Jewish Divorce Law

If We Must Part, Let's Part as Equals

by Blu Greenberg

A year ago, while on a Sabbatical in Israel with my husband and children, we employed a Yemenite woman of 33 as an ozeret (housekeeper). During the course of the year, she went through a costly divorce. While both Tikvah and Shmuel wanted the divorce, as he got closer to the rabbinic courts he began to sense what he did not know before—that he had great power over her.

What had started out as a fairly just settlement turned ugly. Little by little, his demands accelerated. Finally, Tikvah’s lawyer told her to sign over to him her half of the apartment’s eventual resale rights and be through with him, otherwise, the case would drag through the rabbinic courts for years. And that is what she did. Despite some flashes of resentment, she considered herself lucky.

Traditional Jewish divorce law points up two things: how much change has taken place during the evolution of this halachah (Jewish legal system); and how much further development it needs to serve women more equitably and indiscriminately.

According to Biblical law, a man is permitted to divorce his wife at will and send her away from his home (see below). The second aspect highlights Biblical women’s vulnerability: economic, physical, and psychological uprooting faced the woman who displeased her husband sufficiently to cause him to divorce her. She had no leverage to prevent or refuse the divorce. Neither could she divorce him.

Man’s Right of Divorce
When a man takes a wife and marries her, if she finds no favor in his eyes because of ervat davar (some fault or indecency) and he writes her a bill of divorce and puts it in her hand and sends her out of his house —and she marries another man, and the latter… writes her a bill of divorce… or dies—then her former husband cannot marry her again because she has been defiled… (Deuteronomy 24:1-4).

Yet there were qualifications, important because the rabbis who interpreted Biblical law for later generations built the legal structure on them.

The husband had to write a bill of divorce and present it to his wife before sending her away (Deut. 24:1,3; Isaiah 50:1; Jeremiah 3:8). This served as protection for her, as a delaying mechanism so that in a fit of anger a husband could not simply pronounce a declaration of divorce and be done with her. Second, it was deduced from the Biblical law on the accusation of premarital sexual experience that a husband was required to pay some kind of alimony settlement upon divorce (It was this payment that the accusing husband sought to get out of; he had nothing else to gain from the procedure as he could divorce his wife at will.) Third, there were two specific instances recorded in the Bible in which a man could never divorce his wife: if he had falsely accused her of premarital sex; or if she was a virgin he had raped and was forced to marry. (This law, which appears to us crude, was designed for the protection of the woman who, having lost her virginity through no fault of her own, would be otherwise un-marriageable.)

Though in themselves these limits represented very minor safeguards for women, they must be understood as the first breakthrough in establishing a crucial principle: the right of a community to set limits on a man’s absolute and private right of divorce.

Accusation of Premarital Sex
If a man takes a wife and… hates her and… spreads an evil name about her saying… “I found no signs of virginity in her,” then her father and mother must bring forth the signs of the wife’s virginity to the elders of the city…. They shall chastise that man and penalize him 100 shekels of silver and give them to the father of the wife because the husband spread an evil name upon a virgin of Israel. She shall remain his wife and he shall not be free to divorce her (Deuteronomy 22:13-21).

Moreover, it appears from Biblical narrative that the social sanctions against divorce were quite powerful and that it occurred rarely. In the isolated instances where a woman was sent away (e.g. Genesis 21:11-12; I Samuel 3:14-16), it was a great trauma for her husband as well. The fact that the divorce law appears as an aside (in the context of a law forbidding a man to remarry his ex-wife) can be understood both as a limitation of a man’s absolute control over divorce and as an indication of the general inappropriateness of his divorcing his wife.

The rabbis were not insensitive to the inequites in Biblical divorce law. In Talmudic and post-Talmudic literature, they articulated many elaborations and emendations of this law (as they did with Biblical law touching all areas of life) which gave women greater protection. Little by little, the imbalance of Biblical law was tempered by numerous restrictive rabbinic measures. Thus, the theoretical basis of the law—that divorce was a man’s God-given right—remained intact: it was not challenged but rather modified in many practical ways to neutralize its force.

We can see this pattern, which characterizes much of rabbinic action—or nonaction—for many ensuing centuries, begin to emerge in an early rabbinic dispute between the schools of Hillel and Shammai (first century B.C.E.). Shammai, the strict constructionist of Biblical law, maintained that the Scriptural words ervat davar meant literally and exclusively adultery. Thus, a woman’s infidelity was the only legitimate grounds for divorce. Hillel, known as a liberal because he generally interpreted Scripture more broadly, interpreted ervat davar as anything that was offensive to the husband. As in most disputes, rabbinic law followed Hillel.

