institution discouraged by the law’s requirements).
The war-captive woman who goes free does so after a mini-betrothal period during which the man can change his mind. In lieu of paying a bride price, he gets the woman as a betrothed wife — a free wife, not a slave wife. But, if he breaks off the betrothal, she goes free. In other words, for his decision to betroth himself to her, he has effectively emancipated her from that date. The one month betrothal period is a protection for both parties to consider confirming the marriage. If he consummates the marriage by having sexual intercourse with her, he confirms his marriage to her and then she is his wife and he may not divorce her all of his days, just like any other confirmed wife.
The restrictions on divorce in Deut. 22 show that after the wedding and after the consummation, marriage is for keeps. The protections afforded to the accused bride, and the seduced woman awarded marriage as a remedy are for life because “she is his woman” in this permanent sense, so that her husband must “hold fast” to her, because she has become “one flesh” i.e. one family with him. This is the reason why “he may not divorce her all of his days.” This is not a punishment limited to special circumstances, this is the normal result of a marriage that goes all the way to consummation and/or the wedding ceremony. After this point, general divorce is no longer possible. But there may be, in very restricted circumstances, access to special divorce, after the wedding consummation. This special divorce remedy is what the man forfeits in the case in Deut. 22:13-21 by his own misconduct. (For his misconduct he gets a capital case he can never win.) By implication, if the man does not misconduct himself, if he does not give her a bad name but instead promptly and correctly files his case in court, if he can prove that she was “whoring in her father’s house” i.e. sexually active before the betrothal to him yet passed off to him as a virgin at the time of the betrothal, then and only then may he be granted special divorce relief by the court. But proving that she was “whoring in her father’s house” is very difficult, even to only the civil standard of proof. He has to prove a negative: that the reason she didn’t bleed on the wedding consummation is not because she was unfaithful or raped during the betrothal period, and not because he had sexual intercourse with her before the wedding, and not because her hymen was ruptured by wood and not because she was not a woman who didn’t bleed on her first intercourse (see Mishnah Ketubot 1). The case law either gives the man an impossible capital case, or it gives him a very difficult civil case for special divorce. This porneia case was so exceptional and narrow that Mark and Luke and Paul don’t even mention it, only Matthew does in the exception clause in Mat. 5:32 and 19:9.
So, you are right that marriage was dissoluable under the law of Moses, but this simply didn’t apply when the marriage was ratified by the wedding and consummated, and when it had been entered without any virginity fraud on the wife’s part (or where the virginity fraud could not be proved or where the man allowed the remedy to lapse). The references to divorced women and to divorces that were allowed does nothing to permit or to make effective the separation of those God has joined together as one flesh till death.
Hi David. Thank you for your interest in my writing. I see you have left multiple comments on my posts today. Your depth of interest makes me curious who you are, how you found my blog, and why you consider it worthy of such prolonged engagement. If you care to introduce yourself, I’d be happy to “meet” you.
I’m not sure I’ll have time to respond to all your comments, but I will at least begin here with this first one you wrote.
First I thank you for alerting me to the possibility that the marriage of the captive wife in Deuteronomy 21:14 may not have been consummated prior to the point where the husband decides he does not delight in her and is commanded to release her. The text is indeed somewhat unclear in that regard. I checked several commentaries. A couple assumed the marriage was indeed consummated at this point, while one indicated it may or may not have been.
That said, the text certainly does not say the marriage was *not* consummated at this point, and some translations clearly assume it was. (For example, here is the Christian Standard Bible: “After that, you may have sexual relations with her and be her husband, and she will be your wife. Then if you are not satisfied with her, you are to let her go…”). In addition, I see no reason in the immediate context to assume that the command about releasing the wife would *not* apply after consummation. After all, the reason for the command is that the man has “humiliated” his wife. That same term appears a couple other times in the law of Moses in contexts where consummation has indeed taken place (Deut. 22:24, 29; cf. Gen. 34:2). So I don’t see any basis in this text for assuming the release did not include full divorce situations after a consummated marriage.
As for Deuteronomy 24:1-4, I frankly don’t recall ever hearing before the suggestion that it refers only to divorces during betrothal. I don’t know of anyone from ancient history or current scholarship who shares this view, and it certainly wasn’t assumed by either Jesus or the Pharisees during their debate. Quite frankly, I find it unbelievable.
Regarding the restrictions on divorce in Deuteronomy 22, it does indeed appear they were given for these specific circumstances and did not apply to all marriages. The divorce restriction was given, like the whipping and the fine and the requirement of marriage in the first place, because the man “has brought a bad name upon a virgin of Israel” (Deut. 22:19). In other marriage situations, as Jesus said, Moses “allowed… divorce,” whether before or after consummation.
I appreciate your desire to protect marriage, and I certainly do not want to encourage people to break their marriage covenants. I am very happy to affirm you on that point of shared concern. God bless!
Dear Dwight Gingrich,
I am pleased to meet you and I have appreciated your style and approach to the topic.
I was looking for something very specific the other day and I googled “logos porneia” and I found a very small number of results, one of which was a comment from someone else on your post, and none of which was what I was looking for.
