Divorce, Remarriage, and Sexual Fraud
October 20, 2024 • R. Scott Jarrett • Deuteronomy 24:1–4, Deuteronomy 22:13–21, Jeremiah 3:1, Matthew 5:32, Matthew 19:9
1. Like the ancient societies around them, divorce was already an axiomatic (or unquestioned) part of Jewish society when God adopted them as His people. Hence the reason there is no place in Scripture which establishes divorce but only case laws which regulate it.
1.1. (Deu 24:1-4 “When a man takes a wife…and he writes her a certificate of divorce” [1]) = Not establishing divorce but regulating what already existed as part of Israelite society. Other examples of axiomatic and inalienable practices that were a part of Israel (just as they were every other ancient society): 1) marriage = Not establishing marriage but regulating what already existed in Israelite society. (Exo 21:7-10) 2) slavery (Exo 21:1-2 “If you buy a Hebrew slave…”) = Not establishing slavery but regulating what already existed in Israelite society. 3) war (Num 10:9 “When you go to war…”) = Not establishing war but regulating what already existed in Israelite society.
1.2. The POINT NOT TO MISS: Divorce was the long-established axiomatic default for dealing with unfaithfulness in marriage - not something established later as an additional option.
“Although there are not multiple instances of divorce recorded in the Pentateuch, we must assume that divorce was as prevalent in Israel then as in other ancient Near Eastern societies. Several passages speak about divorce, but none of them condemns or even discourages it… It is assumed in these passages that divorce happens, and no comment is made whether divorce itself is desirable or not.”– David Instone-Brewer (Divorce and Remarriage in the Bible: The Social and Literary Context)
2. Under the Old Testament, God allowed divorce for almost any reason, whereas under the New Covenant, sexual immorality became the only allowable reason.
2.1. Allowance for almost any reason: 1) Under the Abrahamic Covenant (Gen 21:9-14 “sent her away” = divorced her). 2) Under the Old Covenant (Exo 21:11 = Notice divorce is allowable for more than sexual abandonment/sexual immorality; Deu 24:1 w/Mat 19:1-3 = The Pharisees understood divorce (or the phrase, “some indecency”) to allow for (v3) “any reason at all.” Notice that in (v8) Jesus does not correct their understanding but rather confirms it by explaining why Moses “permitted”(allowed) such large parameters (Mat 19:7-8). Priests were the only exception (Mal 2:14-16 “hates”[2]).
2.2. Under the New Covenant, Jesus confirms not only the Law’s continuing necessity but fills it up to its fullest measure and meaning – or the meaning and measure God originally intended (As it re: continuing necessity - Mat 5:18-20; As it re: filling up to its fullest measure and meaning - Mat 5:17 “fulfill” = Confirm [LXX- 1Ki 1:14]; Fill up in measure and meaning). Hence the reason (then) for sexual immorality becoming the only valid reason for divorce. Jesus is filling up the measure/meaning of marriage to what it was intended to be “from the beginning” (v8). (Mat 19:4-6 [Gen 2:24]) = Per God’s design, when a husband and wife enter into a marriage covenant, they create a new family (v5 = Family by covenant or the covenant ratifying act of sexual activity in marriage). This new family/covenant relationship is meant to be permanent (v6, “What therefore God has joined together, let no man separate”). Why (then) is divorce allowed for sexual immorality (v9,)? Because in the case of sexual immorality, the marriage has already been broken. All sexual acts are covenant ratifying acts, making all sexual activity outside an existing marriage an attempt to replace that marriage w/another (1Co 6:16). The divorce is therefore simply the legal notice that such has taken place (i.e., the current marriage has been broken by the attempt to replace it through marriage covenant ratifying acts w/another) and per the request of the innocent party, that marriage will not be re-consummated. This however is the only time a divorce functions this way since no other act by a spouse breaks the marriage covenant. Hence why Jesus can say that divorce for any other reason makes each party guilty of adultery. Because without the prior covenant-breaking act of sexual immorality, both parties are still bound in marriage (i.e., their divorce is not recognized by God). As a result, any sexual act (including those in a new marriage) becomes adultery in relation to their still existing first marriage.
