Under Mosaic Law, marriage and divorce was almost wholly a Domestic, Familial issue. Local Civil authority only stepped in when needed to deal with specific issues. If the man divorced his wife, he wrote up the bill of divorce, if he could write, and gave it to her. Moses did not specify a specific way of doing this, at least not in the written document of the Law.
Traditionally a man who desired a wife, spoke with the girls father. If the father was open to the union, they’d agree upon a bride-price, usually about a year’s salary based upon their socio-economic level. The man would come up with the bride-price and pay it to the father. This payment of the bride-price established the marriage covenant verbally. The young man would then work on adding a room to his father’s house. When that was completed he’d come for his bride and have the wedding ceremony where the written marriage covenant/contract was signed having all of the specific stipulations of the bride-price, dowry, and any unique agreements such as a limit on how far the wife could be moved away from her family.
Usually the dowry was a sum of the bride-price and the girls family inheritance. If she was 1 of 4 children, it would be the bride-price (a year’s salary) + 1/5 of the family’s wealth, a considerable amount of wealth whether in precious metals or goods (cattle, sheep, etc.). This served as a financial foundation for the new family and legally actually belonged to the wife wholly! And IF the man ever divorced his wife for illegitimate reasons, the man had to pay the wife the full amount of the dowry which was recorded in the marriage contract!
During the 1st Century, things had changed and divorce was handled through local civil government. A board of three respected men from the community would judge concerning the details of the divorce and write up the document. By the time of Christ, the Pharisees, typically being the majority civil leaders, had made a terrible burden out of this process. The Shammaites believed and used a Fault-based, public approach to divorce. A man presented his case against his wife and proof of such to the judges. They judged what percentage of the dowry he had to pay based on the reason for the divorce. Because of not wanting the woman to become a drain on the community they usually would lean towards the woman being paid as high of a percentage of the dowry as possible. Whatever the reason though, the man had to publically declare it which made a terrible situation even more shameful.
The Hillelites promoted a No-Fault, Any-Matter divorce process. However, though no reason was needed for the divorce, the man had to pay the full dowry and had to personally give the document to his wife. The process was longer and more laborious than the Shammaite divorce, but it was Private!
The Pharisees had an unending argument over the merits of these two significantly differt modes of divorce. But they failed to address the Agunah problem. Many men, because of a desire to keep the dowry, would simply kick-out, expell, abandon, their wives, not legally divorce them, and often relegate them to a life of whoredom and poverty! It was a malicious, evil, wicked, mean-spirited, hard-hearted thing to do to a woman! And the Pharisees allowed that to continue because they failed to recognize the purpose of the Mosaic Bill of Divorce - to mitigate the suffering of women under the hands of abusive, wicked, selfish men.
Instead of basing their civil law upon the Spirit of the Law, they nullified it’s power for righteousness through their traditions! They argued over whether the man had to personally put the document in the woman’s hand or not, and did not even think to give the woman the power to sue for divorce, thus leaving the cancer of abuse of women to spread in their communities! In fact, I believe it is this that God was denouncing the Jews for in Malachi 2:16! This hateful expelling of the wives of their youth. Jewish men would marry Jewish maidens, have children with them, and then when they grew older would expell them from their houses, relegate them to a life of poverty and isolation or even whoredom, and then marry younger foreign women, breaking their covenants with God and the wives of their youth! Evil, wicked, hard-hearted, selfish, down-right MEAN! This was the straw that broke the camel’s back and brought on the judgment of God during Malachi’s time. And I think that Jesus referenced this alluding to the coming judgment of God on Jersualem again! Sadly, Mal.2.16 has been translated as “God hates divorce”, completely missing what was going on.
Don’t misunderstand me, divorce is tragic. In many ways it is often worse than the death of a spouse. In death, there is a burial, support from family and the community, enabling the widow or widower to move on. Divorce is often like being chained to a dead body, no burial, and becoming an outcast to family and friends. It’s terrible. But I don’t think that Civil law will solve this problem, only a change of hearts through the power of ressurection and reconciliation, the power of grace, love, and forgiveness! And I speak from experience being a child of a broken marriage!
Sadly, the church has fallen into the same trap that the Pharisees did. Instead of focusing on empowering people to have happy, lasting marriages, they’ve spent way to much effort on trying to control people through law and relational exclusion! Instead of empowering people with the truth concerning the fragility of marriage, they’ve tried to make out like marriage was indissoluble, even a sacrament! What a load of… Well, pardon my vulgarity, but this topic I am very passionate about! I’ve seen the church turn it’s back on people during one of the most devestating periods of their lives, abandoning the children too to the destruction, marking them as having problems forever! Frankly, the traditional doctrine of the church had a big part in the destruction of my parent’s marriage and in ongoing problems for my parents and siblings!
How much power should civil government have in divorce? Well, that’s debatable. I tend to lean towards little if any, and then only to protect and empower the weak and often abused. How much authority should church government have concerning divorce? None! Marriage and divorce is best handled almost exclusively at the domestic, family level! And our families should take a more active role, I believe!