The biblical text that is the basis for the laws of Jewish divorce provides that a marriage is dissolved where the husband “writes a bill of divorcement, hands it to [the wife], and sends her away from his house” (Deuteronomy 24:1).
It is clear from this passage that a divorce is accomplished through specific acts of the husband. Neither wife nor beit din (Jewish court) is mentioned as a possible initiator of the divorce process. The rabbis in the Talmud also mandated that the husband’s act must be done “with his full consent” (Yevamot 112b).
The Mishnah [an early rabbinic legal code] does provide, however, that a wife was permitted, under certain circumstances, to request that a Jewish court compel the husband to perform the acts required for a divorce. These circumstances include: where the husband has physical defects that are deemed unendurable; where the husband fails to perform his marital duties; and, according to some, where the wife says “he is repulsive to me,” or where the husband beats his wife.
A Legal Fiction Gives Some Power to Women
But the rule that the Jewish courts can, under certain circumstances, compel the husband to participate in the divorce procedure seems to contradict the rule that a husband must be acting of his own free will when divorcing his wife. How can a man who is compelled to act be considered to be acting “with his full consent”?
In order to answer this question, the rabbis created a legal fiction: A man who agrees to divorce his wife because of the pressure exerted on him to obey an order of a Jewish court is considered to be acting of his own free will. This principle enabled a duly constituted beit din to employ any means it saw fit, including corporal punishment, to ensure the husband formally uttered the necessary phrases and did the acts required of him to constitute participation in the get (Jewish divorce) procedure.
Various rationales have been given for such a formalistic view of “consent.” Maimonides [a medieval codifier of Jewish law], for example, suggests that the husband’s true intent is to follow the law and to give the get as the authorities have ordered him. He is led astray by his evil side, and the means that the authorities use to force his formal consent merely repress his evil impulse, thereby revealing his true wishes and allowing him to act according to his free will (Laws of Divorce, 2:20). Nevertheless, if the measures employed by the beit din were not effective in securing the husband’s participation in the get process, the court itself could do nothing: it is not in its power to change the parties’ marital status. The basic principle remains that the divorce is effectuated through the acts of the parties only.
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