Jewish Traditions: A JPS Guide

Divorce

Divorce (NyD1Vrg<@) Jewish Concepts of Divorce The dissolution of a marriage in Jewish law is a formal legal procedure with a host of specific details that must be observed. Biblical Period In early biblical times, an Israelite male could simply divorce his wife at will and send her from his home. The Jewish law of divorce is based on the verse: “A man takes a wife and possesses her. She fails to please him because he finds something obnoxious [or a matter of indecency] about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house” (Deut. 24:1). The term used for divorce in the text is “keritut” (cutting off), implying that a divorce must unconditionally sever all legal bonds between the husband and the woman with whom he had previously lived as “one flesh” (Gen. 2:24). According to the verse in Deuteronomy, every Jewish divorce requires the husband to write a formal legal document, generally known by its later talmudic term “get” (see p. 67), and hand it to his wife. Divorce was no longer to be at the arbitrary whim of the husband; instead, there had to be a reason given, though the vague grounds listed were later to give rise to extensive controversy. Although not formally noted in the biblical text, the Israelite woman was probably entitled to some financial settlement (later formalized in the ketubah; see p. 44), which decreased the likelihood of her husband arbitrarily divorcing her without cause. This would explain the willingness of a husband to falsely accuse his wife of not being a virgin, risking fine and flogging and subjecting his household to shame (Deut. 22:13–21)—because by establishing a valid reason, he could divorce her without incurring any monetary penalty. 62 The unfortunate divorcée typically returned to her father’s home (Lev. 22:13) and was forced to leave her children with her former husband . She was permitted to remarry, but not to a Kohen (Lev. 21:7), suggesting that the mere fact of having undergone a divorce left her with some dishonor or shame. The Bible cites only two situations in which a husband was forbidden to divorce his wife—if he had falsely accused his wife of not being a virgin before marriage, and if he had engaged in sexual intercourse with a virgin who was not betrothed to another man (Deut. 22:28–29). The biblical ideal of marriage was a permanent union; divorce was only countenanced under exceptional circumstances, primarily when the marriage produced no children. Later Developments An entire volume of the Talmud (Gittin, or “divorces”) elaborates the specific details instituted by the Rabbis concerning the divorce procedure . This requirement of complex legal formalities served to protect women to some degree against rash and irrational divorces. Despite permitting divorce, the Talmud included pronouncements and anecdotes exalting a first marriage as faithfulness to “the wife of your youth” and condemning divorce and remarriage in such statements as “A divorced man marries a divorced woman—four minds [opinions] in bed” (Pes. 112a), and “If a man divorces his first wife, even the altar sheds tears” (Git. 90b). The precise meaning of the term “ervat davar” (something obnoxious or a matter of indecency) in the biblical verse was the subject of a dispute between Beit Hillel, Beit Shammai, and Rabbi Akiva (Git. 90a–b). Beit Shammai argued that it meant adultery, so that the only proper ground for divorce was sexual impropriety. Beit Hillel disagreed, maintaining that “something obnoxious” might refer to any act that made the husband unhappy, even something as minor as his wife’s cooking.1 Although Beit Hillel prevailed in the law of divorce , the concept of Beit Shammai still has an effect. Whereas in the case of “something obnoxious” the husband has the right to divorce his wife, in the case of sexual transgression he has an obligation to do so, even if he would prefer to forgive her (Sot. 27b).2 Rabbi Akiva took a different approach, interpreting the biblical verse as including two separate statements regarding the grounds for divorce. For him, the exact Jewish Concepts of Divorce 63 nature of ervat davar is immaterial, for the first part of the clause, “she fails to please him,” stands as an independent justification. Thus a man was permitted to divorce his wife “if he finds another woman more beautiful than she is” (Git. 90a). In addition to being unable to initiate a divorce action, until about 1000 C.E. a woman could be compelled to accept a divorce against her will. Despite an explicit talmudic statement—“A woman may be divorced with her consent or without it [while a man can give divorce only with his full consent]” (Yev. 112b)—an edict traditionally attributed to Rabbenu Gershom was issued declaring that a man may not divorce his wife except with her consent. This was closely linked to Gershom’s prohibition of polygamy. Before this ruling, a man could either end his marriage unilaterally or drastically change its dynamics by taking a second wife. From this time on, marital strife could be resolved only through negotiations with his wife. However, in practice a woman could not refuse divorce indefinitely by withholding her consent , since by making her life unbearable a vindictive husband could effectively force her to accept it. Nevertheless, Rabbenu Gershom’s ruling did improve the wife’s bargaining power in negotiating the terms of the divorce.3 Unlike many other legal systems, in Jewish law the mutual consent of the parties is sufficient for dissolution of the marriage and delivery of the get. There is no requirement for a court to become involved in the process. Divorce Other Than by Consent If only one spouse wishes to divorce, the court