Divorce: Divine Legislation and Secular Regulations
Analysis of Old Testament Law and Practice
by
Stephen Timothy McHenry
Purpose
It is the purpose of this paper to compare divine legislation on marriage with corresponding secular customs
and legislation down through history, and explain and critique the attempts by man to alter God’s marriage laws. Specifically, I will focus on divorce and related ideas. I will not be examining a multitude of cultures and laws on divorce, but rather will focus on three different phases of history as follows: 1) The beginning 2) The time of the Law & 3) The time of Christ at the end of the Law. Furthermore, I will not focus on remarriage after a death or divorce, but rather the doctrine of divorce itself. After the definition of some terms, I will consider each time period in turn.
Definitions of Terms
By “marriage,” I mean a relationship between a man and a woman wherein they exist as husband and wife by
agreement (covenant) in keeping with the laws of the land and the law of God (Genesis 2:21-24; Matthew 19:4-6).
Divorce is the termination of marriage. Both marriage and divorce are sometimes perceived differently (e.g.,
be recognized or unrecognized, condoned or condemned) by God and man. God’s concept of marriage or divorce may
not be put into proper use by any given society. Several terms, such as regulation, code, statute, etc. are
used interchangeably, but they all mean law, rule of conduct. Different terms for divorce are used in the Bible (e.g. put away, writing of divorcment, etc.). It is assumed that all these mean the same thing.
From The Beginning
In the beginning of man, marriage was instituted by God with the ideal being one man with one woman for a
lifetime (which in the beginning was forever). However, through sin, immorality, and the introduction of
polygamy (Genesis 4:23), man was introduced to situations where dissolution of the marriage could, or at least
would, take place.
Physical death was one natural way that marriage would end. This was a result of being cast out of the Garden of Eden where the tree of life was. Combine this with the inherently earthly nature of marriage (Matthew 22:30), and we see how death ends the relationship. God made provision for some form of immorality causing divorce when He commanded the Bill of Divorcement (Deut. 24:1), but the first case of what amounts to divorce occurred long before that. To my knowledge, the first time that any wife was cast off or put away was when Hagar was sent away by her husband Abraham. This was done with the blessings of God since He told Abraham to “hearken” unto Sarah’s voice, and Sarah said, “Cast out this bondwoman...” (Genesis 21:10,12), effectively dissolving the marriage of Abraham to Hagar. This came about from a polygamous marriage situation. So basically, man’s ways and vices introduced divorce situations which resulted in special legislation by God to cover these situations. Let’s consider this a moment. In Matthew 19, Jesus pointed out that from the beginning, marriage did not exist with the same law as was in Moses’ day, but was rather intended to be for a lifetime, and from the beginning this would mean eternity. However, Jesus even gave a cause for divorce (Matt. 19:9), so ever since sin has been in the world there has been the possibility that something would happen to cause the marriage to be terminated. In the case of Abraham and Hagar, it was perhaps the case that the marriage was without divine sanction to begin with, God had not directed Abraham to take Hagar as his wife. Or perhaps the polygamy was a factor, or maybe even something not revealed. Polygamy really makes a moral and legal mess out of marriage and the understanding of marriage law. I think God was simply merciful in giving the people time to come closer to his ultimate law as it would be in Christ, much as He was in allowing Israel to have a king, David to invent instruments of music in worship, etc. In other words, God “suffered” it to be that way until Christ.
Divorce Under The Law
As time went on, man abused any special provisions God made for marriage and began to divorce for frivolous reasons (cf. Mal. 2:14-16). When Jesus came to earth, He reaffirmed the original divine order and made one exception for divorce and remarriage to another in Matthew 19:9. During this time the Jews were divided on the issue of divorce. To my knowledge, they were pretty much left to themselves as far as divorce goes by the ruling power in the western world, the Roman Empire. I will have more to say about this in the next section.
I philosophically differ with some on how to approach the subject of Moses’ law and marriage. There may have been cultures with elaborate marriage and divorce laws in the years from the giving of the law until the time of Christ, but I have been unable so far to find any. By elaborate, I mean laws like we have had in our modern era, codified and detailed as to how the marriage relationship is to be considered. The Law, therefore, was a great step forward in promoting the rights of women and in establishing stability in the home. It would be very useful for a woman who was not a virgin to prove that she was eligible for marriage by showing a writing of divorcement. Also, the husband could not frivolously divorce her, but must find “some uncleanness” in her (Deut. 24:1). However, this verse gives rise to some questions: What constitutes “some uncleanness”? and What were the penalties involved?
I am confident that the marriages in question in Deuteronomy 24 were okay at the beginning. This is unlike the wholesale divorces in Ezra chapter 10, which were unscriptural to begin with, because they were to unproselyted foreign wives. It is commonly known that the Jews were divided on exactly what grounds a husband could divorce his wife. It is argued that “uncleanness” could not mean only adultery (like in the case of Hosea 2:2), since that sin was punishable by death (Lev. 20:10). However, as Hosea and certain New Testament passages show, Lev. 20:10 was not meant to be enforced without due process or with prejudice toward the man. The adulterer and adultress were both to be taken and stoned. Consider the case of the woman caught in adultery in John 8. Jesus was certainly not a hypocrite, so why didn’t he pursue the case for stoning her? Well, aside from God having stripped the nation of Israel of the right to rule itself, there was also this issue of what the law actually said, where was the man?