I found your posts to be helpful and well structured and logical and yet troubled by the same issues and assumptions I see both from the likes of Instone-Brewer on the one side, and from the likes of Kuruvilla on the other. At the urging of Matthew Milioni I purchased Heth and Wenham’s book as he said it best represented and explained and defended their position. It was one of the most tortured and confused books on the subject I have ever read. So, let me say that I am a fan of Kuruvilla and Milioni on so many things but when we get into the actual details of the divorce and remarriage issue they seem to come close to the right outcomes but get there from the confused approach that has defined Christian analysis of the issue since very early on. By way of further introduction of myself, I have a keen interest in both economics and law, and I have done a degree in business analysis that I finished in 2009 and this year I started a law degree. Accordingly, I do not apologise for seeking to understand the ANE legal materials and the gospels from a legal perspective and with the aid of financial analysis. I have for many years been totally exasperated by the legal ignorance of Instone-Brewer in, for example, arguing that if a marriage contract involves obligation x, then breach of x necessarily provides a remedy for the non-breaching party to cancel the contract. Any basic understanding of contract law draws distinctions between primary obligations, and secondary obligations or remedies that arise when primary obligations are breached, and the optionality of the parties to bargain for both primary and secondary obligations/remedies. Also, the amenity of secondary obligations and remedies to be regulated by law for policy reasons.
I feel that the approach you have taken and perhaps the destination you may have come to is quite understandable, in response to the confusion that characterises those who take a more “strict” approach.
Rather than have two confused sides, I hope to set that confusion right, however vain that hope might be. Perhaps engaging with you and your readers might spark some of the necessary insight or fill in the gaps that resolve the apparently conflicting statements and claims.
May I suggest that the best analysis of Deut. 21:10-14 is the contrast between verses 13 and 14, taken within the context of the elements of a betrothal. If you look carefully at the terminology in the case we have all the same elements of a betrothal: 1. “taking” the woman as wife, 2. bringing her in his (legal) “house” and 3. no consummation until after that period closes. Given the legal and social function of the betrothal period to test the seriousness of the interests of the parties to go ahead with the wedding and consummation, and the avenue of general divorce should that seriousness fail, the loss of interest of the man in the woman should be determined within that period.
The high ideals of the case should also be apparent, and the author can be accused of being idealistic and unrealistic. Many scholars seem to assume that the women in Ex. 21: 7-11 and in this case are, or are to be, slave wives. This is a rather low reading, and far from idealistic. The better reading is that by marriage the women are elevated to become free woman wives (potentially even having wealth and inheritance of their own, like a daughter of a wealthy man per Ex. 21:9). The woman does not serve for six years when she marries because marriage is for life, and by marriage she gains either direct freedom (by marriage to the master’s son) or deferred freedom (via marriage to a male slave who goes free after 6 years and then his labour along with hers goes towards her freedom if he keeps working for the same master, see Ex. 21:2-4 and compare Deut. 15:12). In the same way, in this case, the woman goes free if the man decides not to go ahead with the marriage. If he goes ahead with the marriage, should we not read the case as giving her the status of a free wife? And, as a free wife, should she not be afforded the same security and protection and status as any confirmed wife in Israel?
The humiliation of a woman is normally taking her virginity without a marriage contract. So, there may be some reason for thinking that this is what is referred to in this text. However, the shaving of the hair, as far as I understand, is recognised as a humiliation itself. The woman’s situation of being taken as wife and then rejected is itself humiliation and defilement, even if he does not have sexual intercourse with her. So, there seems to be enough humiliation in the case to make compensating her with her freedom, without needing to read something else into the case.
Hi again, David. As I promised, I want to respond at least here to this comment yet. Thanks much for introducing yourself! Your introduction definitely helps me better understand your approach to the divorce and remarriage topic.
I identify with you in some important ways. I definitely have respect for Milioni and Kuruvilla, even though I disagree with them on this topic. And I, too, think that the Heth/Wenham book is convoluted in its structure, from a merely literary perspective, as well as tendentious in some of its claims. Simply put, it’s not fun to read, even though it is important to engage. (Andrew Cornes has written a better book from a similar perspective.)
Your background in legal and financial training definitely helps you focus on different things in the text than what I naturally focus on. I have a B. A. in English Literature, so I tend to focus on the literary and historical features of the text.
I think, in fact, that this is symbolic of a key difference in our positions on divorce and remarriage. If I’m reading you rightly, a foundational point for you is Jesus’ statement that a man who marries a divorced woman commits adultery. I’ve seen you (reasonably) mention that several times in passing while we’ve debated OT texts. If I’m understanding you rightly, I think you are taking that statement of Jesus as a legal pronouncement–an A = B without exceptions.
I, on the other hand, have concluded that it is more faithful to Jesus’ way of teaching to take that statement as a prophetic pronouncement rather than a legal statement. For reasons I won’t take time to explain here (maybe a future post?), I’ve become convinced that we are on pretty shaky ground to claim that every man *without exception* who marries a divorced woman commits adultery. Rather, I think Jesus was saying something that (a) was generally true of the Pharisees who practiced illegitimate any-cause divorce and (b) was designed to shock his listeners into examining their hearts–“Am I actually committing adultery, even though I though I had fulfilled all my legal divorce duties?” In other words, my sense of literary genre leads me to read Jesus words as something other than straight-up law.