must decide whether there are specific grounds to compel the husband to give (or the wife to receive) a get. Right of the Wife to Demand a Divorce According to the Talmud (Ket. 77a), a wife is entitled to demand a divorce in two general situations. The first is when her husband is physically repulsive to his wife, because of either a loathsome medical condition (e.g., “afflicted with boils and leprosy”) or a malodorous occupation (e.g., gathering dog’s dung, smelting copper, or tanning 64 The JPS Guide to Jewish Traditions hides). It is immaterial whether the offensive condition arose before or after the marriage, for mere knowledge from a distance is not like being forced to live under adverse circumstances every day. Until the end of the gaonic period, the claim that “my husband is distasteful to me” was recognized as satisfactory grounds for a woman to compel her husband to divorce her. However, in the 12th century this was rejected by Rabbenu Tam, whose chief concern was to preserve the institution of marriage and minimize the number of divorces. So overwhelming was his personality and so cogent his legal reasoning that his ruling influenced all subsequent halakhic authorities so that even now a woman who finds her husband distasteful has no legal recourse and must remained married to a husband she abhors.1 A wife may compel her husband to divorce her if he refuses to fulfill to the best of his abilities his marital obligations to provide her with food, clothing, shelter, and conjugal relations (S.A. EH 76:11). Similarly, she may be granted a divorce if her husband physically or mentally abuses her so that she cannot be expected to continue living with him. Finally, the wife has legitimate grounds for divorce if her husband is unfaithful to her or if he “transgresses the Law of Moses”—for instance , if he causes her to violate the dietary laws knowing that she observes them, or if he has intercourse with her against her will during her menstrual period.2 The Talmud records a critical disagreement between two prominent sages (Ket. 77a). Samuel argued that a man should first be compelled to fulfill his duty to maintain his wife before he is required to divorce her. He consistently attempted to use the powers of the court to preserve the marriage as long as possible rather than dissolve it, hoping that there might be reconciliation and resolution of the conflict. Rav disagreed , stating that the husband’s refusal to support his wife is merely one sign of his hostile attitude toward her. Convinced that by the time the situation had deteriorated to such a point the marriage should be ended immediately, Rav added that forcing her to remain with him would be like living “with a serpent in a basket.” In Israel today, the rabbinate generally takes the position advocated by Samuel. Couples seeking a divorce are usually urged by the court to attempt to live together for an additional period to ascertain whether they can achieve reconciliation (shalom bayit; lit., “peace in the house”), before requiring the husband to give his wife a get.3 Divorce Other Than by Consent 65 Right of the Husband to Demand a Divorce Ahusband may demand a divorce on the basis of defects or disabilities that prevent the husband from cohabiting with his wife (Nid. 12b) and failure of his wife to bear children within 10 years of their marriage (Yev. 6:6). This latter justification applies only if the husband has no children, even from another woman, and can persuade the court of his sincere desire to have children to fulfill the biblical commandment to be “fruitful and multiply” (Gen. 1:28).4 Unworthy conduct on the part of the wife also can be grounds for the husband to compel a divorce. This includes knowingly misleading him into “transgressing the Law of Moses”—for which the Mishnah gives the examples of feeding him untithed food and having intercourse with him during her menstrual period—and her personal transgressions , such as “not setting apart her dough offering (challah); making vows and not fulfilling them; going out with uncovered head [immodesty]; spinning in the street; and conversing with every man” (Ket. 72a). Another sage added various affronts to his honor, for example , “a wife who curses her husband’s parents in his presence ... and one who is regarded as a screamer [a woman whose voice can be heard by her neighbors when she speaks inside her house].” Awife proven to have voluntarily committed adultery becomes prohibited to her husband , and she can be required to accept a get against her will (i.e., she is no longer protected by Rabbenu Gershom’s edict) and forfeits the monetary protection of her ketubah (Ned. 90b). Consequences of Divorce Men and women who divorce are generally free to remarry anyone they please unless it is halakhically forbidden. The divorced woman is not permitted to marry a Kohen, nor is she allowed to marry a man with whom she is suspected of having committed adultery. Furthermore , she may not marry any person who served as a witness at the delivery of her get and may not marry within a period of 90 days following the divorce (lest there be doubt as to the paternity of her first child from her second marriage).1 The husband is required to pay his ex-wife her dowry and the money stipulated in the ketubah, unless she has forfeited it as in the case of her adultery, but he no longer has any legal obligation to maintain her. 66 The JPS Guide to Jewish Traditions To prevent promiscuity, after divorce the parties are forbidden to reside together in their former common home. If owned or rented by one of them, that party is allowed to remain. If the home is the property of both, the wife is required to leave, based on the somewhat