Does the Biblical divorce law in Deut. 24:1 show that the death penalty for adultery was not mandatory?
The people who make this argument are suggesting the following:
- In Biblical law divorce is allowed (Deut. 24:1) for fornication (Matt. 19:9), which includes a spouse committing adultery.
- If the adulterous spouse were given the death penalty for his/her crime, divorce would not be needed.
- The fact that the divorce was needed thus shows that the adulterous spouse was not given the death penalty.
All of the above three statements are correct. But what does that logically tell us?
All it tells us is that the death penalty was not given for that *particular* act of adultery. It doesn't tell us anything about why.
In fact, it is quite difficult to prove adultery under Biblical law. It is a mandatory death penalty offense (Lev. 20:10): two or more actual witnesses to the act (apart from the criminals themselves) are necessary to prove it in court (Deut. 19:15). How often does that happen in any given act of adultery?
The law in Deut. 24:1 is referring to a situation where a husband (or wife, according to Jesus) had firm evidence themselves of the crime (perhaps they walked in on their spouse in the act), but did not have an additional witness to prove the case before a judge. But aren't you required to prove adultery to the exact same legal standard in order to get a divorce under Biblical law?
Scripture says nothing of the sort. Deuteronomy 24:1 implies the responsibility of the husband (and by implicit extension, a wife), to give a "writ of divorcement" upon finding some "nakedness" (which, as Jesus teaches us in Matt. 19:9, refers to fornication) in his wife. The civil government is not involved in this transaction.
For more information on this, see the Q/A: Didn't the law under the Sinai Covenant allow divorce for any cause? and Does Joseph's intent to divorce Mary show that the death penalty for adultery was not mandatory?
