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The Right to Divorce

The Right to Divorce

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Potential for Divorce Healthy

The fact that a Jewish marriage can terminate via divorce is as old as the Jewish institution of marriage. This assures that marriage is not an institution comparable to being in prison with no exit. Marriage cannot be so closed-in that no matter what transpires, either husband or wife is captive to the other forever. The biblical allowance for terminating marriage via divorce serves to assure that both husband and wife will live up to their responsibilities in marriage if they want to remain in the union. The fact that failure to live up to responsibility can lead to divorce gives marriage a legally entrenched dynamism, with neither of the marital partners daring to take the marriage for granted just because it has been legally finalized. Whatever has been legally finalized can be legally undone.

Thus, the reality that divorce can terminate the marriage is healthy for the marriage itself. This does not mean that it is healthy to actually carry through with divorce; only that its potential for being exercised should convey a forceful message to the marital partners.

Both Have Right to Sue

If a husband or wife fails to live up to the essential components of the marriage, then the aggrieved party has the right to sue for divorce. It is a common misnomer that only the husband can do this. In fact, the biblical grounds for divorce, which include failure to provide food, clothing and marital intimacy, are spelled out in a situation wherein the deprived party is a bondwoman (and potential wife) who, having been so deprived, can enlist the services of the Bet Din (Rabbinical Court) to terminate the marriage (Exodus, 21:7-11). If the bondwoman, who was in a weakened position, could sue for divorce, it stands to reason that a conventional wife could do no less.

The precise dynamics of the divorce-granting procedure are a different matter, but the right to demand divorce is a privilege that is held by both husband and wife.

Each has the right to demand a divorce when the other has not lived up to basic requirements or responsibilities within marriage. But the fact that one has the right to demand a divorce does not mean that one must carry through with this right. One can simultaneously have the right to demand a divorce, but prudently refrain from exercising that right, and instead embark on a course for reconciliation.

Against Her Will

In biblical law, the husband had the right to divorce his wife against her will. The wife did not have an equivalent right, and this is admittedly a disparity between the husband and the wife.

However, to conclude that this shows insensitivity to the plight of the woman would be jumping to the wrong conclusion.

The biblical right of the husband to divorce his wife against her will was connected to another fact of biblical life, namely that a man was allowed to have more than one wife at a time. The woman had the right, before marriage, to insist, as one of the preconditions of marriage, that the husband take no other wife in addition to her. If the husband agreed to this, then he could not contravene this agreement without suffering the consequences.

Economic Marriage

However, in the absence of any such agreement, or with the wife's acquiescence, a husband had the right to marry more than one wife. This created an institution which can perhaps best be called "economic marriage." It gave the women of that generation another option, namely the option to marry a husband who could support many wives, if material comfort was more important than any other consideration for the woman.

Admittedly, some women may have preferred only one husband of meager means and a life of struggle. But others may have opted for sharing a husband, if that meant that there would be fewer financial worries. Essentially, it was the woman's choice as to what type of marriage she wanted and what type of husband she preferred.

Considering also the likelihood that there would usually be fewer males than females within society, since many males died in war, this allowance of the husband to have more than one wife at the same time addressed the crucial issue of there not being enough males to take care of the female population. By allowing the option for a husband to have more than one wife, the possibility of every woman finding a suitable husband was at least not foreclosed.

For purely biological reasons, this type of arrangement was only possible with a "one husband-many wives" scenario. One wife with many husbands was not possible. One may conjecture that the basic reason for this is to assure that the child's parents are always identifiable. In the case of one husband and many wives, since it is the woman who is pregnant, the question of who is the mother is never an issue. And since it is the same husband, who is the father is likewise never an issue.

However, one woman and many husbands is a different situation. There the mother is well known, but who the father is will always remain a matter of conjecture. Thus the child may be placed in the uncomfortable and unacceptable position of growing up without a father, without paternal guidance and paternal financial support. Whatever the case, one should see in this not prejudice against women, but concern for the need to create stable communities comprised of clearly entrenched families.

No Exit, No Entry

This allowance for the husband to have many wives would be an option most likely to be exercised by a husband who had the economic means to support the many wives he was marrying. However, the husband who supported many wives was also in a vulnerable position. Economic fluctuations could cause a collapse of his financial empire, such that maintenance of all his wives would become impossible. If the husband who had undertaken this form of marital support would be locked into this position forever, with no exit out via his own choice, he would never enter into such a union in the first place. This would foreclose a viable option for many women, taking away a possibility that would have been in the best interests of those who felt more concerned about financial considerations.

Thus, in order to make this a workable option, the men had to be given an exit out in case their financial capacities dictated this exit. The exit out was in the form of the allowance of the husband to divorce his wife against her will.

It is thus logical, although at first glance quite surprising, that within the biblical legal structure, the allowance for divorce against the will of the wife was actually consistent with the best interests of women, even though at times it could create some disadvantages to women. The intent was to maintain the viable option of economic marriage so that women would have a much broader range of choice for whom they desired to marry. Only with arbitrary exit was initial entry conceivable.

