A Messianic Jewish View of Divorce
Oceans of ink and forests of trees have given their substance for the plethora of biblical commentaries, books and articles written on the subject of divorce. Yet there is no definitive statement on the subject. Although both Judaism’s and Christianity’s position toward divorce can be traced to the same sources and context – Tanakh and the first century debate between Beit Hillel and Beit Shammai – their conclusions are diametrically opposed. In Judaism, a halakhically valid marriage can only be dissolved through the death of a spouse or by the issuing of a get. Divorce in Judaism is regarded as a tragedy but it is not forbidden or regarded as sin. The main concern is not with the permissibility of divorce, but rather with the proper grounds and procedures for divorce to allow for remarriage without committing adultery.1 This emphasis is based on the scriptural injunction in Deuteronomy 24:1-4 that regulates the rules of remarriage after a divorce. By the first century CE, Deuteronomy 24:1-4 was regarded as the standard legal text regarding divorce. Paradoxically it is not a text about divorce, but about remarriage. It simply takes divorce for granted.
Modern Christianity also bases its understandings of divorce on Deuteronomy
24:1-4 as interpreted by Yeshua in Mark 10:2-12 || Matthew 19:3-9, in Luke 16:18 || Matthew 5:32, and in 1 Cor. 7:10-11. These references have been placed in the context of the rabbinic discussion on divorce between Beit Hillel and Beit Shammai (m. Git. 9.10 and the Gemara in b. Git. 90a) and evidence from the Qumran documents. Generally these texts have been studied for the purpose of determining whether Yeshua permitted or forbade divorce. Two main views have emerged, albeit with many variations. The first view is that two valid grounds for divorce exist – an adulterous partner (Yeshua) and desertion (Sh’aul) – but remarriage is not allowed unless one of the former spouses has died. The second view holds that there are no grounds for divorce, or even for separation.2
The complexity of the passages mentioned above is much more profound than a peshat, or simple reading of the text can proffer. Different exegetical techniques, text and source criticisms, as well as the institutionalization of marriage and divorce are just a few of the areas that elicit the passages’ complexity and expose problems. For example:
The references are highly abbreviated and need to be “unpacked;”3
The role of Matthew’s “exceptive clause.” (Matt 19:9), including the meaning of the word porneia, can be complicated and needs to be unraveled; and
The contextual placement of the passages in rabbinic halakhic discussions and evidence from the Qumran community is academic, needing to be qualified and expanded.
Compounding the issues are the social and political background, the relationship between the Synoptic Gospels and the existence of Q, as well as our own preconceived opinions and the copious scholarly studies written on Yeshua’s halakha on divorce.4
It is impossible to address all of these difficulties and challenges in this paper, nor is appropriate that we do so. The purpose of this paper is to present a Messianic Jewish view of divorce. We are not seeking to know whether Yeshua permitted or forbade divorce. Since Messianic Judaism shares a communal context with both Judaism and Christianity, any Messianic Jewish view toward divorce must consider the traditions of both communities. This is a daunting task as the two communities hold opposing, irreconcilable views. Our quest therefore centers on the view of divorce within Second Temple Judaism, and specifically the pivotal debate between Beit Hillel and Beit Shammai, as a platform from which both communities developed their views concerning divorce and remarriage. Along the way we will look at the institutionalization of marriage in the Tanakh noting its ramifications for understanding divorce in the Tanakh and Apostolic Writings and in incipient Jewish and Christian understanding and practices of divorce. We will likewise exegete passages from the Tanakh and Apostolic Writings, consider pertinent historical and cultural influences, consult Second Temple Jewish and Rabbinic texts, and weigh in communal aspects.
Divorce in Second Temple Judaism
The views of divorce in modern Judaism and in Christianity are rooted in the Second Temple Jewish debate between Beit Hillel and Beit Shammai. The various Jewish groups within the Second Temple period debated the proper procedures for writing and presenting a certificate of divorce, and the grounds for divorce, all of which are based on the meaning of the phrase עברת דבר ‘ervat davar in Deuteronomy 24:1.5 Beit Hillel and Beit Shammai took polar positions. Beit Hillel interpreted the phrase to mean “indecency” and “any matter,” thus introducing a new kind of divorce. They ruled that anything the husband found displeasing was grounds for divorce.6 Beit Shammai, on the other hand, interpreted ‘ervat davar as matters of indecency and restricted the grounds for divorce to sexual misconduct, specifically adultery. The debate is recorded in a highly abbreviated form in m. Git. 9.10: cf. Sifre Deut. 269; y. Git. 50a;
b. Git. 90a; Sota 16b-c.
Beth Shammai say, “No man may divorce his wife, unless he found in her scandalous behavior [unchastity], for it is said [Deut. xxiv.], ‘Because he found in her some scandalous behavior [ערוה];’ ” but Beth Hillel say, “Even if she spoiled his food, because it is said,
[ערבת רבד].” R. Akivah saith, “Even if he found one handsomer than her, for it is said [ibid.] ‘If it happen that she found no favor in his eyes.’ ”7
The phrase ‘ervat davar is difficult to translate. It only appears twice in the Tanakh, Deuteronomy 24:1 and 23:15, both within the context dealing with holiness. Deuteronomy 23:15 addresses the holiness of the Israelite camp due to Adonai’s presence in the midst of them and the holiness of Deuteronomy 24:1-4 is in calling Israel to avoid sexual defilement. The phrase could be translated “matter of indecency” but the word “indecency” is in the construct form, which necessitates a literal reading of “indecency of the matter,” rendering the word “matter” (davar דבר) obsolete.
Deuteronomy 24:1-4
In the beginning Adonai told man to leave his father and mother and to cleave unto his wife (Gen 2:24), establishing lifelong marriage between two people as the ideal. Throughout the Tanakh, marriage is consistently called a berith ברית (covenant; e.g. Prov 2:17; Mal 2:14; Ezek 16:8, 59-62). Theologically a marriage berith contains the idea that a faithful person would not break the berith, even if the covenant partner breaks the stipulations. This meaning of berith stems from the covenantal relationship between Adonai and Israel developed in the later prophets and in the Apostolic Writings.
However, the Hebrew word berith (covenant) also carries with it the legal aspect of a marriage contract. In the Ancient Near East (ANE) the word “covenant” was used for any kind of legally binding agreement or contract, e.g. treaties, such as the Torah, business agreements, hired workers, and other legal agreements including marriage.8 Each covenant had stipulations agreed upon by both parties, and sanctions that occurred should the stipulations be violated. The legal term for marriage in the Ancient Near East was “covenant,” because it was a legal agreement that contained stipulations and sanctions.9 Marriage contracts contained payments, such as bride price (mohar) (Gen 24:53;
Exod 22:36-17; Hos 3:2) and dowry (ketubah), agreed upon stipulations, and penalties for not keeping the agreed upon stipulations. The idea of marriage as a contract developed alongside the traditional theological meaning of marriage as a berith. Marriage berith and marriage contract are like two sides of a coin. They are two aspects, theological (hereafter berith) and legal (hereafter contract/covenant), of marriage agreement that developed in tandem, and show no evidence of ever being separated. This means that when evaluating a Messianic Jewish view of divorce, one needs to differentiate between the breaking of a marriage berith, which is always wrong, and divorce, which is the legal recognition that a marriage contract has been broken. The dissolution of a marriage is always due to the sin of breaking the marriage vows (stipulations) in the marriage contract, while divorce is simply the legal communal recognition that the marriage covenant/contract has been broken.
Genesis establishes lifelong marriage as the ideal, but in reality, people sin, marriage contracts are broken and divorce occurs. The Torah deals practically with the sin of broken marriage contracts in Deuteronomy 24:1-4. By the time of Moses men were sending their wives away (divorcing them) or abandoning them, thus causing damage to individuals, families and the community as a whole. Therefore, the Torah limits the damage inflicted by broken marriage vows by requiring a written divorce certificate. The divorce certificate, later named a get, clarifies the divorce as valid, thereby enabling a woman to remarry. Divorce is therefore a legal, communal approval that the marriage contract was broken and that the divorce ensued on valid grounds. The Tanakh does not discuss the permissibility of divorce, but rather seeks to regulate it.
