TOWARD A THEOLOGY OF DIVORCE
By Judith H. Johnson,
J.D., and Audra L. Holbeck, J.D.
have heard that it was said, ‘Love your neighbor, and hate your enemy. But I
tell you, love your enemies and pray for those who persecute you…If you love
those who love you, what reward will you get?....What are you doing more than
others? Do not even pagans do that?” (Matt. 5:43-47)
Nearly every family of faith in America has been touched by
the fact of divorce. Recent statistics from the last census figures seem to
indicate that divorce may be on the rise again; at least half of all marriages
currently end in divorce. Even families who have not experienced separation or
divorce have friends, neighbors, or sisters and brothers in faith who have
The unfortunate truth is that divorce now seems to affect
couples of sincere faith, as well as those who have no identity in any
community of faith. As the divorce rate has risen, Christian churches have
struggled to relate to the subject of divorce and how to minister to those
members who are experiencing it.
In the ancient Jewish tradition, described in Deuteronomy 24:
1-4, it was possible for an Israelite husband to simply write out a “bill” or
“certificate” of divorce and hand it to his wife. Differences of opinion
existed in that tradition concerning whether legal grounds were necessary for
the bill (such as the infidelity of the wife) or whether the husband could construct
his own reason, or have little or no reason at all (“unseemly behavior”) for
the divorce. This “bill” of divorce in any event ended the responsibility of
the husband for support of the wife’s physical needs. Any children were
assumed to be the property of the husband, in the Middle Eastern tradition of
In nations founded on ancient Christian tradition, marriage
and divorce were initially governed by the official church. Ecclesiastical,
or church-based, courts were operated by the Roman Catholic Church to address
these matters. There are still ecclesiastical courts in the Catholic
tradition which consider annulment of marriage in specific circumstances.
However, in the English tradition, which is the basis for family law in nearly
all 50 of the United States, this role was taken over by the Church of
England.** Eventually, these ecclesiastical courts were merged into the
secular court system. This is part of the “common law” system which the United States inherited from Great Britain.
Thus, divorce proceedings today in this country are civil
lawsuits which are frequently brought on a contested basis before the public
courts of this nation. In light of all this, how should Christ’s teachings be
applied in the present day, to brothers and sisters of Christian faith who are
facing separation or divorce?
In his Sermon on the Mount, Jesus made his position clear
with respect to the conflict within Jewish tradition, described above. He
said that at the very least the husband should have valid reason for the
divorce (the wife’s infidelity); Matthew 5: 31, 32. However, following the
general theme of the Sermon on the Mount, he goes much further. The law may
state that it is a violation to commit murder, but even someone who is angry
enough at a brother to disparage him with epithets is also guilty; it may be unlawful
to commit infidelity, but anyone who even looks at another in lust is also
Then the Sermon takes on a more specific reference to
disputes between brethren of faith: Christ teaches such disputes must first
be submitted for private resolution between the parties, before the public
authorities are involved. “Settle matters quickly with your adversary who is
taking you to court. Do it while you are still with him, on the way, or he
may hand you over to the judge, and the judge may hand you over to the officer,
and you may be thrown into prison. I tell you the truth, you will not get out
until you have paid the last penny” (Matt. 5:25, 26). What is Christ saying
here, in plain American English? Something like: “Insist on having your day
in court and you have no idea what the magistrate might do with your case – he
could end up locking you up and throwing away the key!”
Of course, not every civil lawsuit such as divorce ends up
with criminal penalties in the United States. Only those instances which
involve criminal domestic abuse or in which a participant has shown contempt
for the judgment of the court (such as non-payment of support, or abuse of
parenting provisions) receive such sanctions. However, nearly everyone whose
life has been touched by divorce can supply ample facts to support this point
made by our Lord. Miscarriages of justice in the divorce courts of this
country are plentiful. When family law attorneys assemble in their
professional gatherings, they typically tell “war stories” of time after time
in which such injustice created financial and emotional devastation for
families (including “child custody evaluations” gone wrong; actions for
financial support that failed or overstepped their bounds, etc). Rarely do
judges intend harm from their decisions, but their limited knowledge of the
facts leads to inequitable results.
In his letter to the Corinthians, the Apostle Paul gave
further emphasis to Christ’s teaching regarding lawsuits between believers.
“Don’t you know that someday we will be expected to judge the angels?” Paul
asks in I Corinthians 6:3. He points out that believers are not following
Christ’s teachings concerning the settling of disputes. Paul says “Instead,
one brother goes to law against another – and this in front of unbelievers!”
Separation and divorce are a fact of life today, as much as
they were in the times of the ancient Israelites. Given this fact, what
should be the attitude of the Christian community toward what has become the authority
of the secular courts?
First, we must realize that whether or not there are
scriptural grounds for divorce under ancient Jewish tradition (infidelity), the
teachings of Jesus in the Sermon on the Mount make the powerful point that we
all have failed to measure up to God’s standards. As Paul states in his
Letter to the Romans, “For all have sinned and fall short of the glory of God,
and are justified freely by his grace through the redemption that came by
Christ Jesus” (Romans 3:23,24).
Second, if husband and wife are brother and sister in faith,
they should look to New Testament teachings about the wisdom of litigation –
and do everything they can to resolve their disputes respectfully and with
dignity – outside of court. If they agree that divorce must be
considered, they should take care to provide a minimal amount of information to
the public court file (not only for reasons of their faith, but also to protect
their financial identity from criminal theft).
Third, if a separating or divorcing couple needs help to sort
through their financial and parenting decisions, they should look for methods
of private dispute resolution to facilitate settlement.
There are several opportunities for methods of “Alternate
Dispute Resolution” which are available to separating and divorcing couples,
which support private resolution of all issues. Among these are mediation,
and Collaborative Practice. Collaborative Practice is a team approach to
decision making in cases of separation and divorce which is now available
throughout the United States and in Canada, Great Britain and Australia. It involves a holistic approach to problem solving for the entire family.
Attorneys, child psychologists, adult psychologists and financial analysts who
engage in Collaborative Practice all receive special training in dispute
resolution in order to assist all family members in meeting their needs.
Collaborative Practice is an ecumenical organization which acknowledges the
importance of spiritual concerns in cases of separation or divorce, and involves
practitioners from many faith backgrounds. The authors of this article are an
Evangelical Christian (Judy Johnson) and a Catholic Christian (Audra Holbeck),
who are Collaborative Practice attorneys from the Minneapolis-St.Paul area of Minnesota, as well as trained Divorce Care leaders.
The options for private decision making in cases of
separation and divorce include Collaborative Practice, mediation, and other
methods. A recent publication of the American Bar Association summarizing the
options for decision making in cases of separation or divorce can be obtained from
the authors by emailing Judy Johnson at email@example.com, or
by emailing Audra Holbeck at firstname.lastname@example.org.
The International Association of Collaborative Professionals may be reached
through its internet site of www.collaborativepractice.org.
The Collaborative Practice Institute of Minnesota may be reached through its
website at www.collaborativelaw.org.
**This event is well known in popular history. King Henry
VIII of England was faced with a marriage to the Spanish princess, Katherine of
Aragon, which did not produce a male heir to the throne. He could not obtain
a divorce from the Roman Catholic Church, in order to enable him to marry
commoner Anne Boleyn. As a result, he broke from the Church of Rome, and
founded the Church of England. It was made the official state church of
England and assumed the business of the ecclesiastical courts.