Enter Rabbenu Gershom

All this changed with the famous edicts of Rabbenu Gershom early in the twelfth century, the edicts which proscribed having more than one wife at a time, and removed the right of the husband to divorce his wife without her consent. Rabbenu Gershom, through these edicts, served to highlight, in a contemporaneous manner, the concern of the Torah for the welfare of the woman.

A combination of societal conditions and a general aversion to the practice led to the ban on having more than one wife at a time. By so doing, marriage became a purely one-to-one relationship. Economic marriage, in which a wife would share the husband with one or more women, was no more to be, except within elements of the Sephardi community who did not come under the purview of the edict, and never accepted it as binding on them. However, it is the general practice within most of the Sephardi community, the communities of the East, that the husband binds himself via oath, prior to marriage, not to marry a second time whilst married to his first wife.

Moving Toward Equality

Since being married to many women was no more to be, there was concomitantly no more reason to justify the husband's right to divorce his wife against her will. Thus, once marriage was established on a "one wife at a time" basis, the wife's rights within the marriage, and her right to terminate the marriage, were effectively raised to the level of being equal to that of the husband. He must agree to grant, and she must agree to accept, the get.

This was the intent of the decree of Rabbenu Gershom, to equalize the partners in marriage. His edicts may have created a different legal reality than that which existed in biblical times, but the edicts were consistent with, and an extension of the fundamental principles that were operative in biblical times. They evince a profound understanding of the letter, spirit, and intent of the biblical legislation.

Rabbenu Gershom's edicts established quite clearly that the biblical right of the husband to divorce his wife against her will is not to be seen as a biblically conferred extra power given to the husband over his wife. It is difficult to fathom that G‑d would entrench inequity in the Torah (the revealed instruction on life), which is replete with exhortations to be attentive to all humanity, and mindful of their welfare. The aforementioned rule is rather a biblically entrenched reality designed to create greater opportunities for the women in society. Once this was no longer the case, the husband's powers in this regard were essentially removed.

Limits to Equality

Generally, although still with some exception, in divorce matters the post-Rabbenu Gershom husband and wife, at least on a legal-theoretical level, are for all intents and purposes equals. This does not mean that there are no husbands who take unfair advantage of their wives, through their refusal to grant a get, divorce.

Rabbenu Gershom removed the basic right of the husband to divorce his wife in a coercive way, but in very limited situations this ban is not enforced, or is circumvented. Thus, when the husband has a legitimate right to divorce, such as because of being childless, and the wife refuses to cooperate, or when the wife suddenly becomes apostatized, Rabbenu Gershom's edict may be circumvented through the permission (heter) of 100 Rabbis in three adjoining communities, who agree to allow the husband to remarry. But the husband must first authorize the writing of the get, and place that get in escrow at the Bet Din, to be delivered to the recalcitrant wife once she agrees. Thus, the husband's advantage does not become the wife's disadvantage. More importantly, the cooperation of the husband in authorizing the writing of the divorce and then transmitting it remains critical. If he refuses, the wife is severely disadvantaged, even becoming an agunah — an anchored, tied down, imprisoned woman, a victim of get abuse.

The husband's refusal to cooperate is inexcusable, abhorrent, and an abomination. It is a distortion of every basic value of human decency, and as well entails a prohibition against afflicting those individuals who are in vulnerable positions. In simple terms, refusal to grant a woman a get is an ethical breach of the highest order, a breach which cannot and should not be countenanced by the Jewish community.

Community Intervention

This means that community leadership should not allow any individual to take advantage of anyone else under any circumstances. The circumstance in which this is most likely to occur is in the area of divorce. One of the major problems in the inequities surrounding divorce is the reluctance of leadership, both Rabbinic and lay, to take a proactive role in condemning such behavior not only in theory, but also in specific, real life situations.

Condemnation is itself more than just a lip service statement that "it is not proper," "it is incorrect," or "it is not fitting." Condemnation should take the form of denial of any honors within the community to those who have been flagrant violators of the fundamental principles of human decency, through causing affliction to the spouse. One Rabbinic organization has very recently taken significant steps in this direction.

It should also involve the readiness to publicly denounce the intransigent louts who abuse others through non-cooperation.

 Denunciation can come from the pulpit, in the newspapers, or via picketing the violator's home or office. For those who do nothing or less, we should stop at nothing to heap communal contempt.

Message of the Edicts

A husband and wife within the marriage are equals, but because of circumstances as previously described, were not equals in divorce. The edict of Rabbenu Gershom, specifically directed as it is towards re-entrenching that equality not only in theory but also in actual practice, is at the same time a message to the members of the Jewish community contemplating divorce. Divorce is not a power struggle. It is not a power game, with one spouse trying to out-muscle or out-maneuver the other. The husband and wife marry as equals, and should divorce as equals; appreciating the equality of the other, and proceeding through the divorce with equanimity.

Rabbi Reuven P. Bulka is a noted author, lecturer and Jewish activist. He is the rabbi of Congregation Machzikei Hadas in Ottawa, Ontario, Canada, and is the co-president of the Canadian Jewish Congress.
The Jewish Divorce Ethics is reprinted with the gracious permission of the author
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