Divorce and Remarriage

BE IT KNOWN... I did not write the following article. I did slight editing of an uncredited article I acquired when attending an unusual "law school" back in '93. (I think I know who wrote it but am not sure.) I'm posting this [on Facebook] in response to Ellie P.'s article which attempted to explore the subjects of divorce and remarriage. I do NOT necessarily agree with every detail espoused in my note. Having giving that mild disclaimer, I must affirm this is a positively shocking report. I don't believe ANY theologian or seminarian has observed these things, yet I am convinced that it clears up virtually ALL of the sticky issues revolving around this delicate subject. Ellie, I hope you and many others will find great peace through this. You will have to do much rethinking (and maybe rewriting). Some time I may share my own journey from total-forbiddence of remarriage to almost total embracing of it. I'll just say I owe the "thoroughly reformed" community a great debt for bringing me to the stage I was at right before I saw this article. This article pushed me even further.

(The formatting isn't perfect as I merely pasted it out of a Word document. And I feel the last paragraphs end the article awkwardly. But the bulk of it is clear and powerful.)


DIVORCE & REMARRIAGE

Divorce and remarriage is a highly controversial issue. Many persons believe they are living in sin because they have been divorced and remarried. People should not be so burdened, because divorce and remarriage is not adultery.

Church opinion has long favored the teaching that remarriage after divorce is adultery, based upon a mistranslated word in Matthew 5:32.

The result? A great many people today who are divorced and remarried are being expelled from their churches. Others are being refused leadership positions or are being piled with a load of guilt for "living in adultery".

To gain a better understanding of divorce and remarriage, we must go back to the days before God gave His Law to Israel. We shall look first at the Babylonian Law Code and then compare it with God's Law on marriage and divorce, from which we shall learn that early English law basically followed scriptural law.

THE LAW OF HAMMURABI

The oldest known law code comes from Mesopotamia, and is called the Code of Hammurabi. According to Hammurabi's Code, a marriage was a simple contract, valid only if it was written, sealed (signed), and witnessed (Par. 128). Divorce was allowed, but treated in various ways, depending on which party broke the contract. If the wife were guilty, he could divorce her with the words "I put her away", and he could send her away empty-handed (Par. 141).

The wife also had the right to divorce her husband, if her husband had violated the marriage contract. However, this was a risky thing to attempt, because if the court should determine her to be the guilty party, she was executed (Par. 142, 143).

When the husband was at fault, the code was quite generous with the wife, and took pains to provide for her support. If she had no children, her husband was to give her her dowry and equivalent of her bride-price (Par. 138). It was usually one mina of silver (60 shekels, or the equivalent of 120 days' work at common labor).

The dowry and the bride-price was the wife's means of support after her divorce. If her husband had given her father no bride-price when he married her, he still had to give her one mina if he were rich and 1/3 mina if he were poor (Par. 139, 140).

On the other hand if the wife had children, and if the husband was the guilty party, she received her dowry, of course, but in place of the bride-price, she was to have use of his property and food from his field or garden. This provision served as alimony and child support. Further, if he should decide to give any inheritance to the children, she was to receive a share equal to one son (Par. 137).

If a man should be captured and deported, his wife could only remarry if she lost her means of support. However, if he returned from captivity, she had to return to him, leaving any children of her second marriage with their father (Par. 133, 135).

If a man simply deserted his wife, she had the right to remarry, and if her former husband returned, he had no claim on her (Par. 136).

The only prohibition on divorce, other than when no one had violated the marriage contract, was when the wife was incurably sick and in need of care. In such a case, the husband could not divorce her, although he could take a second wife (Par. 148).

GOD CORRECTS THE LAW OF HAMMURABI

God's law, the common law, had been in existence since creation and thus was much older the Code of Hammurabi.

Hammurabi altered God's law to suit his understanding of right and wrong, and both laws existed side by side during the days of Abraham, Isaac, and Jacob. However, Hammurabi's Code was the law most common to the world, including Canaan.

