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Deuteronomy: The Second Law - Speech 7

A commentary on the seventh speech of Moses in Deuteronomy 24-26. The book of Deuteronomy is a series of 12 speeches that Moses gave just before his death at the end of Israel's wilderness journey.

Category - Bible Commentaries

Chapter 1

Divorce and Remarriage

Ferrar Fenton entitles this speech, “Laws of Marriage and Domestic Life.” It starts with the regulations on divorce and remarriage. Deut. 24:1 says,

1 When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some indecency in her, and he writes her a certificate of divorce and puts it in her hand and sends her out from his house…

The NASB (above) words this in such a way as to avoid telling us that Moses directly allowed divorced and remarriage. The translators were trying in their own way to reconcile Jesus’ statements in the New Testament that appear to contradict Moses. The KJV reads, “then let him write her a bill of divorcement.” Ferrar Fenton agrees, saying, “let him write her a letter of divorce.”

In the centuries leading up to the time of Christ, the Hebrew scholars who translated the Hebrew Bible into Greek agreed with the KJV and with Fenton. The Septuagint reads,

1 And if any one should take a wife, and should dwell with her, then it shall come to pass if she should not have found favour before him, because he has found some unbecoming thing in her, that he shall write for her a bill of divorce-ment, and give it into her hands, and he shall send her away out of his house.

Regardless of how translators might nitpick in their wording, it is clear that Moses did not forbid divorce but gave guidelines on how it was to be done.

The Problem with Verbal Divorces

Moses’ purpose was to correct a serious injustice that could potentially fall upon a woman who was divorced. In those days the common practice was to follow the ancient law of Hammurabi (i.e., Nimrod). A woman could be divorced with a verbal statement, “I repudiate her,” which was stated three times.

This is mentioned on page 120 of the book, The Laws of Moses and the Code of Hammurabi, by Stanley A. Cook, where the author quotes paragraph 141 of the Hammurabi Code:

“… and if her husband formally divorces her with the words ‘I repudiate her’ (e-si-ib-sa), she goes her own way and receives no uzubu.”

The problem with a verbal divorce is that the woman was sent out of the house with no written proof of her divorce. And so, if she were to remarry, her former husband might become jealous or vindictive and accuse her of adultery. And so God, through Moses, demanded that she be given a written bill of divorce. She could not be sent out of the house until that written bill of divorce had been placed into her hand.

The Right of Divorce

The law in Deut. 24:1 does not attempt to define the lawful causes by which divorce is permitted according to the mind of God. It says only, “because he has found some indecency in her.” Where the law of God is silent, we must depend fully on the leading of the Spirit. Moses was wise enough to stay away from marriage counseling in this speech, for if he had opened up that issue, he might have established what men would interpret later as requirements for divorce.

The law of victims rights applies in this case. If either a husband or wife violate the marriage contract, the injured party has a right to divorce. But the victim also has the right to forgive. The right to forgive goes beyond the law into the area of grace, a theme that is clarified in the New Testament. Of course, nowhere in Scripture does God condone divorce over trivial causes, even if those causes may seem important to those who are spiritually or emotionally immature.

God’s marriage to Israel shows us the divine example of patience and forgiveness. Israel was God’s unfaithful wife for many centuries. Her adultery began within weeks of the marriage ceremony at Mount Horeb when she worshiped the golden calf (Exodus 32). It continued during the time of the Judges and culminated in the days of Isaiah and Jeremiah.

Hosea in particular was called to marry a harlot in order to portray the unhappy marriage between God and Israel. He says in Hosea 2:2, “she is not my wife, and I am not her husband.” Jeremiah 3:8 tells us more directly,

8 And I saw that for all the adulteries of faithless Israel, I had sent her away and given her a writ of divorce, yet her treacherous sister Judah did not fear; but she went and was a harlot also.

Hence we see that God not only had the right to divorce Israel, but actually did so in the end. He divorced his wife in the lawful manner, giving her a writ of divorce before sending her out of His house into the land of Assyria. God was married for 726 years from the marriage at Mount Horeb until the fall of Samaria. That shows a lot of patience. Nonetheless, if divorce had been banned as a sin, then God would not have been able to divorce Israel without committing a sin.

We must conclude, then, that divorce may be necessary, for many people over the centuries have found themselves in circumstances similar to what God has endured.

Old Covenant Marriage is Conditional

If we dig deeper into this law permitting divorce, we may catch a glimpse of some greater understanding of the bigger picture as God sees it. God’s marriage to Israel was the Old Covenant that was made at Mount Horeb in Exodus 19. In that marriage contract, each party made promises, or vows. God vowed to bless and provide for Israel; Israel vowed to obey God’s laws. Thus, it was a conditional covenant.