The Deuteronomy passage assumes divorce and remarriage, but qualifies the condition and the consequences: verses 1-3 list the conditions (palingamy is totally prohibited,10 while verse 4 lays out the consequences, which are stated in purity language. The twice divorced woman’s remarriage to her first husband causes her to be “defiled” טמא (tamei) and the result of such an act is an “abomination” תועבה (to-’evah). The use of purity language in these verses is quite striking. First, it places the use of ‘ervat davar in a purity/holiness setting similar to Deuteronomy 23:15, its only other appearance in the Tanakh. Second, the purity language connects Deuteronomy 24:1-4 with adultery as stated in Leviticus 18:20 and Numbers 5:13, 14, 20. Adultery is one of the sexual crimes considered an “abomination” (to-’evah) to Adonai that is punishable by death (Lev 18:24-30; 20:10, 22-26; Deut 22:22-24; b. Sanh. 52b), and that defiles the land of Israel causing the Land to be “sinful” or “guilty” and to vomit out its inhabitants (cf. Lev 18: 24-25;
cf. Jer 3:1).
Jeremiah 3:1 views remarriage to a former wife who had married and divorced in a similar manner; such an action defiles the land (תחנף techanef). Second Temple Jewish text understood Deuteronomy 24:1-4 in a similar manner. For example, Philo equates a divorcee, who remarries her first husband, with an adulterous woman, and vehemently derides men who resume sexual relations with a former wife after belonging to someone else.11 In the retelling of Reuben’s transgression with Bilhah, Jubilees 33:7-8 and
T. Reuben 3:10-15 stress that Jacob refused to have any further sexual relations with her after the affair.
The emphasis on purity in the Second Temple period brought Deuteronomy 24:1-4 to the forefront. Valid grounds and procedures for divorce were determined in light of the contemporary situation in order to prevent illicit sexual relations, and further exile.
Second Temple Jewish Literature
In an expanded narrative about Abram, Sarai and Pharaoh, the Genesis Apocryphon portrays the same attitude as Philo and Jubilees. The text claims that even though Pharaoh had seized Sarai and kept her for two years, in answer to Abram’s plea to God that Pharaoh “not defile (make unclean) my wife away from me,” Pharaoh and his household were afflicted by an evil spirit and disease that prevented any sexual relations between the king and Sarai. Had they had sexual relations, Sarai would have been unfit to return to Abram. The author reiterates this point twice, reassuring the reader that the Pharaoh never touched Sarai. As a result she was not defiled (tamei), and could return to her husband Abram. Philo knows of a similar legend. He also shares the understanding that sexual relations between a woman and someone other than her husband would make her impure for her husband (Philo, Abr. 98). These examples demonstrate that during the Second Temple period the idea of intervening sexual contact would defile a woman, making her unlawful to her first husband.
Other developments within Second Temple Judaism provide a background for the debate concerning the grounds for divorce. Specifically this involved:
The criticism of polygamy and the move toward monogamy;
The developments of the ketubah and the instability of marriage; and
The ease of divorce for both men and women in the Greco-Roman world.
These changes are mostly seen in the Dead Sea Scrolls (DSS) and in the Elephantine Papyri.12
Dead Sea Scrolls (DSS)
The move away from polygamy toward monogamy is seen quite early with the addition of the word “two” in Genesis 2:24 in the Septuagint (LXX) and other early versions, where it is written “…the two become one flesh.”13 The word “two” is not in the Masoretic text. It appears that the gloss was a common addition that was recognized as a comment on the text rather than a variant. This means the gloss affirmed that marriage is made by two individuals, thus making polygamy an anomaly. The Dead Sea sectarians actually forbade polygamy, or more specifically polygyny,14 because it was considered a sexual sin (CD 4.20-5.21).15 The Damascus Document (CD) uses three proof-texts to support its position: Genesis 1:27 (“male and female He created them”), Genesis 7:9 (“two by two they [the animals] came . . . into the ark, male and female”), and Deuteronomy 17:17 (concerning the king that he should not “multiply wives for himself ”). This section of CD has been combined with passages from the Temple Scroll16 to conclude that the Qumran sectarians prohibited both polygyny and divorce.17 However, it has been successfully demonstrated that the Qumran community allowed divorce.
Let’s take the two texts above as examples. CD 13.17 mentions the role of the overseer in concerns of marriage and divorce, and the Temple Scroll suggests that divorce was normally allowed (11Q19 66.11). The Damascus Document uses a peshat reading of the three proof texts seeking to understand the divine purpose and the nature of things: God created humans male and female, paired all beings two-by-two, and the king is not supposed to have multiple wives. None of the Qumran texts say anything significant about divorce or remarriage. Instead, they exegete the texts as applying to someone who takes two wives.
Women and Divorce
Divorce became easier for women in most ancient societies in the 2nd and 1st centuries BCE. This trend is reflected in Christian literature until the 5th century. In the Greco-Roman world women had almost equal rights as men to initiate divorce. In 18 BCE Augustus tried to control marriage and divorce by imposing laws that required seven Roman citizens over the age of puberty to witness a divorce, and by making adultery a crime. By the 1st century CE, women and men were allowed to divorce at will, without citing any grounds.18 In the case of adultery, a woman would lose her dowry, and a man had to return the dowry plus half. Divorce on any other grounds incurred no penalty.
The status of Jewish women during this time is debated. It is a fundamental principle in Jewish law that only a husband can enact a get. The function of the wife is limited to that of merely receiving the get (m. Yeb.14.1, b. B.B.167a). Women in the first century could demand a divorce or petition the Jewish courts to force their husbands to grant the divorce if he broke his marriage contract and obligations (t. Ket. 12.3), or if he had a smelly occupation or personal defects that made him offensive to her (m. Ket. 7:10).
There is evidence that Jewish women had mutual rights of divorce: marriage contracts among the Elephantine papyri, Josephus’ mention of Herodian women initiating divorce (Salome, Herodias and Drusilla; Ant. 15.259-60; 18:136; 20:141-43), the Aramaic get from Nah.al Se’elim dated to the second century CE,19 and two references to marriage contracts in the Jerusalem Talmud (y. Ket. 30b and y. B.B. 17c) that allow for either the husband or wife to initiate divorce. In the Elephantine marriage contracts, the only differences between Jewish men and women are in regard to money and to dowry, which went to the woman in a divorce. Most remarkably, both men and women could enact an oral divorce in which they stated publically that they “hated” their spouse, and that they were willing to pay the price for a divorce.20 The Se’elim get appears to have been written by or for a woman to her husband. The increasing popularity of “any matter/cause” divorce propagated by Beit Hillel (expounded below) favored the husband, and increasingly diminished any rights the woman may have had. This led to the solidification in Judaism of only men being able to initiate a get, which in turn has led to the modern problem of the agunah (the “chained woman”).
Beit Hillel and Beit Shammai Debate: Grounds and Procedures for Valid Divorce
With this background in mind let us refocus our attention on the debate between Beit Hillel and Beit Shammai. By the first century CE Jewish exegetes used the repetition of the vav (meaning “and”) to divide Deuteronomy 24:1-3 into several cases, instead of one with several conditions and consequences. Such exegesis allowed them to use Deuteronomy 24:1-3 verses as a polemic for divorce law in general, and to emphasize the grounds and procedures of divorce.21 Beit Hillel took this one step further. Using the common exegetical technique later known as remez רמז, they concluded that the unusual phrase ‘ervat davar in Deuteronomy 24:1 referred to two different grounds for divorce – “indecency” and “a matter.” This meant an act of indecency or “any matter” – any single cause – could be used as grounds for divorce. R. Akiva added further weight to the argument when he pointed out that the phrase “does not find favor in his eyes” could refer to any petty matter such as a woman’s declining beauty. Beit Shammai, on the other hand, reversed the order of the two words, rendering the reading “a matter of indecency” which is equivalent to adultery.22 The view of Beit Hillel was dominant, as seen in both Philo and Josephus who assumed that “any matter divorce” was the only type of divorce,23 and in the fact that the view of Beit Shammai had almost disappeared by the time of Akiva.
A second issue on which Beit Hillel and Beit Shammai disagreed was the procedure for getting a divorce. Here they reversed their roles of conservative verses liberal. Beit Shammai said that a divorce certificate could be given to a wife at any time after it was written. Beit Hillel said that the get had to be written immediately before handing it to her. He also detailed the rules of how the get could be served, as well as the conditions attached to the divorce (m. Git. 8:1-8; cf. m. Git. 7:3-8):24
“Writes her a certificate of divorce;”
“Puts it in her hand;” and
“Sends her out of his house.”