2.3. That Jesus’ actions (re: divorce) were never meant to be an override of God’s Law (Deu 4:2) but rather a restoration (a filling up) to its originally intended meaning (to its fullest meaning and measure) is supported by the following:
1) (Mat 5:31-32) “It was said…but I say to you” = According to David Daube (The New Testament & Rabbinic Judaism) this was an ancient rabbinic way to indicate a correction was about to applied to a prior (and inaccurate) understanding of Scripture.
2) (Deu 24:4) = Defilement of the land due to remarriage to the former spouse only makes sense in the context of sexual immorality, meaning this was the reason for the first husband’s divorce. IOW: the phrase, “since she has been defiled” refers not to the fact that she was married to someone else after their divorce, but rather that the second marriage was the result of her adultery w/the new husband while still married to the former. The toleration of sexual immorality (which is what the former husband would be doing through remarrying or re-consummating marriage to his former adulteress wife), is a major reason God removed the land’s former occupants (Lev 18:1-23 w/24-28 = Toleration of adultery is viewed as a crime not only against God but the land itself). Deuteronomy 24:4’s allusion to passages like Leviticus 18 helps us to confirm adultery as the intended focus of God’s instruction regarding divorce.[3]
3) This is also how Deuteronomy 24:1-4 is used by God in (Jer 3:1) = Notice, God paraphrases Deuteronomy 24:1-4 as a threat to unfaithful Judah (See 2:1). However, those identified as Judah’s new husbands prohibiting her return to God (should He enact the divorce) are seen as one and the same as those she is currently guilty of “harlot[ry]” (sexual immorality) with (her “lovers.”). In support then of the previous point and the argument as a whole, God also understands the phrase, “some indecency” in Deuteronomy 24:1 as a reference to sexual immorality. This is its fullest -or most accurate meaning and (once more) the reason God prohibits remarriage in the text.[4] And as mentioned in previous studies, this interpretation was hidden from previous generations (Mat 19:8 - “hardness of heart” = Inability to understand produced by stubbornness or immaturity) as God’s means of leading them and preserving His purposes (e.g., Gen 21:9-14; Exo 21:7 w/10-11; also possibly, Neh 13:1-3).
3. God’s authorization of His people to kill those guilty of sexual immorality in marriage does not therefore replace the axiomatic practice (or default) of divorce but rather becomes the new and additional option offered to the offended party.
3.1. One of the purposes of case law in any society – ancient or modern, is not only to regulate what already exists (i.e., divorce – e.g., Deu 24:1-4), but authorize the offer of new and additional options. Authorization is especially necessary when those other options involve capital punishment, as is the case with adultery. God’s law authorizes His people to treat sexual immorality in marriage the same way as sexual immorality outside of marriage as an additional option offered to the offended party (Lev 20:10) = The emphasis in carrying out the death sentence (“you shall surely put them to death”[5]) is to reassure those involved that they possess God’s full authorization and backing (similar to Mat 18:18-20). Hence the reason for the phrase that follows in verses 11 and 12 also dealing with adultery, “their bloodguiltiness shall be upon them.” IOW: Though you are the one putting them to death, you are not the one I will hold responsible for their death. Their blood is on their hands (not yours).
3.2. Why is the same reassurance (of authorization) not given in Deuteronomy 22:21-30 where we also find capital punishment for sexual immorality? Because as the name “Deuteronomy” indicates, what is found in its pages are simply a second giving of the laws (already established and authorized) in the previous books of the Pentateuch (e.g., Leviticus 20:10ff).
