Marriage and Divorce According to Torah Part 1—A Discussion of Parashah 144 

Although our Torah Reading for today, Parashah 144, covers Deuteronomy 24:1–25:19, I was led by the content to focus only on the first four-verses of the entire reading.

The focus of these four verses is Marriage-Divorce-Remarriage. Indeed, very weighty subject-matter to say the least. But given that this four-verse passage has received so much attention from a great many individuals over the centuries, including, but not limited to rabbis, Y’shua and Shaul, bible commentators, teachers and preacher and so forth, marriage, divorce and remarriage remains as some of the most hotly debated and contested subjects to be found in scripture.

What I would like to do for this Torah Reading discussion today is, because I have so much content on this passage to discuss with you, to divide our discussion into two-sessions or postings.

So in today’s post we will cover the following:

1. First read our focus passage (using the Robert Alter English Translation).
2. Then sort of break the four-verses down into digestible portions (because the four-verses consist of a single run-on sentence).
3. Discuss a few of the two-prevailing Rabbinic schools of thought on this passage as it relates to the topic of marriage, divorce and remarriage.

Then in the second posting on this parashah discussion we will cover the following:

1. Interpret our focus passage using the teachings of Y’shua and the Apostle Shaul.
2. And conclude our discussion with Spirit and Truth applications. 

1. Robert Alter Translation of Deuteronomy 24:1-4 

And the Alter Translation of our passage reads as follows:

“When a man takes a wife and cohabits with her, it shall be, if she does not find favor in his eyes because he finds some shamefully exposed thing, and he writes her a document of divorce and puts it in her hand and sends her away from his house, and she goes out from his house and goes and becomes another man’s, and the second man hates her and writes her a document of divorce and puts it in her hand and sends her away from his house, or the second man, who took her to him as wife, dies, her first husband, who sent her away, shall not be able to come back and take her to be his wife after she has been defiled, for it is an abhorrence before the LORD, and you shall not lead the land to offend that the LORD your God is about to give you in estate.” 

1. A Rough Breakdown and Discussion of our Focus Passage 

As J.H. Hertz asserts, this mitzvah is not a commandment or an established institution for divorce. Divorce was common to the Semitic peoples of the ANE. However, in order to understand divorce YHVH’s Way, we must first understand marriage from His perspective as well. For its “sacredness goes back to the very birth of man” (Hertz; pg. 930).

Overall, divorce is viewed and treated as an unfortunate reality of male-women relationships. And depending on which side of Judaism you’re on (I.e., orthodox or reformed), you may think that there are certain circumstances or situations in a marriage that compel a husband to divorce his wife. But this belief or philosophy cannot be further from Truth. Yehovah never commanded any man to divorce his wife. But rather, the instruction that is given here is scenario-based: “If a man or husband” elects to divorce his wife because he learns of some indecency on her part, then he must give to her a certificate or bill of divorce, and so forth. There then is no sense whatsoever of Yehovah compelling a husband to divorce his wife as insinuated by the Pharisees who challenged Y’shua on the issue of divorce in Matthew 19:3-9. But rather, the commandment to the divorcing husband was that if you decide to divorce your wife because she was unfaithful to him or she engaged in some forbidden sexual relationship, you must give her a certificate of divorce. This commandment for the divorcing husband to give to his wife a certificate or bill of divorcement was for the benefit of the divorced wife, so that she would be legally eligible to marry another man within the Hebrew nation.

Hegg points out that this mitzvah dealing with marriage, divorce and remarriage is the only instruction on this subject in the whole of Torah. All other mentions of marriage and divorce in Torah relate to instructions on priestly marriages, the insolubility of a divorced woman’s vows/oaths and those unique circumstances where divorce would not be permitted (specific to our last parashah discussion 143). (Reference: Lev. 21:7,14; 22:13; Num. 30:9; Deu. 22:19,29)

As I see it, this passage is more scenario-based in its application of Torah instruction, then it is a global-universal instruction or premise on the topic of marriage, divorce and remarriage. For it describes a rhetorical husband who, after marrying his wife, is no longer favored by him because he finds in her some “indecency” (ESV)—”uncleanness” (KJV), “shamefully exposed thing” (Alter), which in the Hebrew is the term “’ervah.” ‘Ervah means “nudity in either a literal or figurative sense. To me, ‘ervah is suggestive of adultery or some form of forbidden sexual relationship.