Please forgive me if I’m misconstruing your approach here; I’m just considering how our different training may affect our approach to Jesus’ words and the divorce and remarriage topic in general.
I’ll quickly look at some of your other comments and see if I wish to leave brief responses, but I’d like to wind down our conversation in this format and return my focus to continued blog writing as I have time and energy. Thanks again for your interest–and especially for introducing yourself here. Perhaps someday we’ll be blessed to meet! Grace and peace to you.
Dear Dwight Gingrich,
Thank you for taking the time to respond again. I think you are correct to take , or at least to consider taking, a “prophetic” approach to looking at the gospel sayings, although it requires more care than trying to take these things as more plain legal rulings.
I have a lot of respect for the Followers of the Way crowd for taking the commands of the Lord seriously and in a straightforward way, and feel they are probably to be commended for erring, if at all, on the side of being too plain and straightforward in interpretation and application. In my tradition and in the practice of the church I (seldom anymore) attend, we go the other way and we don’t do hardly anything commanded or exhorted, except in the most indirect and light manner, an approach that is unengaging and falls short.
Anyone who takes a legal analysis approach seems to get to this position: The Lord condemned at least some divorces, and ruled that some divorces don’t work, and the adultery result depends on the divorced marriage still being in force while the new marriage and/or sexual intercourse is happening. This approach is taken by, for example, Wenham and Heth, Instone-Brewer and Keener, authors who have quite different interpretations and applications.
The approach of claiming that the conditions for the adultery ruling are unqualified is the wrong one. Everyone qualifies at least some of the terms in the equation: divorce + remarriage = adultery. The most obvious qualifications are for betrothal-period divorces and for remarriage when the former spouse died before the remarriage. The more full expression of the ruling should be this:
(qualified) marriage + (qualified) divorce + (qualified) remarriage = adultery.
We could call the disqualified marriages, divorces and remarriages “exceptions” to the legal rule.
Our problem is that the qualifications and exceptions are largely unstated, and this makes some people uncomfortable to acknowledge. The rule *sounds* broad in its application and implication, and there is much in favour of taking it broadly. But we do ourselves no favours if we claim that the rule is absolute and universal, at the expense of the qualifications, including the one (sometimes) given explicitly (Mat. 5:32; 19:9). An honest approach to the problem is that we should agree there are qualifications and that our task is to reasonably identify them and justify them and apply them wisely.
Instone-Brewer claims that the hardness of heart is a prophetic condemnation of the Pharisees and of Israel for being hard-hearted towards YHWH and is based on Jer. 3. Others take the coming judgement upon Israel as an impending (second?) divorce, and take the scroll of Rev. 5 to be a divorce certificate for YHWH divorcing and judging Israel (or just Judah?) (e.g. Ken Gentry).
I think that is misreading the data on Israel’s hardness of heart and her divorce by YHWH. I read the story as follows: YHWH was betrothed to the whole house of Israel at Mt Sinai under the covenant and the sign of the covenant was the Sabbath. The covenant was a conditional covenant: if Israel would comply with the covenant conditions, she would enter her Sabbath rest, by means of her attaining her fate and her destiny, to bless all the nations and being secure and free from invasion in the promised land. But if she would break the covenant, she would suffer the curses of the covenant, and she would not enter her Sabbath rest (e.g. Deut. 28). Instead, she would be invaded and she would labour in vain, foreigners would take the crops she had laboured to sow and to till, and she would be vomited from the land and go into exile. Israel received the land, or at least a lease of the land, as a betrothal gift, as YHWH’s contribution to the marriage, along with other betrothal gifts and betrothal period gifts of jewellery and food and supplies and population growth, to prepare her for her wedding feast and the consummation of her marriage. Israel, however, rejected her husband and wanted to have a king and to be like the other nations, and she shared her supplies with foreign gods and committed adultery and prostitution with them (e.g. Ez. 16). YHWH tried, again and again, to woo her back, to repair his troubled marriage to Israel, but she would not respond, or her responses were inadequate and/or short-lived. The bride split into two brides, Israel and Judah. Israel was the first divorced, in the Assyrian exile (Hos. 2:2. Jer. 3:8) Judah’s case is more ambiguous: was it a divorce, or a period of separation? It seems slightly better to say it was a divorce. But YHWH’s love for and purpose with Israel was not lost. He promised to betroth her to himself a second time (Hos. 2) under the new covenant. He promised her that, in the second betrothal, he would bring her all the way to make her a pure bride, and to celebrate with her the great wedding feast of Is. 25:6-8. She would enter her Sabbath rest, the rest she failed to enter under the old covenant (Heb. 4). Yet, at this wedding feast, Israel would also be judged and killed (Is. 65:13-15; Mat. 8:10-12; 22:1-13; Rev. 19:1-9).
