What is the Central OT Passage on Divorce?

Deuteronomy 24:1-4 is vital not only because it is the only OT law specifically dealing with divorce but also because it forms the background of Jesus’ discussion on the same topic with the Pharisees. The text contains three elements: the protasis (the “when” part—describes the conditions), the apodosis (the “then” part—the main clause giving a command) and the justification. It reads:

1 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.

The protasis (vv. 1-3) gives the grounds and procedure for divorce. The husband no longer approves of his wife because he has found “some indecency in her” (Heb. ’erwat dābār). The word ’erwat often refers to nakedness and the exposure of the private parts. Though the meaning of this phrase is hotly contested, there are at least two reasons to define ’erwat dābār as some kind of indecent or shameful offense that falls short of illicit sexual intercourse (i.e. adultery). First, the only other usage of this phrase in the OT is one chapter earlier in 23:14, where it clearly refers to excrement. Second, Moses said just two chapters earlier that the punishment for adultery is death (Deut. 22:22; cf. Lev. 20:10-18), so it would be odd for him to describe a different practice here.

The procedure for the divorce is twofold. The man gives a “certificate of divorce,” which legally breaks the marriage covenant and declares that the woman was not guilty of adultery. Next, he “sends her out of his house”—making the divorce final. The next two verses describe a situation where she remarries and her remarriage is followed by another divorce or the death of her second husband. The apodosis (24:4a) gives the punch line—the command. “When” the things in vv. 1-3 happen, “then” this is what must follow. The wife may not remarry her first husband.

But what is the reason behind the Law of Moses refusing to allow the woman to remarry her first husband? We are told that “she has been defiled”, the passive verb being a translation of a rare Hebrew hothpael stem (huttammā’āh), the passive form of the hithpael stem. The hithpael usually conveys a reflexive idea, where the verb refers back to the subject (e.g., “I washed myself”). With the hothpael, the reflexive idea is combined with the passive voice. Some scholars have recommended the translation: “She has been made to defile herself.” She is defiled because she married another when in God’s eyes she was still married to her first husband, who divorced her on inadequate grounds. Hence, it is an “abomination” (a word hearkening back to a host of sexual sins described in Lev. 18) for her to remarry her first husband because she was made an adulteress by the second marriage. Jesus seems to make explicit the intent of this passage in Matt. 5:32, when he says that “whoever marries a divorced woman commits adultery.”

But one might ask: “if her second marriage defiled her in a way tantamount to adultery, why was she not subject to the death penalty?” Scripture implies that it is because the husband was primarily guilty by forcing her into the situation. Feinberg observes:

While she is made an adulteress, she winds up in that condition in ignorance of what she is doing and thus becomes an adulteress unintentionally. Moreover, she was forced into that situation by the actions of her first husband (and thus presumably against her will). But, then, it should be clear why it would be improper to execute her. Under Mosaic Law sins committed unintentionally were treated with greater leniency than sins done with premeditation.

A number of reasons might be suggested for the inclusion of this specific law in Deuteronomy 24. One was to protect the rights of women, who were often dispensed of at will by disgruntled husbands. This law protected women from exploitation either through divorce without cause or the loss of their dowry. It also discouraged easy divorce and multiple remarriages, since it forced the woman to “defile herself” and commit something tantamount to adultery.

In sum, the reference to “some indecency” in Deuteronomy 24:1-4, though it envisions a situation in which a husband gives his wife a bill of divorce and sends her away, refers to a circumstance that provides inadequate grounds for divorce. The wife was not guilty of adultery or other sexual sins for which the penalty in the OT laws was death. Rather, the intent of the statue is to prevent the wife, who has been pressured into a situation of remarriage, to return to her first husband.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s