Because Israel was unable to fulfill her vow, that covenant was broken and eventually came to an end. A new covenant was thus needed, one that would endure. And so Jer. tells us in 31:31-33,

31 “Behold, the days are coming,” declares the Lord, “when I will make a new covenant with the house of Israel and with the house of Judah, 32 not like the covenant which I made with their fathers in the day I took them out of the land of Egypt, My covenant which they broke, although I was a husband to them,” declares the Lord. 33 But this is the covenant which I will make with the house of Israel after those days,” declares the Lord, “I will put My law within them, and on their heart I will write it; and I will be their God, and they shall be My people.”

This new covenant, then, was unlike the old covenant, in that the new one is based upon the promise of God, rather than the obedience of men. It depends upon the ability of God to do as He has promised, rather than upon the ability of men to fulfill their vows to God. It is a good thing to make a decision to follow Jesus, but if our salvation is based upon that decision—and our ability to carry out that decision—then we are yet in an Old Covenant marriage with God. In such a marriage, every time a believer sins, he will think that he has “fallen from grace” and must be saved again and again and again.

Many believers never come to the place of rest and assurance of salvation in a New Covenant marriage relationship. They are plagued by guilt all their lives, as they try to fulfill their vows, only to fail from time to time. The more they understand themselves and the limitations of their own human nature, the more guilty they feel. The more sincere they are, the more unhappy they are, and they cry out with the apostle Paul in Rom. 7:24,

24 Wretched man that I am! Who will set me free from the body of this death?

The answer is found in the terms of the New Covenant and its promise of deliverance, not by our ability, but by God’s ability to fulfill His vow.

The Old Covenant was designed to fail from the beginning. The New Covenant was designed to succeed. When God married Israel under Moses, that marriage had to fail in order to make way for another marriage, a better one, a marriage based only upon the promise (vow) of God Himself. For this reason, God’s marriage with Israel was destined to end in divorce, for only then could the New Covenant be established.

And so, when Moses permitted divorce in Deut. 24:1, it was only because such provision was necessary as long as imperfect people were getting married. If men and women were perfect, divorce would be unthinkable and unnecessary. And so, as God works His nature into us through the New Covenant, the possibility of divorce should become more and more remote.

Living by New Covenant Marriage

The Pharisees once questioned Jesus about the lawful grounds for divorce. We read Jesus’ answer in Matt. 19:4-6,

4 And He answered and said, “Have you not read, that He who created them from the beginning made them male and female, 5 and said, ‘For this cause a man shall leave his father and mother, and shall cleave to his wife; and the two shall become one flesh’? 6 Consequently, they are no longer two, but one flesh. What therefore God has joined together, let no man separate.”

Here Jesus combines Gen. 1:27 with Gen. 2:24, showing that the “man” in Genesis 1 is the same as in Genesis 2. The only difference is that in Genesis 1 God gives us the overall order of creation, whereas Genesis 2 was a more detailed account of man’s creation. (The book of Genesis is a series of eleven manuscripts or tablets, giving family histories, even as Deuteronomy is a series of Moses’ ten speeches.)

When Adam and Eve were first created, their marriage was patterned after the New Covenant. After they sinned, however, God knew that disagreements among married couples would arise, and so He instituted authority, telling Eve in Gen. 3:16, “your desire shall be for your husband, and he shall rule over you.”

There was no such authority prior to sin, for authority was unnecessary when the two were in agreement. When each possessed the mind of Christ and knew the will of God, each was obedient to God by nature. Husband and wife served each other equally. Each provided the other with a double witness by which they would know the will of God for their lives. But sin created the need for authority, law, and penalties for sin. Imperfect people have imperfect marriages, and when they cannot agree, then someone, right or wrong, has to make the authoritative decision to break the stalemate.

Yet at the beginning, such problems did not exist. There was no need for divorce in the beginning, nor did it even enter their minds. Jesus appealed to this pattern in Matthew 19, stressing the unity and agreement between husband and wife. In essence, He was admonishing us to live according to a New Covenant marriage, one in which there is perfect unity (i.e., “one flesh”), rather than living according to the imperfect, conditional Old Covenant pattern where obedience to authority was required to keep the covenant in force.

The Pharisees did not understand the difference between the two covenants, and so they responded:

7 They said to Him, “Why then did Moses command to give her a certificate and divorce her?” 8 He said to them, “Because of your hardness of heart, Moses permitted you to divorce your wives; but from the beginning it has not been this way.”