The judgement and the salvation of Israel are events that happen at or around the same time. Israel in her last days, after Antiochus Epiphanes is forced out (Dan. 11:32), is divided into two groups: the wise and the foolish (Dan. 11:33-35), the iron and the clay (Dan. 2:33), the wheat and the tares (Mat. 13:24-30). These two groups co-exist “until the time of the end, for it still awaits the appointed time” (Dan. 11:35) when the harvest takes place at the end of the age (Mat. 13:39 cf. Is. 27:12-14). The refining of the wise, makes them a pure bride. At the time of the end, we have these two groups arising: some to eternal life, others to shame and contempt (Dan. 12:1-3). The pure bride arises and brings the gospel to the nations (Dan. 12:3; Mat. 13:43) but the rising up of the foolish in rebellion leads to “the power of the holy people” being completely shattered (Dan. 12:7), as Israel — the foolish Israel — becomes the brittle statute of iron and clay to be totally shattered by the kingdom of God (Dan. 2) and a monster under rebel leadership to be killed by the Son of Man coming on the clouds (Dan 7) and desolating and destroying Jerusalem and Israel by rebellion and war in which the Second Temple is destroyed (Dan. 9:24-27). This group of wise and foolish are to attend the wedding, but the foolish miss out on the wedding (Is. 65:13-15; Mat. 8:10-12; 25:1-13). The new bride, however, is pure and a virgin bride (2 Cor. 11:2), and she does enter the Sabbath rest she was promised (Mat. 11:28-30; Heb. 4:9; Rev. 21:2-4).
I am not sure what prophetic content you see in the Lord’s divorce teachings, so I would be interested to read your thoughts on it.
Dear Dwight Gingrich,
I recently purchased and read Craig Keener’s book “and marries another” and his main technique is to focus on the literary and cultural context, and to compare the divorce saying in the Sermon on the Mount to the sayings on lust and anger nearby. Although I don’t think he says that the texts should be read in a “prophetic” way, I think it seems to be something like that, something like you have suggested: a challenge to assumptions and behaviour rather than legal dicta or legal code.
I have found it interesting to look through the Sermon on the Mount for eschatological statements and images, as this is not normally done, and I feel relevant material that is helpful to the interpretation is being overlooked. For example, the foolish builders who build on the sand and whose house falls, in the judgement of wind and flood — and the house that endures the flood and stands forever, in Mat. 7:24-27. It would seem difficult not to identify the foolish builders with the fools who heard the gospel in Israel but did not accept it, and who, as a result, suffered their house to be left to them desolate (Mat. 23:38). The house that is divided and falls, the house that falls by means of the wind of Dan. 2:35 and the flood of Dan. 9:26 is the sanctuary, the house of Israel, the Second Temple.
Keener’s approach, however, fails to deliver on what he promised. Not only does he never give any eschatological or symbolic meanings for the divorce sayings, he also seems to miss the opportunity to develop the cultural context and meanings of the statements on anger and lust.
The statement on anger is quite complex, in my view. The topics addressed include a) murder, b) the judgement of murder, and c) the use of the legal system by the powerful and the well-connected. These issues may not appear to be connected, but they are. Murder is a crime that is so serious that the death penalty seems to be just and deserved. The Law of Moses so prescribes it. But the law of Moses also prescribes restrictions on the death penalty, which take the power of death away from the legal, judicial and political system. The two eyewitnesses rule and the other rules, both original and those added by the sages and teachers, put the death penalty out of reach. So opposed were the Lord’s contemporaries to the death penalty some of them said: “A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Since the Sanhedrin would subject the testimony to exacting scrutiny, it was extremely rare for a defendant to be executed. Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed. Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed.” (Mishnah Makkot 1:10).
Yet, these same people were clamouring to put the Lord to death, not for murder but for his angry words calling them names. They would hand him over to the Romans as a rebel, to be crucified, and then his body would be in danger of dishonourable disposal in Gehenna. The powerful and the well-connected would use the legal system to suppress angry, insulting or challenging words, by the pursuit of money damages, and even by resort to the death penalty. The warning against angry words, then, functions not so much as a prohibition of the conduct, but a condemnation of this type and use of legal remedies: it is symptomatic of the kind of legal and political power that should not be allowed to exist. It is largely a barb against his enemies rather than an instruction on how we should live. The prudential exhortation is not really a moral judgement.
But, when we get to the topic of adultery and looking at (or for?) a woman (a wife?), the placement of the saying immediately before the divorce saying, which also refers to adultery, suggests that the Lord’s concern from Mat. 5:27-32 is divorce and remarriage, rather than “lust” as a separate topic. The command against adultery functions for what purpose other than to uphold the institution of marriage? As the command against coveting serves to uphold the institution of property, so the command against adultery serves to uphold the institution of marriage. But a man’s right to be the husband of his wife is his property, so that should not be coveted, either. He has the right to be her wife, not you. To look at a woman with desire should normally be understood as looking to take her either as wife, or as if she was your wife.
The condemnation “committed adultery” makes the mere looking at a woman to have to be, or as if she was, your wife, equal to, or at least comparable to, actually taking her. But, this is the same thing that is happening in Mat. 5:32 where a man “marries” a divorced woman. The “marriage” step should proceed the sexual intercourse, yet the Lord identifies the triggering event as the marriage rather than the sexual relations — it could be argued. The adultery in Mat. 5:32 is as inchoate as the looking in Mat. 5:28, it could be argued. In the ruling “everyone who divorces his wife, except on the law of prostitution, makes her commit adultery” again refers to one act, divorce, as being equal to another act: causing her to commit adultery. The context can therefore be argued to be consistently about inchoate offences, and offences of causation and responsibility for the acts of others.