3.3. In Matthew 1:18-18, Jesus’ adopted father Joseph is the offended bridegroom of Deuteronomy 22:13-21 proving the existence of two options in the case of sexual immorality in marriage:
1) (Deu 22:13-21) = The offended husband paid the high bride-price to marry a virgin (up to fifty shekels [v29] equivalent to $25-30k today or roughly 7 yrs of servitude [think Jacob w/Leah and Rachel]), only to find evidence that she is not virgin. The only way for the offended husband to receive a refund (get the bride-price back), is to return his wife to her father’s house w/evidence that overrides that of her father. Fining the offended husband double the virgin bride-price (along w/chastisement) was meant to deter cases that waste the courts resources (i.e., cases w/o the necessary evidence). To get the refund however, requires that the girl also be charged with “harlotry” (i.e., prostitution) with a punishment of stoning (death).
2) (Mat 1:18-19) = Joseph pays the high bride-price to marry a virgin (Mary), only to find evidence that she is not a virgin (i.e., she is pregnant). He is in the predicament of the man in Deuteronomy 22. Being a “righteous man” means that Joseph will follow the Law’s prescription for justice. He chooses to divorce her[6]. If stoning were the only option (if Deuteronomy 22 were teaching death as the only prescription or punishment for dealing with this crime), then Joseph’s choice to divorce her would be unrighteous. He would be guilty of obstructing justice and subsequently not a righteous man. CONCLUSION: Divorce (the default) - or the additional option of death were both available as punishment (or for securing justice) against those guilty of sexual immorality in marriage. In Joseph’s specific case, the crime of sexual fraud.
Commenting on Deuteronomy 22:13-21, Gary North writes, “If he has not been informed of her status [i.e., the girl is not a virgin], he can break the marriage through divorce, including divorce by execution, ‘because she hath wrought folly in Israel, to play the whore in her father’s house’ (Deu 22:21). He does not have to have her executed, for Joseph decided to put Mary away quietly for her perceived unfaithfulness (Mat 1:19), but in a biblical commonwealth, the bridegroom would have the [other] legal option of requiring her death.” (“Defrauding The Bridegroom” in Tools Of Dominion)[7]
3.4. As additional support that death was not the only recourse for punishing those guilty of sexual immorality in marriage (i.e., that divorce was the first and other option) consider (Lev 21:7) = The phrase “nor shall they take” does not exist in the original Hebrew. The sentence is an elliptical construction where the second statement functions to give further clarity to the first. A more accurate translation would therefore be, “They [the priest] shall not take [in marriage] a woman profaned by adultery, nor shall they take a woman divorced from her husband; for he is holy to God.” As such the phrase “profaned by harlotry” means “a woman divorced from her husband” (because of her harlotry in her previous marriage)[8]. The prohibition against priests marrying this kind of a woman only makes sense if divorce existed as punishment for sexual immorality in marriage. If death was God’s only prescription for justice, then the prohibition becomes nonsensical since no such women would exist (they would all be dead!). Important to note also is the proximity of this verse to (Lev 20:10). If this previous injunction were prescribing death as the only option for adultery, then the level of incoherency becomes even greater with respect to God’s priestly prohibition.
3.5. The POINT (then) NOT TO MISS: When dealing w/sexual immorality in marriage today, there are two options afforded to the offended spouse: divorce or death (by excommunication) (1Co 5:1-13) (versus automatic excommunication w/the option also of divorce).
4. Deuteronomy 22:13-21 therefore expands what constitutes sexual immorality in marriage to include sexual fraud.
4.1. As discussed, all sexual activity is viewed by God as a covenant ratifying act – or as an attempt to create or confirm a marriage covenant (1Co 6:16; Hos 2:1-3, 6-7). What therefore makes an action sexually immoral (harlotry) is that action took place without the intent or ability to create or confirm a marriage covenant as is the case in adultery (sexual acts w/those bound in marriage to someone else), prostitution (sexual acts for pleasure only), perversion (sexual acts w/strange people or things – e.g., homosexuality, pedophilia, bestiality, incest) (Lev 18:6-18, 23, 20:11-16).
