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Kee Teitzei 5773-2013

“The ‘Mitzvah’ of Divorce, Revisited”

by Rabbi Ephraim Z. Buchwald

This week’s parasha, parashat Kee Teitzei, speaks of the “mitzvah” of divorce. Although we have previously discussed the issue of divorce at length in Kee Teitzei 5768-2008, there are several important additional aspects that were not noted at that time that are worth reviewing.

The Torah, in Deuteronomy 24:1 states, “Kee yee’kach eesh eesha oov’ah’lah, v’ha’yah eem lo tim’tzah chayn b’ay’nahv, kee mah’tzah vah ehr’vaht dah’vahr, v’chah’tav lah seh’fer k’ree’toot, v’nah’tahn b’yah’dah v’shil’chah mee’bay’toh,” If a man marries a woman and lives with her, and it will be that she will not find favor in his eyes, for he found in her a matter of immorality, and he wrote her a bill of divorce and presented it into her hands, and sent her from his house…she is then permitted to marry another man.

Despite the legal option of divorce, it is clear that Jewish tradition regards marriage as a sanctified bond that should ideally last a lifetime. A divorce, in Jewish tradition, is certainly regarded as a tragic event. The Talmud, in Tractate Gittin 90b, states that even the altar sheds tears when a husband and wife divorce.

Although the Ketubah document, which is agreed upon at the time of the marriage, includes a guaranty of alimony payment, the proposed payments are more a reflection of love, than a contemplation of divorce. The husband, in effect, says to his wife, at that very special, sublime occasion: “I love you so much at this moment that, G-d forbid, if I ever fall out of love with you, I will make certain that you are properly cared and provided for.”

Reconciling husbands and wives is considered to be a most meritorious religious act. In fact, the only instance in which erasing G-d’s name is permissible is in the case of the Sotah, a wife suspected of adultery (Numbers 5:23). In the hope of restoring peace in a marriage, G-d, in effect, says: Let My name be erased, as long as it brings about harmony between husband and wife.

In the Mishna, Gittin 9:10, the school of Shamai only permits divorce in the instance of a wife’s infidelity. The school of Hillel, allows a husband to divorce his wife for a much broader range of reasons, including “spoiling a dish for him.” Rabbi Akiva dispenses with the notion of stringent grounds and allows for divorce, even if a man has grown to prefer another woman to his present wife.

Since the verse (Deuteronomy 24:1) clearly specifies, “And he wrote her a bill of divorce,” the rabbis established a requirement that the husband actually present the Get (the divorce document) to his wife. Not only must the husband write the Get, or appoint an emissary to write it, he must actually deliver it, or designate a representative to do so.

The fact that the man must initiate the Get, has resulted in many difficulties, where recalcitrant husbands refuse to grant their wives a divorce. In ancient times, this was not a serious problem because the courts of Jewish Law had the power and authority to coerce the reluctant husbands to give the Get. In fact, Maimonides (Gerushin 2:20) addresses the rabbis’ concern that a Get must be given of the husband’s free will, by stating that a resistant husband may be beaten until he says, “I wish to give the Get of my own free will.”

Because of the resulting power differential between husbands and wives, the rabbis, over the centuries, have introduced numerous enactments designed to empower the wife and mitigate this imbalance. The Ketubah, the Jewish marriage contract, was the first and foremost document designed to protect women’s rights in marriage, ensuring divorced and widowed women adequate support. The rabbis even ruled that a wife may actually initiate divorce proceedings in certain circumstances.

In the 11th century, Rabbeinu Gershon of Mainz issued an enactment that forbade polygamy and also required the wife’s agreement to divorce. These enactments were initially accepted by the entire Ashkenazic world, and eventually became the law in most of the world for Sephardic Jews as well. As a result, both parties must consent in the vast majority of divorces.

Maimonides suggests that the reason that the Torah requires a formal written divorce document and recourse to a court of Jewish law is to ensure that a public record will exist that a particular man has divorced a particular woman. The public record now makes it impossible for either of them to masquerade as a widow or widower and remarry, which of course would violate the Torah prohibition of adultery.

The Abarbanel explains that, since the husband takes upon himself the major burden of providing food for the family, he is entitled to expect that his wife be helpful and compatible. If for some reason she is not cooperative, and their home is not peaceful, tranquil and harmonious, the husband may divorce his wife.

The author of the Sefer Ha’Chinuch points out that the flexible Jewish approach to divorce is more reasonable than any of the other religions, some of which forbid divorce under any circumstances. The Chinuch suggests that it is far more reasonable to dissolve an incompatible marriage than to have the couple continue to live together under strain and friction. After all, it would not only harm the husband and wife, but the children, the extended families, and perhaps even the general community.

It is clear that in Jewish tradition, marriage is highly valued, and if divorce can be avoided, it is strongly preferred. The fact that the relationship between G-d and the People of Israel is described in terms of marriage, further underscores the high regard in which marriage is held.

While stability in family life is a much hoped-for ideal, Judaism was remarkably ahead of its time in understanding that unhappy spouses can sometimes not be reconciled. In such instances, divorce may be an unfortunate, but appropriate, option that is not only in the best interests of the married couple, but for the collective well-being of the community of Israel as well.

May you be blessed.