The Status of Woman in the Law of Divorce
It seems that in the law of divorce in Deuteronomy, the woman is depicted as completely passive in the divorce. If the husband finds no favor in his eyes on the account of uncleanness, he writes her a letter of divorce and sends her away so that she can remarry another man. The law of divorce thus applies solely on the husband, who is forbidden to take his ex-wife back.
But what if the wife finds no favor in her eyes because she has found a matter of uncleanness in him. Can she write a letter of divorce and send him away, and what rule of law can be applied in the reversed case? The Torah seems silent. But why?
With that being said, we are asking the reader to consider what we intend to say, as we will explain the matter of the status of woman in the law of divorce in the following vein. The reader has therefore to expect that the subject mentioned in this introduction will be laid out in this study to the best knowledge of the present author.
Divorce for any reason?
For the purpose of this study, we will focus on a passage in Deuteronomy concerning the law of divorce, as we will try to show that the question of the status of woman and the law itself are far from trivial, as it seems like, and hope to provide a more complex answer below.
When a man takes a wife and shall marry her, and it shall be, if she finds no favor in his eyes because he has found a matter of nakedness* in her, then he shall write her a letter of divorce, and give it in her hand, and send her out of his house. (Deu 24:1)
*Hebrew, ervat davar, literally “a matter of nudity, nakedness” (especially the pudenda), or figuratively disgrace, blemish, shame, uncleanness.
At first reading, the law of divorce in Deuteronomy seems to stipulate that a man may divorce his wife for any reason. However, we have the strong reason to argue that the matter of divorce of a wife and giving her a “letter of divorce” is not a commandment for a divorce, but as we see the issue, it is assumed as a custom founded upon an existing tradition expressed by the conditional clause “if” or “when”, i.e., “if she finds no favor … because …, then …”
Although this may appear surprising, a conclusion follows naturally from the plain words of the text. One cannot argue that the “if” or the “when” introduces a condition upon which an event may or might have occurred. This expression therefore indicates that such a practice of giving letters of divorce might have already been in existence, either probably adopted by the Israelites in Egypt, or it was developed during the forty years in the desert. Or perhaps, Mosheh might have foreseen it coming. We will have something to say regarding this latter aspect of the law of divorce later on. At present, however, we are interested precisely in the plain reading of the words of Mosheh.
The any-reason meaning as a ground of divorce is disputable at least. Common sense does not allow us to say that, if thus interpreted after the most liberal manner possible of the Pharisees, it is based on the Torah. We already find established in Mat 19:3, the for-every-reason cause. The Pharisees asked Yeshua,
Is it right for a man to put away his wife for every reason and give her letter of divorce? (Mat 19:3 translated from the Hebrew manuscript).
A second assumption that can be made is that the first husband cannot remarry his wife once she has been married to someone else.
And she leaves his house and goes and becomes another man’s wife, and the latter husband shall hate her and write her a letter of divorce, and give it in her hand, and send her out of his house, or if the latter husband dies who took her to be his wife, then her former husband who sent her away is not allowed to take her back to be his wife after she has been defiled, for that would be an abomination to the face of Yehovah. And you shall not cause the land to sin, which Yehovah your Elohim is giving you for an inheritance. (Deu 24:2-4)
But, if in the meantime she has married another man after the divorce is established and decides to return to return to her first husband, the reunion of the first husband with the divorced wife is forbidden, even though the second husband has also put her away or has died. Thus, the matter of divorce leaves the question entirely at the wills of the two husbands; the woman has no say.
These assumptions however are simply not made based on the Torah. Mosheh did not actually legislate that a man might divorce his wife for any reason or without reason. Simply, the law does not stipulate such a provision.
We therefore should not err to conclude that the divorce and the issuing a “letter of divorce” were established by YHVH or by Mosheh, but that these reflected an already existing custom of sending a woman away at the time of instituting the rule of divorce, as we stated above.