For the next few centuries, major Talmudists reiterated the principle of the unrestricted right of the husband to divorce his wife. The opposing view restricting this right made itself felt in the many critical moral judgments against divorce (such as Rabbi Yochanan’s statement that “He who divorces his wife is hated by God”) and in the growing number of curbs on a man’s absolute right.

Throughout much of rabbinic history, three interacting forces were adjusted in each decision concerning divorce law: the theory of man’s absolute right; the Biblical precedents establishing some qualification of this right; and the earliest rabbinic sources which construed the Biblical laws strictly or broadly. These three variables could be juggled, depending on one’s teacher’s views, the climate of the times, one’s inclinations in these matters, and the particular divorce case at hand.

The rabbinic qualifications took several different forms: enlarging the number of cases in which there is an absolute prohibition against divorce; embellishing and making more complex the formalities in the actual divorce proceedings; placing greater financial responsibilities towards a divorced woman; and finally, enlarging the wife’s role in assent or dissent—and in assuming some mastery over her own fate as a married woman.

Enlarging cases of prohibition of divorce: One example of the absolute prohibition of divorce involved the wife who had become insane and would thus be unable to take care of herself; another, of a wife taken captive: the rabbis obligated him to send even the dowry money to ransom her; a third, a child-bride.

Embellishing the formalities: The complex set of rules attending the actual divorce process, too numerous to mention here, was spelled out in the Talmud (edited at the close of the fifth century), further refined in post-Talmudic rabbinic literature, and still apply today.

The bill of divorce (get) must be written in Aramaic by a scribe at the specific instruction of the husband and follow the Talmudic textual form, with only the details of the particular case filled in at the appropriate spaces. The central part of the get is the declaration by the husband: “I release and set aside you, my wife, in order that you may have authority over yourself to marry any man you desire….You are permitted to every man … .This shall be for you a bill of dismissal, a letter of release, a get of freedom….”

Great care was taken in writing the get. Two male witnesses had to sign the document. The husband had to present it to the wife, again in the presence of witnesses (usually the same two men). If this was impossible or impractical, he could appoint an agent of delivery. Upon receipt of the document, the woman handed it over to the bet din (the rabbinic court consisting of three males). They made a tear in it, symbolizing the relationship torn asunder and the conclusion of the legal transaction of divorce. The bet din filed the get.

The standard process of divorce was so exact and so detailed that those in attendance had to be experts at it. The real purpose of the complexity was to bring the couple into contact with the rabbinic court whose members understood their function as extending far beyond that of interpreting the law; they used their offices to try to effect a reconciliation. Furthermore, a significant effect of this procedural change was ultimately to undermine the notion of absolute right. In practice as well as in the popular mind, the husband now had to look to the rabbinic court for sanction.

Enlarging the husband’s financial responsibilities: These responsibilities, incorporated into the ketubah (marriage contract), entitled the wife to a return of her dowry and any property she had brought with her into marriage, plus support until she remarried. The ketubah protected her interests during the marriage as well; the husband was obligated to provide for her according to her station in life, to pay her medical and dental bill, to ransom her from captivity, and provide her proper burial (Ketubot 4:4-9; b 5a).

The Talmud did not formalize the standard ketubah text. It did establish a minimum level of recompense; beyond that, it allowed many variations. Throughout the ages, there have been examples of tailor-made ketubot. In several recently discovered ketubot that are more than 1000 years old, the wife stipulated that her husband must grant her a divorce if he takes a concubine. It is clear that some women negotiated their own conditions for a viable marriage.

Wife’s rights of consent: The theoretical right of the husband to “put away” his wife, continually eroded throughout rabbinic times, was formally limited by the halachic decree of Rabbi Gershom of Mayence early in the eleventh century that a woman not be divorced except by her consent. The woman’s will now carried legal force.

Although the rabbis did not have the will or the strength to make a takkanah (a formal rabbinic decree) which would have granted the woman a greater equality in divorce matters, nevertheless they did try to protect her and to limit the situations in which she was vulnerable to abuse. Some grounds entitling the wife to sue for a divorce were quite sensitive to her needs, among them her sexual satisfaction. In the case of the husband’s refusal to to meet her conjugal rights, if she did not want to exercise her option for divorce, he could be fined, week by week (Ketubot 61b-62b). Impotence was also legitimate grounds for divorce, with the burden of proof upon the man (Yevamot 65b).