Now, depending on the wording of the English translation you’re using, this husband is either led to or compelled to divorce her or send her away. In such a case, our rhetorical husband then writes his wife a “bill of divorcement (KJV).” This “bill of divorcement” or “document of divorce” in the Alter translation, in the Hebrew is Ker-ee-thooth” which means a cutting of the matrimonial bond, or simply divorce. He then gives that bill of divorcement to his wife and she departs his house—still rhetorically speaking—she then goes out and marries another man. If then that second husband—still rhetorically speaking—at some point dies or he finds problems with this woman as did the first husband, and he goes through the process of divorcing her and giving her a second “bill of divorcement,” well then her first husband (no longer rhetorically speaking) is prohibited from remarrying her.

Now, as I just pointed out, depending on the English translation you’re using, and let’s just add in there, the interpretations and teachings of bible teachers, preachers and so forth on this subject, the gist of our reading may be taken a number of ways to include the following:

1. This passage lays out the process for a man to divorce his wife.

2. This passage provides the criteria of which a divorce may be granted.

3. This passage is a permissive whereby Yehovah establishes the institution of divorce and remarriage.

4. This passage is about the sin of adultery or other forbidden sexual sins that may lead a husband to divorce his wife.

5. This passage is simply a prohibition against a man remarrying his twice divorced wife.

And of course, there are other interpretations, understandings and positions on this passage, especially as it relates to the topic of marriage, divorce and remarriage.

III.  Two Prevailing Schools of Thought on our Focus Passage 

The Pharisees vigorously disputed one another over this passage of Holy Writ. The School of Shammai’s position on this passage, which also influenced its position on the issue of divorce specific to Judaism, was that divorce was permissible only in response to a wife’s unchastity; or just simply in response to a wife’s adultery or infidelity.

Conversely, the School of Hillel contended that divorce was permissible for “any reason which entailed a rupture of domestic harmony resulting in a daily violation of one of the main purposes of marriage, which is companionship” (Hertz; pg. 932).

The interesting thing we must also add to this marriage-divorce conundrum as understood in Judaism is the position of the Essenes, Zadokites, Samaritans and Messianic Jews that prohibited a divorced man from marrying a second wife as long as his first wife lived. Which is the position that I tend to side with on this issue of divorce. But I will expound upon my position further along in our discussion.

Hegg in his commentary on this parashah explains the different rabbinic schools of thought (I.e., the Hillel versus the Shammai) on what constitutes an act that is “unseemly” or “indecent” by the wife. And he provides us a rather nuanced but very interesting take on the competing schools of thought:

“The famous debate on this phrase between the house of Hillel and the house of Shammai reveals the polar positions taken by the Sages. Hillel ruled that the ‘ervat davar is governed by the use of ד   ָ בָָ ר, davar, interpreted to mean “any matter.” He therefore ruled that anything the husband found displeasing could constitute grounds for the divorce. Akiva took Hillel’s viewpoint to the extreme, as did Philo (Laws 3.80). Josephus also agreed with Hillel’s ruling (Ant. 4.8). Shammai, however, restricted ‘ervat davar to matters of unchastity, and found grounds for a valid divorce only on the basis of sexual misconduct. The mishnah describing the differences is m.Gittin 9.10 (cf. also Sifre Deut. 269; y.Sota 1.2, 16b)–The  House  of  Shammai  say,  “A  man  should  divorce  his  wife  only  because  he  has  found grounds  for  it  in  unchastity,”  since  it  is  said,  “Because  he  has  found  in  her  indecency  in anything (Dt. 24:1).”  And the House of Hillel say, “Even if she spoiled his dish,” since it is said, “Because he has found in her indecency in anything.” R. Aqiba says, “Even if he found someone else prettier than she,”  since it is said, “And it shall be if she find no favor in his eyes”” (Dt. 24:1).

 

Nevertheless, it must be understood that Rabbinic Judaism has for at least the last two-millennium stood firmly on the side of the School of Hillel as it relates to the issue of divorce. Furthermore, Rabbinic Judaism pretty much rejects the extra-orthodox-Jewish prohibition on remarriage. For the husband wields all the power in orthodox Jewish marriages and he is the sole determinant as to whether or not the marriage remains in tact or is dissolved. (This, as harsh as it may sound, is consistent with the tenets of our Torah Reading passage here today.) On the reformed side of Judaism, especially today, the husband has been stripped of this exclusivity by the rabbis and the courts control how the divorce proceedings will go. And the reformed Jewish courts tend to favor the wellbeing of the wife over that of the husband in the divorcement proceedings.

