Devarim (Deuteronomy) 24:1-4 – Marriage, divorce, marriage, divorce/ death, re-marriage to first hubby, not

Devarim (Deuteronomy) 24:1-4 records that if two people get divorced and the woman subsequently remarried, then the initial couple cannot remarry if the woman becomes single again either through divorce or the death of the second husband. 24:4 refers to this second marriage to the first husband as a toevah, an abhorrence (Alter, 2004, p. 996) or an abomination to G-d. Why should the couple not be able to remarry again? If the wife had not married a second time to another man, then the couple would be able to remarry, why should the second marriage, which was perfectly legal, stop the couple from re-marrying after the second marriage ended?

Ramban (on 24:4, also see Seforno, Luzzatto and Hoffman on 24:4) explains that the reason for the prohibition is the Torah does not want people to swap wives by being able to freely divorce and then remarry again. Hirsch (1989, p. 480) varies this idea slightly as he writes, “The Torah evidently sees, and wishes to forestall, the possibility of a reprehensible misuse of the seriousness of legal marriage and divorce to hide and gloss over an intended adultery, which by the connivance of all the parties could be accomplished under the cloak of complete legality.” Tigay (1996, p. 220) notes that such a course of action would be similar to practices in some Islamic countries (Iran) that allow temporary marriages as a cover for prostitution. Yet, he rejects this idea since he notes that 24:3 states that the reason for the divorce is because the second husband disliked the wife, which means that he did not intend for a temporary union as by the case of wife swapping.

Instead, Tigay writes, “Perhaps, the law was prompted by a concern that if husbands take their wives back after the wives had voluntary sexual relations with other men, adultery might begin to seem less objectionable.” While this is possible, 24:4 implies that the re-marriage itself is problematic and not some future action. Raymond Westbrook (1986) reviews various suggestions for the law and offers his own interesting theory.

One suggestion he quotes is from Philo who seems to imply that the second marriage was adulterous. Yet, how can this be if the first marriage ended in divorce? It seems that Philo is suggesting that the fear is that the wife committed adultery with the second husband during her first marriage. However, this idea is also problematic since the law applies to all second marriages and not just to cases where there is a fear that the women committed adultery with the second husband.

A second suggestion, from S.R. Driver (1902, p. 272), is that the prohibition is to deter people from a hasty divorce. Westbrook rejects this idea since it is unlikely that the first husband when divorcing his wife is going to be concerned that his wife might remarry, become single and then he might want to marry her again. Furthermore, again the strong language of 24:4 which refers to restoring the first marriage as an abhorrence indicates that the second marriage is the source of the problem, and not some fear of people divorcing too quickly.

A third idea, from Yaron (1966), is that the prohibition is to stop the wife from breaking up her second marriage in order to return to her first husband. Westbrook rejects this idea since he notes that the initial couple cannot remarry even if the second husband died, but according to Yaron, in this case the wife did not end the second marriage and she should be free to remarry her first husband.

Instead, Westbrook focuses on the different reasons for the divorce of the first and second marriages. With regard to the first divorce, the Torah records that the divorce was due to a finding of ervat davar, 24:1, suspicious behavior of the wife, while with regard to the second marriage, the Torah records that the divorce was because the husband began to hate his wife, 24:4. Westbrook suggests, based on other Ancient Near East law codes, that when a wife was divorced for suspicious behavior, she did not receive any divorce money (her dowry), while if she was divorced because the husband hated her or was widowed, she would receive divorce money. Thus, he suggests that the fear is that the first husband desires to remarry his wife since she became wealthy from the divorce settlement from the second husband, and hence the law is then to stop the first husband from profiting twice, “first by rejecting his wife and then by accepting her.”

While Westbrook’s idea is interesting, I am not convinced due some of the same problems mentioned above. Westbrook himself notes that the statement in the Torah that the second marriage to the first husband is an abhorrence (abomination) “seems somewhat harsh for a case of unjust enrichment,” but he notes the term abomination is also used for a falsifier of weights, (24:16). However, a falsifier of weights is a thief, while here the first husband is not a thief. Secondly, according to Westbrook, the whole law is when the wife would become wealthy from the second marriage, which is not necessarily the most likely outcome of the second marriage. Finally, I am not sure if the rationales for divorce are a crucial issue in this case. It could be that the rationale for the first divorce, the suspicious behavior of the wife as opposed to the hatred of the husband is to explain how it could happen that the first husband wanted to remarry his wife. He never hated her, and once he resolved his suspicions to his satisfaction, then he would want to remarry his wife.

My hypothesis (variation on Philo?) is that the restoration of the marriage to the first husband retroactively abrogates the divorce from the first husband, which means that the second marriage would then be considered a form of adultery. This idea explains the use of the term abhorrence since the case involves a form of adultery. Also, 24:4 uses the word hutama, which Westbrook notes literally means “she (the wife) has been caused to be tamei,” and this could mean that the restoration of marriage to the first husband causes the wife to be tamei due to the marriage to the second man. Yet, how can one say the first divorce is abrogated by the marriage to the second husband?

Possibly the idea is that once the husband desires to remarry his wife, then he is admitting that the basis for the initial divorce was in error and hence the divorce was unwarranted. The restoration of the first marriage makes it as if the couple were always married, and then the second marriage would be considered a form of adultery. This same idea of retroactivity exists by the annulment of vows that in some cases when vows are annulled the initial vows are viewed retroactively as having never been made, Bemidbar 30. 

 (Note, my understanding does not accord with the halakhah, Shulchan Arukh, Even ha-Ezer 10:1, see also Yevamot 11b, that if wife had sexual relations after the first divorce, then she can re-marry her first husband. Yet, according to my understanding that the second marriage to the first husband retroactively abrogates the first divorce, then the sexual relations with a different man would be a type of adultery, if the woman would be able to remarry the first husband, just like the marriage to the second husband, and hence the first marriage should not be allowed to be restored. My guess is that the Torah only refers to the case where the wife marries again, 24:2,3, not to exclude the case where the woman had sexual relations with a second man, to make the point that even in the woman marries, the woman cannot re-marry the first husband.)

Bibliography:

Alter, Robert, 2004, The five books of Moses: A translation and commentary, New York: W. W. Norton and Company.

Driver, Samuel Rolles, 1902, A critical and exegetical commentary on Deuteronomy, third edition, Edinburgh: T & T Clark.

Hirsch, S. R. (1808-1888), 1989, The Pentateuch, translated by Isaac Levy, second edition, Gateshead: Judaica Press.

Tigay, Jeffrey H. 1996, The JPS Torah Commentary: Deuteronomy, Philadelphia: The Jewish Publication Society.

Westbrook, Raymond (1946-2009), 1986, The prohibition on restoration of marriage in Deuteronomy 24:1-4, in Scripta Hiersolymitana, Studies in Bible, edited by Sara Japhet, Jerusalem: Magnes Press, 31, pp. 387-405.

Yaron, Reuven, 1966, The restoration of marriage, Journal of Jewish Studies, 17, pp. 1-11.