Divorce

This post arises from discussions that I had with my brother. In fact, it is a slight reformatting of the case for my position on divorce, which I laid out for him in a letter. The position outlined below arose in response to my brother’s (former) position that divorce is never permissible. I argued this case as a sort of theodicy (see conclusion). Therefore, this post does not treat every aspect of the topic of divorce. It merely addresses the issues of what marriage and divorce are, and under what circumstances can the marital bond be legitimately broken. Because of its limited scope, you will not find the post broken down into various topics. Rather, the biblical evidence is discussed text-by-text, right from the beginning, with a concluding summary of my findings at the end.
Deuteronomy 24:1-4 assumes the possibility of divorce, and gives us a law to regulate it.

If a man takes a wife and marries her and if it happens that she does not find favor in his eyes because he finds in her a matter of nakedness and he writes her a bill of divorcement and gives [it] into her hand and sends her from her house and she leaves his house and goes and becomes the wife of another[1], and the latter husband hates her and writes her a bill of divorcement and gives [it] into her hand and sends her from his house (or if the latter husband who took her to wife dies,) the first husband[2] who sent her away is not allowed to return to take her (who has been defiled[3]) afterwards to be his wife, because this [is/would be] an abomination before the Lord. And you shall not cause the land which the lord your god is giving you as an inheritance to sin.

The principal exegetical question with which we must here concern ourselves is the meaning of a “matter of nakedness” (ערות דבר). While the meaning of this phrase is a bit obscure, we can say with some certainty that it is not adultery. It cannot be a proven case of adultery, since we know the punishment for that would be death (Lev. 20:10; Deut 22:22). Nor can it be a case of suspected adultery, since there was a procedure that adjudicated such a suspicion (Num. 5:11-31). Therefore, while we are still somewhat uncertain what is meant by a “matter of nakedness”, we can definitively say that it is not adultery.
As noted above, Deuteronomy 24 assumes the existence of divorce. It does not address the appropriateness of divorce itself. Rather, it provides social protection for the woman, by providing her with documentation of her release from the marital bond. Further, it determines that once the divorce is consummated by a new marriage, the original marriage may not be renewed.
With some appreciation of the legislation regarding divorce under the Old Covenant, we are in a place to consider the the teaching of Jesus in Matthew 5:31-32; 19:3-9 and its parallel in Mark 10:2-12, as well as Luke 16:18.
A comparison of the texts regarding adultery can get quite complicated. In Matthew 5:31-32, there are three characters being considered, the first husband, the wife and the second husband. Only the wife and the second husband are specifically said to commit adultery, but the first husband is implicated, since his action, divorcing his wife, encouraged (or perhaps in the culture of Jesus’ day forced) the adultery. But the observation that promises to open up the meaning of biblical legislation on divorce is that, against the common conception that divorce completely severs a couple’s relationship, this texts indicates that the marriage continues to be binding in spite of the divorce. That is, one can only explain how remarriage constitutes adultery if the exclusive conjugal rights of the first husband were not actually eliminated by the divorce. It will be recalled that the Mosaic reasons for divorce were not adultery. Here, Jesus’ exception clause (“except for a matter of fornication”) makes adultery the only exception (the significance of which is the subject of our ongoing inquiry). Therefore, whatever the import of Jesus’ exception clause, it is clear that any reason covered by Deuteronomy 24 (even if it were thought to excuse the divorce) is de-legitimated. That is, since adultery wasn’t in view in the Mosaic legislation, and adultery is the only exception envisioned here, no Mosaic divorces would fall under the exception clause.

No Mosaic reasons for divorce are adultery
All reasons for divorce that fall within the exception clause are adultery
No reasons for divorce that fall within the exception clause are Mosaic reasons for divorce