questionable concept that “moving about is harder for a man than for a woman” (Ket. 28a), although the court has the right to allow the wife to remain if necessary for an equitable settlement of financial disputes between the parties. Continuing to occupy the dwelling jointly (or later returning to it) can have unexpected and serious consequences. According to the presumption in traditional Jewish law that a man should not live with a woman for the sake of promiscuity and since both parties could have validly remarried according to halakhah, it will inferred that they had intended to enter into a new marital relationship! If either or both wish to marry third parties, they must formally divorce again. Under Jewish law, as in secular society, divorce does not relieve a husband from his obligations for the support of the children of his marriage .2 Traditionally, all children under age six are put in the custody of their mother, for they are primarily in need of the physical care and attention that mothers typically give children at that age. Boys who are older than six years must be with their father so that he can carry out his obligation to teach his male children Torah; conversely, girls older than six years must be with their mother so that she can instruct them in the ways of modesty.3 However, in terms of modern civil divorce, most children remain with their mothers. Get (eg<@) “Get” is the talmudic term for a formal divorce document that is written and signed by the husband and then delivered to his wife. Just as a Jewish marriage is entered into by a contract between husband and wife (ketubah), it can be terminated only by a legal document nullifying the original contract. Aget may not be issued until a civil divorce is first obtained, just as a Jewish marriage ceremony may not be conducted without first fulfilling all civil requirements. Like all legal documents of the mishnaic and talmudic periods, a get is written in Aramaic, the everyday language of the time. The document follows a standard format and must be handwritten by a scribe, as originally was the ketubah .1 A get is written in 12 lines, because this is the sum of the nuGet 67 merical value of its two Hebrew letters (g = three, e = nine). The writing and hand delivery of the get to the wife by the husband (or his agent) must be properly witnessed. The rules pertaining to the writing, signing, and delivery of a get are very precise to avoid mistakes, and thus they must be stringently observed. After the formal ceremony of handing over the get, the wife is officially divorced from her husband and both are issued a certificate of divorce (p’tur) stating that their marriage has been terminated and that each is free to marry again. The wife can marry any man except one to whom she is prohibited by law— such as a Kohen or a man with whom she had an adulterous relationship . The husband can remarry immediately after a divorce, but the wife cannot do so for a minimum of 90 days; if she is pregnant, the wait will eliminate questions about the paternity of the child.2 After the ceremony, the wife returns the get to the court, where the corners of the document are cut with scissors or a knife to indicate that it has been delivered and may never be used by anyone else. The document is then filed away in its torn state by the court to avoid any later suspicion that it was not absolutely legal. This custom began during Hadrian’s rule over the Land of Israel in the first century C.E., when the Jewish community was denied all legal authority but Jewish courts continued to function secretly. Cutting the get enabled the Jews to deny that it was a legal document if later discovered by the Roman authorities . After the get has been returned, the Jewish court presents the wife with a document verifying the divorce.3 According to halakhah, a divorced woman cannot be remarried if she does not have a get. A woman who does so is regarded as an adulteress , and any child of her second union is considered a mamzer, who is permitted to marry only another with this same status or one who has converted to Judaism. This is the sole instance in which the Torah punishes an innocent party (the mamzer) for the sin of another (his or her parents). All too frequently, religious men have taken advantage of their estranged wives’ need for a get and have refused to grant it. Although this can be the act of a vindictive husband, refusal to issue a get more commonly is a form of blackmail to secure a more favorable financial settlement or even an actual cash payment if the wife comes from a wealthy family.4 A woman who has been refused a get is known as an agunah, or “chained woman” (see p. 70). 68 The JPS Guide to Jewish Traditions Compelled Delivery/Receipt To be valid, a get must be given by the husband of his own free will. Therefore, it is invalid if the husband is of unsound mind or under duress “contrary to law.” A wife can appeal to the rabbinic court to compel her husband to grant her a divorce on the basis of his offensive physical condition, violation of marital obligations, or “unworthy conduct ” (see p. 64). However, this is an inherently problematic procedure because it violates the requirement that a get be given with the husband ’s “full consent.” The Rabbis used a variety of tortuous arguments to escape this conundrum. In essence, they maintained that although the husband initially did not wish to divorce his wife, once ordered to do so by a court he is under legal obligation to follow the order. Although it strains credulity, the Rabbis reasoned that because the husband would not wish to violate the law by disregarding their orders , he is considered to have genuinely consented to