What Mosheh allowed became “Law of divorce” later
Yeshua claims in Mat 19:3-6 that the practice of putting away a wife with a letter of divorce (see also Mar 10:2-9) is actually immoral. The only reason Mosheh allowed this was because it was the lesser of two evils: it was better to give her a “letter of divorce” so that she could remarry than to send her away without it and thus force her into adultery.
In other words, should man divorce his wife, Mosheh institute the proper form of legislation to accommodate this fact on the ground, but Yeshua argued that that it was not meant to be that way from the beginning. The reason is: Mosheh permitted the divorce because of the “hardness of heart”, which was otherwise undesirable.
In those days in the first century Judea, it was popular to divorce for any reason. This was introduced from the Graeco-Roman culture that filtered into the Hebraic mind. According to this, man can divorce his wife for any cause.
Yeshua quoting his own statements to Mosheh in Gen 1:27, Gen 2:24, and Gen 5:2 about a husband and a wife becoming one flesh, said further,
If so, they are not two but one flesh, and whatever the Creator has joined together, man is unable to separate (Mat 19:6 translated from the Hebrew manuscript). See also Mat 5:32 and Mat 19:9.
“Man is unable to separate” but not the Pharisees. They came back with the law of divorce in Deu 24:1-4, saying, “Why then did Mosheh command to give a letter of divorce and to put her away?” Yeshua further argued that Mosheh did not command but allowed the divorce so that she could remarry another man, but this was to be done in a certain way and only in case of whoring and adultery. And he who would marry such a woman he himself commits adultery for she was an adulteress in the first place.
The Christian interpreters of the Bible understood that the law of divorce in Deuteronomy and many of the Torah’s commandments, further distorted by the misinterpretations of Yeshua’s words, were imposed by Elohim in response to the hardness of the heart and human weakness. This explanation of the law of divorce served as justification for why the laws of the Torah are no longer needed to be observed in their entirety. Otherwise put, the Law would prefer people not do but because of the hardness of the human heart, the Law felt the need to “compromise”.
The prohibition of remarriage
The prohibition of remarriage with the first husband and the reason for the woman’s defilement remain unclear. Why does the second marriage defile such the woman that she should be prohibited to return to her first husband? The explanation offered by the text is that remarriage after a second marriage is abhorrent to YHVH and brings sin upon the land. But why would the remarriage of the woman to her first husband be an abomination before YHVH, who has instituted the marriage, and in what way would their reunion “shall cause the land to sin”?
Thus, it seems that the law of divorce is not about divorce as such, but about infidelity. The reason for the first divorce (“a matter of nakedness or nudity”) and the clause of the second divorce (“after she has been defiled”) seem to indicate that the law deals with sexual impurity. In this case, the woman cannot return to her former husband after being with another man because the latter sexual relationship defiles her for him.
By extension, Deuteronomy also seems to apply to the situation of moral infidelity in which case the woman is not allowed to return to her husband after she has been contaminated by another man. But adultery is certainly not to be thought of here, because such a sexual transgression was to be punished with death, not regulated by a letter of divorce. Mosheh knew that; he gave the people all laws of the Torah.
Mosheh however also knew he could not abolish the traditional custom of divorce, whether inherited in Egypt or adopted in the desert. It should not occur to us that Mosheh had approved or endorsed this practice. He could not abolish it, but he could regulate it by putting some restraints upon a frivolous decision for divorce based on a personal attitude or behavior.
Divorce is not a right but liability
A third assumption that can be made is that although undesired, divorce was established as a right. If such were the case, there are a couple of suggestions that can be offered as explanations of the law of divorce.
One suggestion is that the law is instituted to encourage and facilitate both the man and the wife to reunite after the divorce, knowing that their remarriage would be prohibited if she marries another man and then divorces him. The law of divorce that the first husband could not take his divorced wife back again, if she had married another husband, would thus put constrains upon quick divorces. The thought, therefore, of the impossibility of reunion with the first husband would make the couple to think twice before they divorce. But this suggestion fails to explain why the first divorce itself is not abhorrent to YHVH, but only the second divorce.
