Divorce and Remarriage in the Bible

The Social and Literary Context

David Instone-Brewer

• Publisher: Eerdmans
• Year: 2002
• ISBN:
  9781467431620
• Topic: Théologie et religion
• Subtopic: Études bibliques

To many, the New Testament's teaching on divorce and remarriage seems to be both impractical and unfair. The "plain" meaning of the texts allows for divorce only in cases of adultery or desertion, and it does not permit remarriage until the death of one's former spouse. But are these proscriptions the final word for Christians today? Are we correctly reading the scriptures that address these issues?By looking closely at the biblical texts on divorce and remarriage in light of the first-century Jewish and Greco-Roman world, this book shows that the original audience of the New Testament heard these teachings differently. Through a careful exploration of the background literature of the Old Testament, the ancient Near East, and especially ancient Judaism, David Instone-Brewer constructs a biblical view of divorce and remarriage that is wider in scope than present-day readings.Among the important findings of the book are that both Jesus and Paul condemned divorce without valid grounds and discouraged divorce even for valid grounds; that both Jesus and Paul affirmed the Old Testament grounds for divorce; that the Old Testament allowed divorce for adultery and for neglect or abuse; and that both Jesus and Paul condemned remarriage after an invalid divorce but not after a valid divorce. Instone-Brewer shows that these principles are not only different from the traditional church interpretation of the New Testament but also directly relevant to modern relationships.Enhanced with pastoral advice on how to apply the biblical teaching in today's context, this volume will be a valuable resource for anyone seeking serious answers about married life.

1. The Ancient Near East

Marriage Is a Contract

Marriage in the ancient Near East was contractual, involving payments, agreed stipulations, and penalties. If either partner broke the stipulations of the contract, the innocent partner could opt for a divorce and keep the dowry. Exact parallels to these practices are found in the Pentateuch.

The Marriage Covenant

Marriage is called a “covenant” (תירב, berith) throughout the Pentateuch and the rest of the Old Testament.¹ Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).²

A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).

The Pentateuch also speaks of the treaty covenant of Israel in terms of a marriage. The jealousy of God is frequently referred to (Exod. 20:5; Deut. 5:9; cf. Exod. 34:14; Josh. 24:19) and in Numbers 5:14 the term “jealousy” (אנק, qana) is used in its technical sense of marital jealousy.³ Also, the covenantal oath “I will be your God and you shall be my people” (Lev. 26:12; Deut. 29:13 [MT 29:12]; etc.) is very similar to the ancient Near Eastern marriage formula attested in Hosea 2:2 [MT 2:4].⁴

The concept of “covenant” is used throughout the ancient Near East for treaty covenants, covenants for hiring labor, and many other types of agreements including marriage.⁵ Although the word for “covenant” is different in different languages (Akkadian riksu and Hittite ishiul, etc.⁶), the same concept pervades the societies surrounding Israel. This concept was also later adopted by the Greco-Roman culture of the first century C.E.⁷ A covenant was cemented not only by blessings and curses (benefits and penalties) but also by a concept of mutual concern and loyalty, which was often expressed as “love” even in treaty covenants.⁸ The similarity of language used for treaty covenant and marriage covenant and for other agreements between two parties is also found in many ancient Near Eastern sources.⁹

The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures.¹⁰ Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament.

Marriage Covenants in the Ancient Near East

The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.¹¹

The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.¹²

A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.

This system of payments and penalties, stipulations agreed upon, and the legal terminology of marriage covenants will now be examined in detail, in both the ancient Near East and the Old Testament sources. Many of these customs and terms survived into the first century C.E. and became the basis for New Testament teaching on marriage.

Payment and Penalties in Marriage Covenants

Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. E. M. Yamauchi¹³ summarizes these as the terḥatu and the sheriqtu. The terḥatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terḥatu was called the mohar.¹⁴ The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah.¹⁵ There were many variations to this scheme in the city states of Old Babylon and in other ancient Near Eastern cultures.¹⁶

Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status.¹⁷ Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”¹⁸

The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father.¹⁹ However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband.²⁰ In effect, therefore, the payment by the bride’s father helped the couple to establish their home.

The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on.²¹ She might also get a portion of the estate in addition to her dowry.²² The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case,²³ though usually she lost all rights to the dowry.²⁴

These payments also added security to the marriage itself. The bride-price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry.²⁵ However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry.²⁶ For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.²⁷

Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law²⁸ about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling has been traced by Raymond Westbrook²⁹ to the financial payments and penalties involved in marriage and divorce. Westbrook has pointed out that the main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce),³⁰ or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.³¹

Throughout the ancient Near East, therefore, marriage covenants were sealed by various payments of money. Even though some of these payments canceled each other out, when two parties paid each other different sums, they were still considered to be important and were recorded. These payments are reflected in the Old Testament and survived to the time of the New Testament in Jewish practice.

Stipulations in Marriage Covenants

The stipulations of an ancient Near Eastern marriage covenant were written down in a document, or they were stated verbally at a ceremony before witnesses. As well as these stipulations, which could vary from marriage to marriage, there were also basic rights and responsibilities that applied to every marriage. These would not normally be recorded in a marriage covenant. For example, very few marriage covenants say anything about adultery, but a death penalty for adultery is found throughout the ancient Near East.

The unwritten stipulations were more important than the written ones because they were binding on every marriage. Most marriages did not have a written covenant.³² Written covenants were needed only if the dowry was exceptionally large or if there were unusual stipulations added. These extra stipulations varied considerably in the different marriage covenants that have survived.³³

One additional stipulation that occurs with some regularity states that a man may not take a second wife in preference to his first.³⁴ Roth pointed out that this does not mean that polygamy is forbidden but only that the first wife should not be neglected in favor of the second wife.³⁵

Another phrase that occurs regularly in ancient Near Eastern texts refers to the support a husband is expected to give to his wife as well as to other female dependents. The phrase, which is used at least five times in the extant literature, is: “he was obligated to provide food, anointing oil and clothing for her.” There were some variations in the first item, which was sometimes grain or money.³⁶

There is a clear parallel to these stipulations in Exodus 21:10-11, which records that a second wife should not be preferred over a first wife even when the first wife was a slave wife. It was generally assumed by rabbinic interpreters that this right extended to free wives as well as slave wives. This was presumably based on the logic that any right that a slave had would certainly also be shared by a free person.

This passage also lists the rights of the first wife that must not be diminished when the second wife arrives. This list of these rights in Exodus 21:10, according to most translations, is the right to food, clothing, and conjugal relations. This is very similar to the common ancient Near Eastern phrase “food, anointing oil, and clothing.” There is some difficulty in the translation of the third word, התנע (ʿonathah), but i...