There is an enigma in this text, however. If the wife committed adultery (leading to the divorce), she is already an adultress by definition. The second husband is an adulterer because he is sleeping with another man’s wife, inasmuch as the exclusive sexual rights of the first husband are still in place. The first husband, however, presents an enigma. The exception clause excuses him from his compliance with adultery. That is, if there were no adultery and he divorced her, he would cause her to be an adulteress, but if there is adultery already and he divorces her, he does not cause her to be an adulteress – since she already is one. But the verse does not mention the contingency of his remarriage. Were this the only text we had to go on, the most reasonable conclusion would be that since the divorce did not remove the exclusive conjugal rights in the case of the woman or her second husband, neither would it remove it in the case of the first husband. That is, if this were our only passage, we would almost certainly conclude that a man who divorced his wife – even if it were for marital unfaithfulness, is not allowed to remarry, since that would force him to be unfaithful to his first wife (who, despite the divorce, is united to him by exclusive conjugal rights). If this were our only passage, we might reasonably conclude that divorce is merely a human formality, but that it has no real spiritual efficacy; it doesn’t change the marriage rights at all. . . . but this is not the only verse we have.
Matt. 19:3-9 excludes such a conclusion. Here, too, were we only to read the first eight verses, we might be left to conclude that the first husband cannot remarry, that exclusive conjugal rights are never disolved. After all, since Jesus gives us the categorical “what therefore God has joined together, let no man separate,” we could assume that no marriage is dissolved by the human institution of divorce. The spiritual reality of the marriage continues. Incidentally, this passage also confirms Jesus’ rejection of “matter of nakedness” excuse for divorce. Verse 9, however, prevents us from concluding that divorce is never spiritually efficacious. The characters change a bit here. There is a different third character. Instead of a second husband to the divorced wife, we have a second wife of the divorcing husband. This verse plainly says that a man who divorces his wife and remarries commits adultery -- just as we reasonably concluded he would, since the divorce is not effective (for removing exclusive conjugal rights) in God’s eyes. That is, while a man who divorces his wife encourages or causes adultery in Matt. 5:31-32, if he himself remarries, according to Matt. 19:9, he actually commits adultery.
However, this verse is unique in that it is the only verse that both contains a reference to the divorcing party remarrying and the exception clause. In other words, while there are other passages that refer to a divorcing party remarrying (all of them condemning it), this is the only one of those passages which makes a distinction between what we might call a guilty divorcer and an innocent divorcer. Those terms do not prejudice the discussion, since it is clear that a husband who divorces his wife for any reason besides adultery is guilty of causing his wife to commit adultery on the one hand, but if he remarries, he is guilty of adultery himself. Implicit, then, is the fact that the husband who divorces his wife for adultery is neither guilty of causing her to be an adulteress (since she did that to herself already), nor is he guilty of adultery if he remarries. Hence, on the one hand we have an innocent divorcer (whose wife committed adultery) and a guilty one (whose wife did no such thing).
We cannot take the exception clause as only referring to the first verb (divorces), not the second (marries) as the Roman Catholics do. The reason is obvious. If you delete the second phrase, you will see that it is intimately bound up with the first. “And I say to you, whoever divorces his wife, commits adultery.” This statement would make no sense, and it would contradict Matt. 5:31-32. The exception clause has to refer not only to the divorcer, but to the remarrying divorcer. A comparison with Matt. 5:31-32 demonstrates that it is the remarriage which makes this man an actual adulterer. The divorce only made him an accessory to the adultery. The exceptive clause in Matt. 19.9 does not oblige the husband to divorce his adulterous wife, but it does appear to release the exclusive conjugal arrangement, since he is apparently free to remarry without committing adultery.[4]
The significance of Mark 10:2-12 is most clearly seen if placed in parallel with the Matthew account. This is beyond my skill with html, so I'll just lay them out in series.

Mark

Some pharisees came up to jesus, testing him, and began to question him whether it was lawful for a man to divorce a wife. 3 and he answered and said to them, "what did moses command you?" 4 they said, "moses permitted a man to write a certificate of divorce and send her away." 5 but jesus said to them, "because of your hardness of heart he wrote you this commandment. 6 "but from the beginning of creation, god made them male and female. 7 "for this reason a man shall leave his father and mother, 8 and the two shall become one flesh; so they are no longer two, but one flesh. 9 "what therefore god has joined together, let no man separate." 10 in the house the disciples began questioning him about this again. 11 and he said to them, "whoever divorces his wife and marries another woman commits adultery against her; 12 and if she herself divorces her husband and marries another man, she is committing adultery."

Matthew

Some Pharisees came to Jesus, testing Him and asking, "Is it lawful for a man to divorce his wife for any reason at all?" And He answered and said, "Have you not read that He who created them from the beginning made them male and female, And said, 'for this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh '? "So they are no longer two, but one flesh. What therefore God has joined together, let no man separate." They said to Him, "Why then did Moses command to give her a certificate of divorce and send her away?" He said to them, "Because of your hardness of heart Moses permitted you to divorce your wives; but from the beginning it has not been this way.