The purpose of ALL LAW is to restrain sin, “because of your hardness of heart.” If it were not for this, there would be no need for ANY JUDGMENT of the law, including divorce. It was only because of sin and hardness of heart that divorce was permitted, for divorce was meant to be a judgment for sin, not a convenience or indulgence for the whims or carnal desires of men.

Once we understand how things changed after Adam and Eve sinned, we can understand Jesus’ words. If both husband and wife live according to the will of God, they will find that Moses’ provision for divorce is irrelevant. In the end, when all is restored, all laws will be treated as relics of the past. We will see them as having been necessary on account of sin, but once the character and mind of Christ has been fully infused into our hearts, we will no longer violate those laws. We will be in full unity with Him, and so He will no longer need to exercise authority over us, telling us what to do and correcting our beliefs. We will fulfill the law by nature, not by compulsory obedience.

Such is the nature of the New Covenant. Obedience is replaced by agreement.

Meanwhile, however, we still live in an imperfect world. Men still sin, and for this reason the law is still needed to keep order, to teach us the character of Christ, and to reveal God’s promise. The law tells us what exactly He intends to write on our hearts in order to conform us to the image of God that He intended from the beginning.

We see then why Moses allowed divorce. Jesus did not put away this law, but He told us to go beyond Old Covenant marriage into perfect unity, where divorce is unnecessary and irrelevant.

The Right to Receive Divorce Papers

God permitted divorce in Deut. 24:1, but divorce papers had to be given into the woman’s hand before the husband was permitted to put her away—that is, to send her out of the house. This regulation was the central focus of the law regarding divorce. There was no hint that divorce itself might NOT be permitted. Neither does Moses discuss the proper causes for divorce in that passage.

It is imperative that we understand the distinction between the divorce papers and the act of putting away the wife who is being divorced. The law did not allow one without the other. The law made the two legally inseparable and made it a sin to do one without the other.

When Jesus commented upon the laws of divorce and remarriage in Matt. 5:31, 32, His purpose was to correct men’s understanding of the law. He had no intention of repudiating any law that had been written, whether by Moses or by the prophets. He says as much just a few verses earlier in Matthew 5:17-19,

17 Do not think that I came to abolish the Law or the Prophets; I did not come to abolish, but to fulfill. 18 For truly I say to you, until heaven and earth pass away, not the smallest letter [? the yod] or stroke [keraia, “little horn,” line extension that distinguished some Hebrew letters] shall pass away from the Law, until all is accomplished. 19 Whoever then annuls one of the least of these commandments, and so teaches others, shall be called least in the kingdom of heaven; but whoever keeps and teaches them, he shall be called great in the kingdom of heaven.

In view of this statement, we are bound to interpret the entire Sermon on the Mount according to this foundational statement. The law regarding divorce and remarriage was one of the laws that Jesus upheld and clarified in His teaching. Hence, Jesus did not overrule Moses by forbidding divorce and remarriage. The only ones that He overruled were the scribes and Pharisees whose traditions of men had often invalidated the law (Mark 7:13).

Some say also that divorce itself is a sin, and that Moses allowed the people to twist his arm into allowing them to divorce their wives. But if, as David says in Psalm 19:7, “the law of the Lord is perfect,” then certainly it did not condone sin of any kind. And if, as John tells us in 1 John 3:4, “sin is lawlessness,” then how could it be that the law itself would be lawless? If Moses permitted sin, then how could Paul tell us in Rom. 7:12, “the law is holy”?

Jesus did not say that Moses allowed men to sin, as some have said. Moses did not indulge sin of any kind, nor did any man twist his arm, forcing him to legalize sin to indulge men’s weakness. Everywhere the law condemns sin in the strongest of terms, even though Moses knew that the people themselves would violate it.

Divorce is not a sin, but is a judgment for sin. Divorcing one’s spouse may indeed be a sin, if it is done in an unlawful manner or with carnal motives, but divorce itself is permitted in the law. Naturally, if a man divorces his wife without cause or with no regard for the leading of the Holy Spirit, then it is a sin. Divorce should be considered a solution of last resort, not an act that can be done for trivial reasons.

One should consider God’s own example, where His bride (Israel) was faithless for many centuries before God finally divorced her in the days of Jeremiah. One cannot use Scripture to trivialize the seriousness of a bill of divorce, nor to justify divorce without exhausting every attempt to reconcile husband and wife.

The law, however, does not attempt to do marriage counseling. It focuses only upon the procedure of the divorce itself, once it has been decided. Hence, we too shall refrain from offering marriage advice.