Each of these three stages had a large number of associated regulations. This complex procedure offsets the ease with which someone could divorce for “any matter.” Without these regulations a husband could simply hand his wife a written divorce certificate in a fit of anger and dismiss her. Beit Shammai was conservative in their ruling on the grounds for divorce, but lenient on the procedures of writing and transmitting the get. Beit Hillel’s “any matter/cause” grounds for divorce was very lenient but their procedures for enacting a divorce were conservative.
The consequences of divorce were directly related to the stipulations/vows of marriage, specifically the dowry that was given in addition to the ancient custom of the mohar, the bride price.25 These payments were weighted against divorce to insure the relationships and family properties for both parties. Whoever caused the divorce was penalized financially. For example, if a husband divorced his wife without cause, he usually returned the dowry. If breaking a stipulation in the marriage contract caused the divorce (known today as a ketubah), the guilty partner was deemed responsible, and the innocent partner was allowed to keep the dowry.
Shimon ben Shetah in the first century BCE is credited as having reformed these established practices. He allowed the groom to forgo paying the normal bride price, with the stipulation that should he divorce his wife, the money had to be paid. The exact amount of goods and money that comprised the payment was written in the marriage contract. This practice became so extensive that the payment itself became known as the ketubah (t. Ket. 12:1; cf. y. Ket. 32b-c). These changes made marriage much less costly and divorce much more costly, and even prohibitive. The ruling in the Tosefta attributed to Shimon ben Shetah has been questioned as legendary. Regardless of its historicity, the tikkun demonstrates that around the first century BCE/CE divorce was common, and steps were being taken within Judaism to make it more difficult.
Other Grounds for Divorce
The debate between Beit Shammai and Beit Hillel recorded in m. Git. 9 is often referred to as “the authoritative” word on the views of the two schools concerning divorce. However, this debate only disputes the grounds for divorce in relation to ‘ervat davar and the procedures for issuing a get as exegeted from Deuteronomy 24:1-4.
It does not encompass all the views of divorce in Second Temple Judaism. Before the destruction of the Temple in 70 CE there was general agreement that valid grounds for divorce included infertility, unfaithfulness, material neglect (either food, clothing, or both), and emotional neglect. The latter two were drawn from Exodus 21:10-11 (cf. m. Ket. 5.5-8). Furthermore, divorce was considered undesirable but sometimes necessary.
Infertility was grounds for divorce because the primary purpose of marriage was regarded as procreation (Gen 1:28 “be fruitful and multiply”). Josephus wrote that procreation was the sole purpose for Jewish marriage (Against Apias 2.199) and that even the Essenes taught this (Jewish Wars 2.160-161). A couple that remained childless for ten years were expected to divorce. Simeon ben Yohai, a 2nd century CE Rabbi, tried to prevent such a divorce as seen in Song of Solomon Rabbah 1:31. Additionally, Philo was very sympathetic toward childless couples, stating that they need our pardon (Special Laws 3.35).
Unfaithfulness, or adultery, was another accepted ground for divorce. Theoretically adultery was a capital offense that was punishable by death. It is unlikely, however, that the death penalty for adultery was ever applied in the Second Temple period.26 The normal procedure for adultery was divorce without repayment of the ketubah.27 Suspected adultery was much more common. The rite of bitter water given in Numbers 5:11-28 to determine the guilt or innocence of a suspected adultress was probably abandoned after the Temple was destroyed in 70 CE.28 The Mishnah implies that a husband was required to divorce his wife for adultery (m. Sota 5.1), but was only expected to do so in the case of suspected adultery (b. Sota 25a; cf. b. Sanh. 88a; Sifre 218). In such instances the husband was not required to repay the ketubah. This is exemplified in Yosef taking Miriam as his “apparent” unfaithful wife. The rite of suspected adultery was not applicable in this instance because this rite was not given to a pregnant woman. Instead, in keeping with later rabbinic teaching, Yosef simply abstained from relations with his wife until after the child was born. The right to divorce in cases of adultery only applied to a husband divorcing his wife. If he committed adultery with an unmarried woman, he simply married her; if with a married woman, the offense was against the other woman’s husband who then could divorce his wife.
Exodus 21:10-11
In Second Temple and early Rabbinic Judaism, Exodus 21:10-11 provided three further grounds for divorce. The passage establishes the regulations about the manner in which a slave wife should be treated. The Exodus text states that a slave wife must be provided with food, clothing and love. If these are withheld, she is to be given her freedom. In a kal v’homer argument, this law was applied to a free wife: if it is true of the lesser wife, how much more so of the free wife who should have equivalent rights. This passage provided three valid grounds for divorce, and led to the comparison of the divorce certificate to that of a certificate of emancipation from slavery (m. Git. 1.4-6, 9:3). Much of the discussion about divorce in the Mishnah is based on Exodus 21:10-11, and later Rabbinic literature preserves detailed discussions about the limits for obtaining a divorce on these grounds. There are no debates about any of these grounds for divorce; there are simply details. This demonstrates the acceptance of these grounds for divorce.29
The provision of food and clothing were merged into one category entitled material neglect, and conjugal rights were treated separately as emotional neglect. The type of work expected of a wife (m. Ket. 5.5) differed from that of a husband (m. Ket. 5.8). The attribution of these two discussions to Eliezer b. Hyrcanus (80-120 CE), Ishmael b. Elish (120-140 CE) and Yose b. Halafta (140-165 CE) help date this ruling to at least the early second century. The comment about giving shoes for the festivals, allows for an earlier dating of before 70 CE when the Temple was still standing. Mishnah Ket. 5:9 requires that a man provide other physical needs for a wife, and that she should expect a standard of living similar to or better than the one in which she was brought up (b. Ket. 48a). Another area of neglect is that a wife could not be expected to live in the diaspora (m. Ket. 13.11) or that if in Israel she could not be moved far from her family (m. Ket. 13.10).
The last ground for divorce, emotional neglect, was defined in as much detail as material neglect (m. Ket. 5.6, 7). The ruling in m. Ket.5.6 is a debate between Beit Hillel and Beit Shammai about the length of time a husband can refrain from sexual relations with his wife. No limit is given for a wife. Because this was a debate between the schools of Hillel and Shammai, it can be dated to pre-70 CE. Eliezer ben Hyrcanus’ (80-120 CE) comments on it substantiate an early dating. Cruelty and humiliation are further forms of emotional neglect recognized in the Mishnah as grounds for divorce without receiving the ketubah.30 This list includes items such as forcing or abrogating a vow, or refusal to do so, and/or imposing demeaning or demanding conditions on the vow. In such cases husbands were forced to release the vow, or to divorce the woman with full payment of the ketubah. Any public act that was messy or demeaning to the wife, even the prohibition to wear certain types of adornment, was a serious act of humiliation. Wife beating was classed with acts of cruelty and treated as a criminal act of assault. Deliberate malice comprises matters of cruelty of a wife toward a husband, e.g. making him impure by giving him improperly tithed food, not warning of menstruation, behaving improperly in public, or cursing his parents. The difference between cruelty and neglect of conjugal rights is that cruelty results in divorce not fines.
During the 1st century CE, the debate about divorce between Beit Hillel and Beit Shammai permeated society. Beit Hillel’s “any matter” divorce was rapidly replacing all other biblically based grounds for divorce – infertility, unfaithfulness (adultery), material neglect and emotional neglect. In fact, after 70 CE. it had almost completely replaced all other grounds for divorce. The only time “any cause” divorce was not more beneficial was when a man could prove his wife had been unfaithful. Normally the penalty for breaking the marriage contract was divorce with the forfeiture of the ketubah. If a man could prove adultery, he could take his wife to court on the basis of the Tanakh, and would not have to pay the ketubah. However, during Second Temple and early Rabbinic Judaism, Jewish leaders were concerned about the “halakha” of marriage, divorce and remarriage, as well as about the people involved. In establishing valid grounds for divorce to insure proper remarriage so as not to defile the individual, the community or the land, Jewish leaders turned to Scripture for their answers. In the process, they made halakhic decision that upheld Torah, considered contemporary culture and society, and demonstrated actions full of grace and compassion.
Section Summary
In this section it has been shown that marriage was intended to be a lifelong berith between a man and a woman but sin derailed this ideal. The breakup of a marriage berith is always sin, but the Torah deals practically with this sin by the legal process of issuing a written divorce certificate (get). This legal document is communal approval that the grounds and procedures for the divorce were valid, and that the woman had the right to remarry without committing adultery, except for palingamy.