A woman was also entitled to a divorce if: her husband had a serious disease or a continual bad odor from his occupation (like gathering dung or tanning hides) (Ketubot 7:9); he did not support her in the style to which she had been accustomed or, if wealthy, in the proper manner for a man of his means (Ketubot 5:8,9); if he beat her (Rama Even Haezer 154:3); she wanted to live in the Holy Land or move from one city in Eretz Israel to Jerusalem and he refused to follow her or to remain there with here (Ketubot 110b); he behaved licentiously, i.e., frequented prostitutes (Rama E.H. 154:1).

What about the right of a wife to sue for divorce? The germ of such notion existed in the Biblical law regarding a bondwoman-cum-wife whose husband marries another. If he didn’t continue to provide her with food, clothing and sexual satisfaction, then she had the right to go out free from debt without a financial settlement, but with a divorce. This bill of divorce was assumed to have been mandated by a court or by the elders because a bondwoman obviously had no power in her own right. It was assumed that if a bondwoman had the right to a divorce under such conditions how much more so did a wife who came into the marriage as a free woman.

The Bondwoman
If a man sells his daughter to be a maidservant.. . if her master takes another wife, he shall not diminish the food, clothing and conjugal rights due (his first wife). And if he does not provide these, then she shall go free, without money (Exodus 21: 7-11).

The notion that marriage placed the husband under contractual obligations was further expanded in rabbinic times. If a man did not fulfill certain conditions that made the marriage viable, he was liable to a divorce suit from his wife. She could go to a bet din, present her case, and obtain a court decree compelling him to appear to answer the charges. If the charges were justified, the court intervened to compel him to fulfill his obligations towards his wife. If he failed to do so, then the court could resort to various economic or social sanctions to coerce him to grant a divorce. The law still maintained, however, that he was doing this “of his own free will.” By such legal fiction the old theory of man’s right remained intact while the wife’s real power increased.

Thus, a pattern emerges. In the case of the husband, the original right was open-ended and absolutely private, but the historical development of the law served to continually limit it. In the case of the wife, there was but an initial hint of some sort of rights. As halachah developed through the post-Biblical generations, wider powers accrued to her. This unmistakable pattern is sufficient to refute the simple-minded charges that the rabbis seized every opportunity to keep women powerless. Quite the reverse is true; considering all the power the rabbis had— what with the Biblical guidelines and their own transfer of male authority from one generation to another—there is an impressive degree of sensitivity and benevolence in the unfolding of the law. The growing set of obligations of the husband to his wife and the increasing formalization of her rights to redress through the bet din are clear indicators of an attitude of concern for the women.

Still, we are left with some large and serious problems. First, instead of grappling directly with the sexist principle that only a man had the right to divorce, the rabbis used various legal fictions to subvert its original intent. The exclusive right as derived from the Bible was never challenged or abolished; it was simply chisled away bit by bit. As a result, the rabbinic authorities in any given generation could revert back to the original notion of the husband’s power over the wife.

A perfect example can be found in a qualification recorded in Rabbenu Gershom’s decree that a man could not divorce his wife against her free will: if a recalcitrant wife refused a divorce or was physically unable to accept it, a husband had only to deposit the writ with the rabbinic court, announce his intention to divorce widely, and thus receive approval of 100 rabbis (Even Haezer 1:10). Thus, here as in other instances, some of the more positive decisions concerning women could be withdrawn or tempered on the principle that the ancient legal right of the husband could not be abrogated (Maimonides, Laws of Divorce 10:23). Somehow, the halachah managed to find a way to get around the Biblical and Talmudic requirement that the husband hand the wife a bill of divorce; one need not wonder too long why the halachah did not find a parallel loophole to allow a wife release from a similar situation.

That brings us the second problem: that a woman is not empowered to present a get to her husband and thereby divorce him. A legal theory supporting this is that since he is the one who creates the marriage bond, he must also be the one to sever it. There is no proceeding in Jewish law whereby a divorce is granted by a court in the absence or without the consent of the husband. Thus, there is great potential for abuse built into this law— and there have been, in each generation, countless sinister tales of resistant husbands’ extortion and delay.

Moreover, this aspect of the law has led to the tragic situation of the agunah (“anchored wife”), a woman whose husband has deserted her, or is insane, missing, or presumed dead (though his death has not been verified by the requisite two witnesses). In every generation, the rabbis tried to alleviate the plight of the agunah. Even today, many individual cases remain in Jewish communities all over the world. And despite the compassion and gentleness of the many rabbis who resolve individual cases, women testify to a certain humiliating quality inherent in the basic notion of agunah and in the very process of release from this status.

Finally, in certain ways, the modern, open society has worked to woman’s disadvantage. In the closed, relatively autonomous Jewish communities of the past, the religious authorities and lay leaders could coerce and level sanctions against a man whose wife brought a legitimate suit of divorce; in modern societies outside Israel, however, a rabbinic court has authority only over those who voluntarily place themselves under its jurisdiction. Even in Israel, there are men who have chosen to remain in the jail to which the bet din sentenced them for refusing to grant a divorce, rather than free their wives.