In the same way, Mat. 5:29-30 can be understood as inchoate offences and offences of causation and responsibility for the acts done later or done by others. The right eye is the seer of the body, the leader who sees, the one who has the knowledge of good and evil, and the wisdom of what to do about it. The right eye is the elders and judges of the body of the community. These esteemed and knowledgable members of the body cause the sin of adultery by approving the divorces and remarriages of those God has joined to someone else (and by devouring the “houses” (i.e. estates) of “widows” (which included divorced women) (Mark 12:40) apparently by finding fault with them and thereby taking away the liquidated damages entitlements in their marriage contracts payable on breach by the husband by divorce, which left them in such a poor financial condition that they needed to become the wife of another man to survive. Relief from such contractual obligations to pay likewise financially enables the man to do the divorce and to afford to remarry. Likewise, the right hand is the powerful part of the body, and to sit at the right hand is to sit in a position of political power in the community. These powerful ones in the community are responsible for the acts of the community members that they execute or uphold with their power. The whole body of Israel was destined to be cast into Gehenna, yet the Lord ruled it was better for those leaders, those body members, to be cut out of the body to save Israel from destruction. And in the body of Christ, it is better to cut out leaders to lead the people to sin than it is for the body to become corrupted and sick.
In summary, the adultery teaching from Mat. 5:27-32 should be treated as a unit dealing with one subject: ways in which adultery is happening in the community through the acts of not just those committing adultery, but by those who are otherwise involved in the process of causing or approving it, mainly by a) looking for another wife and b) divorcing one’s current wife, and c) marrying another wife.
Another interesting possibility is that the only other biblical text similar to Mat. 5:28 is Job 31:1 where he refers to making a covenant with (or concerning) his eyes, that he will not look for a virgin. The language of looking for a virgin invariably means looking for a wife, and of course, it is desirable for a man to marry a virgin woman. The covenant that he refers to may be his marriage covenant with his existing wife: it is frequent for marriage contracts to prohibit the man from taking another wife.
The unbelievable thing is not that Deut. 24:1-4 only refers to divorce during the betrothal period, but that could possibly refer to post-wedding divorce.
I think if we know anything about the ANE cultural context and the Torah is that wives have some (or even a lot) of security against divorce AFTER the betrothal period, but none during it.
For example, the laws of Hammurabi, law 148, prohibits a man from divorcing his wife if she falls sick. If she falls sick during the betrothal period, I don’t think anyone would dream that this law applied. And law 159 provides that if a man pays the bride-price but then decides he doesn’t want the bride and he looks for another wife, the father gets to keep the bride price — does anyone suppose this is not talking about the betrothal period? These laws simply assume that the reader can figure out whether it is during the betrothal period or after the wedding/consummation, and they can figure it out because the legal and financial terms belong in either one context or the other. The two periods and statuses are so different that specification is often unnecessary.
In the same way, we should be able to figure out the betrothal period context for the divorces taking place because she does not find favour in his eyes because he found something repulsive about her, or simply because he hates her, in both cases with no specific grounds stated, none proven, and no court procedure involved at all. He just gives her a notice and that, by itself, terminates the marriage.
Much of the Jewish analysis of the case comes to the position that it shows that the man had an absolute right to divorce, and it is easy to see why. This is true — but only during the betrothal period.
There is a world of difference between: if a man takes a woman, and goes into her, and then hates her (Deut. 22:13) and if a man takes a woman and marries her [and then hates her] (Deut. 24:1). In the first case, the marriage has gone past the betrothal period, in the second it has not. I think people get mixed up partly because we have redefined the beginning of the marriage as the wedding rather than the betrothal because of the doctrine of the indissolubility of “marriage.” If marriages are indissoluble by policy and definition, we have to define marriage as starting later. And then we have to re-define divorce from the dissolution of a “marriage” (original definition) to the dissolution of a “marriage” new definition, so that breaking off a betrothal — the most common and normal divorce — is now not really divorce because no marriage is recognised anymore. The more ancient and correct position is that a marriage begins at betrothal and is dissoluble during the betrothal period but gains any protected status after the wedding (and/or consummation). People are also tripped up by the “house” terminology and think it means the family home where the spouses live after the wedding rather than the legal estate of the new couple which begins at the betrothal.
David, you are asking me to believe your analysis and understanding of ANE culture and Jewish law above that of every other scholar I’ve read, and above that of first century Jews.
As to ANE divorce practice, Gordon Wenham (Jesus, Divorce, and Remarriage: In Their Historical Setting) says that “though in Babylon and Israel they did not hold to the indissolubility of marriage, the social ramifications of marriage and divorce made it very difficult to walk out of a Babylonian marriage… A divorce for any cause was always possible,” but always came with financial costs (p. 16).
He surveys divorce in the patriarchal period, during the exile, and at Elephantine, and believes that Deuteronomy 24 is discussing divorce post-consummation (as does every other scholar I’ve read).
