Divorce

 

Introduction

 

The general view in Jewish society is that divorce is a tragedy, but sometimes it is the only solution to a bad situation. If a husband and wife cannot live together harmoniously because they have developed irreconcilable differences, Judaism does allow them to divorce. This does not mean that divorce is taken lightly. However, if there is no reconciliation, then a divorce is initiated.

 

Summary of the laws on Divorce in Torah

 

The laws on divorce are to be found in Leviticus chapters 21 & 22, and Deuteronomy chapters 22 & 24:

  • a priest cannot marry a divorced woman (Lev 21:7)
  • a man can divorce a woman if she is not a virgin (Deut 22:20-21)
  • or if he finds something indecent or displeasing about her (Deut 24:1)
  • a man cannot remarry a woman he divorced if she has since remarried and divorced (Deut 24:4)
  • he cannot divorce her if he has falsely accused her of sex with another man between betrothal and marriage (Deut 22:13-20)
  • he cannot divorce her if he raped her prior to marriage (Deut 22:28-29)

As you can see, the laws are very sparse. Most of the corpus of current laws comes from the Oral Law.

 

From the laws contained in Torah on divorce, and because it is the man who initiates marriage – the woman supposedly being the man’s property – the rabbis have construed that only a man can initiate a divorce. The examples given are indeed all initiated by men, but one can argue that it doesn’t say anywhere that a woman CANNOT initiate a divorce. In fact Josephus quotes instances where Jewish women, after Roman example, have initiated a divorce, but it never formed a precedent in Jewish law.

 

In addition, the woman actually does have recourse to legal protection, although it has not been used much in rabbinical circles. The wife can ensure that there is adequate provision made for her in the terms of her shidduq (betrothal agreement) with her husband – almost like a pre-nuptial agreement. She can insert claims for alimony in the case of divorce; she can even insert a clause that he cannot divorce without her consent. If a dowry (mohar) was paid, then she can stipulate that this be returned to her in full in the event of divorce. These can all be reinforced in the terms of the ketubbah (marriage document). And although it is the man who gives the instruction to write the gett (certificate of divorce), the woman can petition a Sanhedrin for him to give her a gett if there is just cause; since a modern Jewish court can force a divorce in certain circumstances, there is no reason why they should not be able to force one in favour of the woman, for example, in the case of the regular unfaithfulness of the man.

 

A critical problem in modern Israel is that, if a husband goes off to war, and he dies, and his body is never found, then his wife cannot be declared a widow and as a consequence can never remarry. These women are called agunah (Hebrew for ‘anchored’, plural agunot). A solution to this would again be to resort to the shidduq and the ketubbah – by inserting a clause in both saying that, should the husband go missing, and be presumed dead, then after a reasonable period of time – explicitly stated in the documents – the wife is divorced. This would be done by the husband agreeing to prepare a gett (certificate of divorce) before he leaves, to be delivered in case of his disappearance.

 

Yeshua`’s supposed teachings on Divorce

 

One passage from the New Testament has often been quoted as proof that Yeshua` was against divorce altogether:

 

‘Anyone who divorces his wife and marries another woman commits adultery, and the man who marries a divorced woman commits adultery.’

(Mk 10:11-12, Mt 5:32, 19:9, Lk 16:18).

 

Now, as the law is applied, only a man can initiate a divorce. I think what Yeshua` was doing was actually standing up for the woman. Earlier in Matthew, he is asked:

 

“Is it lawful for a man to divorce his wife for any and every reason?” (Mt 19:3)

 

It is notable that the Pharisees ask Yeshua` if it is permissible to divorce for any reason. Because the woman has very little say in the matter, husbands can divorce their wives legitimately on a whim and marry another woman. For example, the Oral Law used to allow a man to divorce his wife if she spoiled his dinner, or because he found another woman attractive! In their defence, the rabbis later made divorce law a complex matter and more difficult, to prevent abuses of the laws on divorce.

 

At that time, Deut 24:1 – the law that the husband could divorce his wife for any reason –  was challenged by the school of Shammai. It concluded that the husband could not divorce his wife except for just cause, and that the cause had to be sexual immorality (Git. ix. 10; Yer. Soṭah i. 1, 16b). The school of Hillel, on the other hand, taught that the husband need not assign any reason whatsoever; that any act on her part which displeased him entitled him to give her a bill of divorce. It may be that the Pharisees were trying to see who Yeshua` would side with – the school of Shammai, or the school of Hillel.

In his answer, the prophet Yeshua` was saying that, if a man divorces his wife in order to marry another woman, then that man was committing adultery. He was trying to balance the matter between man and woman, not forbidding it altogether. Yeshua` usually tended towards the liberal school of Hillel, but in this matter, because the cause of the protection of the woman was a just one – Yeshua` seems to have sided with the school of Shammai.

 

Initially, the teaching of Hillel won, but over the centuries, the rabbis gradually restricted the grounds for divorce, so that now, it is not the case that a husband can divorce his wife ‘for any reason’.

