Does the divorce of the foreign women in Ezra 9-10 show that civil government has authority to dissolve marriages or preside over "divorce trials"?
Quick answer: No. Biblical law nowhere gives civil government the authority either to dissolve marriage covenants or to require that husbands get civil government permission before divorce. The divorce of the foreign women in Ezra 9-10 shows nothing resembling either of the above cases.
The actions in Ezra 9-10 are a narrative which clearly have Biblical law as the backdrop (particularly Deut. 7:1-3). The "divorces" must be understood against this legal framework, which differs somewhat from our modern preconceptions.
This may surprise some people, but under Biblical law, men were not required to get permission from the civil government to divorce their wives (Deut. 24:1). Christopher Wright explains:
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.
According to Peter Craigie:
If the man decided to divorce the woman, he was to write out a bill of divorce and formally serve it on the woman. She was then sent away from the man's house, but possession of the bill of divorce gave her a certain protection under law from any further action by the man.
Biblical law does not require a husband to prove publicly, before a judge, the crime of adultery or fornication on the part of a wife, before issuing a "writ of divorcement." This "writ" has no legal power over a marriage covenant. The marriage covenant would have to already be broken by fornication on the part of the wife. The "writ of divorcement" is simply an official declaration by the husband (not by the civil government) that he has "put away" his wife, an assertion that the marriage covenant has already been broken, and that he did not attempt to re-establish it. This legal writ protects the wife from a future accusation by her former husband, in case he got jealous or angry when she got remarried. Under Biblical law, a judge would only be sought out (by a wife, presumably) if the former husband refused to give her the writ, as required by Biblical law.
Nowadays, the civil government has become so involved in the marriage and divorce process, that Christians no longer question whether the state has the power to "license" marriage, or "grant" divorce. This is a thoroughly modern phenomenon, and it is anachronistic to read our modern marriage ideas back into Biblical law.
The action by Ezra described in Ezra 9-10 dealt with Israelites who had returned after the Babylonian captivity, and had married foreign wives, presumably in violation of the law in Deuteronomy 7. Notice the clear parallel between these two parts of scripture:
1 When YHWH your God brings you into the land where you go to possess it, and casts out many nations before you—the Hittite, the Girgashite, the Amorite, the Canaanite, the Perizzite, the Hivite, and the Jebusite—seven nations greater and mightier than you; 2 and when YHWH your God delivers them up before you, and you strike them, then you shall utterly destroy them. You shall make no covenant with them, nor show mercy to them. 3 You shall not make marriages with them. You shall not give your daughter to his son, nor shall you take his daughter for your son. 4 For that would turn away your sons from following me, that they may serve other gods. So YHWH’s anger would be kindled against you, and he would destroy you quickly. Deuteronomy 7:1-4WEB
1 Now when these things were done, the princes came near to me, saying, “The people of Israel, the priests, and the Levites have not separated themselves from the peoples of the lands, following their abominations, even those of the Canaanites, the Hittites, the Perizzites, the Jebusites, the Ammonites, the Moabites, the Egyptians, and the Amorites. 2 For they have taken of their daughters for themselves and for their sons, so that the holy offspring have mixed themselves with the peoples of the lands. Yes, the hand of the princes and rulers has been chief in this trespass.” 3 When I heard this thing, I tore my garment and my robe, and pulled the hair out of my head and of my beard, and sat down confounded. Ezra 9:1-3WEB
These marriages were clearly illegal by the standards of Biblical law. Some people note that Ezra 9:1 mentions "Egyptians", "Ammonites," and "Moabites", people groups that were not in the Deut. 7:1 list. But this does not change the illegal nature of the marriages, because the point of the original law was to prevent God's people from "following the abominations" (Ezra 9:1: e.g. idolatry, incest, etc) of the Canaanite peoples (see Deut. 7:4, Lev. 18:26-30). There were probably many Egyptians, Ammonites, and Moabites who had intermarried with the Canaanite peoples and would therefore endanger anyone who tried to form a covenant with them. All such joining of covenant members with idolaters was illegal. This was Ezra's concern.
Some commentators read "divorce trials" into Ezra 10:14. For example, Philip Kayser claims: "Ezra tried each case of improper marriage on its own merit." This is a false claim, which anyone can tell, simply by reading the text of Ezra 10:
3 Now therefore let’s make a covenant with our God to put away all the wives and those who are born of them, according to the counsel of my lord and of those who tremble at the commandment of our God. Let it be done according to the law. Ezra 10:3WEB ... 7 They made a proclamation throughout Judah and Jerusalem to all the children of the captivity, that they should gather themselves together to Jerusalem; 8 and that whoever didn’t come within three days, according to the counsel of the princes and the elders, all his possessions should be forfeited, and he himself separated from the assembly of the captivity. Ezra 10:7-8WEB ... 14 Now let our princes be appointed for all the assembly, and let all those who are in our cities who have married foreign women come at appointed times, and with them the elders of every city and its judges, until the fierce wrath of our God is turned from us, until this matter is resolved.” Ezra 10:14WEBEzra 10:3,7-8,14
There was no divorce "trial" here, as Kayser asserts. These "marriages" where prima facie illegal according to Biblical law. No (legal) marriage covenant had been broken. No (legal) marriage covenant had even been created. The legal term to describe this is "void ab initio" (invalid from the beginning).
This was simply a case of a lot of prominent Israelite men committing fornication with foreign woman (as if they had been prostitutes). This presentation of each man before the community leaders was a public "putting away" (divorce) declaration, required "according to the counsel of my Lord" (Ezra 9:3). Neither the men nor the community leaders had any choice or discretion in this matter. It was part of their public act of repentance for a sin (entering an illegal marriage) which might have brought judgment upon the community. No one participating in this process claimed that these marriages were ever legal. A claim like that would have denied the truth of Biblical law (Deut. 7:1-3) and nullified their repentance.
- Christopher J. H. Wright, Old Testament Ethics for the People of God, pp. 331-332
- Craigie, Deuteronomy, p. 305
- Kayser, Is the Death Penalty Just?, p. 25