Divorce and the Law

This article considers the topic of divorce and remarriage based on Old Testament passages.

(Deu 24:1) When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her: then let him write her a bill of divorcement, and give it in her hand, and send her out of his house.

In the verse above, the phrase "some uncleanness" is the translation of a phrase that literally means "nakedness of a matter". This phrase appears again in De 23:14 in the context of exposing something that should be covered. Thus, the phrase "nakedness of a matter in her" would indicate a woman that has revealed something that was supposed to be covered. What she has revealed is in her, for we find the words "in her" in the phrase "nakedness of a matter in her". Thus, the fact that her husband "has found nakedness of a matter in her" indicates that her husband has found out that she has revealed something in her that should have been covered. In other words, somebody has known something in her that should have not been known. In the Old Testament, when we read that a man has known a woman, we read it in contexts such as "Adam knew Eve his wife; and she conceived" (Gen 4:1) or "Cain knew his wife; and she conceived" (Gen 4:17). We conclude that "nakedness of a matter in her" is about the woman revealing herself intimately to another man, that is, it describes adultery.

The law made a distinction between the cases in which an adulterous relationship was brought to light and the cases in which the evidence for adultery was missing or insufficient. If two were found committing adultery, they were to be stoned (De 22:22). If it was known that one has committed adultery with a woman both were to be stoned (Le 20:10). However, these two commandments did not cover every possible situation. Under certain circumstances one could have escaped in spite of adultery. If two witnesses of the offense were not available, the offenders could not be put to death (De 17:6). Moreover, the commandments did not say that only one of the offenders should be executed if the other could not be executed, such as if the adulterer was unknown. Neither was an investigation commanded if there was not sufficient evidence or one of the offenders was not known. If a man suspected that his wife has committed adultery, and the spirit of jealousy came on him, he had to apply the law of Num 5:12-31. However, note that the passage in Num 5:12-31 does not say that the woman was to be executed if the curse affected her. Now, if a man knew that his wife committed adultery but Le 20:10 and De 22:22 could not be applied, in view of De 24:1, he could consider divorce. We can conclude then that De 24:1 referred to cases involving adultery in which Le 20:10 and De 22:22 could not be applied.

Note that there are two ways in which De 24:1 has been translated. In the KJV and the Septuagint the final part of the verse is a command: "let him write her a bill of divorcement, and give it in her hand, and send her out of his house". On the other hand, most modern translations render the ending of De 24:1 in the following manner: "and if he writes her a certificate of divorce and gives it in her hand and sends her away from his house". Evidence for translating the ending of De 24:1 as a command can be found in Mt 19:7 in which the Pharisees said "Why did Moses then command to give a writing of divorcement, and to put her away?". Moreover, note also the teaching quoted in Mt 5:31 "Whosoever shall put away his wife, let him give her a writing of divorcement". The teaching quoted in Mt 5:31 indicates that the law was understood as requiring a certificate of divorce. This would fit De 24:1 only if the ending of De 24:1 was understood as a command.

Now, if the ending of De 24:1 is a command, does the verse require divorce in case of adultery? Let us note first that the command is preceded by the condition that "she find no favour in his eyes". Now, if she finds no favor in his eyes, he cannot look favorably on her living with him. Thus, De 24:1 is not a command to send her away but a command on how to send her away (namely, by giving her a certificate of divorce). As will be shown next, the verse does not command divorce in case of adultery, for it may be that a relationship can be restored. For example, see Hos 3:1.

(Deu 24:2)ESV and if she goes and becomes another man's wife,
(Deu 24:3) 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,
(Deu 24:4) 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.

The Hebrew word for "defiled" in De 24:4 comes from a frequent verb of the Old Testament that is used in various contexts. For example, it appears in the context of ceremonial uncleanness, such as when touching the carcass of an unclean animal, such as in Lev 11:27. The verb is also found in passages speaking about the defilement of a sacred place, such as in Ps 79:1. It is also used in verses speaking about defilement caused by sins, such as in Je 2:23 and Nu 35:34. It appears in other contexts as well. On its own, this verb does not imply a permanent or irreversible defilement, being found not only in passages speaking about lasting defilement (such as Lev 13:44) but also in passages dealing with temporary defilement (such as Lev 11:27). The defilement of sin does not have to be permanent, for the Lord can wash a person from all of it (Ps 51:2, 7). Now, De 24:4 addresses the case in which a woman had been defiled, regardless whether she was forgiven or she remained defiled. Indeed, in De 24:4 we do not read "being defiled" but "after she has been defiled". As for the nature of this defilement, it can be seen that this defilement is not the one caused by adultery. The Scripture mentions explicitly that a woman committing adultery is defiled by it (Num 5:14). However, De 24:4 does not speak against a man being reconciled to his divorced wife if she did not remarry. This indicates that the defilement mentioned in De 24:4 is not the one resulting from the adulterous relationship that caused the divorce, but rather a defilement related to the remarriage of the woman. We infer then that the expectation was that the woman would remain single and try to be reconciled to her husband. She was defiled because she chose instead to get another husband. Once again, there was no interdiction for the man to be reconciled with the woman if she did not remarry. Thus, this passage indicates that the relationship between the man and the woman was not definitively broken unless the woman remarried. If she remarried, then the relationship was definitively broken. In light of these facts, De 24:1-4 emphasizes that marriage is not meant to be easily broken. (Now, another possibility would be that the first husband remarried first, before his former wife remarried. Then, since marriage was intended to be monogamous (as implied, for example, by the creation account), when the man remarried the woman would have been free to remarry. In this case she would have not been defiled by deciding to remarry. However, De 24:4 does not deal with this case, but with the situation in which the woman had been defiled.)

Note also that if the woman remarried, she was not supposed to be reunited to her former husband even if the latter husband divorced her unlawfully. Indeed, we do not read in De 24:3 that the latter man hated her because he had found the "nakedness of a matter" in her, but simply that "the latter man hates her". Thus, regardless whether the latter man divorced her for a lawful reason (adultery) or for some unlawful reason, the woman was not supposed to be reunited to her former husband. Thus, De 24:3 does not say that a woman could be divorced by her husband just because her husband hated her, but rather it says that even if a remarried woman was divorced by her husband unlawfully (for no other reason than that he hated her) she could not be reunited to her former husband. De 24:3 does not describe a command but the context of the command stated in De 24:4.

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