All Jewish groups in the Second Temple Period accepted divorce and remarriage after a valid divorce. The grounds and procedures for a halakhically valid divorce were highly influenced by the extreme emphasis on purity and by the contemporary culture and society. Thus the main purpose of the debate between Beit Hillel and Beit Shammai was to properly exegete Deuteronomy 24:1 in order to establish halakhically legitimate grounds and procedures for divorce to ensure valid divorce. Without a valid divorce, remarriage would cause a woman to commit adultery, and put the community at risk of being exiled once again. Beit Hillel created a new kind of divorce called an “any matter or cause” divorce, expanding the grounds for valid divorce to cover almost anything. Beit Shammai rejected “any matter divorce” stating that Deuteronomy 24:1 accepted divorce only for “matters of indecency.” While both Beit Hillel and Beit Shammai accepted sexual indecency as a ground for divorce, they also accepted infertility, unfaithfulness, material neglect, and emotional neglect, demonstrating pragmatic and compassionate positions.
Apostolic Writings
In light of the foregoing, let’s look at Yeshua’s words on divorce in the Apostolic Writings. For clarity and ease of reference, the five primary passages dealing with Yeshua’s words on divorce are laid out side-by-side in Appendix 1.
Mark 10:2-12
Mark 10:2-12 is traditionally understood as a pericope on divorce. Although the passage begins with certain Pharisees engaging Yeshua in a halakhic debate about the lawfulness of a man divorcing his wife, Yeshua’s reply shifts the discussion from divorce to marriage and remarriage. The Pharisees’ question appears to test Yeshua about the permissibility of divorce. Such a universal question, however, is strange because all Jewish groups at that time permitted divorce. The first century audience would have understood that an “any matter/cause” divorce was intended. It is much like asking if it is “lawful for a sixteen-year-old to drink.” We automatically understand that alcoholic beverages are implied; a person would dehydrate and die without drinking anything.31 Matthew 19:3 removes any ambiguities by including the phrase “for any cause,” which was a legal term referring to Beit Hillel’s “any matter or cause” divorce. Therefore, the question is best understood in relation to the debate between Beit Hillel and Beit Shammai over the proper grounds and procedures for divorce.
After the Pharisees’ initial question, “a cat and mouse game” ensues. Yeshua questions the Pharisees about what Moshe commanded them, and they reply that he permitted them to write a certificate of dismissal, paraphrasing Deuteronomy 24:1-3. Yeshua countered with two proof texts from Genesis 1:27 and 2:24. It has been suggested that the difference in terminology between command and permitted indicates a common assumption understood by both Yeshua and the Pharisees that the commandments of Moshe (Deut 24:1) are juxtaposed against God’s commandments (Gen 1:27; 2:14), indicating that Moshe’s permission to divorce was God’s concession. In other words, Moshe transmitted his own commandments and Adonai simply acquiesced.32 Such an exegesis is unsustainable in Mark because the Besorah clearly identifies the commandments of Moshe as equal with Adonai’s (e.g. 7:8-13; 12:26). Furthermore, Yeshua Himself returns to Deuteronomy 24:1-4 when He expounds his teaching privately to the disciples (10:10-12), treating it as the Word of Adonai. The Pharisees were simply using common terminology for what may or may not be done (cf. the rabbinic contrast of אסור forbidden and מותר permitted).
Yeshua links the two texts from Genesis in a type of exegesis later known as gezerah sh’vah, so that 1:27 is inferred in 2:24, specifying that it is God who joins the two together. By doing this Yeshua indicates to the Pharisees that he is not interested in their debate and reminds them that marriage was meant to be monogamous and lifelong. The Genesis passages were the standard proof-text for monogamy; a man should only marry one wife as in Eden. Notice that Yeshua includes the word “two” when he cites Genesis 2:24, indicating that he upheld the teaching that monogamy was Adonai’s original intention. Yeshua’s combining of the two texts refocuses the debate away from Deuteronomy 24:1-3 to creation and the dawning of an eschatological era that would restore Edenic conditions. Thus, Yeshua assures us of Adonai’s sovereignty. Though we live in a broken world, his original goal of consummation will come to pass. Matthew’s record of Yeshua’s teaching on divorce further clarifies this point through realized eschatology. The Kingdom of God in Besorat Matthew is here, but it is not yet fully established (see below).
Furthermore, the proof-texts introduced by Yeshua broaden the discussion from one specific form of illicit sexual relationships called palingamy, which is the main concern of Deuteronomy 24:1-3, to include all illicit sexual relationships. All sexual relations, other than those between the two (male and female) who have become one, are outside Adonai’s original intent. Any adaptation of this pattern affects creation, the community, and those in the community, as well as the image of Adonai and His holiness. Yeshua does not contradict the Torah by forbidding divorce. Rather, he emphasizes the weightier matter, giving precedence to creation and thus allowing it to correct the picture.
The disciples however, did not seem to understand Yeshua’s answer. After they were alone in the house, they asked for clarification of Yeshua’s statements. He explains that any man who sends away/divorces his wife and marries another commits adultery against her (meaning the first wife), and if a wife divorces her husband and marries another she commits adultery. This extends the teaching of verses 6-9, and focuses on Deuteronomy 24:4, which the Pharisees did not include within their argument.
If the two, who have become one through marriage, divorce and then remarry another person, they commit adultery because in essence they are still “married” to the original partner. Technically this is bigamy, not adultery. Adultery in the Tanakh, in Second Temple period literature and rabbinic literature, is defined as a man having intercourse with a woman married or betrothed to another man. We have already seen that it is one of the sexual abominations that defiles the land, thus causing exile. Bigamy on the other hand describes a person who marries another while still married. Neither bigamy nor polygamy are forbidden or defined as a sin in the Tanakh. Although monogamy was strongly encouraged in the Second Temple period, polygamy and bigamy were not officially banned in Judaism until the thirteenth century CE.33 Mark’s highly abbreviated account of the Beit Hillel/Beit Shammai debate does not resolve this tension. If we relate Yeshua’s words to a broader, universal context, we could conclude that he condemns any remarriage after divorce as the sin of adultery. However, the account in Besorat Matthew specifies divorce for “any cause” “except for porneia,” which confines the context to that of the debate. It also implies that Yeshua is referring to an invalid divorce (see below).
As was pointed out above, the holiness/purity language in Deuteronomy 24:1-4
influenced the interpretation of remarriage after invalid divorce as adultery, as in Jeremiah 31 and other Second Temple period texts. Yeshua’s statement “What God has joined together, let no man separate,” links to his drash on Genesis. The choice of vocabulary plays an important role in understanding Yeshua’s statements. The Greek use scho-rizeto- “to separate” instead of apolyo- “to release,” which the Pharisees used in questioning him. Though both words were standard terms for “to divorce,” and had a very similar semantic field, the Apostolic Writings use cho-rizeto- only in relation to Yeshua’s statements on divorce in Mark 10:9 and Matthew 19:6 (cf. 1 Cor 7:10-11). Cho-rizeto-is a third person prohibition. It is not a direct command (cf. Eph 4:26, 28; 2 Sam 14:25 LXX). A third person imperative in Greek does not carry the force of a direct command; rather, it carries the sense of a request, entreaty, summons or exhortation (e.g. 2 Pet 3:8; 1 Jn 3:7). For example, Yeshua taught the disciples to pray, “… may your name be sanctified, may your kingdom come, may your will be done .” (Matt 6:9) These are entreaties, not commands. The same nuances apply to prohibitions. Most prohibitions entreat the audience to abstain from one behavior and to engage in another (e.g.
Rom. 14:3; 2 Thes 3:10; LXX: Exod 20:19; Lev 25:14; 2 Sam 11:25; cf. Jn 14:27). His words are a prohibition against divorce, yet they do not carry the force of a direct command. They do not say, “You shall not divorce” or “Divorce is forbidden.” Yeshua is not saying that divorce cannot happen, but that it should not happen. This interpretation does not condone divorce; the Tanakh and Yeshua in the Apostolic Writings clearly equate divorce with sin. Instead, it places the statement into the context of the weightier matters of creation, of the eschatological Edenic restoration, and of the Torah’s pragmatic dealing with the breakup of marriages.
One possible reason for the specific choice of vocabulary may lie in the difference between “joining/yoking” and “binding.” Adonai “joins/yokes” the two together as one (Gen 1:27) in a “mystical/spiritual” relationship, whereas the two bind themselves together through their marriage contract. This differentiates between the concept of a marriage berith and of a marriage contract. The breaking of a marriage berith is always wrong, but a broken marriage contract for valid grounds is recognized by the legal action of divorce.