The Right to Remarry

With this in mind, let us proceed to study the law of remarriage. Deut. 24:2 (KJV) tells us,

2 And when she is departed out of his house, she may go and be another man’s wife.

In other words, Moses, speaking under the inspiration of the Holy Spirit, gives us the word of God, saying that remarriage after divorce is not a sin. The only stipulation that Moses gives is that she must have written proof in order to validate her divorce. Conversely, if she were put away without the evidence of a written divorce, she could not remarry, because by law she was still married to her first husband, even though her husband had sinned against her by sending her away without divorce papers.

Jesus commented upon this in Matt. 5:31, 32. The biggest hurdle that we all face is that many translators have not made a proper distinction between “divorce” (apostasion) and “put away” (apoluo), even though these are two separate acts, described by two distinct Greek words. For this reason, we must resort to quoting from Young’s Literal Translation of the Bible, even though the language is somewhat archaic:

31 And it was said that whoever may put away [apoluo] his wife, let him give to her a writing of divorce [apostasion]; 32 but I—I say to you, that whoever may put away [apoluo] his wife, save for the matter of whoredom, doth make her to commit adultery; and whoever may marry her who hath been put away [apoluo] doth commit adultery.

Jesus chose His words carefully, but many translators were careless in their translations, treating the two words as if they were interchangeable. In so doing, they make Jesus teach something contrary to the law of Moses, thus invalidating the law by their traditions.

In verse 31 Jesus referred to Deut. 24:1, where Moses gave instructions about divorce. In other words, if a man should put away his wife, he has to give her papers first. Jesus maintains this clear distinction between apoluo and apostasion. Then in verse 32 He tells us that a man who puts away his wife causes her to commit adultery.

How so? Obviously, Jesus was referring to a case where a man might violate the law of Moses. In this case, if a man puts away his wife without giving her divorce papers, he causes her to commit adultery. She cannot lawfully remarry without having divorce papers, for by the law she was still married to the man who put her away improperly.

Jesus was telling the people that they could not simply blame a woman for adultery in such cases; her husband was equally liable before God for placing his wife in such a position. In those days women had a difficult time supporting themselves. A woman that was put away would naturally seek to remarry in order to survive. Thus, if she remarried while still lawfully married to her first husband, both she and her new husband were committing adultery. But Jesus said that the woman’s first husband was equally liable for causing her to commit adultery.

When Divorce Papers are not Necessary

At the end of Matt. 5:32 we read that a man may put away (apoluo) his wife in the case of porneia, which Young translates as “whoredom.” The NASB translates it as “unchastity.” Gesenius Lexicon defines the word porneia as “illicit sexual intercourse,” and he gives examples such as: adultery, fornication, homosexuality, lesbianism, intercourse with animals, and incest.

Most Christians, however, have treated Jesus’ statement as a right to divorce one’s wife or husband if they commit adultery. Adultery can indeed provide grounds for divorce, but this is not what Jesus was saying. Adultery is only one form of porneia. In fact, when adultery occurs, the solution is for the two adulterous people to separate from each other. The law does not require divorce papers, because adulterous relationships are not recognized as lawful unions in the first place.

The same is true of prostitution, lesbianism, bestiality, and incest. None of these unions are under a lawful marriage contract, and so the solution requires only separation, not divorce. Divorce is only necessary when ending a valid marriage contract.

This is why Jesus briefly mentions this exception. And so, if we may paraphrase and expand Jesus’ words for clarification, we may understand Him to say this:

The law tells men to give their wives a written bill of divorce before putting them away. But I say that if anyone violates this law by putting away his wife without divorce papers—except in cases where they were not lawfully married in the first place—he causes his wife to commit adultery; for if she remarries while still lawfully married to the man who put her away, she and her new husband are guilty of adultery. But her original husband is just as liable as she, because his violation of the law is the cause of her adultery.

An abbreviated version of this is given again in Matt. 19:7-9, where again the NASB mistranslates apoluo as “divorce” instead of “put away.” This is unfortunate, since they destroy the law by their assumption that apoluo and apostasion are interchangeable.

In Mark 10:11, 12, the author briefly repeats the same words, and again the NASB mistranslates it: “Whoever divorces [apoluo] his wife and marries another woman commits adultery against her.” The verse does not refer to a divorced wife, but a wife who has been put away without divorce papers. By mistranslating apoluo, the NASB twists Jesus’ words to say that it is adultery to marry a divorced woman, when in fact the law says it is adultery to marry a woman who is still married to another man.

