Divorce (Girushin)

Introduction

I have encountered broken marriages outside of Judaism – in religions which believe divorce is a sin – and one or both partners are utterly miserable. There is sometimes even physical violence, and the wife is a virtual slave to her husband, from whom she has no means of escape. Since their religion does not believe in divorce, they are forced to perpetuate this life of cruelty. Does their god wish them to live such a life of misery and suffering until their deaths? Even if they separate, neither partner is allowed any happiness by remarrying a more suitable partner. Any god that forbade divorce in such cases would be a sadistic god.

Admittedly, most marriages that file for divorce are not that extreme. 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 – indeed, the Israelite religion – does allow them to divorce; there is no ban on divorce in Judaism, nor has there ever been. 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 previously divorced, if she has since remarried and divorced (Deut 24:4)
• he cannot divorce her if he has falsely accused her of sexual relations 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)[1]

Furthermore, if a husband could not, or refuses to provide either food, clothing or conjugal rights to his wife, then the wife has every right to leave her husband. This is based on the laws of the maidservant-wife, in Exodus 21:11. This is an interesting case of the wife initiating the divorce, which is completely ignored in the mainstream (for some unknown reason). In the Karaite community, such a divorce is signed off by the Beth Din;[2] the husband is not needed to sign the bill of divorce (séfer kėritut in Biblical Hebrew; the more commonly used word gett is Yiddish).

As you can see, the laws are very sparse. Most of the corpus of current laws in the mainstream Jewish community therefore comes from the Oral Law.

From the laws contained in Torah alone 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 conversely 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 rabbinic law. 

However, Karaites go according to the principle that, simply because it does not state that a woman can or cannot initiate a divorce, does not mean that she cannot. There is a legal principle of logic called hekeish. What it means is, that if a case is unknown (here, what to do if a woman wishes to initiate a divorce), then the rules in the known situation can be applied in the unknown situation, if the situation is similar – which it is.

In addition, the woman actually does have recourse to legal protection, although it has not been used much in rabbinic circles. The wife can ensure that there is adequate provision made for her in case of divorce in the terms of her shidduq (betrothal agreement) with her husband – almost like a pre-nuptial agreement. She can a requirement that a Sanhedrin sign the gett (bill of divorce) in the case of her husband refusing; she can insert claims for alimony in the case of divorce; she can even insert a clause that he cannot divorce her 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 , 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. Such a woman is called an 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 legally 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 currently, 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[3] – those three words are the ones Talmidis focus on, in order to come to a more reasonable understanding of what was being sought here. Because the woman had very little say in the matter (but notably, only by rabbinic tradition), husbands could 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 such 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 conservative 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 more liberal 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 simply trying to see who Yeshua` would side with – the school of Shammai, or the school of Hillel.

In his answer, the prophet Yeshua` was not forbidding all divorce; he was forbidding divorce in a particular instance. His ruling was that, if a man divorces his wife in order to marry another woman, then that man was committing adultery. In other words, if the reason why the husband was misusing the vague term ‘for any reason’ as an excuse to divorce his current wife, was because he wanted to go off and marry another woman he would otherwise be having an affair with, then that was basically legalised adultery. In Jewish society at the time – especially in Pharisaic circles – the wife had no say in the matter.

Yeshua was trying to balance the matter between the husband and and the rights of the wife, not forbidding it altogether. Yeshua` usually tended towards the liberal school of Hillel in most matters, 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 out, 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 rabbinic Oral Law expands on what grounds are allowed for divorce:

• if the marriage was childless after ten years;
• if 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.

I have only listed the above for reference purposes only. The Talmidi community should not be bound by these.

Difficulty with Divorce in modern Israel

In Israel, there are no such things as civil divorces (i.e. divorces decided upon in a non-religious court of law); 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 Jewish religious court consisting of Orthodox rabbis.

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. Since the Oral Law defines us as heretics, not even our marriages are recognised, so the matter is a moot-point anyway.

Rabbinic Divorce Process

To give an idea of what currently happens, I want to give you an overview of the rabbinic process. The husband and wife are interviewed by the beth 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 (bill 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 who is learned in the laws of divorce, two witnesses (the other two members of the Beth Din), and a scribe;
• 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 (or Sefer Keritut)

What follows are the rabbinic laws on the writing of the gett (a Yiddish word; the biblical Hebrew term was séfer kėritut: writ of divorce). 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.