The prophets present a picture of Adonai divorcing Israel because she consistently broke her marriage contract.34 The main message is not that Adonai is a divorcé, but that Israel and Judah had broken their marriage contract. Malachi extends this criticism to all marriages where marriage vows are broken (e.g. 2:10-16; 3:5, 8-10). Adonai Himself witnessed these vows (Mal 2:14). He urges that they be faithfully maintained (v. 15), and becomes angry when the vows are broken (v. 16). He even states that He hates divorce. Yet He does not criticize the legal process, or the person who carries it out.
One further word on Yeshua’s statement that the “two become one flesh.” This phrase has often been interpreted to indicate that the physical act of sexual intercourse binds the two in marriage. This is difficult to substantiate in light of Sha’ul’s statement in 1 Corinthians 6:15-20 that people could become “one flesh” with a prostitute. This means that those in Corinth who were sexually immoral, idolaters, adulterers, etc. (6:9) would have to remain single. Yet he states, “you were washed, you were made holy, you were set right in the name of the Lord Yeshua the Messiah and by the Ruach of God.” (v. 11) Paul uses the phrase “one flesh” to describe a relationship that is intended to be lifelong, but has no guarantees that the relationship will last a lifetime.
We can conclude from the foregoing discussion that Mark 10:2-12 advocates inseparable monogamous marriage as the standard, and that divorce should not happen. All sexual relations except for those between the one male and one female are outside Adonai’s original intent. They are an abomination to Adonai. The consequences of such acts affect individuals, families, communities, creation and the holiness of Adonai.
Matthew 19:3-12
The Matthean pericope corresponds in substance to the Markan pericope, though not in precise detail. There are additions and omissions, and a different order to the narrative. The differences pertinent to our quest of a Messianic Jewish view of divorce are the two additional, strategic phrases, “for any cause” (Matt 19:3) and “except for porneia” (Matt 19:9). Both phrases recall the popular debate between Beit Hillel and Beit Shammai over the phrase ‘ervat dvar in Deuteronomy 24:1. The appearance of the phrase “for any cause” in Matthew delimits the Pharisees’ question as recorded in Mark, where it appears that they ask Yeshua if he thought divorce itself was lawful or not. This phrase “for any cause” was a legal idiom similar to modern terms as “irreconcilable differences” and “joint custody.” When we hear such phrases, we automatically know that the subject being discussed is divorce, specifically when there are children involved. Likewise, the phrase “for any cause” should be understood as a legal term indicating a new type of divorce. Such a reading clarifies the Pharisee’s question. They were asking Yeshua his opinion about the new “any cause” type of divorce and his interpretation of Deuteronomy 24:1-4. This well-known idiom would have been understood as a legal term by all the protagonists in the narrative. The popularity of the subject is evidenced by Philo, Josephus, Qumran and other Second Temple Jewish literature, several high profile divorces among aristocracy at that time, and the fact that divorces were issued through the judgment of a court. A person seeking divorce would need to know the legal opinions of the court so they could submit their plea to the beit din (rabbinical court) most sympathetic to their situation.
The second phrase “except for porneia” (Matt 19:9; cf. Matt 5:32) clarifies that Yeshua did not accept Beit Hillel’s “for any matter/cause” divorce, but that the interpretation of Deuteronomy 24:1 meant nothing more than “sexual immorality.” Most Christian commentators from the early Church Fathers through today have not taken into account the legal aspect of these two phrases. As a result they have tried to answer the wrong question. They have sought to determine whether Yeshua recognized divorce as being lawful or not, or as acceptable or forbidden throughout Scripture. Yeshua was not responding to such a universal question, otherwise it would contradict Sha’ul’s allowance of divorce for abandonment (1 Cor 7:15). He was responding to the specific question about the grounds for a valid divorce as exegeted from Deuteronomy 24:1-4. Through the use of the two legal idioms, Yeshua emphasizes that divorce for “any cause/matter” “except for porneia” is not a valid divorce. Consequently, anyone who remarries after a divorce for “any cause” commits adultery.
The search for a universal statement on divorce from the entire Scripture created the need to determine the exact meaning of the word porneia as used in the Matthean exceptive clause.35 Many different interpretations have been proposed. These include polygamy, incest, adultery, sex before marriage, and prostitution.36 Each of these is correct because the basic meaning of porneia is “to engage in any type of sexual immorality.” Porneia captures the nuance of ‘ervah in the legal idiom “except for sexual indecency/immorality.”37 The word introduces a sense of universality in that it encompasses all types of sexual immorality, not one specific form. Thus, in answering the Pharisees’ specific question about the grounds for divorce based on Deuteronomy 24:1-4, in its first century context, Yeshua repudiates any grounds (“any matter/cause”) for divorce “except [for any type of] sexual immorality.”
The exceptive clause also clarifies Yeshua’s statement that remarriage after divorce is adultery. In light of the historical debate over Deuteronomy 24:1-4 which was about both the grounds and the procedures for a valid divorce, Yeshua was saying that a divorce for any reason other than sexual immorality was invalid. Therefore, remarriage would be adulterous because they are still married to their original partner. Conversely, divorce for sexual immorality constituted a valid divorce, and remarriage after such was acceptable. This understanding does not contradict Yeshua’s prohibition that humans should not separate what Adonai has joined. From the beginning, before sin entered the world, inseparable marriage was the ideal, but because of their hardheartedness, their obduracy to continue in their sin that breaks the marriage covenant, the Torah specified a written certificate of divorce.
The Greek word ske-lrokardia is important in understanding the text. Ske-lrokardia was coined in the Septuagint to translate the Hebrew ערלת לבב (‘orlat levav) meaning obduracy, stubbornness, hard-heartedness. The word only appears in the context of divorce in Jeremiah 4:4 where Adonai warns Judah that they are being stubborn in their adultery. Earlier, Jeremiah describes Israel as Adonai’s wife (2:1-2) who had committed adultery with other gods (2:20-26) so that Adonai was forced to divorce her (3:1-8). Jeremiah warns that Judah is going the same way as Israel (3:10-14). Unless they repent of their hardheartedness and get rid of the sin that is ruining their lives (4:3-4), Adonai will divorce them. It can be exegeted from these verses that a spouse who continues in their sinful ways hardheartedly, and does not repent, has broken the marriage vows, and can be divorced by their spouse. However, the opposite also holds true. The injured spouse cannot divorce unless the offending spouse continues hardheartedly in his/her sinful ways without repentance. If the offending spouse repents of his/her hardheartedness, which includes changing his/her sinful ways, he/she is to be accepted back into the marriage. This passage also negates the halakhic requirement that divorce was mandatory for adultery. An adulterous spouse may be taken back into the marriage after true repentance.
In Matthew 19:10 the disciples were astonished at Yeshua’s teaching. On one hand, he made divorce much more difficult than the norm of his day. He taught that marriage was monogamous and intended to be inseparable from the beginning. The breakup of a marriage was sin with serious consequences, because Adonai witnessed the couple’s marriage vows and joined them together. He repudiated Beit Hillel’s “any matter” divorce, and advocated divorce only if the erring partner continued in his/her sinful ways “hardheartedly.” On the other hand, he taught that divorce was not compulsory in cases of adultery, nor was marriage required. In reply to the disciples’ statement, Yeshua puts forth eunuchs as an example of those who do not marry. There are eunuchs from birth, by force and for the kingdom of heaven.
Context of Yeshua’s teaching on Divorce & Remarriage in Matthew
Matthew 5:31-32 and its parallel Luke 16:18 summarize Yeshua’s teaching on divorce as recorded in Mark 10 and Matthew 19, and should be read in light of the longer passages. Matthew 5:32 is almost a word-for-word repetition of Matthew 19:9.38 Both of these passages appear in the overall context of the kingdom of heaven and of a call to sexual purity. Matthew 5:3 states, “blessed are the poor in spirit, for theirs is the kingdom of heaven” and 5:17-19, “Do not think that I came to abolish the Torah or the Prophets! I did not come to abolish, but to fulfill. … Therefore, whoever breaks one of the least of these commandments, and teaches others the same, shall be called least in the kingdom of heaven. But whoever keeps and teaches them, this one shall be called great in the kingdom of heaven.” In Matthew, Yeshua’s coming to earth ushers in the new era of the kingdom of heaven. It has already begun, but it is not fully here. It is both present and future, already and not yet. His teachings do not abolish the Torah and Prophets, but rather interprets them in light of the ideal established at creation, before sin, and the expected return in the eschaton.39 He reorders the priorities, emphasizing the weightier measures that inform the foundational principles for this new community.
