DIVORCE (כְּרִיתוּת, H4135; a cutting off; ἀποστασίον) is a means whereby a legal Marriage is dissolved publicly and the participants are freed from further obligations of the matrimonial relationship. It is an ancient device that has varied procedurally over the centuries, but in the main it has been instituted on the initiative of the Husband.
In the Ancient Near East
Among the ancient Sumerians it was easy for a man to divorce his Wife, especially if she had failed to produce Children. Among the Babylonians, the Code of Hammurabi (eighteenth century b.c.) provided for divorce under certain circumstances but included the return of the Dowry to the wife, a situation that would give many men pause for contemplation. Where there was no dowry, the Husband was required to make a payment of Silver according to a schedule that was organized in terms of the social status of the wife’s family. But if the wife had been negligent in her household duties, she could be sent away without payment or simply replaced and demoted to the position of a servant or a Slave (Code of Hammurabi, 141, 143). Simpler and more severe was the Middle Assyrian law code, which stated that, with no fault specified, the wife could be divorced and sent away empty-handed (Middle Assyrian Laws, 37). Generally speaking, it was an unusual and, therefore, more complex situation if a wife instituted divorce proceedings. Divorce was discouraged in the fourth century b.c. in Egypt, and later by the Hebrews, through the imposition of a substantial fine on the husband, known as “divorce money.”
In the Old Testament
Hebrew marriage was a legal contract binding a man and a woman and their families to perform certain socially prescribed roles. The contract covered the lifetime of the contracting parties; the male, however, as senior partner appears to have had the right of preparing a “bill of divorcement” and thereby terminating the arrangement.
Although the Old Testament seems to permit divorce for rather general reasons (Deut.24.1), it was usually either for adultery or childlessness. The bill of divorce could be a simple repudiation, such as, “She is not my wife, and I am not her husband” (Hos.2.2). Although either party could begin the divorce proceedings, it was considered a Gentile custom for the wife to do so (Mark.10.11-Mark.10.12). Because of the strength of the family unit, divorce was in actual fact not very common among the Hebrews. Nevertheless, in the postexilic period, in order for the purity of the Hebrew faith to be maintained, wholesale divorce was required by Ezra of those Jews who had married foreign wives in Babylonia (Ezra.9.2; Ezra.10.3, Ezra.10.16-Ezra.10.17).
In Post-Old Testament Writings
The post-Old Testament writings of the rabbis shed some light on the divorce issue. Two schools of thought emerged concerning the grounds for divorce. Rabbi Shammai restricted divorce to cases of adultery—conservative, but a liberalization of Mosaic law. Rabbi Hillel allowed divorce for almost any grievance, no matter how trivial. There is evidence that divorce was rather common in Jesus’ day.
In the Hellenistic World
A Greek marriage could be dissolved at any time either by mutual consent or by the husband without cause, while the wife could institute divorce proceedings against her husband where she could prove persistent adultery on his part. In the early Roman period there was little divorce, but, typically, Roman law is quite specific about the marriage contract and its dissolution. The contract could be nullified by mutual consent, or for a variety of reasons that might be considered valid by the husband. If the wife proved to be barren, suffered from a chronic illness, or showed evidence of insanity, she could be divorced on those grounds. If she had attempted to kill her husband, or if she had committed Adultery, she could also be divorced. In about 17 b.c. a law was passed that made it an offense for a husband to keep a wife known to be an adulteress. By the fourth and fifth centuries a.d. there was some curtailment of the grounds for divorce, but it was still relatively easy for either party to initiate proceedings.
In the New Testament
The New Testament forbids divorce, and Jesus asserts that God had, under the Mosaic Law, allowed divorce as a concession to the hardness of the human Heart (Matt.19.8). Even the remarriage of widows was frowned upon by some in the apostolic period, though 1Tim.5.14 seems more lenient on this matter. Although in the early church the husband could not technically divorce an adulterous wife, he could separate from her or “put her away.” Under such circumstances, neither party could marry without committing adultery. While a wife might emotionally reject a flagrantly unfaithful husband, she was nevertheless expected to show him an example of Christian love and stay with him if he wanted to continue the marriage. There were rare exceptions where a remarriage was permitted, but usually it was only for the pagan partner in a mixed Christian-pagan marriage. In any event the Christian partner was not permitted to remarry (1Cor.7.10-1Cor.7.15).
