DIVORCE IN THE OLD TESTAMENT [ISBE]
DIVORCE IN THE OLD TESTAMENT
1. Subordinate Position of Woman:
Woman, among the Hebrews, as among most nations of antiquity, occupied a subordinate position. Though the Hebrew wife and mother was treated with more consideration than her sister in other lands, even in other Semitic countries, her position nevertheless was one of inferiority and subjection. The marriage relation from the standpoint of Hebrew legislation was looked upon very largely as a business affair, a mere question of property. A wife, nevertheless, was, indeed, in most homes in Israel, the husband's "most valued possession." And yet while this is true, the husband was unconditionally and unreservedly the head of the family in all domestic relations. His rights and prerogatives were manifest on every side. Nowhere is this more evident than in the matter of divorce. According to the laws of Moses a husband, under certain circumstances, might divorce his wife; on the other hand, if at all possible, it was certainly very difficult for a wife to put away her husband. Unfortunately a double standard of morality in matters pertaining to the sexes is, at least, as old as Moses (see Ex 7 through 11).
2. Law of Divorce: Deuteronomy 24:1-4:
The Old Testament law concerning divorce, apparently quite clear, is recorded most fully in Dt 24:1 ff. A perusal of the commentaries will, nevertheless, convince anyone that there are difficulties of interpretation. The careful reader will notice that the renderings of the King James Version and the Revised Version (British and American) differ materially. the King James Version reads in the second part of Dt 24:1: "then let him write a bill," etc., the Revised Version (British and American) has "that he shall write," etc., while the Hebrew original has neither "then" nor "that," but the simple conjunction "and." There is certainly no command in the words of Moses, but, on the other hand, a clear purpose to render the proceeding more difficult in the case of the husband. Moses' aim was "to regulate and thus to mitigate an evil which he could not extirpate." The evident purpose was, as far as possible, to favor the wife, and to protect her against an unceremonious expulsion from her home and children.
3. Marriage a Legal Contract:
As already suggested, marriage among the Hebrews, as among most Orientals, was more a legal contract than the result of love or affection. It would be, however, a great mistake to assume that deep love was not often present, for at all times the domestic relations of the Hebrew married couple have compared most favorably with those of any other people, ancient or modern. In its last analysis it was, nevertheless, a business transaction. The husband or his family had, as a rule, to pay a certain dowry to the parents or guardians of the betrothed before the marriage was consummated. A wife thus acquired could easily be regarded as a piece of property, which, without great difficulty, could be disposed of in case the husband, for any reason, were disposed to rid himself of an uncongenial companion and willing to forfeit the mohar which he had paid for his wife. The advantage was always with the husband, and yet a wife was not utterly helpless, for she, too, though practically without legal rights, could make herself so intolerably burdensome and hateful in the home that almost any husband would gladly avail himself of his prerogatives and write her a bill of divorcement. Thus, though a wife could not divorce her husband, she could force him to divorce her.
4. Divorce Applicable Only to Wives:
The following words of Professor Israel Abrahams, Cambridge, England, before "the Divorce Commission" (London, November 21, 1910), are to the point: "In all such cases where the wife was concerned as the moving party she could only demand that her husband should divorce her. The divorce was always from first to last, in Jewish law, the husband's act." The common term used in the Bible for divorce is shilluach 'ishshah, "the sending away of a wife" (Dt 22:19,29). We never read of "the sending away of a husband." The feminine participle, gerushah, "the woman thrust out," is the term applied to a divorced woman. The masculine form is not found.
5. Process and Exceptions:
The Mosaic law apparently, on the side of the husband, made it as difficult as possible for him to secure a divorce. No man could unceremoniously and capriciously dismiss his wife without the semblance of a trial. In case one became dissatisfied with his wife, (1) he had to write her a BILL OF DIVORCEMENT (which see) drawn up by some constituted legal authority and in due legal form. In the very nature of the case, such a tribunal would use moral suasion to induce an adjustment; and, failing in this, would see to it that the law in the case, whatever it might be, would be upheld. (2) Such a bill or decree must be placed in the hand of the divorced wife. (3) She must be forced to leave the premises of her former husband. Divorce was denied two classes of husbands: (1) The man who had falsely accused his wife of antenuptial infidelity (Dt 22:13 ff), and (2) a person who had seduced. a virgin (Dt 22:28 f). In addition, a heavy penalty had to be paid to the father of such damsels.
It is probable that a divorced wife who had not contracted a second marriage or had been guilty of adultery might be reunited to her husband. But in case she had married the second time she was forever barred from returning to her first husband, even if the second husband had divorced her or had died (Dt 24:3 f). Such a law would serve as an obstacle to hasty divorces.
Divorces from the earliest times were common among the Hebrews. All rabbis agree that a separation, though not desirable, was quite lawful. The only source of dispute among them was as to what constituted a valid reason or just cause.