We see the concept of already/not yet in Yeshua’s teaching on divorce as well. In the kingdom of heaven marriage is an inseparable lifetime union between one man and one woman as it was in the beginning. Although the kingdom is present, it is not fully realized, therefore it is the “not yet.” In this period of tension humankind continues to sin. Marriage vows continue to be broken and are subsequently recognized by the legal action of divorce. Yeshua presents the ideal way marriage should be, but he also regulates the grounds and procedures for valid divorce when the marriage contract has been broken and there is no repentance on the part of the offending spouse.
I Corinthians 7:10-11
Sha’ul’s teaching on divorce in 1 Corinthians 7:10-11 echoes that of the two Besorot and the interpretation presented above. He upholds the ideal of inseparable marriage and advocates reconciliation instead of divorce and remarriage (1 Cor 7:10-11). He also allows for divorce in cases of abandonment (7:15). The latter demonstrates that Sha’ul considered our already/not yet status, and recognized that all halakha must consider that of human nature and character. In chapter 7 Sha’ul admonishes people of different marital statuses – husband and wives (7:2-7), unmarried, widowers and widows (7:8-9), married people who contemplate divorce (7:10-11), others (7:12-16), and virgins or unmarried people (7:25-31). In the midst of this teaching, he points out a universal truth that there is a discrepancy between practice and theory, i.e. between what theologians and leaders teach and that which people actually do. Inseparable marriage or reconciliation is best, but people still break their marriage contracts and subsequently divorce (v. 11: “but if she does [divorce]”). It has been demonstrated above that during Sha’ul’s lifetime divorce was easy and widespread, much as it is today.
Sha’ul also allows for remarriage after divorce without deeming it sin. Verses 27 and 28 state, “Are you bound to a wife? Do not seek a divorce. Are you divorced from a wife? Don’t seek a wife. But if you marry, you have not sinned.” Sha’ul advocates neither divorce or remarriage, but if you do marry after a valid divorce, it is not sin. Sha’ul’s concession is reminiscent of the written certificate of divorce mentioned in Deuteronomy, as well as in Besorat Mark and Besorat Matthew. Sha’ul refers to a valid divorce.
1 Corinthians chapter 7 has been used to allow for separation but not divorce. First, this is contrary to Sha’ul’s teaching that the two should live together and care for each other, except for a specific time (7:3-5, 33-34). Second, it contradicts Yeshua’s statement “what God has joined together, let no man separate.” Sha’ul uses the passive “cho-risthe-nai”
of the same Greek word Yeshua uses in the prohibition. Separation for a specific amount of time in order to correct, discipline, or restore the marriage and marriage partners agrees with verse 5. Thirdly, separation without divorce creates a new status similar to that of an agunah. A person who is neither married nor divorced is in a state of limbo. This brings us back to the problem in the Torah where a written certificate of divorce was given in order to clarify one’s marital status, thus allowing for remarriage. Remarriage after a valid divorce in the Tanakh and in the Second Temple period was the norm. In fact it was considered part of the nature of divorce.
Section Summary
The Apostolic Writings advocate that inseparable monogamous marriage is the standard, and that divorce should not happen. Yeshua presents the ideal way marriage should be, but because we live in the already/not yet, marriage vows are broken, resulting in divorce. Therefore, he regulates the grounds and procedures for valid divorce in response to the halakhic requirements of his day, using conventional legal idioms. He rejects Beit Hillel’s “any matter” divorce, but upholds divorce for “sexual indecency.” Furthermore, he does not abrogate the other halakhically acceptable biblical grounds for a valid divorce from Exodus 21:10-11. Remarriage after divorce on any grounds other than sexual immorality, or material/physical and emotional neglect/abuse results in adultery. He also requires that the erring spouse be forgiven, and the marriage restored, unless the offending spouse refuses to repent, and continues in their hard-heartedness. Sha’ul echoes the teaching in the Besorot on divorce, but also allows for a valid divorce in cases of abandonment, as well as remarriage afterwards.
Community
The whole point of the debate over Deuteronomy 24:1-4 in the 1st century Jewish community was to establish legitimate grounds and procedures for divorce, to ensure a valid divorce and the right of remarriage without committing adultery. The responsibility of these decisions fell on the leaders of the community. The rabbis of the Mishnah understood that the consequences of divorce were dire for the entire community and were to be avoided at all costs. While Adonai forgives iniquity, transgressions and sins, the punishment for these can go on to the third and fourth generation (Exod 34:7), affecting the entire community. The rabbis invoked tikkun ha’olam in order to insure the stability of the Jewish community as a whole.
Tikkun ha’olam appears in ten different places in relation to questionable divorces in the Mishnah, most of which arose from problems with the traditional divorce laws that developed out of the debates outlined above. These rulings do not abolish the original laws. Instead they create loopholes in the procedures for issuing a get, mipnei tikkun ha’olam (i.e. for the good of the community). In Jewish law, then and now, a divorce is actuated when a wife receives the get issued by a beit din at the request of the husband. As soon as the woman accepts the get, she is divorced and free to marry another man without the consequences of committing adultery. A woman cannot unilaterally divorce her husband. Problems arise when the husband will not initiate a divorce, as is evident in the problem of agunot so prevalent today, and when a woman has a child from another man while she is still legally married to her first husband. In the case of the latter, the child is a mamzer, and is prohibited from marrying a Jew who is not also a mamzer. As a result, it is vital that a woman knows for certain that she is divorced.
Many of the cases of tikkun ha’olam involving questionable divorces concern indecisive husbands who initiate a get and then change their minds. One example is
m. Git. 4:2, which records rulings by Gamliel the Elder concerning mipnei tikkun ha’olam. Basically, a man could cancel a get as long as his wife had not yet received it. But what happens if a man annuls the get at a beit din in a different location, and the wife does not know that the get has been nullified, and she marries another? Or if he uses a nickname for himself, the wife or the city in which they live? She might not recognize her or her husband’s name, nor anyone recognize the people involved. Divorces of uncertain status could lead to adulterous marriages or to unnecessary celibacy. In order to remove any confusion about the legitimacy of a get, Rabban Gamliel ruled that a man may not cancel a get by means of a beit din, and that a get must include all the names and aliases of both the man and the woman. “In both of these cases mipnei tikkun ha’olam justifies forbidding a practice that, while technically legal, threatens to disrupt the system as a whole.”40 By evoking tikkun ha’olam, the flaw that endangers the community as a whole is improved. Mipnei tikkun ha’olam was usually evoked to protect the vulnerable party. The invoking of tikkun ha’olam by communal authority to protect the vulnerable members of the community continued to develop in Judaism, and is a principle the Messianic Jewish community would be wise to consider in its view toward divorce.
In contrast, the Christian community has generally chosen to maintain a strict literal interpretation of Deuteronomy and Yeshua’s teachings. The early Church Fathers focused upon porneia in Matthew’s exceptive clause and its parallels in Matthew 5:32. They concluded that remarriage after divorce is forbidden.41 Some demanded divorce for adultery, while others required separation from an adulterous spouse, and reacceptance should they repent. All of the early Church Fathers, except for Ambrosiaster (late 4th century), applied their regulations for divorce to both men and women (cf. Mk 10 and 1 Cor 7). Their strict interpretation of the divorce texts in the Apostolic Writings remained the standard view of the church in the west until the 16th century when Erasmus suggested a different view, which was adopted by the Protestant reformers yet rejected by Evangelicals. Erasmus proposed, “It should be permissible to dissolve certain marriages, not fortuitously but for very serious reasons, by the ecclesiastical authorities or recognized judges and to give the innocent party the freedom to marry again.”42 This is a grave contradiction to the early Church’s strict system of penance and discipline for serious sinners, which included exclusion from Seudat haAdon, and even expulsion from the church until they repented. By the late fourth century there was a lengthy procedure whereby the repentant person was restored to fellowship. For fifteen years the penitent was excluded from the sacraments. The penitent was to weep for four years (outside the church), listen for five years (in the vestibule), prostrate themselves for four years (among the catechumens), and stand upright for two years (among the congregation).43 This drawn-out procedure is in direct contrast to that of Yeshua’s words to the adulteress recorded in John 8:2-11.