During Israel's sojourn in Egypt, God's law was largely forgotten. Thus, after they left Egypt, it became necessary for God to reteach the people His law. If God had given lawful judgments on every different situation that was to arise in the course of history, the law books could not have been borne by the entire nation of Israel. So we must realize that to some extent, rather than being an exhaustive law code, God's law gives the basic moral principles in the Ten Commandments and then continues with only a few hundred specific statutes (759 by one count) to further define those principles. Often, God merely corrected the errors of the Hammurabi Code, and where there was already nothing to correct, God may not have seen the necessity to elaborate, since custom already dictated that which was right.

GOD'S LAW ON DIVORCE AND REMARRIAGE

A conditional contract (covenant) is one that specifies conditions which both parties must fulfill; and if one party breaks the contract, the wronged party may sue at law for damages or annulment of the contract. By definition, marriage contracts are conditional contracts. It was always so in ancient times, and in this respect, the Code of Hammurabi is in total agreement with the Law of God.

Divorce, a complete break in the marriage contract, is lawful, because virtually all marriage contracts involve vows made between two parties. In God's marriage to Israel at Mt. Sinai, Israel (the bride) agreed to submit to His authority and obey His laws (Ex. 19:3-8). For their obedience, God agreed to give them the kingdom and the blessings of the birthright. These included honor, protection, sustenance, and children (Gen. 12:1-3).

Israel violated this contract, being incapable of full obedience, and refused to repent; and thus her husband (God) divorced her (Israel) and sent her out of His house (Jer. 3:8; Hosea 2:2).

Because God himself is a divorcee, we can safely say that divorce, in itself, is not a transgression of the law. Divorce may be either the result of transgression of the law or simply a violation of the contract.

God's law on divorce and remarriage is given in Deut. 24:1-4 "(1) When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her: then let him write her a bill of divorcement, and give it in her hand, and send her out of his house. (2) And when she is departed out of his house, she may go and be another man's wife. (3) And if the latter husband hate her, and write her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house; or if the latter husband die, which took her to be his wife; (4) her former husband, which sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the LORD: and thou shalt not cause the land to sin, which the LORD thy God giveth thee for an inheritance."

From verse 1 we see that God recognizes there must be a cause of divorcement. It is not specified in any detail, other than finding something unclean in her. Some insist that means divorce is only lawful in case of adultery. But the penalty for adultery is death -- NOT DIVORCE! (Deut. 22:13-30).

Others say it means divorce is only lawful if the husband discovers that his wife had illicit sexual relations with someone else before they were married. However, such a situation also calls for the death penalty (Deut. 22:13-21).

Therefore, the grounds for divorce in the 24th chapter must be something else. Since the grounds are not plainly stated, it would appear that contemporary law needed no modifying. Thus, it is helpful to look at the Code of Hammurabi for a list of the grounds for divorce.

The Code specifies cruelty, slander, waste of family assets, and running up needless debts as being grounds for a man to divorce his wife. This is in addition to any other violation of terms which may have been written into the contract.

The wife could also divorce her husband for those same offenses, but in addition to them, she could divorce him for lack of support (Exodus 21:10-11).

We may assume that the grounds for divorce were probably the same in both law codes, as God's law passes over the question with little modification.

However, the divorce procedures differ in one very important area. Where the Code of Hammurabi allowed either the man or the woman to divorce the spouse with a verbal statement, God's law demanded a written document, the "bill of divorcement". Hammurabi was careful to mandate that the marriage contract be written (Par. 128), but divorces were purely verbal, bearing inherent difficulties, so God solved the problem by making divorces written as well.

One could easily imagine a situation where a man divorces his wife verbally, whereupon she remarries -- only to have her former spouse fly into a jealous rage. He could deny his verbal divorce and accuse her and her new husband of adultery. Since adultery called for the death penalty, a person with only an oral divorce could be putting themselves in jeopardy by remarrying.

Justice is safeguarded by the written bill of divorcement, which a divorced wife may produce to prove that her former husband no longer had any claim upon her. It is her security and her authority to remarry. For this reason, Deut. 24:2 follows by stating that once she had the bill of divorcement, she is free to remarry. Conversely, if she were to remarry without the bill, she would be committing adultery.