Hertz points out in his additional notes on this passage that Rabbinic Judaism, despite her general School of Hillel leanings (such that a husband could divorce his wife for essentially any reason), at some point clamped down on the granting of legal divorces by making the issuance of a “Get” (which is a rabbinic bill of divorcement) a rather challenging thing to receive by the husband and give to the wife. In other words, the rabbis took to themselves the exclusive power the husband once held to divorce his wife for any reason he saw fit and made the divorce process a court-based action. In so doing, the bill of divorcement spoken of in our focus passage transitioned into that of a court-issued document called a “get.” And the process  that would lead to the issuance of this so-called “get” by Jewish courts was made to be a challenging ordeal for the husband.

The rabbi’s claimed the purpose in their making the issuance of a “Get” so challenging to the husband was to “dissuade husband and wife from proceeding to divorce…in order to facilitate attempts at reconciliation” (Hertz). Despite the suggested challenges a husband faced in having a “get” drafted, divorces were indeed granted (Get) for a variety of reasons.

Hegg points out that this provision grants the husband sole right to divorce and dissolve the marriage. But Hegg goes on to note that under Rabbinic Law, the court could rule on the side of a wife and compel the husband to issue his wife a “Get” to dissolve the marriage under certain circumstances (Mechilta, Mishpatim,  3;  m.Arachin  5.6).

However, Hegg also addresses a nuance of Rabbinic Law that attempts to enforce the original spirit of this Torah instruction:

 “…the  rabbinic  debate  on  this  subject  immediately  raised  the objection that a valid get required that the husband act freely and not under duress. The response to this objection is contained in b.BavaBatra 48a: “Similarly in the case of divorces, [where the Rabbis have said that the husband can be forced to give a divorce] we say [that what is meant is that] force is applied to him till he says, ‘I consent.’” Thus, the judges act on the presumption that every Israelite intends to do according to the Torah, and the Torah requires that one submit to the rulings of the judges. Thus, the husband is compelled to obey the Torah and offers the get freely as the fruit of such submission” (Hegg, Commentary on Parashah 144).

 

Although under Rabbinic Law a woman could sue her husband for divorce. Regardless if she prevailed, still, only the husband was permitted to issue to her that “Get” or “Bill of Divorcement.”

And so it was, according to the Jewish historian Josephus, divorces were granted for all sorts of reasons:

“He that desires to be divorced from his wife for any cause whatsoever (and many such causes happen among men), let him in writing give assurance that he will never use her as his wife any more; for by this means she may be at liberty to marry another husband, although before this bill of divorce be given, she is not to be permitted so to do; but if she be misused by him also, or if, when he is dead, her first husband would marry her again, it shall not be lawful for her to return to him” (Josephus; Ant. 4.8.253).

 

Josephus’ interpretation of this passage of ours here today is consistent with that of the School of Hillel and that of the general consensus of the whole Pharisaical lot of Y’shua’s Day. And thus, this was the attitude or mindset and level of spiritual corruption that Master had to confront and deal with throughout His short personal ministry in Judah. For the very fact that our Master, the walking, talking Torah come down from heaven to clarify His Father’s Torah for us, interpreted this passage to mean divorce was to be granted to Hebrew husbands solely on the basis of adultery, shows just how corrupt the hearts of the people, in particular the Jewish leaders, had become (Mat. 19:7-9). This, despite the term for uncleanness or unseemly thing in the Hebrew being ‘ervah generally refers to things of a dubious sexual nature or that which is of an unclean nature, the hardness of their hearts towards women compels them to view Yehovah’s commandments and instructions in righteousness from their own, selfish perspectives as opposed to Yah’s perspective.

The “unseemly thing” or “’ervah” as it relates to our rhetorical husband who is thus led to divorce his wife  was interpreted by the two competing Rabbinic Schools differently.

Shammai narrowly interpreted “’ervah” as acts of “indecency.” This is of course in line with the school’s teaching that divorce was only permissible if the wife was determined to be guilty of adultery (aka, unchastity).

Hillel, on the other hand, interpreted “’ervah” in a more liberal sense as being “indecency in anything.” In other words, according to J.H. Hertz, “implying that a wife may be divorced also for reasons other than unchastity” (pg. 850).

