Heth and Wenham argue that the exception clause goes with the prohibition to divorce, not the prohibition to remarry. Because of this, it is possible for one to divorce without committing adultery, since only the remarriage is considered to be so. Under both Roman and Jewish law, a married partner is required to divorce his spouse. The exception clause would merely be stating that he is not at fault for breaking the command to remain married in the case of porneia, which Heth and Wenham take to mean “adultery.” This would be consistent with Paul’s statement that two believers are not to divorce, but if they do, let them remain celibate.
Let us take a look at both of the Matthean statements in order to examine this claim.
πᾶς ὁ ἀπολύων τὴν γυναῖκα αὐτοῦ παρεκτὸς λόγου πορνείας ποιεῖ αὐτὴν μοιχευθῆναι, καὶ ὃς ἐὰν ἀπολελυμένην γαμήσῃ, μοιχᾶται. (Matt 5:32)
ὃς ἂν ἀπολύσῃ τὴν γυναῖκα αὐτοῦ μὴ ἐπὶ πορνείᾳ καὶ γαμήσῃ ἄλλην μοιχᾶται. (Matt 19:9)
The problem is that if one reads it together it seems clear that the clause would go with the entire statement. Let us remove the clause for a moment to study the full statement.
In 5:2: “Anyone who sends his wife away makes her commit adultery, and whoever marries a divorced woman commits adultery.”
In 19:9: “Whoever sends his wife away and marries another woman commits adultery.”
In 5:2, the act causing her to commit adultery seems to be the act of divorcing her. The term μοιχᾶται, a present infinitive passive denotes the idea that the man is making her commit adultery by divorcing her so that she has a need to remarry (presumably, in order to survive). Whereas, in 19:9, the man who divorces a wife and marries another is responsible for his own adultery. The text seems lay the blame on the divorcing party in both texts.
What may explain the idea that the exception only applies to divorce are certain prescriptions in Jewish and Roman law. These laws are not applied across the board, but may have played a factor in a man choosing to divorce his wife.
Augustus' law, Lex Julia de adulteriis, is summarized well by Judith E. Grubbs:
“Adultery, defined as sexual relations between a married woman and a man other than her husband, became a criminal offense to be tried in standing courts. Conviction led to relegation to an island and confiscation of property (for a woman, half her dowry and a third of her other property; for her male lover, half his property). Stuprum (denoting illicit, nonmarital sexual relations in general) with an unmarried woman of respectable status, was also punishable under the adultery law. This was the first time sexual offenses had been punished as public crimes; in the Republic, chastisement of adulterous wives had been the role of the paterfamilias and the family council, not the state. Husbands were required to divorce adulterous wives or risk being prosecuted themselves for lenocinium (pimping). Divorce for adultery required the presence of seven witnesses to be fully ratified [Treggiari 1991a, 454–7; Evans Grubbs 1995, 203–16; McGinn 1998, 140–247].” (Women and the Law in the Roman Empire: A Sourcebook on Marriage, Divorce, and Widowhood 84).
In Jewish circles, the husband was often times encouraged to divorce an unfaithful wife. According to David Amram in the Jewish Encyclopedia:
“Upon this mild view followed the entire abolition of the death penalty, in the year 40, before the destruction of the Second Temple (Sanh. 41a), when the Jewish courts, probably under pressure of the Roman authorities, relinquished their right to inflict capital punishment. Thereafter, the adulterer was scourged, and the husband of the adulteress was not allowed to condone her crime (Soṭah, vi. 1), but was compelled to divorce her, and she lost all her property rights under her marriage contract (Maimonides, "Yad ha-Ḥazaḳah, Ishut," xxiv. 6); nor was the adulteress permitted to marry her paramour (Soṭah, v. 1); and if she married him, they were forced to separate.”
We see from this that not only was the death penalty not in play at the time of the writing of Matthew, but also that Jews, like the Romans, were encouraged to divorce their wives if they found them to be unfaithful. Likewise, the adulterous woman was not allowed to marry the man with whom she committed adultery.The former law was likely an attempt to keep the command of Deuteronomy 24 that did not allow a man to remarry a woman after she has become defiled with another man. The latter was likely because the Jews saw a marriage to an adulterer as a continual adultery.
What the exception clause may be doing instead is freeing the man from blame if he should divorce his wife. Both Jewish and Roman law required husbands to divorce their wives if they had committed adultery with another man. If the husband did not divorce his adulterous wife, he could be charged with the crime of pimping. In such cases, Jesus would be freeing the man from the prohibition to divorce, as the wife has caused herself to be divorced by law. If the woman committed adultery, her impoverished situation may cause her to get married again, but her adultery will then be her own head, and not that of her husbands.
However, if a man divorces her wife for any other reason, his divorcing her is seen as the cause of her remarriage/adultery, and thus the guilt of the crime seems to be placed on him and the two other parties involved, i.e., his wife and her new husband, are merely passive agents forced to do this for his lack of faithfulness to his marriage covenant.
So it may be that what Matthew is actually saying is that a man is not to divorce his wife, and if he does, he places her in dire conditions so that she might have to remarry. If she does remarry, it is still adultery, as Jesus taught in the other Gospels, but her adulterous sin will be laid upon him instead. The one exception for this is if she commits adultery and he must divorce her for this reason. If she then marries, she will be committing adultery and that sin will be fully placed upon her, not her former husband.
