Commentaria in Deuteronomium
Secondly, because otherwise the condition of women would have been too unjust, who without any fault of their own were put away, if they had thenceforth to live unmarried, and could not marry without sin. This is confirmed, because Exodus xxi, 4, it is ordained that in the seventh year the man go out free, the wife with her children remaining a slave with the master: therefore either this wife could marry another, and so the bond of the former marriage was already dissolved; or she could not, and so would have had to live continent all her life against her will, which seems too hard in that law. Similarly Deuteronomy xxi, 14, if anyone had taken a woman captive in war to wife, and she afterwards displeased him, the law permits him to put her away, and commands the marriage to be dissolved, says Theodoret, Question xix, yet so that she obtains her liberty in payment for the union.
Thirdly, because the Hebrew is, he shall write a bill of cutting-off; therefore by it the bond of marriage was cut. This permission, then, was not a mere dissimulation of punishment, and impunity only, but made also the thing permitted, namely divorce, lawful. So hold Abulensis, Burgensis, Cajetan, Oleaster and very many others, whom Sanchez cites and follows, vol. iii On Matrimony, book x, disputation 1. It was otherwise with usuries; for these are permitted to the Jews, chap. xxiii, vers. 19, with regard to foreigners, nakedly only, that is, so that such usurers could not be punished by a judge, nor the usuries be reclaimed from them.
Thou wilt say: Christ, Matthew xix, 8, says that Moses, on account of the hardness of the Jews’ heart, permitted them divorce; therefore this was a bare permission only, which merely does not punish those who put away.
I answer that this hardness was the reason why God granted divorce, namely lest the Jews should kill their wives, whom they could not put away.
This concession, however, made divorce lawful; because God, on account of the hardness of the Jews, dispensed with them in the law of marriage, and came to the aid of their infirmity (for it is the part of a good prince to adapt his laws to the genius and disposition of the people), especially since it was done for a mystery. For by this the divorce of the Jews was signified, that God, having rejected the Synagogue of the Jews, would espouse to himself the Church out of the Gentiles. And for this cause it came about that the marriages of the Jews had not the character of a Sacrament, as the marriages of Christians have, nor signified the indivisible union of Christ with our nature and with the Church, as, the incarnation of Christ now accomplished, the marriages of the faithful signify, which are therefore wholly indissoluble.
Note: This right of divorce only husbands had, not wives. So Josephus, book xv, chap. xi, where he says that Salome, the sister of Herod, contrary to the law which permits divorce to husbands alone, divorced her husband Costobar: “For our law,” he says, “permits the right of divorce to husbands alone; but for women, even when put away, it is not lawful to marry unless by leave of the former husband.” The first the law has concerning husbands; the second, about put-away women not marrying without the husband’s leave, the law has not; but if that is true, it was introduced by custom, by which the husbands usurped this right. Wives, however, could, on account of the husband’s adultery and other just causes, make a divorce from bed. For this the law of nature permits to Christians and to any Gentiles whatever.
A BILL OF DIVORCE.—The Hebrew is sepher keritut, that is, a book of cutting-off, or severance. Note: This “bill” (libellus) means letters of dismissal: for so we still call a petition a “bill of supplication.” For the Hebrew sepher, that is, book, signifies any letters, a writing, a narration, a bull, etc.
The Hebrews hand down, and from them Vatablus, Oleaster and others, that the form of the bill of divorce was this: “I, Rabbi Simeon, son of Rabbi Abraham, son of Rabbi David, son of Rabbi Solomon, on the first day of the second month, in the year 5296 from the creation of the world, here and in this city, by the consent of my mind, and without any compulsion, have put away Rachel, daughter of Rabbi Moses, son of Rabbi Joseph, son of Rabbi Jacob; and have given her a bill of divorce in her hand, a writing of severance, and a seal of division, that she may be cast off by me, and go whithersoever she will, and no one may be able to forbid her, according to the constitutions The form of the bill of divorce among the Romans, as is plain from the Civil Law, title On Divorces, was this: “Take care of thy affairs, keep thy affairs for thyself”; and the divorce had to be made before a judge in judicial form, as is plain in the same title. And it is likely that the Jews too did so. That the Medes also and Persians used divorce is plain from Esther i, 19, where Assuerus puts away Vasthi. The same of the Philistines is plain from Judges xv, 2.
The cause of writing this bill: hear it from St. Augustine, book xix Against Faustus, chap. xxvi:
“God,” he says, “interposed this delay, that the mind, headlong to separation, being checked by the writing of the bill, might desist, and think what an evil it is to put away a wife, especially because the scribes, whose business it was to write the letters, as prudent men, were dissuaders of the separation.” Another cause was that the thing might be done lawfully and juridically, lest the divorcer afterwards deny the divorce, and receive the divorced woman against the law. Again, that provision might be made for the divorced woman, that she might enter new nuptials. For by this bill she showed to all that she was free and released from her former husband and marriage; for otherwise this matter would have been liable to adulteries and suits, as we have seen happen in clandestine marriages.
Lastly, Christ, Matthew xix, 8 and following, absolutely revokes the dispensation of God in the law of marriage, and takes away all right of divorce, and recalls marriage itself to its primeval nature, institution and indissolubility; so that now, after Christ, divorce is lawful neither to Christians, nor to Jews, nor to Pagans, nor to any men. Paul Fagius, therefore, and the heretics err, who teach that divorce is still lawful to Christians.
4. THE FORMER HUSBAND CANNOT TAKE HER AGAIN TO WIFE, BECAUSE (in Hebrew, after that) SHE IS DEFILED, AND BECOME ABOMINABLE BEFORE THE LORD.—The divorced woman he calls defiled, not that she had committed sin by entering a second marriage: for otherwise she ought to have been forbidden to marry a third time; but that she had been known by another, namely the second husband, and defiled by his seed, and therefore it was not lawful for her to return to the former, because in respect of him she was abominable, or, as the Hebrew has it, because this is abomination before the Lord. Because, namely, a return to the husband who put her away is abominable, and wholly forbidden by God, both because this circular return of nuptials bears the appearance of adulterous concubinage, and the divorce seems to have been only feigned and cloaked; and because otherwise an easier access would have been given to divorces and repudiations, if after the second nuptials it had been lawful to return to the first; but as it is, the husband was the more loath to put away his wife, knowing that he could never take her back. So Cajetan and Oleaster.