² Mark 10:2–12; Matt. 5:32, 19:3–9, Luke 16:18.

³ The code of the Sumerian king Ur-Nammu, from the twentieth century B.C., summarizes the situation simply and directly: ‘If a man divorces his wife, he must pay her one mina of silver, but if he divorces a widow, he pays her a half-mina of silver.’ See Finkelstein, J. J., ‘The Laws of Ur- Nammu’, JCS 22, 1969, 66–82Google Scholar. Among the Sumerian ditilla tablets, records of court proceedings, is a document from 2046 B.C., in which Lu'utu divorced his wife Geme-Enlila. The wife appeared in court and declared to her husband, ‘Give me 10 shekels of silver, and I won't sue you’, and the husband paid up. Cf. Falkenstein, A., Die neuswnerischen Gerichtsurkunden (Munich, 1956), no. 20 = pp. 32–34Google Scholar.

By the early second millennium B.C., Akkadian marriage and divorce contracts stated that ‘if a man hates his wife and divorces her, he pays her x mina of silver. If she hates and wishes to divorce her husband, they throw her off the tower’, or alternatively, ‘they bind and cast her into the river’, or slightly more leniently, ‘they shave her and sell her into slavery’; see Westbrook, R., Old Babylonian marriage law, 79 ff., and examples of these clauses occur in pp. 115, 119. and 123, et passimGoogle Scholar. These exaggerated threats against the wife were probably not intended to be carried out, but highlight early inequality between the sexes, since the husband was free to divorce his wife, but the wife could not initiate divorce against her husband, except in exceptional circumstances.

Consider, for example, the following case: In 1794 B.C. Šamaš-rabi of the city Sippar decided to divorce his wife Naramtum. According to the divorce writ, which fortunately has survived almost intact, the wife acknowledges receipt of her divorce settlement, and the writ adds that if Naramtum decides to remarry someone else, Šamaš-rabi cannot complain. Cf. Westbrook, op. cit., 130. The two clauses, stipulating the wife's receipt of her financial settlement and her right to marry any other man, are the essential clauses of the Jewish divorce document, cf. Mishnah Gittin 9:3, and Beyer, K., Die aramaischen Texte vom Toten Meer (Göttingen, 1984), 308Google Scholar.

⁴ Roth, Martha T., Babylonian marriage agreements 7th-3rd centuries B.C. (AOAT, 222, Neukirchen-Vluyn, 1989)Google Scholar.

⁵ ibid., 12 f. and no. 19:9–11: ina u ⁴–mu PN FPN un-da-áš-šir-ma áš-šá-tu ₄a-na muh-hi-šu i[r-t]ašu-ú, or no. 20:14–18, ina u ⁴-mu PN FPN [u]n-daš-šir-ú-ma aššata šá-ni- ta-am -ma iš-t[a-šu-ú].

⁶ ibid., no. 6:10–13.

⁷ ibid., no. 6:15–16.

⁸ The problem of adultery was just as paramount then as now, as shown in a cuneiform tablet described as ‘a textbook case of adultery in ancient Mesopotamia’; cf. Greengus, S., HUCA, 50–51, 1969–1970, 33–44Google Scholar. The tablet is a celebrated court case, Eštar-ummi vs. Irra-malik, in which the wife Eštar-Ummi is being divorced by her husband Irra-malik on grounds of adultery and theft. The first accusation against the wife is that she raided her husband's storeroom, secondly she stole oil from his oil jar, and finally the husband caught her in flagrante delicto with her paramour. The outraged husband, who seemed to be equally upset by all of the misdemeanors, took the dramatic step of tying his wife and her lover to the bed and having the resulting evidence carried into the assembly. The prima facie case was decided against the wife, who had her genitals shaved, her nose bored with an arrow, and was paraded around the city.

⁹ ibid., no. 34:28–35. It may be relevant that the couple were Egyptians, since that is where we find slightly more liberal attitudes towards women's rights within marriage and divorce. This time we turn to contemporary fifth century B.C. Aramaic papyri from Elephantine in Egypt. In the interesting marriage contracts from this Jewish community, either the husband or wife could ask for the divorce, as in the case of Ananiah and his bride Yehoyishma. ‘If’, states the contract, ‘tomorrow or the next day Ananiah should rise up and declare, “I hate my wife Yehoyishma, may she no longer be my wife”, the divorce money is on his head, and he returns everything to her which she brought into the house. She will go wherever she wants.’ But the contract continues, ‘If Yehoyishma should hate her husband Ananiah and say to him “I hate you, I won't be your wife”, the divorce money is on her head, and she forfeits her dowry.’ Cf. Kraeling, E., Brooklyn Museum Aramaic papyri, no. 7:21–25Google Scholar.

¹⁰ M. Gittin 9:3 and n. 3 above.

¹¹ Roth, op. cit., 14 n. 57.

¹² Beyer, op. cit., 380.

¹³ For convenience, cf. Fitzmyer, J. A., Responses to 101 questions on the Dead Sea Scrolls (New York/Mahwah, 1992), 138 fGoogle Scholar., and Vermes, G., The Dead Sea Scrolls in English (Penguin, second ed., 1986), 36 fGoogle Scholar.

¹⁴ See below, n. 16, and Lowy, S., ‘The extent of Jewish polygamy in Talmudic times’, JJS, 9, 1958, 115–38CrossRefGoogle Scholar.