Another suggestion, which is the opposite to the first one, is that Mosheh wanted to protect the second marriage. The argument is that if the woman, once remarried, wishes to return to her first husband, she might do something to disrupt her current marriage. But this would mean that the Torah has fully accepted the first divorce as a social norm and would thus weaken the institution of marriage between a man and a woman to become one flesh.
Bodily and moral defilement of the woman
The second marriage of that woman seems to allude to both a physical defilement on the account of emission of semen in sexual intercourse with another man and a moral defilement on the account of moral infidelity.
All this reflects a notion that such a sexual cohabitation even within the marriage leaves man’s impurity in a woman, and that this impureness defiles her, as a woman is always a recipient of impurity in a sexual act, as it is said,
And when a woman lies with a man, and there is an emission of semen, they both shall bathe in water, and be unclean until evening. (Lev 15:18)
This explains the law of abstaining from conjugal intercourse during the preparation for bringing offerings to the Temple and all laws of bodily impurities in Leviticus 15. These laws of purity were instituted because uncleanness as irreconcilable with the calling of His people to be a set-apart nation, in the midst of which YHVH had His dwelling-place, and continuance in uncleanness without the prescribed bodily purification was a disregard of YHVH and involved rebellion against Him and His ordinances.
And if this is true in case of impureness within the marriage, how much more it is true in case of adultery, in which a married woman has defiled her body with another man’s impurity, and while in impureness she returns to her husband.
And if the second marriage of a divorced woman is therefore seen as a moral defilement, she could not remarry her ex-husband even after the death of her current husband, because such a reunion would lower the dignity of the woman, and the woman would appear too much like property exchanged between men.
Viewed thus from the husband’s perspective, he ought to feel repulsed at returning to his wife after she has been defiled by another man. If the husband is not repulsed, because it has been hidden from him, or because he does not care much, Elohim will be repulsed, as it is said, “for that would be an abomination to the face of YHVH”. Thus, the second marriage of a divorced woman was placed equally with adultery. Yeshua said,
But I say to you that whoever puts away his wife, except for the matter of whoring, makes her commit adultery. And whoever marries a woman who has been put away commits adultery. (Mat 5:32)
Hence, we understand that Mosheh and Yeshua are concerned of the preservation of woman’s dignity by urging men to treat her as a person, set-apart to her Creator, not as a sexual object.
But if the sexual infidelity were the main or only reason for the law of divorce Mosheh instituted in Deuteronomy, then this creates another, even bigger, problem, because in such a case the Torah commands both the man and the woman to be put to death, as it is said,
And a man who commits adultery with the wife of another man, who commits adultery with the wife of his neighbor: the adulterer and the adulteress shall certainly be put to death. (Lev 20:10)
Such being the case, the law of divorce may work for Deuteronomy but contradicts Leviticus. Therefore, we understand that the law in Deuteronomy is a law regulating a civil divorce, not adultery.
And since the Torah does not come to create confusion but to explain it, and with all things considered in this study, we are therefore coming to the conclusion that the law of divorce concerns itself not only with a matter of nakedness but there must be something else which we might have omitted in our line of reasoning. Something untouched by us that lies in the last sentence of the law of divorce, which says,
And you shall not cause the land to sin, which Yehovah your Elohim is giving you for an inheritance. (Deu 24:4)
How does this strong language about bringing sin on the land and acting abhorrently to the face of YHVH relate to the law of divorce, because the Torah does not make vague laws? We must also try to understand why the Torah refers to the Land in connection with the status of the woman in the law of divorce.
In the above, we have studied the peshat (plain and simple reading) level of understanding of the law of divorce in Deuteronomy, as we explained it in the article Methods of Textual Analysis – Time of Reckoning Ministry. With that we are fairly convinced that the Torah delineates laws as having layered background, in which characters and incidents must be read not only in the immediate context, but also with a sense of what has happened before or will happen after the narrative.
Having now completed our exposition in detail, we will have more to say upon this point presently on the deeper remez level of understanding.
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