Divorce and Christianity
The basic ethical questions asked by Christians in discussions of divorce are:
Is a Christian ever justified in seeking a divorce?
Once divorced, may a Christian remarry?
Jesus’ own teachings on the subject of divorce appear in Matthew 5:27-32; 19:3-12 and parallel passages (Mark 10:2-12; Luke 16:18). The first passage appears in the Sermon on the Mount. Here Jesus is depicted as going beyond Moses, making even more strict demands. The issue for interpretation is whether Christ was giving a “new law” for Christians or stating the extent of God’s perfect will for mankind so that all might realize they are sinners in need of God’s grace. Is this law or hyperbole? The second passage records Jesus’ response to a rabbinical question concerning possible “justifiable” grounds for divorce. Here Jesus declares that marriage forges a unity between the couple. To dissolve this unity is contrary to God’s will. Again, law or hyperbole?
In the history of Christian ethical thought two different approaches to ethics have been taken: (1) casuistry; (2) law/grace. Each takes a different approach to these teachings. The casuistic approach has been the more popular one. It sees Jesus as a new lawgiver. His teachings on divorce are the law for Christians. This law is normative and is to be applied to marital problems occurring in the life of individual Christians. The “except for fornication” clause (Matt 19:9) has been variously interpreted when applied to problems of justifying divorce under certain circumstances. Examples include subsequent discovery of premarital unchastity, extra-marital sex relations, and failure to perform marital responsibility. In Roman Catholic ethics this process becomes very elaborate. The new situation ethics is also casuistic. It glosses over Jesus’ teaching on divorce and focuses on the law to love. The situationalist may justify divorce in a specific case as being “the loving thing to do.” Essentially the casuistic approach seeks to determine if justifiable cause for a divorce action by a Christian can be found. This approach is often condemned on two grounds: (1) it is legalistic and devoid of the grace proclaimed in the Gospel; (2) it eases one’s conscience allowing him to feel justified in his actions without seeking God’s Forgiveness.
The alternate approach finds Jesus’ teachings to be an attack on the “cheap grace” of the Pharisees and their casuistry. Jesus’ teachings on the Commandments of God (Matt 5:17-48) radicalize them, removing any justification for one’s doing less than the ideal. The Christian measures his actions by the ideal. Anything less is Sin. Sin can be atoned only by the gracious forgiveness of God. Specifically, divorce is not the will of God; it is evil. Divorce hurts the husband and wife, the children, the families, the Church, and the community. The damage of divorce is irreparable. To divorce a woman, Jesus taught, is to brand her as unfaithful. If a man marries a divorcee, he becomes suspect. This approach finds no “justification” for divorce. Subsequently when the Pharisees challenged Jesus’ authority to go beyond the commands by appealing to Moses, he responded that Moses was simply accommodating God’s perfect will because of the sinfulness of the people. Moses was giving laws for the state; and the laws of the state can never be as demanding as those of the faith. This approach questions the validity of the exception clause in Matthew 5:32 and 19:9, since it does not appear in Mark and Luke. How does a radical ethic respond to those situations where divorce appears to be the “lesser evil,” where divorced people wish to remarry or where a divorced person wishes to hold a place of leadership in the church? Here the emphasis shifts from law to grace. Although divorce is always wrong, God is gracious and will forgive (1 John 1:9). God forgives; Christians forgive; divorce is not the unpardonable sin. This approach to Christian ethics counsels repentance and faith.
Two passages from Paul, the “Pauline Privilege” (1 Cor 7:12-15) and the qualifications for Bishops (1 Tim 3:1-7) should also be mentioned. The first is sometimes interpreted to mean a Christian can divorce an unbelieving spouse without sinning. The latter is interpreted as disqualifying divorced men from the ministry and the deaconate. Both interpretations are questionable.
In summary, the emphasis in the Bible is on contracting a successful marriage. At best, divorce is not in keeping with God’s will. The family today is in a state of flux, undergoing many changes. Christians must hold fast to the “one flesh” concept and see divorce as a disruption of this relationship. Christ was right in seeing divorce being caused by the “hardness of our hearts.”