¹⁵ The text of 11 QTemple 57:17–19 has been used to explain to explain CD 4: 12 ff. as a prohibition of divorce, since the former text advocates that the king not take more than one wife, unless she dies, in which case he should marry a second wife from his own tribe; cf. Fitzmyer, Responses, 138. Nevertheless, the same rules never apply to the royal household as to the general public, especially in matter of marriage, as can be seen by the unusual practices of the Herodian house. It seems clear that CD 4: 12 ff. was not referring to the king, but to ordinary Jews outside of the Qumran sect.

¹⁶ Polygamy, even in earlier periods in Babylonia, was subject to certain conditions; cf. Westbrook, op. cit., 103 ff.. Roth, op. cit., 13. There is some evidence for polygamy in the Babatha archive, cf. Lewis, N., Yadin, Y., and Greenfield, J., The documents from the Bar Kokhba period in the Cave of Letters (Jerusalem, 1989), 23 fGoogle Scholar., in which Lewis argues in favour of polygamy as a practice more widespread than previously expected, because the widow Babatha's second husband already had an undivorced wife. Such evidence, however, is selective, since there was no legal requirement for Babatha's second husband to divorce one wife in order to remarry, particularly in the case where a second marriage involves a mature widow, without the likelihood of new children.

More telling evidence, however, comes from lack of references to bigamy in Rabbinic literature, which is more likely to reflect normal practice. Note that Raba technically allowed polygamy, provided that a man could maintain more than one wife (Yeb. 65a), which may, however, have restricted the practice to upper classes. See Lowy, art. cit., 120.

¹⁷ Mark 10:1–12, which parallels but does not duplicate Matthew 19:1–9. Vermes (op. cit., 37) noted the parallel between the Damascus Document and the Scroll, while Fitzmyer (op. cit., 133 ff.) provides a more detailed comparison between CD 4: 12 ff. and all of the prohibitions of divorce in the New Testament, but neither has noted the parallels with the legal tradition in Neo- Babylonian and Aramaic contracts.

¹⁸ ’What did Moses command you?’, he asked. The Pharisees replied as one would expect, that Moses permitted a man to divorce his wife with a divorce writ and send her packing.

¹⁹ Gen. 2:24.

²⁰ Mark 10:12 (but not Matthew!) then adds the converse, ‘and if (the wife) divorces her husband and marries another, she commits adultery’. The fact that the second clause, referring to the wife divorcing her husband, does not occur in Matt. 19 suggests a later addition to t he text; Matthew 19:9, by contrast, ameliorates the prohibition of divorce by allowing the wife's immorality as grounds for divorce.

²¹ Roth, op. cit., 12 ff. Cf. Kraeling, op. cit., no. 7: 36–37, in which the husband Ananiah is prohibited from taking another wife, unless he divorces his wife Yehoyishma. These same clauses persisted throughout antiquity, being noted in Justinian's code throughout the Christian and Byzantine Empires, in which either party could divorce by mutual consent. Under Justinian's reforms, the divorce ex iusta causa was introduced which penalized either the husband or wife for divorce on grounds of desertion or adultery, and the husband if he took a concubine, although the reformed law preserved divorce by mutual consent (cf. Thomas, J. A. C., The Institutes of Justinian (Amsterdam, 1975), 34Google Scholar.

²² The reference in Jos. Ant. 18:21, that the Essenes did not bring wives (or slaves) into their community, does not necessarily contradict the scenario of wives left in local villages while men retired to a place of contemplation, purity, and waiting for the Messiah.

²³ Paul preferred not to marry, although he recognized the need in others; cf. l Cor. 7:26–28, and especially, ibid., 29, ‘married men should be as if they had no wives’; cf. Wilson, F. V., A New Testament history (London, 1975), 251Google Scholar. The passage may well reflect a similar attitude in Qumran.

²⁴ This attitude may explain why early Christianity rejected a fundamental principle of both Jewish and Near Eastern law, namely, the right of divorce. In every other instance early Christianity rejected the detailed prohibitions of Jewish customs—such as dietary laws, circumcision, and strict sabbath observances—in favour of a more universal form of Judaism, which had broad appeal within the Roman world.

The prohibition in Qumran against ‘taking two wives’ would have applied to the widower as well, which is similarly reflected in early Christian doctrine, cf. Lowy, art. cit., 133.

²⁵ See above, nn. 6 and 10. The important question is whether any similar divorce clauses could have survived into Hellenistic Palestine, since they are not present in the Wadi Murabba'at divorce writs or marriage contracts, cf. Beyer, op. cit., 307 ff. Nevertheless, there is a clear statement in the Babylonian Talmud from R. Ammi, who states that ‘Whoever takes another wife in addition to his present wife must divorce his former wife and pay her the amount stipulated in the marriage contract’ (Yeb. 65a). Moreover, medieval Jewish marriage contracts forbid the husband to take a second wife, which then constitutes grounds for divorce, cf. Epstein, L. M., The Jewish marriage contract (New York, 1927), 123Google Scholar. It is reasonable to assume that such legal clauses from the Persian period would still be current in Hellenistic contracts, since the divorce clauses known from the Elephantine marriage contracts may have distant resonance in later clauses in the Palestinian Talmud and medieval marriage agreements from the Cairo Genizah, cf. Friedman, M. A., Jewish marriage in Palestine, Vol. I (Tel Aviv and New York, 1980), 312 ffGoogle Scholar. In particular, Friedman (ibid., 331 f.) refers to a twelfth-century ketubah from Egypt containing a clause forbidding the husband to take a second wife or acquire a slave girl whom his wife hated, with the penalty that he must divorce his wife.

The scarcity of marriage or divorce contracts from Hellenistic Palestine is problematical, but the conservative nature of such legal clauses allows for the proposition that a clause in marriage contracts forbidding the husband from taking a second wife (that is, stipulating this as grounds for divorce) is plausible.