Thus, in an attempt to close the gap between men’s power and women’s powerlessness in the divorce issue, the rabbis tried hard, but not hard enough. It would have taken little more collective maturity to close the gap altogether, to create a situation of real equality under the law. The rabbis assumed wide powers of interpretation—and even of innovation—in situations where the general needs of the community called for accommodation rather than rationalization of an unwieldly situation. Failure of contemporary rabbis to acknowledge that past improvements in divorce law are but part of a continuous process—”on the way to becoming” — leads one to conclude that, in their heart of hearts, many would like the gap to exist, apologetist platitudes notwithstanding.

Several solutions have evolved in modern times. Reform Judaism approves of civil divorce. But the Orthodox consider a woman divorced according to Reform practices an ayshet ish, another man’s wife (since she has no “proper” get), and she is forbidden to marry an Orthodox or Conservative Jew. Moreover, the children of her second marriage are considered mamzerim (bastards, born of an adulterous union) and are forbidden to marry into a halachic community. Conservative Judaism has added a clause to its ketubah giving the bet din powers to end the marriage, with the additional provision that the secular courts can be turned to for enforcement should the husband not live up to the agreement. In the Orthodox community, Rabbi Zev Falk has set forth many precedents which traditional halachists could follow today. Rabbi Eliezer Berkovits’ proposed solution rests basically on a conditional clause inserted in the marriage contract, which allows for the dissolution of the relationship (rather than the couple’s divorce) if the spouses have been living apart for a specified length of time.

There has been great resistance in the Orthodox community to these and any other proposals for change. Therefore, we have today a situation unprecedented in the history of Jewry—we have four sets of divorce law, as if we were several different religious communities.

What remains to be done is to formulate a rabbinic decree or firm qualifications of the existing halachah that will both eliminate any potential for abuse of women and will be acceptable to and unite all branches of Judaism. Achieving both means that all Jews will have to accept that there is something distinctive about being a Jew and living under Jewish law. It means that we all have a heightened sense of awareness that marriage and divorce and every other event in our lives should be properly articulated as Jewish events, experiences within the framework of a holy community. It means that the branches of Judaism will have to sit down together to work out a mutually acceptable solution, each reconciling the others as part of Klal (people of) Israel. It also means that, given the institutional status quo and entrenched interests, Jewish women of every political and religious shade will have to pressure and politicize until the entire community accepts a unifying and equitable law.

It is hard to project what would be the optimal form of revision. Perhaps it will be along the lines of Berkovits’ conditional clause in the marriage contract; perhaps it will empower the wife to write and deliver the get. It would be dishonest of me not to admit to a sense of ambivalence, a hesitation—even a fear (trembling)—as I speak of fundamental change from the Biblical principle. For I am emotionally and theologically rooted in this community that, at most, allows itself to speak in hushed tones about gradual change over a period of two millenia. On on the one hand, I feel a preference to call for a revision which would serve the two functions yet involve the least change in the basic structure of halachah. On the other hand, I must ask whether this halfway step would be doing a disservice to women two or three generations from now. Then again, I am not unmindful of the fact that the divinity of the Torah has remained so strong throughout our history precisely because the rabbis were so careful not to “forbid what was permitted or permit what was forbidden” in the Torah. However, still another part of me feels compelled to press, to politicize, to call for change with absolute certainty. The strongest motivating force is bound up with Jewish tradition itself.

Recently I addressed a traditional community on the subject of which areas of the halachah could incorporate the new needs and expectations of women. After I had finished, an old friend, a former pulpit rabbi turned businessman, got up and said, “Not everyone’s needs will be met by every law. Some people will have to suffer under some laws. That’s halachah! That’s it!”

Leaving aside that inaccurate perception of halachah, men can no longer decide that it’s all right for women to suffer indiscriminately. It is inevitable that there will always be inequities, injustices, imbalances in every divorce situation; that is the nature of the dissolution of a human relationship. But the law itself should not discriminate against one sex. If there is one woman in each generation who suffers unnecessarily as a result of the law, then the law is biased against all women. To one who believes that Judaism is the most ethical and sensitive of religions, to one who believes that from Revelation on, Judaism has continually moved towards its own best values, a change which would bring about a greater equality should be articulated not in categories of change, but rather as part of the organic growth of a holy community as it moves through history.

Blu Greenberg, a writer and lecturer on contemporary Jewish issues, wrote “Women’s Liberation and Jewish Law” for Lilith’s premiere issue.