Now consider the case of Joseph and Mary in Matthew 1. Joseph was minded to put her away privately, even though in his mind she must have been guilty of adultery. Now the law said that such a woman was to be stoned (Deut. 22:13-21), but that passage also teaches due process. Joseph knew that he had not had relations with Mary, but he could not prove anyone else had either (granted this is a unique situation). So I don’t see that Joseph would have to consider himself to be in violation of the Law in order to be fair, or as the Bible says “a just man”. It seems it was up to the husband to decide in such cases whether to initiate an investigation and make an accusation. I say this because Deut. 22 says “If a man take a wife… and hate her.” (v.13). You see, the husband may be otherwise happy with his wife and not willing or unable to get to the truth of the matter.
Perhaps a way to understand all this better is to consider the Sermon on the Mount. In that sermon, Jesus made many contrasts between the Jewish practice of the Law and what He actually wanted from them. Granted that Jesus was laying down His law, but it is my contention that the Lord’s point was not to contrast what He was saying with the Law of Moses, but what the Jewish practice was (“Ye have heard that it hath been said…”). For example, did the Law justify being angry with your brother without a cause (Matt. 5:22)? No, but Jesus clarified a matter that the Law did not deal with in detail. Did the Law justify lusting after a woman (v.28)? No! In fact, coveting your neighbor’s wife was specifically forbidden, but Jesus goes further and clarifies a principle so as to leave the Jews, and us today, without excuse. Likewise, did the Law justify putting away a wife “for every cause”? No! But it was not specific as to fornication as the Lord was. The point is that God deliberately said “some uncleanness” and like with other things already pointed out in the previous section, left it up to His Son in the fullness of time to show the final law of God for marriage so that it can now truly reflect the relationship between Christ and the church (Eph. 5).
Divorce In The Time Of Christ
It seems the Romans allowed custom to determine marriage and divorce practices. Fritz Schulz in his book, Principles of Roman Law states, “A free marriage, for example, is validly concluded by consent only; this is the legal rule, and only this is mentioned in the law books. The elaborate Roman marriage customs are passed over in complete silence...”1 The apostles must have faced a wide range of practices to which the general teaching of our lord would have to be applied. Let me elaborate upon their situation.
The Lord’s teachings with respect to marriage would have to be general and capable of being adopted in any situation. The Lord in His wisdom did just that. Sometimes it seems that we do not take this into account. Whenever you hear of someone who wishes to make fine distinctions in marriage law in the Bible, such as distinctions between separation and divorce or very technical ideas about marriage and what God recognizes and what man recognizes, remember that the New Testament was being written in a different atmosphere altogether. It should be intuitively clear that our multitude of written records and codes in law did not exist in any similar fashion “back then.” Paper and writing were not near as available or as easily distributed as today. As to how people dealt with divorce under the Romans, Schulz states the following:
Marriage and divorce were accomplished without the intervention of the State. No restrictions were placed on divorce--it was not even necessary for the parties to agree on divorce, a unilateral declaration sufficed. There were no ‘grounds of divorce’, in the sense of particular facts which alone in the eyes of the law would make divorce possible. If a divorce was obtained without reason, certain legal disadvantages might ensue, but the marriage was dissolved with all legal consequences of such dissolution. To these principles Roman law held fast, even in the Christian imperial era, even under Justinian, although the classical jurists had early recognized that this legal system necessarily created a mischievous uncertainty regarding the permanency of such a fundamental legal relationship as marriage.2
It is easy to see that in such an atmosphere, the apostles would have had great challenges but perhaps different challenges from community to community, requiring all manor of special instruction like that found in I Corinthians 7.
In short, even though we live in a different time, we ought not to think that divorce has become a complex issue. In any society and in every age the will or our Lord remains that there be no breakdown of the marriage (I Cor. 7:10,11).
Conclusion and Application for Today
Societies go through periods of moral ascension and decay. There was a time when divorce was rarely spoken, much less done. Even then, the cause was sometimes just (for fornication), and was recognized by the authorities as being “grounds for divorce.”
Now it seems that even though our society still recognizes reasons for divorcing your mate (or with our Lord’s authority, a reason), the “powers that be” no longer wish to deal with the matter. For example, Kentucky has adopted what is commonly referred to as “No-fault divorce,” there is a whole general section dealing with it in the Kentucky Revised Statutes. Having lived in Kentucky for some time, I am familiar with their laws on this and I think Tennessee’s laws are similar. Former sections with titles like, Grounds for divorce, Proof required for divorce, & Required allegations and proof in addition to cause of divorce have all been repealed.3
In the no-fault section, under a heading which says Purpose of Chapter, there is now the following statement: “Make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.”4 This basically means that the state no longer cares just why you're getting a divorce, all they know is that you can’t stand living together any longer and upon that basis, and that basis only, will a divorce now be granted. However, the most that this accomplishes is simply that legitimate divorces (those authorized by our Lord) are no longer noted in the law. Generally, the present law reflects the societal trend toward casual divorce for a multitude of reasons, some very serious, some rather frivolous.
God has, in His wisdom, provided us a law that tells us to set a high goal for ourselves in our marriage relationships. While recognizing that sometimes circumstances result in divorce, God’s will is that husbands stay with the wife of their youth and try to get back together if things go awry (I Cor. 7:10,11).Particular legislation on marriage has changed down through the dispensations, but in all of them we can at least see that divorce always comes about from the sin of one or perhaps both parties in the marriage. Due to fornication, it may be that the innocent party chooses to divorce. That is and has been the message of God for hundreds of years now, and it is up to man at any time and in any situation to abide by that message.