SOTM: Matthew 5:31-32 (Divorce, the OT background)

(Mat 5:31-32 ESV) “It was also said, ‘Whoever divorces his wife, let him give her a certificate of divorce.’ 32 But I say to you that everyone who divorces his wife, except on the ground of sexual immorality, makes her commit adultery, and whoever marries a divorced woman commits adultery.”

This is, of course, one of the most controversial passages in the Bible. I’ve written an eBook on marriage, divorce, and remarriage (“MDR” in Internet parlance) But If You Do Marry … . And we covered the book and all the relevant scriptural passages in an earlier series. Anyone wishing to discuss another MDR passage is welcome to do so at an earlier post dealing with that passage. But I’d like to avoid having to repeat an entire book’s worth of material here.

Now, up to this point in the SOTM, we’ve been interpreting Jesus’ “but I say unto you” teachings as deeper interpretations of the OT, read in light of the character of God as revealed in Jesus. That is, Jesus is not issuing new laws but showing us how the Torah is to be read in the Kingdom. After all, Jesus had just said earlier in the same chapter,

(Mat 5:18-19 ESV) 18 “For truly, I say to you, until heaven and earth pass away, not an iota, not a dot, will pass from the Law until all is accomplished.  19 Therefore whoever relaxes one of the least of these commandments and teaches others to do the same will be called least in the kingdom of heaven, but whoever does them and teaches them will be called great in the kingdom of heaven.”

This not what someone says when he’s going to repeal Torah in the next breath!

Deuteronomy 24:1-4

So we need to consider what the OT says about MDR. In the most famous Torah passage on MDR, Moses declares that if a man divorces his wife and, if she then marries another man and then is divorced by him, the first husband may not marry her a second time.

(Deu 24:1-4 ESV)  “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.”

On a close reading, we find that the only legislation contained in this passage is the prohibition of the remarriage of the woman to her first husband, and the commentators struggle to find a rationale for this. I know of two worth considering.

First,

Emphasizing the phrase “he found something objectionable in her,” Westbrook argues that the first man divorced the woman for cause, allowing him to keep her dowry and the bride wealth. The second husband either dies or divorces her because he dislikes her; that is, without cause. Whether the woman was widowed or divorced without cause, she would keep the dowry and the bridewealth. By this reading, the case prohibits the first husband from remarrying his former wife in order to control her property. Westbrook’s argument hinges on the distinction that he draws between the clauses “finds something objectionable in her” (v. 2) and “dislikes her” (v. 3), which is far from certain (Westbrook, 387–405).

Carolyn Pressler, Women’s Bible Commentary, 2012, 99.

Second, and I think more likely, Moses is prohibiting the use of an easy divorce to practice wife swapping. While wife swapping through divorce seems very foreign to modern people, in fact in the US wife-swapping by divorce was once a common enough practice that every lawyer two generations older than me has a wife-swapping story to tell. In fact, my grandfather became something of a celebrity by working on a case where a farmer swapped wives with a sharecropper, notoriously throwing in a mule as boot. It wasn’t that long ago that wives were sometime traded like cars and baseball cards.

Whatever Moses’ purpose was, I can’t  help but marvel at how many preachers actually insist that we should violate this command. If a man divorces his wife and she remarries, some preachers insist that neither may become a Christian unless the second marriage is ended and an effort is made to restore the first marriage — in direct violation of the scriptures. Sometimes we’re so in love with our theories that we forget to check them against the text.

Now, Deu 24:1-4 does not permit divorce. Rather, it merely describes what was evidently already the practice — that a man divorcing his wife must give her a certificate of divorce (a get). And we know from archaeology and history that a Jewish get specifically granted the wife the right to  remarry. In fact, the get was essential to protect the woman against charges of adultery and to allow her to marry even though not a virgin.

Exodus 21:7-11

Next passage —

(Exo 21:7-11 ESV) “When a man sells his daughter as a slave, she shall not go out as the male slaves do.  8 If she does not please her master, who has designated her for himself, then he shall let her be redeemed. He shall have no right to sell her to a foreign people, since he has broken faith with her.  9 If he designates her for his son, he shall deal with her as with a daughter.  10 If he takes another wife to himself, he shall not diminish her food, her clothing, or her marital rights.  11 And if he does not do these three things for her, she shall go out for nothing, without payment of money.”

If a man marries a slave girl and then takes a second wife, he remains obligated to his first wife for three things: food, clothing, and “marital rights.” “Marital rights” refers to sex — in part because this was a culture in which a woman’s value was measured by her ability to produce children — and because children would be expected to provide for her in her old age. In a family-centered culture, to have no children was both a shame and an economic disaster.

As demonstrated by David Instone-Brewer, in Divorce and Remarriage in the Bible: The Social and Literary Context (mandatory reading), in Jesus’s day, the rabbis concluded from this passage that if a slave girl was entitled to these three things, then surely a free woman had at least the same rights. And if denial of  these things for a slave girl allowed her to leave the marriage, then a free woman would have the same rights. Although a woman could not divorce her husband, the rabbis insisted that a husband grant a get to his wife if she could show that he’d failed in any of these three duties.

As a result, when the rabbis debated the acceptable grounds for a divorce, they were debating grounds in addition to the three grounds agreed to by all Jewish schools of thought. Famously, the great rabbis of the First Century BC, Hillel and Shammai, disagreed as to whether a husband may divorce his wife for “some indecency” (Deu 24:1 ESV) (Shammai’s position, interpreted to mean something tantamount to adultery) or just because he “dislikes” (NIV Deu 24:3) or “hates” (ESV) her (Hillel). Neither side considered Deu 24:1-4 as giving the only grounds for divorce. Rather, Hillel thought adultery was a basis for divorce in addition to the grounds allowed by Exo 21:7-11, whereas Shammai considered Deu 24:3 to allow divorce for any reason at all.

Therefore, Instone-Brewer argues that when Jesus discusses the grounds for divorce, he is doing so against this background and so is not questioning the Exo 21:7-11 grounds. He demonstrates that when Jews recorded rabbinic debates, they only presented the element in dispute, and so Matthew would not have bothered to record Jesus’ opinion on Exo 21:7-11, and he gives examples from ancient rabbinic literature to demonstrate this practice.

In fact, ancient Jewish marriage contracts routinely referred to the right of the new wife to the promises found in Exo 21:7-11. Moreover, the Torah and the rabbis did not restrict the woman’s right to remarry, except to a previous husband after a second marriage  (as required by Deu 24:1-4) or to the man with whom she’d committed adultery (so that she would not be rewarded for her adultery), although this second rule was rarely enforced.

To wrap up this part of the discussion —

* It’s likely that Jesus did not consider fornication (porneia) the only permissible ground for divorce. Rather, he was weighing in on the dispute between Hillel and Shammai, rejecting Hillel’s view that any reason was good enough, and accepting Shammai’s view that fornication permitted a divorce in addition to the universally agreed grounds of Exo 21:7-11. Otherwise, a husband could deny his wife food, clothing, and children and she could not leave him so long as he never has sex with another woman. I mean, a husband owes his wife sexual fidelity but surely marriage includes much more than that!

* If Jesus is saying that a remarriage is void, he would be creating new law because he would be teaching contrary to both Deu 24:1-4, rabbinic practice, and the standard terms of a divorced woman’s get. Moreover, since he speaks of the second marriage as a marriage — “if she remarries” — he obviously assumes that the second marriage is a real marriage. That doesn’t mean it’s not sinful. We’ll get to that question. But he’s clearly no saying that it’s no marriage at all.