I need some help with marriage laws in the Old Testament, concerning the death of a brother. Under the Old Law, if a man's brother died was he to take his dead brother's wife as his own wife? What if he (the man still alive) was already married? What if the women (of the dead brother) had already had children? I think some of this comes from from Deuteronomy 25:5-9. What about Leviticus 18:6? Is this talking about a "dead" brother's wife or the wife of a brother who is still living? I know that John the Baptist was killed for tellling Herod that he should not have married his brother's wife, but I assume Herod's brother was still alive, and that is why John was saying it was wrong. Any guidance on this would be greatly appreciated.
Actually, the practice of a brother marrying his dead brother's widow is first mentioned in Genesis 38:6-11.
"Then Judah took a wife for Er his firstborn, and her name was Tamar. But Er, Judah's firstborn, was wicked in the sight of the LORD, and the LORD killed him. And Judah said to Onan, "Go in to your brother's wife and marry her, and raise up an heir to your brother." But Onan knew that the heir would not be his; and it came to pass, when he went in to his brother's wife, that he emitted on the ground, lest he should give an heir to his brother. And the thing which he did displeased the LORD; therefore He killed him also. Then Judah said to Tamar his daughter-in-law, "Remain a widow in your father's house till my son Shelah is grown." For he said, "Lest he also die like his brothers." And Tamar went and dwelt in her father's house" (Genesis 38:6-11).
As noted in this account, the purpose of the marriage was to make sure the brother who died had an heir to his property. This then explains Onan's actions. Under ancient law, when a man died his property was divided by the number of living sons he had plus one. Two portions went to the eldest living son and the rest went to the remaining sons.
Originally, Judah's estate would have been divided between his three sons as: Er 50%, Onan 25%, and Shelah 25%. But when Er died without an heir, the estate shifted to: Onan 67% and Shelah 33%. If Onan gave Tamar a son, that son would replace Er in the inheritance: Child 50%, Onan 25%, and Shelah 25%. Thus, Onan stood to loose a lot of money by getting Tamar pregnant because his father was very wealthy.
When Onan tried to prevent the pregnancy, he also lost his life. The duty to raise up an heir for Er then fell to Shelah, but at the time Judah claimed he was too young. Judah was worried about giving Tamar to Shelah as a wife seeing as two sons already died after marrying her.
The Law of Moses gives the details for these marriages.
"If brothers dwell together, and one of them dies and has no son, the widow of the dead man shall not be married to a stranger outside the family; her husband's brother shall go in to her, take her as his wife, and perform the duty of a husband's brother to her. And it shall be that the firstborn son which she bears will succeed to the name of his dead brother, that his name may not be blotted out of Israel. But if the man does not want to take his brother's wife, then let his brother's wife go up to the gate to the elders, and say, 'My husband's brother refuses to raise up a name to his brother in Israel; he will not perform the duty of my husband's brother.' Then the elders of his city shall call him and speak to him. But if he stands firm and says, 'I do not want to take her,' then his brother's wife shall come to him in the presence of the elders, remove his sandal from his foot, spit in his face, and answer and say, 'So shall it be done to the man who will not build up his brother's house.' And his name shall be called in Israel, 'The house of him who had his sandal removed'" (Deuteronomy 25:5-10).
The marriage only occurred if a man dies with no heirs. The Hebrew says "no son," but the male form can be generic and can be seen that it means any child in the New Testament. "Teacher, Moses wrote to us that if a man's brother dies, having a wife, and he dies without children, his brother should take his wife and raise up offspring for his brother" (Luke 20:28).
Leviticus 18:6 does not apply because the man is dead. The widow is released from the law of her husband (Romans 7:2).
The widow technically inherits from her husband, but a problem occurs because when a woman from one tribe marries a man from another tribe, it could be argued that her inheritance would go to her tribe. Thus the tribal inheritance could become jumbled. Worse is the case where the widow then marries a man from a different tribe. The overarching law is that land remained with the tribe. "And every daughter who possesses an inheritance in any tribe of the children of Israel shall be the wife of one of the family of her father's tribe, so that the children of Israel each may possess the inheritance of his fathers. Thus no inheritance shall change hands from one tribe to another, but every tribe of the children of Israel shall keep its own inheritance" (Numbers 36:8-9). A widow had to marry within the same tribe. Further, the law in Deuteronomy requires that she marry the nearest relative.
The expectation was that she would marry the next eldest brother. The Israelites, however, understood this to mean the nearest of kin. When Ruth approached Boaz about marriage, Boaz wasn't a brother of Ruth's dead husband, but he was a near kin, though there was another man who was closer in relation. "Now it is true that I am a close relative; however, there is a relative closer than I" (Ruth 3:12).
Notice there is also a requirement that the nearest relative also lived nearby. This saves problems of someone picking up property to manage, but isn't close enough to oversee the property.
There was strong expectation that the nearest relative would marry the widow. However, he did have the right to refuse. If he did, it was considered a mark of shame because he did not honor his relative's death by raising up an heir for him. In the case of Ruth, the nearer relative refused to marry Ruth because it would have caused inheritance problems for his own property (Ruth 4:6). Likely he was the last of his generation in his immediate family and he wasn't married. If he married Ruth, the child would inherit both Ruth's husband's lineage and his own, which this man did not want to happen because though Ruth's husband's name would be carried on, his own would not have been.
Obviously, these laws did make it possible for a married man to have a second wife.
If the widow has more than one child by the nearest relative, only the firstborn is considered her dead husband's child. The rest are children of her new husband.
In the case of John the Baptist's condemnation of Herod, we have a good bit of detail from history. Herodious was not a widow. She divorced her husband Philip, under Roman law, in order to marry Antipas. Worse, Antipas already had a wife who was the daughter of a king in Arabia. This affair caused large number of political and military problems form Antipas because the king in Arabia didn't take this insult to his daughter lightly. See "The Death of John" for more details.