The system of welfare built into the laws of God provided for the support of a wife whose husband was captured, so she was not to remarry while her husband was still alive. Then his possible homecoming would be a joyous affair rather than a cause for further grief.

Since the Code did not allow remarriage to a former husband in this case, God's law pursues the subject a bit further in Deut. 24:3-4. God forbade marriage to a former wife, at least after she had remarried. This law also shows that God recognizes the validity of the second marriage, as well as the binding nature of the bill of divorcement.

"PUT AWAY" DOES NOT MEAN "DIVORCE"

The term "put away" generally comes from the Hebrew words shalach (to send away) or garash (to drive away). The words differ only in intensity. In reference to a husband and wife, it refers to the act of separation, where a man sends his wife out of the house.

The term "divorce" is from the Hebrew word kerithuth. This word refers to the procedure (bill of divorcement) by which the marriage relationship is lawfully terminated. It is used only four times in the Old Testament, and each time, it is used in the full phrase, "bill of divorcement" (Deut. 24:1-3; Isaiah 50:1; Jer. 3:8).

In the New Testament the Greek word for "divorce" is apostasion. Apo means "away from"; statis means "title deed", referring in this case to the written marriage contract. Each spouse "owns" the other by contract (see also I Cor. 7:4). The Greek word apostasion signifies more than a mere separation, or "putting away". It is the lawful relinquishment of a title deed, effected by a written bill of divorcement.

The phrase "put away" refers to separation, while the word "divorce" refers to the actual termination of the marriage contract. The fact that God allows not only a "putting away", but also divorce, shows that it cannot be a transgression of the law to get a divorce, so long as there is just cause to cancel the marriage contract.

God's law states that a bill of divorcement (kerithuth) must always accompany the act of separation, or "putting away" (shalach or garash). Without such a written document, the act of putting away does NOT constitute a lawful divorce in the eyes of God, and she is not free to remarry.

Thus we see that the two terms are not synonymous, although by law they will always go together. If the two words meant the same thing, it would not have made sense to talk about putting away and divorcing in the same sentence in Deut. 24:1. This point will take on great importance in order to understand Matthew 5:32.

CHRIST DID NOT BAN DIVORCE

In Mark 10:2-9 the Pharisees asked Christ if it was lawful to put one's wife away. Christ asked them, in turn, what Moses had said. They answered that Moses had commanded them to write a bill of divorcement and to put her away. Christ then replied: "For the hardness of your heart he wrote you this precept". He went on to explain that divorce did not follow the perfect order of creation that was set up at the beginning.

In other words, divorce is not a good thing, but because men's hearts are hard, it is necessary that provisions be made for handling broken marriage contracts. For the same reason, God instituted the death penalty for first-degree murder. From the beginning it was not so, for God created us to live together in harmony. But for the hardness of men's hearts, it became necessary to curb such violence.

The fact is, ALL LAWS exist only because of the hardness of men's hearts. If all men were perfect, there would be no need for laws, for the laws would be written in our hearts. We would be totally incorruptible. Paul said, "The law is not made for a righteous man, but for the lawless and disobedient." I Tim. 1:9. Therefore, as long as there are unrighteous men on earth, the Law must remain in effect, in order that we may have some restraint on men's lusts.

When a marriage contract has been broken, and especially if one or both parties refuse to repent and restore the lawful order, divorce may be the only solution. God does not expect the innocent party to honor the contract when the guilty party refuses to do so. Therefore, the contract is conditional.

Christ's statement, "For the hardness of your heart", should not be construed to mean that a divorce itself is a transgression of the law. Remember that God himself is a divorcee according to Jeremiah 3:8, and therefore, if it is a transgression of the law to be divorced, then God is a sinner. To state such a proposition is to refute it.

If divorce was a violation of the law, and God allowed it, then God would have been legalizing lawlessness. It would be like saying, "Thou shall have no other Gods before me, however, I will allow one other God to be worshipped". This would be a serious accusation for mortals to make, especially in view of the testimony of David in Psalm 19:7 that, "The Law of God is PERFECT converting the soul".