I don’t see much point debating further if we can’t agree on such a basic point, but I am curious about how you understand Jesus’ words. He said “Moses allowed you to divorce your wives, but from the beginning it was not so.”
What sort of divorce did Jesus believe Moses allowed? Only divorce during a betrothal period, or also after consummation?
If only the former, why didn’t Jesus just say that? That would have thoroughly shut down the Pharisees’ arguments in favor of any-reason divorce after consummation.
I’ll sign off here and, given how many people have been reaching out to me on this topic and how you represent a view that I haven’t found in anyone else (scholar or personal contact), I may not have time for more discussion. Peace to you.
As far as I know, virtually all scholars think two things about the divorces in Deut. 24:1-4 that I think are both correct and powerful:
First, everyone seems to agree that the divorce procedure and law in Deut. 24:1-4 applies to betrothal period divorces.
Second, almost everyone believes that the law in Deut. 24:1-4 was not given to invent, institute or restrict divorce. Although there is some debate on the grounds for the first divorce, everyone seems to accept that the second divorce is groundless in that the husband doesn’t specify a ground and prove a ground to divorce the woman again. I think interpreters agree that the law was instituted to do something other than restricting divorces, although what it was doing and why no one agrees about.
So I am not asking you to believe anything other than what everyone else believes.
I am asking you to not believe what the text doesn’t refer to: the ratification of the marriage by the wedding ceremony and the consummation by sexual intercourse, and the existence of any children of the marriage as a result, whose custody and status would need to be dealt with if the divorces were happening after they were conceived or born.
It doesn’t make any sense for the institution and the procedure for divorce not to be affected by the wedding ceremony and the consummation of the marriage by sexual intercourse. Why have a betrothal period and why have a wedding ceremony and why delay the consummation by sexual intercourse if it has no legal effect on the security of the wife? Since the man has paid the bride price, why should he delay enjoying the goods and making babies?
The betrothing of a wife and the failure to celebrate the wedding and consummate the marriage is a tragedy, a curse. If there is a war the man should be exempt from service for one year — the traditional betrothal period — lest he die in battle and then another man take his wife and the other man be the one to celebrate a wedding to her and consummate a marriage with her instead (Deut. 20:7).
Why would a man make himself liable for a curse by waiting and why would a wife wait? Why would a man and his wife and their families spend so much money on the wedding ceremony if it doesn’t really do anything, in terms of securing the bond and the status of the parties with each other and in society?
Even if you are right that “hold fast” and “one flesh” do not mean that the relationship is absolutely secure from divorce, surely some legal commitment is suggested by these terms? The Lord seemed to think so. At what point does said legal commitment and family-like status commence if not when the marriage is ratified by the wedding ceremony? Do you think it commences from the time of the betrothal? Do you think Deut. 24:1-4 somehow restricts divorce during the betrothal period simply by requiring the husband to write a notice out and hand it to his wife?
With all due respect to Wenham, I don’t think he is reading Deut. 24:1-4 correctly. His view seems to be that divorce was difficult and infrequent and that the marriage contract gave some security to the wife — all of which are correct only after the wedding. Was the payment of the large amount specified in the marriage contract the only difficulty with post-wedding divorce? I don’t think that is the correct reading of the context of a) the law and b) the marriage contract structuring. I think the correct reading is that the wedding does something in the legal context to secure the marriage from divorce, and that the marriage contract provides a supplementary provision protecting the wife from post-wedding divorce that amounted to breaching the contract — and the law. The Elephantine marriage contracts have two separate provisions, one for oral divorce on no grounds. The spouses just stand up in the assembly and say “I hate my wife” or “I hate my husband” and that, by itself, terminated the marriage, the goods brought into the marriage go back to the parties who brought them in, less a break fee of 7.5 shekels for the initiating party (as far as I read the contract). However, if the husband evicts the wife from his “house” he has to pay 200 shekels and to do according to the marriage contract. It does not make sense that a husband would thus “evict” the wife from his house if he could be rid of her by standing up in the assembly and saying “I hate my wife” and paying only less than 4% of the price for “evicting” her. I think that the contract is referring to two different things: betrothal divorce, by oral declaration in the assembly — which was legal, and was socially acceptable and for which only a small break fee was payable — and post-wedding breach by eviction, which was illegal and socially unacceptable and for which the contract merely provided a liquidated damages amount. Provision of a liquidated damages amount does not mean that the liable party is entitled to breach the contract, nor that the contract necessarily comes to an end if the relevant breach occurs. The wronged party may be entitled to an order from the court declaring the other party to be in breach, and ordering the breach to cease and ordering the breaching party to restart performance of the contract either in addition to an order for liquidated damages or in lieu of it. That said, perhaps in practice many marriages were saved by the existence of the liquidated damages clause and few were saved or restored when the clause was enforced by an order of the court to pay money, but that is not to be treated as a failure of the clause to powerfully secure the wife’s interests in the marriage and the security of marriage.
The rules on the security of the wife’s status after the wedding historically probably did evolve, and the security that the Torah provides may have been somewhat idealistic and not always realised in practice. The same thing can be said for monogyny. Just because some or many wives did not actually enjoy the security after the wedding that they should have, doesn’t mean that the Torah didn’t teach, directly and indirectly, that they should have more security or even perfect security.