It is important to note that Erasmus was responding to the ecclesiastical system of his day that believed there was no salvation for anyone outside the Church and its sacraments. Augustine (354-430 CE) had introduced the notion that marriage was a sacrament, a mystery of Yeshua’s unity with the ecclesia as Sha’ul states in Ephesians 5:31-32. By the Middle Ages the understanding of “sacrament” had taken on a different meaning. Aquinas (13th century) taught that marriage was a sacrament that transmits grace. This doctrine was ratified at the Council of Trent 1545-53 CE. In a sense Erasmus was initiating changes mipnei tikkun ha’olam, for the good of the entire community, which he advocated be done by community authorities or judges.
Character of Adonai: Forgiveness and Restoration
No Messianic Jewish view of divorce would be complete without placing it in the context of the character of Adonai. Many different attributes come into play, but the two we will focus on are forgiveness and restoration. Both of these are part of who Adonai is, and not just what He does. Adonai declares that He is a “compassionate and gracious God, slow to anger, and abundant in loving kindness, showing mercy for thousands of generations, forgiving iniquity and transgression and sin … .” (Exod 34:6-7a). At the same time, He holds the guilty accountable for their sin and iniquity “… yet by no means leaving the guilty unpunished, but bringing the iniquity of the fathers upon the children … to the third and fourth generation” (Exod. 34:7b). Both attributes affect the entire community: the first for thousands of generations, and the second only for three or four generations. The benefit of mercy and forgiveness is at least a thousand times more influential than the consequences/punishment of sin. As we have seen above, it is vital for the entire community to espouse marriage as a lifetime, monogamous relationship and divorce as something that should not happen. However, when the marriage vows are broken and divorce ensues, the divorcee or divorcé must be forgiven. Yeshua bore our sin (1 Pet 2:24; cf. Isa 53:4; Matt 26:28), and commands us to forgive (Mk 11:25; Lk 6:7; Jn 20:23, passim). He even teaches that we must forgive an unlimited number of times (Matt 18:21-22). In marriage, we are to forgive an erring partner, and welcome them back, when there is repentance, which includes a change of action. A divorce should take place according to biblically valid grounds only after the erring spouse continually breaks the marriage contract, hardheartedly and without repentance. Such an understanding reconciles:
Adonai’s ideal view of marriage;
Adonai’s forgiveness, mercy and accountability;
Yeshua’s bearing of sin; and
Yeshua’s teaching on divorce (reviewed above).
Restoration is directly related to forgiveness. The entire canonical narrative of creation and consummation demonstrates Adonai’s forgiveness and restoration. The Torah lays out the stipulations for B’nai Israel in Deuteronomy 28-29. Chapter 30 depicts them as both keeping and breaking the stipulations. More importantly, when they repent and obey, Adonai restores them. The pattern of Sin-Exile-Repentance-Return is characteristic of Deuteronomy and appears throughout the rest of the Tanakh. The Apostolic Writings reinforce the Tanakh’s principle of restoration. Galatians 6:1 admonishes us to restore a member of the community who has been caught in sin. Two principles about divorce and remarriage can be gleaned from this verse. First, when a marriage is in danger or breaking apart, every effort should be made to restore the marriage. The causes need to be addressed. Individuals should be held accountable and disciplined for their actions, in an attempt to restore both the marriage and the individuals to a healthy spiritual relationship with Adonai, including obedience to Him. The goal is restoration not condemnation.
Second, when the above steps fail and a broken-marriage ends in divorce, all the injured parties need to be restored. Divorce is a tragedy that causes tremendous pain. Lubavitch Rabbi Aron Moss captures the pain and consequences of divorce. “Divorce,” he states, “[is] like an amputation, [it] is a tragedy, but sometimes it’s the right thing to do.”44 Like an amputation, divorce is never desired. It is a drastic action with terrible repercussions including that of tremendous pain. The consequences of divorce cause pain to spouses, the immediate and extended family, and the community. Each of these needs to be restored to healthy spiritual, mental, emotional and physical relationships. We act irresponsibly when we allow remarriage after divorce, when repentance and restoration has not taken place (Lev 19:17, “You must surely reprove your neighbor so that you do not incur guilt on account of him.”). Otherwise we invite the perpetration and multiplication of the same sins that caused the breakup of the marriage in the first place.
This is not to say that remarriage after a valid divorce is forbidden. In Judaism a second marriage is compared to the of the Second Temple. It is a second chance! Is the destruction of the First Temple and the rebuilding of the Second what Adonai intended? No! But it is part of His character to forgive and restore, i.e. to give a second chance. We, as part of the ecclesia, live in the “already/not yet.” Adonai desired man and woman to become one through a mystical/spiritual union in a marriage berith. That is the goal. The reality is that people sin, marriage contracts are broken, and divorce unfortunately occurs. The Scripture, both Tanakh and the Apostolic Writings, respond pragmatically to the reality of the “not yet” by providing specific boundaries for valid divorce: unfaithfulness, sexual immorality, physical and emotional neglect and abuse. When this happens forgiveness, must be extended, first to the erring partner in order to restore the marriage and second to those affected by the divorce. They are to be held accountable for their actions, to be corrected, and to be disciplined for the purpose of a complete restoration.
Conclusion
Any Messianic Jewish view of divorce must draw from the Tanakh and Apostolic Writings, as well as assess the communal traditions and practices of both Judaism and Christianity. I have tried to make this task less daunting by breaking up the main issues touched on above into manageable sections. In light of the foregoing research, I propose thirteen points that can serve as a platform from which we can begin discussing a Messianic view of divorce.
1. Marriage is intended to be a lifelong berith between one man and one woman, but sin derailed this ideal.
2. The marriage berith contains the aspect of two becoming one in a mystical/ spiritual union enacted by ADONAI, while the legal aspect of a marriage contract contains the stipulations and vows of the marriage.
3. The breakup of a marriage berith is always sin, but the Torah deals pragmatically with this sin through the legal process of issuing a written divorce certificate (get).
4. The purpose of divorce is the legal, communal, recognition of a broken marriage contract, thereby enabling remarriage without committing adultery.
5. The grounds for valid divorce in the Tanakh, Second Temple Period, and in Judaism today, are unfaithfulness, material neglect, and emotional neglect. Yeshua did not repeal these grounds.
6. A valid divorce is to be defined by the community based on the Tanakh, Apostolic Writings, and community traditions in light of contemporary society and culture.
7. Yeshua advocates that inseparable monogamous marriage is the standard, and that divorce should not happen, but it does. Consequently he regulates it.
8. Yeshua rejected Beit Hillel’s “any matter/cause” divorce as valid, accepting only Beit Shammai’s interpretation of Deuteronomy. 24:1 as “except for sexual indecency,” meaning all forms of sexual immorality.
9. Forgiveness and restoration of a marriage after the marriage vows have been broken is always the first goal. Only after the erring partner continues hardheartedly in the sin that broke the marriage contract should the wronged partner initiate divorce.
10. Remarriage after a valid divorce is permissible. Remarriage after an invalid divorce is adultery, whose consequences are communal.
11. The goal of all correction or discipline in relation to divorce is to restore, spiritually, mentally, physically, and emotionally, those involved in the divorce, so that the sin that caused the divorce is not perpetuated.
12. The Messianic Jewish community would do well to establish a communal leadership for deciding issues of mipnei tikkun ha’olam, and to which leaders can turn for advice on how to handle situations in their communities.
13. The principles laid out above apply equally to both men and women.
xxxthe appendix goes here. I have no way to convert those pages.
1 For more information, see the two classic works on Jewish divorce by David Amram, The Jewish Law of Divorce According to Bible and Talmud: Some References to its Development in Post-Talmudic Times (Reprint; New York: Hermon Press, 1975) and Irwin Haut, Divorce in Jewish Law and Life, Studies in Jewish Jurisprudence, vol. 5 (New York: Sepher-Hermon Press, 1983).
2 Adapted from David Instone-Brewer, Divorce and Remarriage in the Church: Biblical Solutions for Pastoral Realities (Downers Grove: IVP, 2003), Kindle Edition, location 97.
3 See for example, David Instone-Brewer, Divorce and Remarriage in the Bible: The Social and Literary Context (Grand Rapids, Cambridge, UK: Eerdmans, 2002), 133-187; Thomas Kazen, Scripture, Interpretation, or Authority: Motives and Arguments in Jesus’ Halakhic Conflict, WUZNT 320 (Tübingen: Mohr Siebeck 2013), 193-282; William A. Heth and Gordon J. Wenham, Jesus and Divorce: The Problem With the Evangelical Consensus (London: Hodder and Stoughton, 1984), 112-137.
