Deuteronomy 24:1 says:
“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 uncleanness in her, and he writes her a certificate of divorce, puts it in her hand, and sends her out of his house…”
One of the main texts for divorce under the Old Law is found in Deuteronomy 24:1-4. When the law was originally given, the penalty for sexual unfaithfulness was death, not divorce (Lev. 20:10). Therefore, the question is often posed as to the meaning of “uncleanness” in Deuteronomy 24:1-4. There are a couple of explanations as to the meaning of uncleanness in this text (both fitting within the context).
When it came to sexual unfaithfulness under the Old Law, not only was the woman to be put to death, but the man was also to be put to death according to the Levitical law (Lev. 20:10). However, the requirements of proving such were very difficult and included the following:
- There had to be at least two witnesses to testify (Deut. 17:6).
- The witnesses had to prove their case or they themselves could be stoned for being false witnesses (Deut. 19:15-21).
- If the witnesses did prove their case, then they had to be the first ones to stone those who were guilty (Deut. 17:7).
It was nearly impossible to meet the demands of the law in order to enact the death penalty especially with actions done in secret. This is the reason why it appears that most rabbis discontinued the death penalty judgment shortly after the death of Moses (Divorce & Remarriage in the Bible, Instone-Brewer). There are instances of it being practiced after Moses (See Josh. 7:25; 1 Kings 21; etc.), but it was not commonly practiced after Moses’ death.
According to Instone-Brewer, most rabbis were opposed to stoning by the first century. This sometimes led to “mob stoning.” Mob stoning was not in accordance with the Jewish law nor did it meet the demands of the law—but it did happen in the first century (Jn. 8:1-12; Acts 7:54ff; Acts 14:19).
Since the death penalty against sexual unfaithfulness under the Old Law could only be enacted when the aforementioned laws of the land were met, then it could be the case that Deuteronomy 24:1-4 is about divorcing your spouse for sexual unfaithfulness when the proper legal evidence could not be supplied to enact the death penalty. While not enough evidence to legally meet the demands of a death penalty, a divorce could be enacted per Deuteronomy 24:1-4 (e.g., “He found” uncleanness vs. “witnesses found”).
Therefore, the first explanation is that the word translated “uncleanness” in Deuteronomy 24:1-4 did refer to sexual unfaithfulness and applied to divorce in cases where there was not enough evidence to convict per the death penalty.
This would mean when Jesus was speaking to the Jews in His marital teachings (Mt. 19:1-10; Mk. 10:1-12, etc.), He would be affirming that uncleanness (sexual unfaithfulness) is the authorized reason for divorce and not just “any reason.”
This is certainly a plausible explanation and would harmonize with both the Old and New Testament contexts on marriage. But there is a second explanation.
The second explanation points out that divorce for sexual unfaithfulness was always intrinsically understood as a “just” reason to divorce, and even an expected result (Hosea, Mt. 1:18-20; Isa. 50:1; Jer. 3:1). There is no evidence anywhere of someone trying to argue that sexual unfaithfulness was not a just reason for divorce. Therefore, this position assumes that Deuteronomy 24:1-4 wouldn’t be needed by the male to justify grounds for divorce per adultery since that would naturally result in death or divorce.
This position reasons that Deuteronomy 24:1-4 was put in place for the sole purpose of protecting the woman when the husband would divorce her because of her “uncleanness.” The words in Hebrew translated uncleanness are “erwat dabar.” There is only one other time in all of Scripture these two words are used together and that is in Deuteronomy 23:9-14 where it refers to hygienic problems (specifically in that context a man’s nocturnal emission and poor toilet practice).
This position argues that this uncleanness mentioned in Deuteronomy 24:1 refers to a woman’s menstrual flow. This would render the woman unclean during this time and if the man touched her in that condition, he would be rendered unclean (Lev. 15:19-33). Since this happened often, his frustration could lead to divorce. This explains why the subsequent husband might divorce her too since the same “male-urge” frustration could kick in (Deut. 24:3). Of course, only a hardhearted man would divorce his wife for such. Therefore, the law was put in place to protect the woman if the man did divorce his wife for such a trivial and hardhearted reason.
If this explanation is true, then when Jesus spoke to the subject of divorce, He reaffirmed their sinful hardheartedness for unlawfully divorcing their spouses, the Deuteronomy law which protected women, and the intrinsic moral justification of divorce for fornication which was always granted and assumed.
Either way one wants to interpret “uncleanness” in Deuteronomy 24:1-4, it needs to be understood that Jesus is not teaching a “new law” in His marital teachings. Jesus is properly teaching the law and correcting their misunderstandings of it (Matthew 5:17).
– Kevin Pendergrass
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