If everyone agrees that the law in Deut. 24:1-4 is neither instituting nor restricting divorce, I think my theory about what it is doing is as worthy of consideration as anyone else’s.
Hi again, David. My time for discussion here is limited, but a few comments. You wrote, “I am not asking you to believe anything other than what everyone else believes.” Actually, you are. Again, I have not encountered any scholar who thinks that Deuteronomy 24:1-4 is dealing *only* with divorces initiated during a betrothal period and not also (and primarily) with divorces initiated after consummation. I think it would be helpful for you to be honest on that point.
You asked what I think the significance is of the terms “one flesh” and “hold fast.” Among other things, I think these terms signify a covenant relationship. I suspect we agree on that, but then disagree on whether a marriage covenant can be broken in such a way that the other party is no longer bound by the requirements of the covenant.
Thank you much for your other comment of personal introduction. When I have a moment, I’ll plan to respond there, too. Blessings!
I am not asking you to believe that Deut. 24:1-4 applies to cases that others do not believe it applies to, I am asking you not to believe that it applies to some cases that others believe it may apply to.
At worse, I am making an argument from silence: the text doesn’t state that the spouses have not consummated their marriage by sexual intercourse, and it does not say that they have not ratified their marriage by means of the wedding ceremony.
I think that is an honest and correct summary of what I am asking and where I fit within the positions and opinions of others on Deut. 24:1-4.
And I have given many arguments, other than arguments from silence, in support.
Do you include in your “among others” that “one flesh” means one family? Do you think this has any bearing on the security of the status of a person who is “one flesh” with the other?
Does the “hold fast” requirement indicate a special duty of loyalty? Or does it only indicate an ordinary duty under a covenant or contract? Do you think it has any bearing on the security of the status of a person who is owed a “hold fast” duty of loyalty?
What do you mean by a “covenant relationship”? Does it differ from a contractual relationship?
I don’t have any problem with the “marriage covenant” being able to be broken and releasing the parties from further obligations of performance under some circumstances. I just think that such release before death is restricted by law and by policy in cases where the marriage covenant is lawful and in effect and has been ratified and consummated. My position here is not novel. It seems to be and to have been the most commonly held position in Christian history, and a position still held by the largest Christian denomination in existence today, the Roman Catholic Church. And it was the original and traditional position of the Church of England too. And that position is explicitly based on conditions and requirements not specified in Deut. 24:1-4. Perhaps it is novel to notice this disconnect, but it shouldn’t be.
What, then, is my theory of what Deut. 24:1-4 is doing and why? And what did the Lord mean when he addressed it as an objection?
Moses gave this law for hardness of heart, just as the Lord said. He permitted them to divorce their wives in this law, yes. But, in the context, this concession should not be read as violating the qualification of “those God has joined together” as “one flesh” that no man may separate.
I think it is generally accepted that “hardness of heart” is not identical to “unlawful” or “sinful.” Rather, the term refers to stubbornness, refusal to change one’s mind. If one’s mind is made up to do something unlawful, then one should change it, but that is not the only reason for someone to change their mind. They can or should change their mind if that is prudent or wise or good, as well.
The conduct of divorcing the woman twice in Deut. 24:1-4 is not presented, either by the Lord or by Moses as unlawful, nor ineffective. In fact, Matthew states that Joseph intended to divorce Mary, during the betrothal period, apparently in reliance on Deut. 24:1-4, and was said to be a just (i.e. law-abiding) man in this. Furthermore, in a context of debate over the Torah and its teaching and application, it seems better for the Lord to win the debate by any method other than saying Moses was wrong.
So, what was the hardness of heart? Was the wife stubbornly breaching the marriage contract? Was the husband stubbornly finding fault with the woman? Was the man stubbornly pursuing divorce? Was he stubbornly pursuing her to get her back after the divorce?
I think the most appropriate stubbornness is the man’s stubbornness in rejecting the woman when the problem emerged. He took a woman and married her. Then he found something wrong with her. Rather than resolve it with her, rather than overlook it or forgive her, or attempt to renegotiate the marriage contract, he divorces her. Now she is free to marry another man. But she is not forbidden to him: he can re-negotiate a new marriage contract and marry her again, after having resolved the problem that happened before. But it appears that he fails, and it appears this is because he is stubborn and won’t change his mind about her. So she marries someone else. The new husband discovers the same defect or something else happens and he too divorces her. Or he gets run over by an ox and dies. Now she is free again to marry who she likes. At this point, the law steps in and prohibits her to her first husband, but not to a third. In what sense is this law addressing stubbornness? I think the stubbornness is the man’s refusal to resolve things with her before he divorced her. That stubbornness continues in the case when he fails to remarry her before she marries someone else.
We know what the law is doing quite well. But the reason is more difficult to determine. The woman is defiled, in my view, by the first divorce. Although he did it quietly and didn’t give her a bad name by defaming her, she is tarnished nevertheless simply by the fact of being divorced, even if she never had sexual intercourse with him or anyone else. She is forbidden to marry a priest simply by the fact of being divorced, even if she is still a virgin. Or, alternatively, her “virgin” social and legal status is lost, regardless of whether she ever had sexual intercourse with a man. Mishnah Ketubot 1 states that she is not subject to virginity claims after being divorced. Somehow, this law protects the defiled woman and it protects the land from some kind of defilement as well, in how men deal with these defiled women. They may not be passed back and forward, but they can keep going forward.