6. Grounds of Divorce (Doubtful Meaning of Deuteronomy 24:1):
The language in Dt 24:1 ff has always been in dispute. The Hebrew words, `erwath dabhar, on which a correct interpretation depends, are not easy of solution, though many exegetes, influenced possibly by some preconceived notion, pass over them quite flippantly. The phrase troubled the Jewish rabbis of olden times, as it does Jewish and Christian commentators and translators in our day. the King James Version renders the two words, "some uncleanness," and in the margin, "matter of nakedness." The latter, though a literal translation of the Hebrew, is quite unintelligible. the Revised Version (British and American) and the American Standard Revised Version both have: "some unseemly thing." Professor Driver translates the same words "some indecency." The German the Revised Version (British and American) (Kautzsch) has "etwas Widerwartiges" ("something repulsive"). We know of no modern version which makes `erwath dabhar the equivalent of fornication or adultery. And, indeed, in the very nature of the case, we are forced to make the words apply to a minor fault or crime, for, by the Mosaic law, the penalty for adultery was death (Dt 22:20 ff). It is, however, a question whether the extreme penalty was ever enforced. It is well known that at, and some time before, the time of our Saviour, there were two schools among the Jewish rabbis, that of Shammai and that of Hillel. Shammai and his followers maintained that 'erwath dabhar signified nothing less than unchastity or adultery, and argued that only this crime justified a man in divorcing his wife. Hillel and his disciples went to the other extreme. They placed great stress upon the words, "if she find no favor in his eyes" immediately preceding `erwath dabhar (Dt 24:1), and contended that divorce should be granted for the flimsiest reason: such as the spoiling of a dish either by burning or careless seasoning. Some of the rabbis boldly taught that a man had a perfect right to dismiss his wife, if he found another woman whom he liked better, or who was more beautiful (Mishnah, GiTTin, 14 10). Here are some other specifications taken from the same book: "The following women may be divorced: She who violates the Law of Moses, e.g. causes her husband to eat food which has not been tithed. .... She who vows, but does not keep her vows. .... She who goes out on the street with her hair loose, or spins in the street, or converses (flirts) with any man, or is a noisy woman. What is a noisy woman? It is one who speaks in her own house so loud that the neighbors may hear her." It would be easy to extend the list, for the Mishna and rabbinic writings are full of such laws.
From what has been said, it is clear that adultery was not the only valid reason for divorce. Besides, the word adultery had a peculiar significance in Jewish law, which recognized polygamy and concubinage as legitimate. Thus a Hebrew might have two or more wives or concubines, and might have intercourse with a slave or bondwoman, even if married, without being guilty of the crime of adultery (Lev 19:20), for adultery, according to Jewish law, was possible only when a man dishonored the "free wife" of a Hebrew (Lev 20:10 ff).
Divorcement, Bill of:
This expression, found in Dt 24:1,3; Isa 50:1; Jer 3:8 is the translation of the Hebrew cepher kerithuth. The two words, literally rendered, signify a document or book of cutting off, i.e. a certificate of divorce given by a husband to a wife, so as to afford her the opportunity or privilege of marrying another man. The Hebrew term is rendered by the Septuagint biblion apostasion. This is also found in the New Testament (Mk 10:4). Mt 5:31 has "writing of divorcement" in English Versions of the Bible, but Mt 19:7 the King James Version has "writing," while the Revised Version (British and American) and the American Standard Revised Version have "bill." The certificate of divorce is called geT, plural giTTin, in the Talmud. There is an entire chapter devoted to the subjects in the Mishna It is not positively known when the custom of writing bills of divorcement commenced, but there are references to such documents in the earliest Hebrew legislation. The fact that Joseph had in mind the putting away of his espoused wife, Mary, without the formality of a bill or at least of a public procedure proves that a decree was not regarded as absolutely necessary (Mt 1:19). The following was the usual form of a decree:
"On the____day of the week____in the month____in the year____from the beginning of the world, according to the common computation in the province of____I____the son of____by whatever name I may be known, of the town of____with entire consent of mind, and without any constraint, have divorced, dismissed and expelled thee____daughter of____by whatever name thou art called, of the town who hast been my wife hitherto; But now I have dismissed thee____the daughter of____by whatever name thou art called, of the town of____so as to be free at thy own disposal, to marry whomsoever thou pleasest, without hindrance from anyone, from this day for ever. Thou art therefore free for anyone (who would marry thee). Let this be thy bill of divorce from me, a writing of separation and expulsion, according to the law of Moses and Israel.
____, the son of____, witness
The Hebrew prophets regarded Yahweh not only as the father and king of the chosen people, and thus entitled to perfect obedience and loyalty on their part, but they conceived of Him as a husband married to Israel. Isaiah, speaking to his nation, says: "For thy Maker is thy husband; Yahweh of hosts is his name" (54:5). Jeremiah too makes use of similar language in the following: "Return, O backsliding children, saith Yahweh; for I am a husband unto you" (3:14). It is perfectly natural that New Testament writers should have regarded Christ's relation to His church under the same figure. Paul in 2 Cor says: "I am jealous over you with a godly jealousy: for I espoused you to one husband, that I might present you as a pure virgin to Christ" (11:2); see also Mt 9:15; Jn 3:29; Rev 19:7. Any unfaithfulness or sin on the part of Israel was regarded as spiritual adultery, which necessarily broke off the spiritual ties, and divorced the nation from God (Isa 1:21; Ezek 16:22; Rev 2:22).
See also MARRIAGE.
Amram, Jewish Law of Divorce according to the Bible and Talmud, London, 1897; Abrahams, Jewish Life in the Middle Ages, London, 1896; Mackie, Bible Manners and Customs, London, 1898; The Mishna, Translated into English, De Sola and Raphall, London, 1843; Benzinger, Hebraische Archdalogie, Freiburg, 1894; Nowack, Lehrbuch der hebraischen Archdologie, 1894.
W. W. Davies