divorcing his wife.5 Another rationale was offered by Maimonides, who argued that the husband’s refusal to obey a court order to give a get must be due to an “evil disposition.” Therefore, the court may apply duress to weaken or drive away his evil inclination, so that when the husband finally gives his consent, he does so of his own free will.6 According to Israeli law, the rabbinic courts have the authority to appeal to the civil courts and the police and request the incarceration of a recalcitrant husband. Even within the Orthodox world in the Diaspora, civil authorities are not infrequently requested to force a stubborn husband to grant a divorce. Rather than appealing to a court to compel the husband directly, the approach is to use threats of other legal actions against him, particularly an investigation of tax evasion.7 Conditional In exceptional cases, a get may be written and delivered conditionally, designed to take effect only if a specific event occurs. This is usually applicable only in times of severe persecution (such as pogroms or the Holocaust) or war, when husband and wife may become separated and there is a danger of her becoming an agunah (see next page) if the husband does not return and no one can unequivocally attest to the fact that he has died. Consequently, a soldier preparing for war may issue a Get 69 conditional get that would be effective if he failed to return by a certain date, thus permitting his wife to remarry.8 A conditional get may also be written if the husband of a childless couple becomes seriously ill. Such a document would free the wife from the law of levirate marriage (see p. 52). The husband may give his wife a get on condition that it be effective only if he dies from his present illness; if so, she would be considered divorced on the day she received the get (Git. 72a).9 Agunah (hn+Vgi7) An agunah (chained woman) is a woman whose marriage has in fact ended or been suspended but who legally remains a married woman (bound to a husband who no longer lives with her) and thus is unable to remarry. The halakhah prescribes that a marriage can be dissolved only by divorce or by the death of either spouse. According to Jewish law, divorce is effected not by decree of the court, but by the parties themselves—the delivery by the husband of a get (see p. 69) to his wife. If the marriage is untenable but the husband either willfully refuses to deliver a get (despite the threats and punitive measures of a Jewish court) or is legally incompetent to grant it (usually because of insanity), divorce is not possible and the wife becomes an agunah. Similarly, if the husband deserts his wife and disappears or if he dies but there is no valid testimony to that fact, the woman remains legally married and cannot marry another.1 On the other hand, a husband is not seriously affected by his wife’s refusal to accept a get or her disappearance without a trace. In this situation , although the first marriage remains valid, the court may release the husband from Rabbenu Gershom’s prohibition against bigamy by granting him exceptional permission to contract an additional marriage (heter nisuin). If the wife is mentally incompetent, the husband has recourse to a heter me’ah rabbanim (permission of 100 rabbis). In this procedure, a document is drawn up by a beit din and circulated to the other rabbis for their signatures. Traditionally, these rabbis were from at least three different countries; today, in North America it is generally accepted that the rabbis can be from three of the U.S. states or Canadian provinces.2 The halakhah has long been torn between the need to find a way to permit the agunah to remarry and the grave concern of ruling incor70 The JPS Guide to Jewish Traditions rectly and permitting a still-married woman to marry another man. The consequences of allowing an adulterous marriage by mistake are catastrophic—should the first husband eventually turn up, the woman must be divorced by her second husband and is also barred from remarrying the first—so that she is forbidden to both men. Moreover, any children she had with the second husband would be branded as mamzerim (see p. 51).3 Many rabbis have urged their colleagues to be as lenient as possible in finding a way for an agunah to remarry. The general halakhic principle is that the testimony of two competent witnesses is required to establish any fact. However, the need to quickly resolve the problem of an agunah led the Rabbis to accept testimony that would not be permitted in other cases. Not only is the testimony of a single witness sufficient but the rabbinic court will accept the evidence of a woman and a relative—classes usually deemed incompetent as witnesses—as well hearsay evidence (overheard conversation among non-Jews). The woman herself can be a legitimate witness to her husband’s death, even though she obviously is not a disinterested party to the case. The rationale for this ruling is that were she to give false testimony , she would be setting herself up for disaster if the husband she had reported as dead ever returned. However, the woman is deemed a reliable witness only “under normal circumstances,” which the Mishnah defines as “when there is peace between him and her and peace in the world” (Yev. 114b). If there has been known marital friction between husband and wife, there would be reason to suspect the woman of deception in an attempt to simply be rid of her husband.4 Despite this general leniency, circumstantial evidence is not permitted in the case of a husband suspected of being deceased. Sufficient testimony must include direct evidence of his death. Aman seen drowning in a large body of water whose shores are beyond the horizon