I am not sure why the Lord wasn’t seen as sidestepping the objection rather than depreciating Moses. The Lord’s position is the same as that of modern commentators, for the most part: the law in Deut. 24:1-4 is not restricting divorce but it is doing something else. If there are other reasons for restricting divorce, in different circumstances, this law isn’t a good objection. The Lord provides those other reasons from the Torah, and Deut. 24:1-4 doesn’t stand in the way and it doesn’t override the restrictions on divorce when they apply: when her husband must hold fast to her and be one flesh with her because God has joined the two together as a durable male-female pair.
Perhaps another aspect of the problem is instructive to show that the two cases and situations should not overlap. If a man takes a woman and marries her, and goes into her, and if God joins the two together as one flesh, but then he hates her, and divorces her, and she marries another man, the Lord rules that his divorce didn’t work and that his second marriage is adulterous. The second husband then dies. Is she then allowed to remarry her first husband? According to the Lord’s ruling, not only may she remarry him, she is still really married to him, and he commits adultery against her if he marries someone else, and she commits adultery against him if she marries someone else. The inescapable answer is that they can and should restore their marriage and they cannot be prohibited to each other. But this contradicts Deut. 24:1-4 if any only if Deut. 24:1-4 applies to post-wedding divorce.
Another point about the relationship between the teaching and the objection is that the objection is not seen by the Lord or the writer Matthew as being significant in terms of scope. The anti-divorce teaching remains of wide scope. The qualification of “what God has joined together” appears to encompass the marriages that have completed the normal marriage process of leaving father and mother and holding fast to the wife. The exception for “porneia” is so narrow that Mark and Luke never mention it, and if we know the Torah and where to find the porneia case we can see that is is a heavily restricted and rare scenario.
If, therefore, the restriction on divorce is broad in scope, if Deut. 24:1-4 does not apply, then the most natural inference is that the scope of Deut. 24:1-4 is narrow. But, on its face, Deut. 24:1-4 is broad and covers the scenario when a man “takes” a wife and “marries” her. These two step happen to almost all marriages. However, the next steps of the wedding ceremony and the consummation by sexual intercourse is not stated to have happened in the case. And there are no children of the marriage in the picture, either. The natural scope restriction in the case is therefore to restrict its application to marriages which have the explicitly stated steps but not the unstated ones.
Regarding the divorce restrictions in Deut. 22 there are very good reasons for understanding that they apply to all wives after the wedding (and/or consummation) of a marriage. This is easiest to see in the seduction case: the woman “forgot” to negotiate the marriage contract for whatever reason and the law has to grant her a remedial marriage contract (or at least an option to one). But what terms are the minimum terms for such a marriage contract after consummation? The law provides the minimum terms: bride price and wife status which also means no divorce as long as her husband lives. These minimum terms apply to everyone after the wedding and consummation as a matter of policy.
The slandered bride case has two different things going on. The giving of the woman a bad name is only one of the two things. This is a wrong recognised and taught to be wrong by the law, and this applies regardless of whether it is a post-wedding situation, or a betrothal period situation. Joseph applied this law to his own case for betrothal divorce in Mat. 1:18-19 even though the case it appears in is a post-wedding case.
The other thing going on in the case is the attempt to dissolve a marriage after the wedding and after the wedding consummation. The reason for his charge is in large part an attempt to obtain the remedy of special divorce. The fact that he is attempting this charge shows that this is his only option: there is no general divorce option left to him; that was closed when he ratified his marriage to her at the wedding ceremony and consummated his marriage by sexual intercourse. The law closes down this troublesome dynamic in two ways. Firstly, if he gives her a bad name rather than quietly filing in court, he gets a capital case he can never win, which means his special divorce remedy is also lost to him (and he gets flogged and pays a huge amount in damages). But, the case also addresses what the man has to prove, whether to the capital or civil standard. The wife’s apparent non-virginity at the time of the wedding consummation is insufficient. He has to prove something very difficult: that she was “whoring in her father’s house” i.e. before the betrothal, and was then wrongly passed off to him as a virgin at the time of betrothal. But if he doesn’t give her a bad name, and if he fails in his civil claim, what should be the result? The flogging and the damages seem to be appropriate for giving her a bad name only. But the failure of his filing for special divorce leaves gives the same result on the other two closely related issues: since there was no fraud found, the marriage is both valid and confirmed, so “she is his [confirmed] woman” and therefore “he may not divorce her all of his days” in that case too. But, if there is no ground for a virginity claim and or no claim is made, then the same result still applies: the marriage is both valid and confirmed, so “she is his [confirmed] woman” and therefore “he may not divorce her all of his days.”
Ultimately, this second case is about the wedding ceremony and the wedding consummation DOING something. Weddings are expensive and you can only lose your virginity once. Why would people make a big thing about it if it does nothing? That something is to declare and confirm the status of the wife and of the marriage, and to close off later repudiation of that status.