4.2. Pre-marital sexual activity therefore does not in and of itself constitute harlotry (i.e., prostitution). If neither the man nor the woman were betrothed or married to someone else – and consenting, then they have the ability to confirm the marriage covenant their acts were essentially attempting to create. The prescription for justice in these situations is the man must pay her father the maximum bride price for virgins and the two shall be considered legally married without the possibility of future divorce. In other words, should either party be guilty of sexual immorality in the future, death will be the only option or prescription for justice. As an additional deterrent to this pre-marital activity, the father reserves the right to refuse though the bride-price must still be paid (Exo 22:16-17).
4.3. How this relates to Deuteronomy 22:13-21 and the issue of sexual fraud? Based on the evidence provided by her new husband (or lack thereof on the part of her father), the girl had participated in sexual activity prior to her betrothal/marriage to her new husband yet never reported such activity to her father. Had she done so – and her father had refused their marriage, the current situation would have been avoided (i.e., she would not be considered guilty of harlotry). She would also not have been sold as a virgin, but at the discounted price of a concubine (a nonvirgin or virgin without a dowry or inheritance from her father). Her refusal to deal with the premarital matter- and allow herself to be sold as a virgin makes her guilty of fraud -and sexual immorality in marriage (“harlotry”), once her new husband consummates the marriage in intercourse. Why? Because her premarital act no longer possesses the ability to form a marriage covenant. Through the sexual activity of her new marital state, she has forfeited any possibility pursuing marriage with respect to her former act. As such, it can only be viewed as an act done for pleasure alone – i.e., prostitution (harlotry). Hence the reason, the girl’s charge of “harlotry” is communicated as the instrument of her sexual fraud. In other words, she is (only) now a harlot “because she has committed an act of folly in Israel (a reference to defaming the reputation of virgins in Israel)[9] by playing the harlot in her father’s house.”
4.4. The POINT NOT TO MISS: the girl’s prior sexual act does not become harlotry until two things happen:
1) she refuses to pursue marriage with her former suitor by telling her father and instead allows herself to be sold as a virgin.
2) she participates in sexual activity with her new husband (i.e., the marriage is consummated in sexual intercourse).
4.5. Sexual fraud is therefore another form of sexual immorality. Per the context and proper understanding of Deuteronomy 22:13-21 the definition of this crime is as follows: the expected and biblically sanctioned sexual intimacy promised to a spouse cannot be achieved due to outstanding sexual perversion in the other spouse of which they were aware but did not share.
[1] “This is the only place in the Law where a ‘divorce certificate’ is mentioned.” David Instone-Brewer (“Deuteronomy 24:1-4 and the origin of the Jewish Divorce Certificate”)
[2] Gordon Hugenberger makes a strong case that “hate” refers to divorce for reasons other than sexual immorality. See Marriage As A Covenant: Biblical Law and Ethics as Developed from Malachi
[3] See also Hugenberger (ibid, p.184)
[4] At the very least, Jeremiah 3:1 confirms that under the New Covenant, we can never remarry a spouse we divorced for sexual immorality. Remarriage would only be possible to those unlawfully divorced who have not been sexually active (according to Jesus [Mat 5:32, 19:9], this too constitutes adultery since all unlawful divorces are not recognized by God – i.e., the divorced couple are still married in God’s eyes).
[5] The word “surely” does not exist in the passage. Rather, the action is repeated, “(they) shall be put to death, (they) shall put to death.” Per Durham University, “Textual repetition in the Old Testament serves to foreground [make most important] a claim…as a reliable witness to the God of Israel.”
[6] “It was considered very suspect if a man refused to divorce his unfaithful wife, which is why Joseph is described as righteous for wanting to divorce Mary, who appeared to be unfaithful (Mat 1:19).” D. Instone-Brewer (Divorce and Remarriage in the Bible: The social and Literary Context)
[7] “Marriage in the ANE was contractual. If either partner broke the contract, the innocent partner could opt for a divorce…Exact parallels to these practices are found in the Pentateuch.” D. Instone-Brewer (ibid)
[8] Even the word translated “profaned” implies divorce for sexual immorality (Heb., halal = Adjective commonly used to communicate those defiled by divorce due to sexual immorality).
[9] See North, Tools Of Dominion