But the very reason why such is adulterous is due to the contractual one flesh union remaining intact. Hence, Paul argues that if while her husband lives she is joined to another, she will be designated an adulterous. But if her husband dies, she is released from that law and is not an adulteress if she marries another man. (Rom 7:3). This means that Jesus might be merely dealing with whom the sin of adultery will be placed, the husband who divorces or the wife who commits porneia “adultery.” If the husband, under Jewish and Roman law divorces his wife for adultery, he is free of her further adultery when she gets remarried. But if divorces her for any other reason, and she has to get remarried, both her adultery and that of whomever marries her is considered his fault and placed at his feet. Her remarriage is seen as adultery either way. The question is who is to blame for the adultery of a remarriage.
Luke’s version may give credence to this view, as Luke states that whoever divorces his wife and marries another commits adultery (in this case the man is divorcing and marrying another woman), and if the wife divorces her husband, she likewise will be guilty of adultery. In both of these cases, the present passive indicative is turned into a present active, indicating that the fault of the adultery is placed upon the one who divorces. In this regard, Luke is the most straight forward in saying that the guilty party is the one who divorces and remarries.
Matthew and Mark, however, are more difficult, as they use the deponent word μοιχάομαι, rather than Luke’s μοιχάω. The reason why this becomes more difficult is that one must choose whether μοιχᾶται is active, middle, or passive from the context, and perhaps, parallel passages. The form is not clear.
It seems clear, however, that in Mark 10:12 that the woman who divorces her husband and marries another man will “be an adulterous” of her own making. The blame surely is not placed upon the husband in this case. Given this parallel, one might conclude that all of the other cases of μοιχᾶται are merely saying the same thing without placing blame on the husband; but this too might be trying to get too much out of the grammar. The phrase “she will be an adulterous” is a neutral claim. The blame of the sin must be made known by the context, not necessarily the grammar itself.
For instance, in Matthew 5, Jesus seems to be pointing out ways in which the Pharisees have not obeyed the law of God in its principled intent. He shows them that they have been committing adultery in two ways: (1) they have been desiring other women besides their spouses, and (2) they have been divorcing their wives so that their wives marry another man, and therefore, commit adultery.
The problem with saying that their wives commit adultery is that Jesus’ point seems to be to accuse the men of committing adultery. After all, he is the one divorcing her. Jesus seems to be placing the blame of her adultery upon them, and thus, saying that they are committing the sin of adultery by making their wives marry another man. This would also be seen as a form of adultery in terms of pimping by both the Jews and the Romans in that the husband would be setting up an opportunity for another man to have sexual relations with his wife.
Likewise, in Mark 10:11, Mark adds the preposition epi to the word μοιχᾶται that we just saw he takes as active in meaning in v. 12. What the phrase μοιχᾶται ἐπ᾽ αὐτήν would mean in this case would be something to the effect of “he puts adultery upon her.” The phrase is ambiguous, however, and it is possible that the “he” is the other man she is marrying, which would then render it “he commits adultery concerning her.” However, since the subject of the sentence is really the husband, and “she marries another man” is really a parenthetical statement, the subject of the phrase should be taken as her original husband. Hence, Matthew, Mark, and Luke seem to all lay the blame of the remarriage/adultery upon the divorcing party.
This interpretation is consistent with the other absolute statements made by the other Gospel writers and Paul by affirming that it is always adultery for a divorced woman to remarry or for a man to marry a divorced woman. The issue in these texts would merely be answering who is to blame, something that Matthew seeks to make more explicit by his exception clause which allows for the divorce of a woman in case she has committed adultery and the husband, under Jewish and Roman law, must divorce her. In the last case, the adultery committed by her or her new husband would be laid solely at her feet and the foot of her new man.
Likewise, if one were to adopt this view, it should be noted that her remarriage is only laid at her former husband’s feet because her getting remarried would be a necessity to survive, not merely as a result of her desire to be married again.
Likewise, this would contradict Paul’s teaching that they are not to divorce, but if they do, they are to remain single.
However, there is another factor that must come into play when evaluating this option, and we must ask whether interpreting Matthew this way is consistent with the argument Matthew is making about pursuing both righteousness and restoration/reconciliation in our relationships. It is no mere coincidence that Matthew’s larger discussion of divorce and remarriage happens to follow the chapter concerning forgiveness (Chapter 18), as well as the statement ending the parable of the unforgiving servant who is thrown into an eternal prison that “so will My heavenly Father do to you if each one does not completely forgive his fellow Christian” (Matt 18:35). It would be difficult to argue that one was restoring his relationship with his spouse by divorcing him or her. It would also be difficult to argue that one was restoring one’s relationship with his or her spouse if remarrying in revenge so that the sin of adultery would be placed upon his or her former spouse.
Since the exception clause merely points out who is committing the sin of adultery, and not negating the rest of the New Testament teaching concerning divorce and remarriage as adultery, this view is a plausible option. However, because it contradicts the necessity for Christians to forgive one another (i.e., restore the relationship that was broken), it becomes less plausible that these statements are meant to justify remarriage, and instead, are meant to condemn the practice of divorcing one’s believing spouse altogether.