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Divorce, Christian Law of.

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Dixon, James, D.D.

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(כְּריתוּת, kerithuth', a cutting apart, Jeremiah 3:8; ἀποστάσιον, desertion or separation; both usually rendered "divorcement;" the verb is גָּרִשׁ, garash', to expel, Leviticus 21:14; Leviticus 22:13; Numbers 30:9; ἀπολύω, to dissolve or dismiss, Matthew 5:32), or repudiation (comp. repudium, Sueton. Calig. 36) of a wife or betrothed woman (see the tract Kiddushin, in the Mishna, 3:17; and the Gemara Hieros. Hebrews and Lat. in Ugolino, 30). There is great probability that divorces were used among the Hebrews before the law, since Christ says that Moses permitted them by reason only of the hardness of their hearts; that is to say, because they were accstomed to this abuse, and to prevent greater evils. Abraham dismissed Hagar, on account of her insolence, at the request of Sarah. We find no instance of a divorce in the books of the Old Testament written since Moses, though it is certain that the Hebrews separated from their wives on trifling occasions. Samson's father-in-law understood that, by his absence from her, his daughter was divorced, since he gave her to another (Judges 15:2). The Levite's wife, who was dishonored at Gibeah, had forsaken her husband, and would not have returned had he not gone in pursuit of her (Judges 19:2-3). Solomon speaks of a libertine woman who had quitted her husband, the director of her youth, and had forgotten the covenant of her God (Proverbs 2:16-17). The prophet Malachi (Malachi 2:15) commends Abraham for not divorcing Sarah, though barren; and inveighs against the Jews, who had abandoned "the wives of their youth." Micah also (Micah 2:9) reproaches them with having "cast out their wives from their pleasant houses, and taken away the glory of God from their children forever." As the Hebrews paid a stipulated price for the privilege of marrying (in the shape of dower presents), they seemed to consider it the natural consequence of making a payment of that kind that they should be at liberty to exercise a very arbitrary power over their wives, and to renounce or divorce them whenever they chose. This state of things was not equitable as regarded the women, and was very often injurious to both parties. Finding himself unable, however, to overrule feelings and practices of very ancient standing, Moses, in his declaration of the law, merely annexed to the original institution of marriage a very serious admonition to this effect: that it would be less criminal for a man to desert his father and mother than, without adequate cause, to desert his wife (Genesis 2:24). He also laid a restriction upon the power of the husband so far as this, that he would not permit him to repudiate his wife without giving her a bill of divorce, in which were set forth the date, place, and cause of her repudiation, and a permission was given by it to marry whom she pleased. He further enacted that the husband might receive the repudiated wife back in case she had not in the mean while been married to another person; but if she had been thus married, she could never afterwards become the wife of her first husband — a law which the faith due to the second husband clearly required (Deuteronomy 24:1-4; Jeremiah 3:1; Matthew 1:19; Matthew 19:8). Ezra and Nehemiah obliged a great number of the Jews to dismiss the foreign women, whom they had married contrary to the law (Nehemiah 10:11; Nehemiah 12:19). As Christ has limited the permission of divorce to the single case of adultery, he denied the equity of the Mosaic statute; and in justification of Moses maintained that he permitted divorces for causes below adultery only for prudential reasons for the time being. Nor was this limitation by Christ unnecessary, for at that time it was common for the Jews to dissolve the union upon very slight and trivial pretences (Matthew 5:3-17; Matthew 5:32; Matthew 19:1-9; Mark 10:2-12; Luke 16:18). As wives were considered the property of their husbands, they did not possess by the Mosaic statutes a reciprocal right, and were not at liberty to dissolve the matrimonial alliance by giving a bill of divorce to that effect. Josephus was of opinion (Ant. 15:11) that the law did not permit women to divorce themselves from their husbands He believes Salome, sister of Herod the Great, to he the first who put away her husband; though Herodias afterwards dismissed her, (Ant. 18:7). as did also the three sisters of the younger Agrippa, and others theirs. The following are largely Rabbinical regulations. (See ADULTERY).