The finding of that which is “unseemly” or as Hegg interprets, that which is “indecent” in one’s wife, that term ‘ervah being used only one other time in Torah: Deuteronomy 23:14—Yehovah commanding the people to strict sanitary practices because He walks through the camp and fights for Yisra’el and He does not want to see anything indecent among the people. When this understanding of “unseemly” or “indecent” is applied to this mitzvah, the term carries with it, according to Hegg, that which is “obnoxious.”

Robert Alter in his commentary on this passage interprets that thing that the wife is believed to have committed that caused her to lose favor in her husband’s eyes as a “shamefully exposed thing.” And Alter takes somewhat of a more liberal stance on what exactly this thing the wife has done could be. He suggests that it could be something as serious as a morally, reprehensible act, or as innocent as the wife having some form of physical defect that repulses her husband. Or simply that she and her husband are not compatible in an intimate sense.

The “bill of divorcement” the husband gives to his so-called “unseemly” or “indecent” wife that our present text denotes, was, as Hertz describes, a “certificate of total separation from her.”

The Rabbi’s, later on of course, altered this mitzvah in such a way that the divorcement process as described here in our present text was taken out of the hands or control of the husband. Control was instead shifted to what Hertz describes as “a public authority.” The purpose of this shifting of control out of the husband’s hands to that of the public authority as it relates to divorce was to eliminate, as much as possible, the “arbitrariness” and “selfishness” that all too often was part and parcel of the act of divorce in the ANE, which at first had always been left entirely to the will of the divorcing husband. This once so-called “bill of divorcement” under rabbinic oversight was renamed a “Get.” Supposedly the “Get” system of divorcement of Judaism recognized the sanctity and supposed permanence of the marriage union, while at the same time providing the husband and wife with an orderly and less arbitrary course for the dissolution of the marriage union as a permissible option of Torah.

Notice I said the get system of divorce provided the husband and wife an orderly and less arbitrary course for divorce. Well, the reason is this: Prior to the implementation of this system, the husband held all the cards in the divorce process. And the state of the divorcing husband’s heart ultimately determined, in most cases, the reason he was divorcing his wife and what provisions, if any, he would make for her in his sending her away from his home. In other words, the court sought to introduce into the divorce process of the ANE, less variance in terms of a husband’s reasons for divorcing his wife; a greater focus on saving the marriage as opposed to dissolving it; and general protections for the wellbeing of the wife in the event the get was issued and the divorce finalized. 

The prohibition against the husband remarrying his wife in the event she returns to him after a second failed marriage (or the death of the second husband) put into proper perspective how woman of Yehovah are to be viewed and treated within the framework of marriage. She was not a piece of property to be handed off to another man and then reclaimed when certain situations dictated. She is, according to Hertz, “a moral personality.” In Yehovah’s perspective, it is an abominable act for the first husband to remarry their former wife after her second marriage ends. She is defiled according to Torah. And such transgressions in turn defile the land.

This makes sense when we consider that the husband originally set out to divorce his wife because she committed adultery. Her original transgression made her defiled in the first place. And then to be remarried to her original husband only made the relationship all the more confused and chaotic.

Regarding divorce, Rabbi Eleazer wrote:

“One who divorces his wife, even the very altar sheds tears because of him” (Tractate Gittin 90b—Babyonian).

The writer of the article entitled “Divorce 101” suggests the courts seized from the husband the exclusive privilege of divorcing his wife and dissolving the marriage. This, as has been previously mentioned, creates a seeming “imbalance of power” in Jewish marriage. Nevertheless, Torah granted this power to the husband as long as he abides by certain qualifiers:

1. The husband draft a bill/certificate of divorce and gives it to his wife in her hand.

2. He pays her a form of alimony.

3. In certain circumstances, he could never divorce her (an example is seen in last week’s Torah Reading discussion—Parashah 143).

The rabbis, supposedly for purposes of improving the divorced wife’s situation, instituted certain qualifying limitations on the husband during the divorce proceedings:

1. They expanded the situations or conditions that prohibited divorce.

2. They made the overall divorce proceeding complex and daunting for the husband.

3. They required the wife’s consent to the divorce.

4. They increased the financial compensation and considerations to be paid out to her by the husband to be more favorable to the wife.

5. The issuance of a “get” required the husband’s full-consent. However, under certain circumstances, “the wife could request that the ‘beit din,’ or the Rabbinic Court, attempt to ‘compel’ the husband to grant the divorce.”

If a Jewish woman is sent away by her husband without said “get,” she is said to be “agunah,” or a “chained wife” who is ineligible to remarry.

For specifics on how divorce actually works in Jewish society, see the above mentioned article.