Excerpted with permission of the author from “Jewish Divorce Law” in Lilith Magazine, summer 1977.
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 halakhah (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. 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.
“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 (Deuteronomy 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 unmarriageable.)
“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).
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.
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.
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