The Mosaic law regulating this subject is found in Deuteronomy 24:1-4, and the cases in which the right of a husband to divorce his wife was lost are stated Deuteronomy 22:19; Deuteronomy 22:29. The ground of divorce was what the text calls דָּבָר עֶרְוִת (lit. nudity of a word or thing, i.e., anything filthy, some shameful act or circumstance, as in Deuteronomy 23:14), "some uncleanness" (Deuteronomy 24:1), on the meaning of which the Jewish doctors of the period of the N.T. widely differed, the school of Shammal seeming to limit it to a moral delinquency in the woman, while that of Hillel extended it to trifling causes ( "for every cause," Matthew 19:3; as among the Druses, Burckhardt, Trav. 1:329), e.g. if the wife burnt the food she was cooking for her husband or merely over-salted it (Mishna, Gittin, 9:16). Rabbi Akibah allows divorce if the husband merely saw a wife whose appearance pleased him better (see Otho, Lex. Rabb. page 502 sq.). The Pharisees wished, perhaps, to embroil our Savior with these rival schools by their question (ver. 3); by his answer to which as well as by his previous maxim (ver. 31), he declares that, but for their hardened state of heart, such questions would have no place. Yet, from the distinction made, "But I say unto you" (ver. 31, 32), it seems to follow that he regarded all the lesser causes than "I fornication" as standing on too weak ground, and declined the question as to the interpretation of the words of Moses (see Tholuck, Sermon on the Mount, page 220 sq.). We may conjecture that the Mosaic statute had reference to doubts of his bride's virginity, or of his wife a modesty and fidelity, on the part of the husband, although he might not be able to bring a definite charge of unchastity. It would be unreasonable to suppose that by עֶרְוִת דָּבָר to which he limited the remedy of divorce, Moses meant "fornication," i.e., adultery, for that would have been to stultify the law "that such should be stoned" (John 8:5; Leviticus 20:10). The practical difficulty, however, which attends on the doubt which is now found in interpreting Moses's words will be lessened if we consider that the mere giving "a bill" (or, rather, "book," סֵפֶר, βιβλίον, Talm. גֵּט or גַּיטָה ) "of divorcement" (comp. Isaiah 1:1; Jeremiah 3:8), would in ancient times require the intervention of a Levite, not only to secure the formal correctness of the instrument, but because the art of writing was then generally unknown.

This would bring the matter under the cognizance of legal authority, and tend to check the rash exercise of the right by the husband. Traditional opinion and prescriptive practice would probably fix the standard of the עֶרְוָה, and doubtless, with the lax general morality which marks the decline of the Jewish polity, that standard would be lowered (Malachi 2:14-16). Thus the Gemar. Babyl. Gittin, 9 (ap. Selden, De ux. Hebrews 3:17) allows divorce for a wife's spinning in public, or going out with head uncovered, or clothes so torn as not properly to conceal her person from sight. But the absence of any case in point in the period which lay nearest to the lawgiver himself, or in any, savae a much more recent one, makes the whole question one of great uncertainty. The case of Phalti and Michal is not in point, being merely an example of one arbitrary act redressed by another (1 Samuel 25:44; comp. 2 Samuel 3:14-16). Selden, quoting (De ux. Flab. 3:19) Zohar, Praef. page 8, b, etc. speaks of an alleged custom of the husband, when going to war, giving the wife the libellus divortii; but the authority is of slight value, and the fact improbable. It is contrary to all known Oriental usage to suppose that the right of quitting their husband and/choosing another was allowed to women (Josephus, Ant. 15:7, 10). Salome is noted (ibid.) as the first example of it — one, no doubt, derived from the growing prevalence of heathen laxity (see Wachsmuth, Hellek. Alterthum. iii, 208). Hence also, prob. ably, the caution given 1 Corinthians 7:10. Those are surely mistaken who suppose that a man might take back a remarried wife whom he had divoiced, except in the cases when her second husband had died, or had divorced her. Such resumption is contemplated by the lawgiver as only possible in those two cases, and therefore is in them only expressly forbidden (Jeremiah 3:1). The divorces of Gentile wives ordered by Nehemiah (Nehemiah 10:11; Nehemiah 12:19) rested on entirely different grounds. For the view taken among later Jews on this subject, see Joseph. Ant. 4:8, 23; 16:7, 3; Life, 76, a writer whose practice seems to have been in accordance with the views of Hillel. On the general subject, Buxtorf, de Spionsal. et Dicort. p. 82-85; Selden, Uxor. Hebrews 3:17 sq.; Michaelis, Laws of Moses, 2:336; and Danz, in Menschen's N.T. Talm. Page 677 sq., may be consulted. For the Greek and Roman usages on the subject, see Smith's Dictitonary of Class. Antiq. s.v. Divortium, Apodeipseos Dike. Monographs have been written on the passage in Deuteronomy by Winkler (Unters. schwerer Schriftstellen, 2:26 sq.); also on the passage in Matthew by Venema (in his Dissertt. sacr. ed. 2, append.); Wolff, De divortio Judeorum (Lips. 1739); Schindler, Quaedam de matrimonio (Liegn. 1795); Hommelhosius, Utrum divortium jure (Jen. n.d.). (See MARRIAGE).