 

What the Oral Law allows as grounds for divorce

 

The Oral Law expands on what grounds are allowed for divorce:

  • if the marriage was childless after ten years;
  • if the either partner was unable or refused to have sex;
  • if the husband beat his wife;
  • cruel treatment of the wife
  • if the husband contracted a "loathsome" disease.
  • impotence (Ned. xi. 12);
  • if the husband is engaged in some malodorous business
  • the husband's refusal to support the wife
  • deprivation of her lawful liberty of person
  • apostasy (either partner converts to another religion)
  • licentiousness

Divorce is not allowed if:

  • the husband or wife is insane
  • the wife is in captivity
  • the wife is a minor, and cannot understand the terms of the gett

Around the year 1000 CE, rabbinical law additionally stated that a wife could not be divorced without her consent.

 

Difficulty with Divorce in modern Israel

 

In Israel, there are no civil divorces; in order for a divorce to be considered valid, it has to go through an Orthodox Beth Din (Court of Law). No one can remarry legally unless they have divorced through an Orthodox religious court.

With this in mind, any divorce processed through a Talmidi religious court, will not be recognised in Israel, as is the case with all non-Orthodox divorces.

Rabbinic Divorce Process

To give an idea of what currently happens, I want to give an overview of the rabbinic process. The husband and wife are interviewed by the bet din (religious court) to ensure their mutual consent, and financial matters and grounds will be inquired into if a civil court has not already done so. If the divorce is granted, a gett (certificate of divorce) is drawn up in hand-lettered Hebrew. The wife is prohibited from marrying for 90 days, to ensure that if she quickly remarries and becomes pregnant there will be no questions of paternity.

 

This is the process according to a rabbinic court:

  • The parties appear before a rabbi learned in the laws of divorce, a scribe, and two witnesses;
  • The husband requests that the scribe write the gett for his wife, which the scribe then proceeds to do using a special quill pen;
  • The husband declares that he is giving the gett of his own free will, and a similar declaration is made by the wife concerning its receipt;
  • At this point, the gett is then signed by the two witnesses;
  • The parties are again questioned as to whether they are giving and accepting the gett voluntarily. The husband must state that he will never in the future cast any doubt on the validity of the gett;
  • The husband takes the gett and drops it directly into his wife's cupped hands, stating: "This is your gett and you are divorced from me by it, and you are permitted to marry any man";
  • She then places the gett under her arm and symbolically leaves by turning and moving several steps away;
  • The divorcée then returns and the gett is taken from her by the officiating rabbi who tears the gett crosswise; and
  • Finally, the divorced woman is given a receipt to prove her divorced status, and the process is over.

The traditional text does not emphasize the breakdown of the relationship, nor does it specify the reason for the divorce; rather, it states that the woman is now free to marry another man.

 

The gett

 

What follows are the rabbinic laws on the writing of the gett. There are certain conditions that make a gett valid:

  • The order to the scribe to prepare the gett must come directly from the husband.
  • The bill of divorce may be written on any material except such as pertains to the soil, and with any kind of indelible ink
  • The gett must be especially written for the parties to be divorced; you cannot have a supply of blank getts to be filled out.

 

The form of wording of the gett, written in Aramaic and in the vernacular, is as follows:

 

"On the . . . day of the week, on the . . . day of the . . . month, of the . . . year after the Exodus, according to the numbering system of our ancestors, in the town of . . . (which is also called . . .), which is situated on the river . . . , and contains wells of water, I, . . . (who am also called . . . ), the son of . . . (who is also called . . .), who am this day in . . . (which is also called . . .), the city situated on the river . . . and containing wells of water, do hereby consent with my own will, being under no restraint, and I do release, send away, and put aside you, my wife, . . . (who is also called . . . ), daughter of . . . (who is also called . . .), who are this day in . . . (which is also called . . .), the city situated on the river . . . and containing wells of water, who hast been my wife from time past; and thus I do release you, and send you away and put you aside, that thou may have permission and control over yourself to go to be married to any man that thou may desire; and no man shall hinder you from this day forever, and you are permitted to marry any man, and this shall be to you from me a bill of dismissal, a document of release, and a letter of freedom, according to the law of Moses and Israel. "

. . . the son of. . . , witness

. . . . the son of. . . , witness."

 

If the gett is provisional in the case of war and non-return of the body of the husband, it must contain this provision: “This will be your bill of divorce if I die”. Otherwise, getts have no stipulations or conditions.

 

The Challenge for Talmidi sects

Since divorce law in Torah is sparse, the rabbis had to add laws in order to make the divorce system functionable. There is therefore ample scope for Talmidaism to build up its own body of law on divorce. As long as what the Talmidi community decides is not against Torah, we have the opportunity to do something really important and ground-breaking. We have to be inventive. If the onus of the gett is traditionally on the man, then in order to redress the balance, conditions in the woman’s favour have to be stipulated in the shidduq and the ketubbah. In order to prevent the potential suffering of an agunah, we have to include the provision of a gett to be made out before the husband goes into a situation that will result in his disappearance. If a man refuses to divorce and free his wife to remarry in a case where a divorce in favour of the woman is just, then a divorce can be forced – there is precedent.

We just have to remember that our religious marriages and religious divorces will not be recognised in Israel, even if we were to turn tail and follow rabbinic law to the letter.

Summary

Divorce law based solely on Torah would be sparse and inadequate; some study has to be done into this to establish a just and righteous process within the Talmidi community. We can look at the rabbinic Oral Law, but we have seen that in some instances – like that of the agunah – the Oral Law is unjust.

The ethos of the Way would suggest that anything that we decide should be just and fair, with balanced application to man and woman equally, and above all, should be compassionate and not punitive.

   
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