4 For a short bibliography of scholarly studies, see Kazen, Scripture, 195-196, n. 1.
5 Deuteronomy 24-1-4 has been intensely discussed. See, for example, Gordon Wenham “The Restoration of Marriage Reconsidered,” JJS 30 (1979): 36-40; Raymond Westbrook, “The Prohibition of Marriage in Deuteronomy 24:1-4 in Law from the Tigris to the Tiber: The Writings of Raymond Westbrook. Volume 2: Cuneiform and Biblical Sources, eds. B. Wells and F.R. Magdalene (Reprint; Winona Lake, IN: Eisenbrauns, 2009), 387-404; and Markus Bockmuehl, “Matthew’s Divorce Texts in Light of Pre-Rabbinic Jewish Law” in Jewish Law in Gentile Churches: Halakha and the Beginning of Christian Public Ethics (Edinburgh: T&T Clark, 2000), 17-21.
6 Philo (Laws 3.80) and R. Akiva took the view point of Beit Hillel to the extreme, and Josephus states that divorce for “any matter” was common in his day (Ant. 4.8).
7 Quote taken from Sacred Texts, http://www.sacred-texts.com/jud/etm/etm143.htm (accessed Mar. 11, 2016).
8 For the full range of meanings of “covenant,” and a wide-ranging bibliography, see M. Weinfeld, “Berith” in Theological Dictionary of the Old Testament, Johannes Botterweck, et. al. (Grand Rapids: Eerdmans, 1974), 2:253-265.
9 On marriage as a contract, see Pope, Leslie W., “Marriage: A Study of the Covenant Relationship as Found in the Old Testament” (M.A. thesis, Providence Theological Seminary, 1995; Ann Arbor: UMI Dissertation Services, 1997), 74-78.
10 Palingamy is the sexual sin of remarrying a formerly divorced spouse after an intervening marriage. Bernard Jackson, Essays on Halakhah in the New Testament, Jewish and Christian Perspectives Series 16 (Leiden: Brill, 2008), 196-197 discusses palingamy in light of Yeshua’s exegesis of Genesis 1:27 and 2:24.
11 Philo, Spec. Leg. 3.30-31. Philo says that such a man is an effeminate weakling who has no manly courage or vigor, “as if he had been castrated and deprived of the most useful portion of the soul, namely, that disposition that hates iniquity.” This man is guilty of adultery and pimping.
12 A large body of papyri from the Jewish community at Elephantine, Egypt dating from the 5th century BCE. Most of the fragments were written in Aramaic and include letters, family legal contracts including marriage and divorce documents, the manumission of slaves and other business.
13 Septuagint, Syriac Peshitta, Samaritan Pentateuch, Vulgate, Targum Pseudo-Jonathan and Targum Neofiti.
14 Polygyny is a specific form of polygamy in which a man is married to more than one wife. Polygamy is a form of marriage which includes more than one partner, either husband or wife.
15 This passage discusses the three nets of Belial (4. 15-18) – fornication (zenut תונז), wealth and defiling the sanctuary. “Taking two wives in their lifetime” is given as an example of fornication (5.20-21).
16 11Q19 16.16-19, 17.15-19 rewrites and expands the rules for a king in Deuteronomy 17:14-20.
17 Joseph Fitzmyer is a strong proponent of this reading. See, Joseph Fitzmyer, “The Matthean Divorce Texts and Some New Palestinian Evidence,” Theological Studies (1976): 197-226. For further discussion, see Instone-Brewer, In the Bible, 61-72, Kazen, Scripture, 236-242.
18 Institutes of Gaius, 137. Amram, Jewish Law, 61 discusses Roman law in relation to women from the Herodian family divorcing their husbands.
19 This document was discovered in 1951 and passed through the hands of several scholars before it was finally published in 1995 by Ada Yardeni, Nahal Se’elim Documents (Jerusalem: Israel Exploration Society and the Ben Gurion University in the Negev) and with translation in 1996 by Tal Ilan, “Notes and observations on a newly Published Divorce Bill,” Harvard Theological Review 89 (1996): 195-202.
20 Instone-Brewer, In the Bible, 75-80 discusses these texts at length.
21 This is seen in Josephus who paraphrases the verse to focus on a certificate of divorce as well as in later rabbinic rulings and discussions about the various aspects of divorce that ignore verse 4. For an overview and history of early Jewish interpretations of Deuteronomy 24:1-4 see Kazen, Scripture, 224, n. 92.
22 These conclusions are exegeted from Sifre Deut. 269: (m. Git. 9.10; y. Git. 9.11; b. Git. 90a; y. Sot.1.1). For a detailed examination of the exegesis, see David Instone-Brewer, Techniques and Assumptions in Jewish Exegesis before 70 CE, Texte und Studien zum Antiken Judentum 30 (Tübingen: Mohr Siebeck, 1992).
23 Philo Special Laws 3:30; Josephus, Life, 426-427, Ant. 4.253.
24 Amram Jewish Law, 171-186 summarizes these laws.
25 There is some confusion of terms and practices depending upon the time period and contexts being compared, but the accepted system seems to have been endowments from both the father and husband to be. The ketubah later filled a similar function as the earlier mohar, bride price.
26 The right of the Jews to carry out capital offenses ended around 30 CE (b. Sanh. 41a; y. Sanh. 18a, 24b). It is often assumed that they ended much earlier. The only possible example is in John 8.
27 For example see m. Sota 6.1; cf. 2nd Enoch 71:6-7 [late 1st century] states that Noah’s brother Nir divorced his adulterous wife.
28 The Mishnah states that the rite of bitter water was so common shortly before 70 that the practice was abandoned by Yochanan b. Zakkai (m. Sota 9.9).
29 All extant second century marriage contracts contain the obligation for a man to feed and clothe his wife, and one includes conjugal rights. The manner in which vows were expressed varied over time and in different branches of Judaism. They consist of both oral and recorded vows. By the time of the Talmud, the wording of marriage contracts had become relatively fixed. Though the language is more euphemistic, they still follow the same model of marital fidelity, as well as the obligation to provide food, clothing and conjugal relations.
30 See m. Ket. 7.2-5 9 (a man toward a wife); m. Ket. 7.6 (a woman toward a husband).
31 Analogies in this section are drawn from Instone-Brewer, In the Church and idem, In the Bible.
32 For more on this topic, see Steven Fraade, “Moses and the Commandments: Can Hermeneutics, History, and Rhetoric Be Disentangled?” in The Idea of Biblical Interpretation: Essays in Honor of James Kugel, eds.
33 B.Z. Schereschewsky, “Bigamy and Polygamy” in Encyclopedia Judaica (Jerusalem: Keter Publishing, 1972), 4:985-990, specifically pages 986-988.
34 Jeremiah, Ezekiel and Hosea. The words that Adonai speaks in Hosea 2.2 (MT v. 4) “she is not my wife and I am not her husband,” are an ancient Near Eastern divorce formula.
35 There is a vast amount of literature written on this topic. For a detailed account of the interpretation of this phrase and its implications for divorce in the church, see Heth and Wenham, Jesus and Divorce.
36 Fitzmyer, Matthean, specifically 221.
37 The Septuagint translates ‘ervat davar in Deuteronomy 24:1 as aschemon pragma. However, this translation does not capture the sense of its use in the 1st century as legal terminology in the debates on divorce.
38 The mention of a topic twice is characteristic of Besorat Matthew.
39 See Russ Resnick, Divine Reversal: The Transforming Ethics of Jesus (Clarksville, MD: Lederer, 2009), Kindle Edition, location 1721.
40 Jill Jacobs, There Shall be no Needy: Pursuing Social Justice Through Jewish Law and Tradition (Woodstock, VT: Jewish Lights 2009), Kindle Edition, location 489).
42 V. Norskov Olsen, New Testament Logia on Divorce: Study of their Interpretation from Erasmus to Milton. Beiträge zur Geschichte der biblishchen Exegese 10 ( Tübingen: Mohr Siebeck, 1971), 21.
43 Basil’s canon 58, Saint Basil: The Letters, LCL 3:248-9.
44 http://www.chabad.org/library/article_cdo/aid/387647/jewish/Jewish-View-of-Divorce.htm. (accessed March 16, 2015)