Divorce in the Karaite Jewish Commnity

            Divorce law is not as complicated in the Karaite Jewish community. The most problematic part is the refusal of the husband to sign the bill of divorce, and so allow the divorce to proceed, and therefore the woman to remarry.

            In such a circumstance, the Karaite Beth Din takes over the responsibility for signing the bill of divorce in the stead of the intractable husband. The Karaite sages argued that the notable absence of saying that a woman can or cannot divorce her husband, does not mean that she cannot initiate a divorce. Therefore, in the Karaite community, women had more rights in terms of divorce. This was based on the hekeish principle – that the rules and ethics of a known case (a man divorcing a woman) can be applied to an unknown case if the conditions are similar (here, a woman divorcing a man).

            On this basis, even a wife can initiate a divorce for ‘an unseemly matter’ (ervat davar) om her husband, in the same way as the husband can in his wife.

            In Exodus 21:11, a wife can leave her husband if he cannot provide her with either food, clothing or conjugal rights. In the Karaite community, in such an instance it is the Beth Din that signs off the bill of divorce, and thereby makes the divorce legal.

The Challenges for Talmidi sects

Since divorce law in Torah is so sparse, the rabbis had to actually 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.

Talmidaism is about applying religion with compassion and in a just way. Therefore, each case must be decided on its own circumstances. I think that there is possibly a reason why Torah is so sparse in divorce law – to give wide scope for each case to be examined individually. I believe we therefore have the responsibility to act justly and with compassion – act sensibly and reasonably; these are important Talmidi principles in deciding any religious matter.

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. A clause could be inserted into the shidduq/ ketubbah stating that, if the husband refuses to sign the gett and so release his wife to remarry, then a Sanhedrin ha-Shalosh[4] (the Israelite equivalent of a rabbinic Beth Din) can approve the gett on the husband’s behalf.

Furthermore, in order to prevent the potential suffering of an agunah (a widow who cannot remarry because her dead husband has not been found), we have to include the provision that allows a Sanhedrin to make out a gett, should the husband go into a situation that will result in his disappearance possible death. Also, 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 legalised by a Sanhedrin – there is precedent. We can follow the example of the Karaites, and apply divorce law equally to men and women, following Ex 21:11.

In all of this, we just have to be aware and remember that our religious marriages, and so our religious divorces, will not be recognised in Israel, even if we were to turn tail and follow rabbinic law to the letter. There therefore arises the situation where a divorced Talmidi cannot legally marry a rabbinic Jew, since such a marriage would not be recognised – unless of course, the rabbinic Jew changes their official affiliation and allegiance to Talmidaism.[5]

The best way to avoid divorce

            Divorce is an unpleasant matter for anyone to go through. Therefore, the best way to avoid divorce, is for a couple to ensure that they are compatible in the first place. Couples-counselling, in order to explore what you really feel about each other, would be a useful tool in this regard.

            You should also have similar interests, values and world views – you will have less to argue about.

Psychological studies also suggest that avoiding sexual relations before you fall in love with someone, will strengthen the bond between you, and make the relationship last longer. I would also counsel couples against marrying someone if they have known each other for less than a year.

In short, the best way to avoid divorce, is to ensure that you are marrying the right person in the first place.

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 Karaite approach which equalises the rights of men and women is to be preferred.

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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Footnotes 

[1] In such a situation, the wife ends up living in her father’s house, but she is financially supported by her legal husband for the rest of her life. The aim of such a law was to be off-putting to the man, to prevent the rape in the first place – the thought of the penalty of supporting a wife he could never be with, and never have children or legitimate heirs with, was meant to be a deterrent in the first place. Having no children or legitimate heirs was, in ancient Jewish society, seen as a kind of death.

[2] A rabbinic Beth Din is a panel of three rabbis who decide on a legal case. This term was carried over into the Karaite community. However, in ancient times, such a panel was called a Sanhedrin ha-Shalosh – literally, ‘a council of three’, and could be made up of any three elders.

[3] the Hebrew for this term, ervat davar, is variously translated. It literally means ‘nakedness of thing’. Some translate it as ‘for any reason’, but a better rendition would be, ‘unseemly matter’.

[4] literally, Council of Three

[5] A non-Talmidi Jew is not actually converting to Talmidaism. Within the Israelite religion, people merely change their denominational affiliation, which is not seen as converting, because we all worship YHVH and follow Torah. Only people coming from non-Israelite religions are deemed to be actually ‘converting’.