CHRIST DID NOT BAN REMARRIAGE AFTER DIVORCE

Matthew 5:31-32 is by far the most important passage used by most people to prove that remarriage after divorce is adultery. It reads: "(31) It hath been said, Whosoever shall put away his wife, let him give her a writing of divorcement; (32) but I say unto you, that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery; and whosoever shall marry her that is DIVORCED committeth adultery." (Emphasis added.)

As interpreted in the King James translation, it would appear that Christ positively condemned divorce and remarriage, making God's law inferior to moral standards. If divorce causes one to commit adultery, then divorce itself would be a transgression of the law, according to God's law of liability. Remarriage, too, would constitute adultery. However, neither premises are possible, because if true, both would result in the death penalty.

First of all, this passage is part of Jesus' "Sermon on the Mount", which is, for the most part, a commentary on Bible law. In verses 17-19, He disclaimed the idea that He was trying to destroy or undermine the Law. Further, He positively condemned those who would break the shortest commandment and teach others to do so. From this alone it should be clear that Christ did not abolish God's laws on divorce and remarriage.

Then in verse 20 Christ said that our righteousness must EXCEED that of the scribes and Pharisees. With that in mind, He began to give us examples of Bible law to show how they fell short of the Law's righteous standard. They did not keep the true spirit of the Law and misinterpreted it in many ways.

1. Thou shalt not kill (vs. 21-26) 2. Thou shalt not commit adultery (vs. 27-32) 3. Thou shalt not bear false witness (vs. 33-37) 4. An eye for an eye (vs. 38-42) 5. Thou shall love thy neighbor as thyself (vs. 43-48)

In each case the law in question is introduced with this format: "It has been said (by the Pharisees) .... but I say unto you ...." This is not to be construed to mean that Christ is putting away all of these laws, or that He is replacing each of them with something different or better. It is not the Law of God He is discrediting; it is the pharisaical interpretation of the Law that He is disagreeing with.

In other words, Christ did NOT put away the law on murder when He said, "Thou shalt not kill....but I say unto you..." Nor did He make it lawful to commit adultery, so long as you don't look upon another with lust while you do it.

The purpose of the "Sermon on the Mount" was to improve upon the Law's interpretation and application. The true spirit of the Law had been lost through the traditions of the elders. With that context in mind, and knowing that Christ did not come to destroy any law, let's look at Matthew 5:31-32 in greater detail.

These two verses are a part of His comment, "Thou shalt not commit adultery", so the final thrust of His comment is to define adultery in relation to the laws on divorce and remarriage. Verse 31 simply refers to Deut. 24:1, where God demanded that men give their wives a WRITTEN bill of divorcement before they could lawfully put away their wives. Verse 2, of course, allowed divorced wives to remarry after a lawful divorce.

So let us take another look at Matthew 5:31-32, inserting a few key words in the original Greek, so that we get a proper translation of the passage. "(31) It hath been said, whosoever shall put away [apoluo] his wife, let him give her a writing of divorcement [apostasion]; (32) but I say unto you, that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery; and whosoever shall marry her that is divorced ["put away"] committeth adultery."

The word "divorced" is a mistranslation. It should be "put away". The Law says that she commits adultery if she remarries without a written bill of divorcement. To paraphrase verse 32: BUT I SAY UNTO YOU that whosoever puts her away (without divorce papers; that is, unlawfully) causes her to commit adultery (if she remarries under such conditions). Thus, he who simply puts her out of his house without divorcing her properly is JUST AS LIABLE AS SHE IS. And whosover marries her that has been put away (without divorce papers) also commits adultery, because he is marrying another man's wife.

Christ here is condemning men who put away their wives Babylonian style (verbally), instead of putting them away in the manner prescribed by God's Law.

The whole point of Christ's commentary is to bring out a point of law that had not been covered by the Pharisees in their interpretations.

But what of the phrase, "Saving for the cause of fornication"? What does this mean? Most people assume it means that if a wife commits adultery, then it is lawful to divorce her. However, it does NOT say, "except for the cause of ADULTERY". Remember, the penalty for adultery was death--not divorce.