A Woman’s Right to Divorce Her Husband

Mark gives us another detail that is not mentioned in Matthew’s account. Mark 10:12 says,

12 and if she herself puts away [apoluo] her husband and marries another man, she is committing adultery.

In other words Mark recognizes that a woman might kick her husband out of the house and marry another. Because this is the flip side of verse 11, it is understood that the woman in question would commit adultery if she put away her husband without lawful divorce papers and then married another man. The interesting nuance of this verse is that it implies that a woman has the equal right to divorce her husband. In other words, the right of divorce found in Deut. 24:1 is given equally to women as to men.

Mark’s gospel was written with a Roman audience in mind, even as Matthew’s gospel was written for a Hebrew audience. Peter visited Rome around 45 A.D. after fleeing from Herod’s wrath in Acts 12. Recall that Peter and James were imprisoned, and how James was executed, but Peter was set free by an angel. Peter then fled to Caesarea, with Herod in pursuit (Acts 12:19). Herod died in Caesarea, but Peter continued into Asia and Greece, and eventually made his way to Rome itself.

Peter’s preaching in Rome created the need for a written gospel to be left with them, so he commissioned his disciple Mark to write down his teachings to give them. When we understand the purpose of Mark’s gospel, we can see why he included certain details that were not mentioned by Matthew. The right or possibility of a woman to divorce her husband is one such detail. The Hebrews probably would have denied a woman the right to divorce her husband, but the Romans allowed it. Matthew chose to say nothing of this to his Jewish audience, but Mark applied the law equally to his audience in Rome.

We may consider Mark’s account, then, to be the teaching of Peter himself, who rendered a Supreme Court ruling to clarify the law of Deut. 24:1. The ruling showed that the law applied equally to men and women, for both were bound to give a written bill of divorce before putting away a spouse.

Remarrying One’s Former Spouse

After telling us in Deut. 24:2 that a lawfully divorced woman may remarry, we read in verses 3 and 4 (NASB),

3 And if the latter husband turns against her and writes her a certificate of divorce and puts it in her hand and sends her out of his house, or if the latter husband dies who took her to be his wife, 4 then her former husband who sent her away is not allowed to take her again to be his wife, since she has been defiled [tawmay]; for that is an abomination before the Lord, and you shall not bring sin on the land which the Lord your God gives us as an inheritance.

An ex-husband is prohibited from remarrying his former wife if she has remarried another in the interim. The only reason Moses gives for the prohibition is, “since she has been defiled.” The term “defiled” is tawmay, which means “to become unclean.” What is it that has made her unclean? Obviously, it was her second marriage that made her unclean to her previous husband, preventing him from being both her first and her third husband.

Some argue that this shows that remarriage after divorce renders a woman unclean before God. That is not the case. The law does not allow divorce only to penalize a woman for exercising her lawful right. The term is used to describe a forbidden relationship, union, or contact—such as touching an unclean thing.

The term “it is unclean unto you” is used most often in the case of the food laws in Leviticus 11. But even unclean animals were pronounced “good” by the Creator in Genesis 1, for they all serve a good purpose in creation. “Unclean” animals are created for pollution control in the earth. Hence, they were “unclean” to the people, but they were always “good” in the eyes of God.

The word tawmay, then, when applied to a divorced wife in Deut. 24:4, simply means that she is off limits to her ex-husband. In other words, he cannot touch her without himself becoming unclean before God. Her marriage to a second husband renders her unclean to her first husband, but not to any subsequent husbands.

Forbidden Fruit

A similar concept is found in the use of the Hebrew word orlah, “uncircumcised.” The term was often equated with a man who was unclean—foreigners in particular. But the word was also used to describe fruit from a young tree. Lev. 19:23 says,

23 And when you enter the land and plant all kinds of trees for food, then you shall count their fruit as forbidden [orlah, “uncircumcised”]. Three years it shall be forbidden to you; it shall not be eaten.

Here the term “uncircumcised” is used to mean “forbidden.” Dr. Bullinger says it means “uncovenanted,” or separated, not in a covenant or union. The tree itself was good, and the fruit itself was good, but during the first three years it was forbidden by law to eat of it. In other words, the fruit was unclean to those who might eat it unlawfully, even though the fruit was not inherently unclean.

So also with a woman who might contemplate remarrying a former spouse. She is “defiled” or unclean in relation to her former spouse, but not inherently so on account of her second marriage. The law allows a properly divorced woman to remarry anyone except her former husband—if she has remarried in the interim.

These are the basic laws of divorce and remarriage.