Years ago I preached through the entire book of Deuteronomy, which included Deuteronomy 24 in its context. I've come back in a few sermons on divorce and remarriage through the years to deal with it in depth. I went back and looked at some notes of one sermon. I noticed that I had used some of a blog post I had written on the subject over at Jackhammer back in the day. I'm putting those notes into the paragraph form of a blog post, but with little editing. Here goes.
Jesus says, “Have ye not read…” in Matthew 19. When He uses this phrase, He goes to the Scripture to debunk a wrong understanding of the Old Testament held by the religious leaders. That's what is happening when Jesus uses that language.
In the first century A.D., the schools of Hillel and Shammai differed as to what, in view of Deuteronomy 24:1, constituted legitimate reasons for divorce. Shammai thought that divorce could be granted only for marital unfaithfulness. Hillel, on the other hand, asserted that even such a minor irritation as scorching the food was adequate grounds of divorce.
In Gittin 10, which is from the Talmud, the Hillel view is based upon a loose interpretation of the phrase, some indecency (ervath dabar) in Deuteronomy 24:1, and R. Akiba even inferred from, if then she finds no favor in his eyes, that a man might even divorce his wife if he found a more attractive woman. Whatever one's understanding of Deuteronomy 24:1, it happened that Hillel's interpretation became the rabbinic norm.
The question, then, "Is it lawful to divorce one's wife for any cause?" was actually a question as to whether Hillel's interpretation was correct. Obviously, if by eliciting from Jesus a statement as to which side he took in this rabbinic dispute over Deuteronomy 24:1 and the Pharisees could involve him in a controversy, they would be well on their way toward nullifying his influence on the multitudes. In the end, like all other controversies, Jesus doesn't come down on the side of either Pharisaical interpretation, but on God's original intention. What about Deuteronomy 24:1 though?
Deuteronomy 24:1–4 does not institute or allow for divorce with approval, but merely treats divorce as a practice already existing and known.
Grammatically the passage is an example of biblical case law in which certain conditions are stated for which a particular command applies.
The protasis in verses 1–3 specifies the conditions that must apply before the command in the apodosis in verse 4 is followed. In other words 24:1–4 describes a simple “if…then” situation.
The legislation specified in 24:1–4 actually deals with a particular case of remarriage. Grammatically the intent of this law is not to give legal sanction to divorce or to regulate the divorce procedure. The intent of the passage is to prohibit the remarriage of a man to his divorced wife in cases of an intervening marriage by the wife.
The first three verses of Deuteronomy 24 describe the situation of a woman who is twice divorced by different men or once divorced and then widowed. Divorce is neither commanded nor commended. The circumstances leading to divorce are simply described as a part of the case under consideration. The verses do not indicate that divorce is necessarily sanctioned under such circumstances.
In the comment section of the recent post by Thomas Ross on Deuteronomy 24, for the first time I heard a view espoused, which said the exact opposite of the teaching of Deuteronomy 24. Someone (Larry) brought up the valid point of Jesus speaking to the woman at the well in John 4, reminding her of her having had five husbands. Each of them were still called a "husband," and this is helpful in debunking the position of those commenting. I had never heard their position, so I had never thought about the particular point made about the woman's five husbands. If we take Jesus at His Word, which we should, a second marriage is a marriage. Even when we argue against those who believe in remarriage, it is called remarriage.
In this particular case the wife lost favor with her husband because of “some uncleanness in her” (literally, “nakedness of a thing” or “a naked matter”). The precise meaning of the phrase is uncertain. Consequently it became the subject of heated rabbinic debates on divorce. The Septuagint’s translation, (“some unbecoming thing”), is equally obscure. The phrase may refer to some physical deficiency—such as the inability to bear children. The expression appears only once elsewhere in the Hebrew Scriptures, where it serves as a euphemism for excrement (Deut 23:14). This suggests that the “uncleanness” in Deuteronomy 24:1 may refer to some shameful or repulsive act. In the first century conservative Rabbi Shammai interpreted the phrase as referring to marital unchastity, while Rabbi Hillel interpreted it more broadly to refer to anything unpleasant. Jesus, of course, was teaching a no divorce position, again going back to original intention, and the point of the Deuteronomy passage was not to teach divorce or remarriage, but to look at one particular case for case law. It shouldn't be used to justify divorce or remarriage, even as Jesus taught.
Understanding case law and the case law format is important. Deuteronomy 12–26 contains 31 examples of case law. In 19 of these examples the protasis contains a situation that is either immoral or has some negative connotation. The other 12 present situations that appear morally neutral.
Deuteronomy 25:11–12 is an example of case law in which the protasis contains a situation that is immoral or has negative connotations. A woman who seizes the genitals of a male opponent to help her husband in a struggle shall have her hand cut off. No one would dare suggest that the case being described is presented with approval. Many other similar examples could be cited.
The main point of this example of biblical case law in Deuteronomy 24:1-4 appears in the apodosis (the “then” clause) of v. 4 . Here it is clear that the law relates not to the matter of divorce as such, but to a particular case of remarriage. Moses declared that a man may not remarry his former wife if she has in the meantime been married to another man. Even though her second husband should divorce her or die, she must not return to her first husband. The prohibition is supported by an explanation, a reason, and a command. In the Hebrew, verse 4 is the only regulative statement in this passage.
These verses should be read as one continuous sentence, of which the protasis is in vv. 1-3 and the apodosis in v. 4, like the following: "If a man hath taken a wife, and married her, and it come to pass that she doth not find favour in his eyes, because of some uncleanness in her, and he hath written her a bill of divorcement, and given it in her hand, and sent her out of his house; and if she hath departed out of his house, and hath gone and become another man's; and if the latter husband hate her, and write her a bill of divorcement, and give it in her hand, and send her out of his house; or if the latter husband who took her to be his wife, die: her former husband, who sent her away, may not take her again to be his wife." The actual ruling on the case is that "her former husband, who sent her away, may not take her again to be his wife."
While divorce is taken for granted in Deuteronomy 24:1-4, the woman who is divorced becomes "defiled" by her remarriage (v. 4), so it may well be that when the Pharisees asked Jesus if divorce was legitimate, He based his negative answer not only on God's intention expressed in Genesis 1:27 and 2:24, but also on the implication of Deuteronomy 24:4 that remarriage after divorce defiles a person. There are sufficient clues in the Mosaic law that the divorce concession was on the basis of the hardness of man's heart and really did not make divorce and remarriage legitimate. The prohibition of a wife returning to her first husband even after her second husband dies (because it is an abomination) says that no second marriage should be broken up in order to restore a first one.