So what is meant by "fornication"? Why is it all right to put away one's spouse without divorce papers in case of fornication?

THE MEANING OF FORNICATION

The most common type of fornication is prostitution (Ex. 22:16). This is where a man has sexual relations with an unmarried woman usually for a price. The solution is separation or marriage.

However, the word also covers other forms of unlawful sexual relations. In Hebrews 12:16 Esau is called a fornicator; yet there is no record in scripture of his buying the services of a prostitute. But Genesis 26:34 does say that he married Hittite wives and we know that it was unlawful to mix seed. Thus, it may be concluded that a marriage relationship other than "kind with kind" is classified as an unlawful marriage or fornication.

The term "fornication" is also used in I Cor. 5:1: "It is reported commonly that there is FORNICATION among you, and such fornication as is not so much as named among the gentiles, that one should have his father's wife" (emphasis added). Thus we see that Paul uses the term "fornication" to describe another unlawful marriage or sexual relationship that has been forbidden in Leviticus 18:7,8.

In Jude 7 we read of the people of Sodom and Gomorrha who had given themselves over to "fornication", going after "strange flesh". This, too, is obviously a sexual transgression of the law, and yet what is on record of their sexual tendencies is homosexuality, or "sodomy" (Gen. 19:4-8).

Each of these examples have one thing in common: they are unlawful sexual relationships, and therefore, there is no LAWFUL marriage contract to bind the two parties together. In other words, God did not recognize the "marriage" in the first place.

Thus, when Christ says it is always right to "put away" (separate without divorce papers) one's spouse in the case of fornication, the reason is quite obvious. Where there was fornication involved, there was no lawful binding marriage contract in the first place; therefore, no need to appeal to the Law to have it voided.

God does not recognize relationships which are homosexual or incestual as being lawful or constituting a marriage, even if the parties should agree to be married. Prostitutes do not agree to be married before having a relationship with a client; therefore, there is no need to draw up a bill of divorcement for a condition that never existed.

PAUL DID NOT BAN REMARRIAGE AFTER DIVORCE

Paul actually wrote that remarriage is NOT a transgression of the law in I Cor. 7:10-11: "(10) And unto the married...let not the wife depart [chorizo] from her husband; (11) but and if she depart [chorizo], let her remain unmarried [agamon], or let her be reconciled to her husband; and let not the husband put away [aphiemi, "to dismiss"] his wife."

At first glance it might appear that Paul is speaking of divorce and remarriage. However, the Greek word apostasion (away from--title deed) does not appear here. Paul is not discussing divorce, but rather the problem of separation or the putting away. Verse 1 of this chapter introduces the subject: "Now concerning the things whereof ye wrote unto me: It is good for a man not to touch a woman."

Thus, the subject of this discussion is whether or not to abstain from sexual relations and marriage itself. Paul had previously taught that, "It is good for a man not to touch a woman", but the Corinthian church had misinterpreted it to mean that sexual relations prevented Christians from attaining a truly spiritual life. Thus, the young people were being discouraged from marrying and some of the married couples were even separating.

So here, Paul corrects their error. He had told them it was good not to marry, it is true, but NOT because marriage itself was a transgression of the law or a hinderance to one's personal relationship to God. Rather, it was because of two things: (1) The "present distress" discussed in verse 26; and (2) to be able to devote more time and energy to spreading the Gospel (vs. 32-35).

In those days, unlike today, a man never knew if he was going to be imprisoned or executed and his family with him. So because of the dangerous political climate, it was a good idea not to marry, if a person could bear the incontinence. Imagine how difficult it would have been for Paul to travel as he did if he had been married and had to support his family. It was an advantage to him and others like him to remain unmarried -- so long as they had the gift of continence.

In verse 5 Paul makes it clear that it was not right for married couples to separate, or even to abstain from normal sexual relations, except during times of prayer and fasting.

In verses 7-9 he tells unmarried people that if they can take a life of celibacy, they may do so; but if they do NOT have that gift, it is better to marry than to burn (with lust).

