The Principle
The law of divorce in every Western country bears the marks of its biblical origins. The specific categories of grounds for divorce (adultery, desertion, cruelty), the procedural requirements of formal documentation, the protection of women from being casually discarded, the distinction between void and voidable marriages, the concept of the innocent party's rights - all of these structural features of modern divorce law were shaped by centuries of debate over specific biblical texts. More than perhaps any other area of law, divorce law shows how intensely and specifically biblical interpretation drove legal development, and how Protestant-Catholic differences about Scripture produced different legal systems across Europe.
Biblical Foundation
Deuteronomy 24:1-4 is the foundational text, remarkable for its legal specificity: "When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her: then let him write her a bill of divorcement, and give it in her hand, and send her out of his house... And if the latter husband hate her, and write her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house; or if the latter husband die, which took her to be his wife; Her former husband, which sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the LORD."
Three features of this passage shaped centuries of legal development: the requirement of a written certificate (the get), the restriction on a husband's ability to reclaim a divorced wife who had remarried, and the ambiguity of "some uncleanness" (the Hebrew ervat davar), which generated the great Hillel-Shammai debate - and subsequently the great Protestant-Catholic debate - about legitimate grounds for divorce.
Matthew 19:3-9 records Jesus being pressed directly on Deuteronomy 24: "The Pharisees also came unto him, tempting him, and saying unto him, Is it lawful for a man to put away his wife for every cause? And he answered and said unto them, Have ye not read, that he which made them at the beginning made them male and female... Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder... And I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery."
Mark 10:11-12 gives a parallel with no exception clause: "And he saith unto them, Whosoever shall put away his wife, and marry another, committeth adultery against her. And if a woman shall put away her husband, and be married to another, she committeth adultery." The tension between Matthew's exception clause (the "Matthean exception") and Mark's absolute prohibition drove virtually every subsequent theological and legal debate about divorce.
Historical Transmission
The early church, reading Mark and Luke without exception clauses, moved toward the position that marriage was indissoluble. Augustine's theological argument that marriage was a sacrament - permanently altering the parties' spiritual status - grounded the medieval canon law position that Christian marriages could not be dissolved, only annulled if they had never been validly contracted. The medieval church's elaborate annulment jurisprudence was the result: since divorce was impossible, canon lawyers developed intricate grounds for declaring that a marriage had never existed.
Gratian's Decretum (c. 1140) attempted to synthesize the conflicting patristic and conciliar sources, ultimately supporting indissolubility. The Fourth Lateran Council (1215) codified canonical marriage law, requiring public banns and priestly celebration - making marriage law essentially church law throughout Catholic Europe. Divorce in the civil sense was impossible; separation from bed and board (separatio a thoro et mensa) was available for adultery and cruelty but left the parties legally married.
The Protestant Reformation broke this pattern. Luther, Calvin, and Zwingli all argued that Deuteronomy 24 and the Matthean exception clause permitted divorce for adultery and desertion. Luther's argument was partly pastoral - he saw the Catholic annulment system as corrupt and the prohibition on divorce as cruel to innocent parties - and partly exegetical. Calvin's Geneva permitted divorce for adultery and desertion, creating the Reformed model that Scotland, the Netherlands, and New England adopted.
England followed a tortured path. Henry VIII's desire to annul his marriage to Catherine of Aragon was the immediate cause of the English Reformation; the irony is that Henry, who broke with Rome over a marriage question, then established the Church of England on a more conservative position regarding divorce than the Reformed churches. Parliamentary divorce - available only by private act of Parliament, at enormous expense - was the only route until the Matrimonial Causes Act of 1857 created a civil divorce court.
The 1857 Act was itself framed in biblical terms: its grounds - adultery for a husband seeking divorce, adultery aggravated by cruelty or desertion for a wife - directly reflected the Matthean exception clause's interpretation. The parliamentary debates invoked Deuteronomy, Matthew, and 1 Corinthians 7:15 (Paul's "Pauline privilege" allowing divorce for desertion by an unbelieving spouse) with the same frequency as legal precedent.
Key Champions
Martin Luther's treatises on marriage - The Estate of Marriage (1522) and On the Babylonian Captivity of the Church (1520) - were the most influential Protestant arguments for permitting divorce. John Milton's divorce tracts (1643-1645), grounded in extensive engagement with Deuteronomy 24 and Matthew 19, argued for divorce on grounds of incompatibility, influencing no-fault divorce theory three centuries later. Caroline Norton (1808-1877) campaigned for the Matrimonial Causes Act using arguments about women's rights that drew on the biblical protection of the innocent party.
Modern Application
The United States adopted no-fault divorce with California's Family Law Act of 1969, followed by all fifty states by 2010. The no-fault revolution superficially appears to abandon the biblical framework's fault-based structure, but it can also be read as implementing a different biblical principle: that forcing parties to remain in a destructive marriage serves neither them nor God's purpose. The Uniform Marriage and Divorce Act (1970) provides the model for most state divorce law. In Boddie v. Connecticut (1971), the Supreme Court held that due process requires states to permit divorce proceedings without prohibitive fees - treating the right to dissolve a marriage as constitutionally protected.
Scholarly Debate
The scholarly debate about the Matthean exception clause remains alive in both theology and legal history. David Instone-Brewer's Divorce and Remarriage in the Bible (2002) argued that Deuteronomy 24 implied broader grounds for divorce than the single exception clause in Matthew, and that Jewish law's categories of neglect and cruelty were implicitly included. This interpretation supports a broader range of divorce grounds than traditional conservative readings, and has influenced evangelical discussions of divorce law. Bruce Metzger's textual criticism of the exception clauses and their variants in different manuscript traditions adds further complexity.
Comparative Perspective
Islamic law permits divorce by talaq (repudiation) for men and khul (judicial divorce) for women, with the Qur'an (Surah Al-Baqarah 2:226-232) providing detailed procedural requirements including a waiting period and payment of the mahr (bride gift). The Islamic approach is closer to Deuteronomy 24 - which permitted divorce with documentation - than to the Pauline-canonical tradition of indissolubility. Jewish law retains the get requirement: the husband must willingly deliver the get for divorce to be valid in religious law, creating the tragic phenomenon of the agunah ("chained woman") when a husband refuses. Israeli civil and religious law's interaction on divorce continues to generate litigation.