Didn't the law under the Sinai Covenant allow divorce for any cause?
Quick answer: No. This claim is usually based upon a misunderstanding of the purpose of Deut. 24:1-4.
The function of the "writ of divorcement" in Biblical law
The law in question reads as follows:
1 When a man takes a wife and marries her, then it shall be, if she finds no favor in his eyes because he has found some unseemly thing in her, that he shall write her a certificate of divorce, put it in her hand, and send her out of his house. 2 When she has departed out of his house, she may go and be another man’s wife. 3 If the latter husband hates her, and write her a certificate of divorce, puts it in her hand, and sends her out of his house; or if the latter husband dies, who took her to be his wife; 4 her former husband, who sent her away, may not take her again to be his wife after she is defiled; for that would be an abomination to YHWH. You shall not cause the land to sin, which YHWH your God gives you for an inheritance. Deuteronomy 24:1-4WEB
There are a few important things to understand about Biblical marriage and divorce, which are different from modern marriage and divorce.
- Biblical marriage is a lifetime covenant, not a contract. It cannot be broken, except by a sinful act (like adultery) which is often serious enough to merit a death penalty (if witnessed and proven) under Biblical law.
- Biblical law nowhere requires a spouse who has their marriage covenant broken [by their spouse's fornication] to seek separation from that spouse. There can be forgiveness and reconciliation with a repentant spouse, and the broken marriage covenant thus can be restored.
- The act of giving a "writ of divorcement" (mentioned in Deut. 24:1) did not break the marriage covenant. It simply documented (legally) the claim of the husband that a covenant-breaking act had taken place. This protected the wife from future accusations of adultery from hard-hearted former husbands.
- The act of giving a "writ of divorcement" did not require the involvement of a civil judge. It could be done privately (e.g. Matt. 1:19).
Misinterpreting the writ of divorcement
The belief that the Sinai Covenant allowed divorce for "any cause" probably derives from a misinterpretation of one (or more) of the following three things:
1. The Sinai Covenant (implicitly) required a husband who wanted to divorce his wife because of some "nakedness" to give her a writ of divorcement. Unlike modern divorce, this Biblical divorce document was not issued by a civil judge, and it did not require a public hearing in front of civil government officials. Notice in Matthew 1:19, that if a divorcement action were required by Biblical law to be public, then Joseph (being a righteous man) would have intended to do it publicly, not "privately" (λάθρᾳ). The divorce certificate was created by the husband, or a scribe he had hired, and simply recorded a legal assertion of the husband that the marriage covenant was broken because of some "nakedness" (which was probably specified in the document). According to Christopher Wright:
A man did not have to ‘go to court’ to get a divorce. Those laws that do refer to divorce are concerned either with circumstances where divorce is prohibited or with regulating relationships after divorce has already happened. In both cases the protection of the woman seems to be the main point of the law. ... What [Deut. 24:1-4] does require is that a man who divorces his wife must give her a ‘bill of divorce’. This would have been for the woman’s protection. It was documentary proof that she had been divorced, so neither she nor any future husband could be accused of adultery if she married again.
This writ did not itself dissolve or "break" the marriage covenant. The marriage covenant was already broken (if it was really broken), by the wife's prior action ("fornication" according to Jesus in Matt. 19:9). According to R. T. France:
Jesus' teaching starts ... from the "one flesh" of Gen. 2:24, so that it is only because "sexual unfaithfulness" has already violated the unity of the one flesh that the marriage must be regarded as no longer intact. Shammai was concerned with a man's right to initiate divorce, Jesus with the formal recognition that the marriage has already been broken by the wife's action.
Since there is no obvious way for a civil government to prevent a husband from divorcing his wife for "any cause," some interpreters wrongly assume that God's law allowed for "any cause" divorce. This was the error of the some of the rabbis (see below), which Jesus corrected in Matt. 19.
It's important to consider what the alternative might have been to this Biblical allowance for private divorce. If God had wanted every spousal separation to proceed only from a legal cause proven before a civil judge, then He could have specified this in His law (and He did not). The husband would have been required to bring at least two witnesses (Deut. 19:15) to a public proceeding before civil judges (most likely at the city gates), just as required by every other legal case. Because:
- "from the beginning" fornication was the only ground for divorce (according to Jesus)
- most types of fornication (such as adultery or bestiality) would have been death penalty offenses, requiring two or more witnesses
- most cases of fornication would not be known about by anyone but the husband and the participants (who could not themselves be witnesses against others, having participated in the crime)
thus, the civil judges would either be adjudicating a death penalty case with eyewitnesses, or the husband would not have enough witnesses even to bring a case.
God's law, as usual, makes the best of a bad situation: keeping the evidential requirements for fornication cases (most of which result in a mandatory death penalty) high enough that innocent people don't get punished, while allowing a husband (and by extension, a wife) to exit a marriage where he knows his unrepentant spouse has broken the covenant.
2. In the first century, the divorce law in Deut. 24:1 had been thoroughly discussed by rabbinic interpreters, who split over the intended meaning of the term "matter of nakedness." The Hillel school believed that it allowed for a husband to divorce his wife for "any cause." This is why the Pharisees chose the phrase "πᾶσαν αἰτίαν" in Matt. 19:3. The Shammai school believed that divorce was only allowed for some public indecency, such as a wife going around in public with her head uncovered. Even though Jesus contradicted both of these rabbinic schools, some Christians still claim that Jesus was actually changing the Deut. 24 divorce law, rather than asserting the original meaning of "nakedness" as "fornication." But as Peter Craigie writes: "in Jesus' response to the Pharisee (Mark 10:4), he is not so much changing the law of Deut. 24:1-4, as bringing out its true meaning...."
3. Jesus said that the Deut. 24:1 divorce writ was allowed "because of the hard-heartedness of [the Israelites]" (Matt. 19:8). Some interpreters conclude, erroneously, that Jesus is saying that Deut. 24:1 allowed the divorce writ itself to break a marriage covenant -- as a concession to the Israelites' sinfulness. They typically follow up this erroneous interpretation by asserting that Jesus "tightened up" these restrictions with his pronouncement in Matt. 19:9 that the only allowance for divorce is fornication. Again, this is a misunderstanding of the "power" of the husband's divorce certificate: the writ of divorcement in Deut. 24:1 did not break the covenant, it merely recorded the covenant as "already broken" by some sin or crime (in the category of "fornication").
In fact, the allowance of the divorce and writ, plus the legal prohibition on remarriage in the following verses (Deut. 24:2-4) was the complete law to which Jesus was referring. Deut. 24:1-4 is actually a unified case law which:
- assumes the right of the husband to put away a wife who has broken the marriage covenant
- protects the woman from future accusations by her former husband
- prevents a divorced wife from remarrying her original husband if she had married someone else in the interim
This law helped to prevent women from being passed around like prostitutes between hard-hearted men.
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- C. J. H. Wright, Old Testament Ethics for the People of God, Intervarsity Press, 2004, pp. 331-332
- R. T. France, The Gospel of Matthew, Eerdmans Publishing Company, 2007, p. 721
- R. T. France, The Gospel of Matthew, Eerdmans Publishing Company, 2007, p. 209
- Craigie, The Book of Deuteronomy, NICOT, p. 305