cannot be presumed to have perished unless his body is found. Although highly unlikely, there is always the possibility that he survived by swimming to land at a point beyond the view of the witness.5 However logical may be the presumption of death, it may not be accepted by the court as irrefutable proof. Although obtaining direct evidence of death was always difficult in times of war and pogrom, the problem became especially acute in the aftermath of the Holocaust, in which there were a staggering number of deaths for which no one survived to provide direct testimony.6 Agunah 71 According to the Talmud, every soldier in King David’s army gave a conditional get to his wife before going out to battle, so that if he were killed or captured she would be free to remarry (Ket. 9b).7 The commentators have differed in their interpretations of such a “prebattle ” divorce. Rashi deemed it a valid conditional get, written out but not delivered to the wife (see p. 69). If the husband failed to return from the war and was presumed dead, the document could be given to the widow to “effectuate” the divorce. However, this approach poses several halakhic difficulties. First, a get is designed to end a marriage that is currently failing, not as insurance against one that is still viable. Moreover, once a get is written it must be delivered as soon as possible, since a man is forbidden to remain with his wife after deciding to divorce her. According to Rabbenu Tam,8 the get in question was a real one but there was a mutual agreement that the husband and wife would remarry if he returned from the war. Among the problems with this view are (1) if the husband is a Kohen, he could not remarry his wife, since she would be technically a divorcée; and (2) if either party reneged on the promise to remarry, the initially unwanted divorce would be unconditionally binding, so that the spouse who desired to remain married would have no legal recourse.9 The Conservative movement in America has attempted to combat the problem of the agunah whose husband has disappeared or refused to grant a divorce by inserting a clause into the ketubah (see p. 44) in which the husband and wife agree to allow the beit din to decide the issue. The woman would be explicitly permitted to bring a civil lawsuit against her husband if he refused to give her a get or agree to its terms. This approach has been severely criticized by the Orthodox, and its validity and enforceability remain questionable.10 There currently are three halakhic options to the agunah problem.11 One is to impose communal sanctions—both social and financial—on the recalcitrant party, including the synagogue recital on the Sabbath of a “curse against those who make others suffer” (the opposite of the Mi She Berach blessing for those who work for the needs of the community ; see p. 462). Another is to solve the problem through the civil legal system, either by taking into account the husband’s refusal to issue a get in the judicial determination of the equitable distribution of the marriage property12 or by awarding damages to women whose hus72 The JPS Guide to Jewish Traditions bands have refused to give them a get based on such torts as “infringement on the right to personal autonomy” and “intentional infliction of emotional distress.”13 Probably the most effective approach is the prenuptial agreement. This preventive measure may make the marriage conditional on certain defined circumstances, such as the husband remaining present and continuing to support his wife; providing for substantial damages for failure to issue a get; or binding the parties to appear before a specific beit din and abide by the court’s decision.14 Like the addition to the ketubah, prenuptial agreements may suffer from some technical halakhic problems and are of no help to women who marry without them.15 Moreover, they are also rejected by many couples who, for emotional reasons, strongly believe that the wedding day is not the time to consider the possibility of divorce. The Reform movement does not require couples to obtain a get and considers a civil divorce agreement as sufficient.16 Despite the biblical requirement that a husband deliver a get to effectuate a divorce, there are five instances in the Talmud in which the Rabbis have canceled the marriage, even retroactively. The considerations that caused them to do so were to prevent agunot, to strengthen rabbinic authority, and to punish a husband “who acted improperly” (Git. 33,73; Ket. 3; BB 48; Yev. 110). Commentators have argued that a rabbinical court is empowered to sever a relationship of personal status based on the marriage formula—“behold you are consecrated unto me with this ring in accordance with the laws of Moses and Israel”— which makes the rabbis, as guardians of the law, “silent partners” to every marriage. Therefore, in extreme cases, a divorce can be granted by a religious court, though it should be one that is authoritative and, as much as possible, universally accepted. Consequently, Riskin17 urged the establishment of a special Jerusalem court empowered by a decree of the chief rabbinate to abrogate marriage unilaterally in the case of a recalcitrant husband who has flouted the ruling of a regular rabbinical court and not granted his wife her freedom. Unless some workable solution is accepted, the agunah is faced with three terrible choices. She can resign herself to her desperate fate, embark on an arduous and often unsuccessful search to find a halakhic authority willing and able to find some technicality to release her from an untenable marriage, or be forced to abandon the observant Jewish community to attain personal fulfillment in a new marriage.18 Agunah 73 ...