The fact that the terms are reversed in the two passages, that in one Jesus speaks of Moses’ legislation as command, and the scribes as permission, and in the other it is the other way around, is not very significant for our discussion. The lack of the exceptive clause in Mark 10:11 is important, however. Luke 16.18 is similar in this regard. Leaving aside the options offered by source criticism, some may appeal to a textual variant in Matt. 19.9, which would remove the difficulty. The variant is not represented as well in the manuscript tradition, however, and should be discounted in favor of the more difficult reading. That is, I can explain a scribe smoothing out a difficulty more easily that I can explain his introducing one.
It seems that Mark and Luke are not envisioning divorce for adultery. Otherwise, we have to pit Mark and Luke against Matthew. If we regard Mark and Luke to contain the general rule, without reference to an exceptional circumstance, we may conclude that the exceptive clause allows divorce to dissolve the marriage bond in a very specific situation. To illustrate my point, suppose we had two laws on the books:
1) Anyone who willingly causes the death of another human must be executed.
2) Anyone who willingly causes the death of another human being (unless his own life is threatened by said human) must be executed.
Assuming that the two laws are otherwise equal (date, etc) we would respect the exceptive clause in 2, and assume that the framers of 1 did not have such an exceptional situation in mind. We would not assume that, having considered the exceptional situation, they denied its applicability. If this is the case with secular legislation, how much more with the word of God which, though we may not always discern its harmony, is ultimately in harmony with itself.
Mark 10:12 is also interesting in that the same law applies to the woman as applies to the man if she takes the initiative in a divorce suit. And while it does not speak to her as an innocent party (one whose spouse committed adultery), it would be reasonable to assume that the conclusions with regard to an innocent husband would likewise be applicable to her (at least until another text denies this reasonable deduction).
Paul, in 1 Cor 7:10-15, adds considerably to our understanding of the issue. First, he teaches that believers (the audience of his letter) should not divorce. Adultery is not considered in his instruction, however. Paul has just been speaking to the sanctity of the marital union. He does not expect adultery among believers, and so does not speak to it. Second, he instructs that the divorced are not to remarry. Third, that believers are not permitted to initiate a separation from unbelieving spouses, and fourth, if deserted by non-believing spouses, the deserted are not bound by their marriage. This is difficult. What is the nature of their non-bondage? The preceding clause says “let him leave”. The following clause says “God has called us to peace”. So, one could take this to indicate that the believer is not bound to insist upon the continued union. I think, however, that this indicates the dissolution of the marriage bond, freeing the believer to remarry. Admittedly, “God has called us to peace” is not easily explained by my reading. My reading finds some support, however in Romans 7:1-3.
Having discussed each of the biblical texts in turn, we can synthesize our findings as follows: There are three occasions where the marital union of exclusive conjugal rights are (or can be) dissolved:
1. Death
2. A spouse who commits adultery
3. An unbelieving spouse who initiates divorce proceedings
We must note, however, that God hates divorce (Mal. 2:16), and occasion 2 is merely justified, not encouraged. It is important for us to recognize that divorce is justified in occasion 2, though. God’s covenantal relation is frequently described in marrital terms. God had every right to divorce Israel, as she was an adultress. This observation makes counsel of a party offended by adultery complex. On the one hand, we must respect the right of divorce, on the other, striving to emulate the character of God suggests that forgiveness is the better course of action.
This topic is by no means exhausted by this investigation. We ought, for instance, to further establish whether the union is actually dissolved in the case of 2, and whether it must be therefore be renewed, or whether the bond is only subject to dissolution, depending upon the will of the offended party. We might also consider whether a husband may forgive his wife without continuing the marital bond. That is, if he forgives her, does he therefore remain married to her? If he forgives her, but divorces her, has he sinned? As I have not given these questions adequate study and meditation, I will have to leave them for a later discourse.

___________________

[1] The rule does not apply if she does not remarry.
[2] The law does not prohibit her from marrying yet a third husband. It only says that she can’t go back to her first husband.
[3] By virtue of having remarried? Or does it mean that she is ‘defiled with respect to him’, since she has slept with someone besides him after him? This is a very important distinction—one which requires justification of choice, not simply assertion of it. Note that the second couple was not dealt with as adultererous (death).
[4] It is worth noting, though it is not directly relevant to the narrow subject of this paper, that Jesus appears to abbrogate the Mosaic penalty for adultery, death, since he permits divorce instead.