Paul then turns his attention to married couples, and especially to those couples who had already separated, thinking this was the spiritual thing to do. Paul's words in verse 10 are, "Let not the wife separate from her husband". Paul is saying that if the wife has separated from her husband there are only two alternatives open to her: 1) remain agamos (unmarried, or 2) be reconciled to her husband.

Most people are taught this means the wife should not divorce her husband, but if she does, she must remain single for the rest of her life, or else remarry her former husband. This cannot be true as the one thing a person cannot do is return to a previous spouse once one of the two has remarried. The context of the above passage is referring to the problem of separation rather than divorce, which should be plain to everyone because the Greek word apostasion is not used. The word that is used is agamos, and agamos means "unmarried".

The way verse 11 is translated in the King James version, most assume it to mean, "Let her remain in the unmarried STATE". However, it is more likely to mean, "Let her not get married to anyone else", since she is only separated from her husband.

In other words, let the wife not separate from her husband, thinking that this is pleasing to God. But if she does, she should not get married to anyone else, because she is still under contract with her original husband.

Later in the same chapter, Paul does deal with the question of divorce and remarriage. He does not use the technical words for divorce and remarriage, but rather the descriptive terms, "bound" and loosed". To be bound by law is to be married by contract; and to be loosed by law is to be divorced. I Cor. 7:27-28 reads: "(27) Art thou bound [by law] unto a wife? Seek not to be loosed [from the bonds of marriage]. Art thou loosed from a wife? Seek not a wife. (28) But and if thou marry, thou hast not sinned; and if a virgin marry, she hath not sinned."

Few verses are plainer than these. If you are married, do not seek a divorce. If you are divorced, do not seek a wife, because of the "present distress" mentioned in verse 26. But if you do marry, YOU HAVE NOT SINNED; and if a virgin marry, she has not sinned either.

In other words, Paul says remarriage after a divorce is NOT a transgression of the law. Therefore, divorce and remarriage is NOT adultery.

THE DEVELOPMENT OF AMERICAN LAW ON DIVORCE

Divorce was entirely unknown to the courts of the common law in England until long after the latest date at which the American law diverged from the parent system. The only divorce from the bond of marriage was given by the legislative power by a private bill in each case. Blackstone's Commentaries, Book I, Section 594.

The "in each case" referred to was one of two types of divorces. The divorce could be total, or simply from bed and board (put away). Obviously early English law was patterned after the law in scripture.

In England, divorces were handled by ecclesiastical courts for which there were no provisions in this country. The courts in this country probably refused to hear divorce cases until there was some statutory authority because: "It (the state) may not require anything forbidden by Christianity, but it may forbear to enact many things which Christianity requires." Blackstone's Commentaries, Book I, 441, note 3. No court would want to determine what was or was not forbidden by Christianity.

The jurisdiction in the United States over the status of marriage is almost entirely statutory. It has been held, however, that the court of chancery, by virtue of its inherent equity powers, has jurisdiction to declare marriages null on the ground of fraud, mistake, or defect of mental capacity. Clark v. Field, 13 Vt 460; Ferris v. Ferris, 8 Conn 166.

Blackstone states: "The civil law, which is partly of pagan origin,..." Blackstone's Commentaries, Book I, 441. Since the civil law is statutory law, in contradistinction to the common law (unwritten law), it is pagan in form.

CONCLUSION

We have seen, then, that not only did the Code of Hammurabi permit divorce and remarriage, but so did God's law. The main difference was the legal procedure of obtaining a proper divorce in order to protect the woman involved. We have also seen how Christ added teeth to God's law by proclaiming that he who puts away his wife without a written bill of divorce causes her to commit adultery. Finally, we have seen how the Apostle Paul also understood that remarriage after divorce is not a transgression of the law.

In addition, it should be clear that early English and American traditions and customs pertaining to divorce were based upon the law in scripture.

However, somewhere in early American history, legislative bodies began passing statutes pertaining to marriage and divorce, and placed everyone into a civil law (pagan) jurisdiction from the moment the marriage license is filled out and signed.

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