Rabbinic and Post-Rabbinic Divorce
Over time the rabbis increased the wife's power in a marriage, yet maintained the absolute right of the husband to grant a divorce.
This article describes the efforts of the talmudic and later rabbis to protect the wife in what was an inherently unequal relationship. In the medieval period rabbinic authorities continued to issue rulings that curtailed the absolute power of men vis-à-vis divorce and at the same time consistently expanded the legal rights of women. Excerpted with permission of the author from "Jewish Divorce Law" in Lilith Magazine, Summer 1977.
The rabbis were not insensitive to the inequities in biblical divorce law. In talmudic and post-talmudic literature, they articulated many elaborations and emendations of this law (as they did with biblical law touching all areas of life), which gave women greater protection. Little by little, the imbalance of biblical law was tempered by numerous restrictive rabbinic measures. Thus, the theoretical basis of the law--that divorce was a man's God-given right--remained intact: It was not challenged but rather modified in many practical ways to neutralize its force.
We can see this pattern--which characterizes much of rabbinic action, or nonaction, for many ensuing centuries--begin to emerge in an early rabbinic dispute between the schools of Hillel and Shammai (first century B.C.E.). Shammai, the strict constructionist of biblical law, maintained that the scriptural words ervat davar [meaning "some fault or indecency," which was the standard biblical grounds for divorce] meant, literally and exclusively, "adultery." Thus, a woman's infidelity was the only legitimate grounds for divorce. Hillel, known as a liberal because he generally interpreted Scripture more broadly, interpreted ervat davar as anything that was offensive to the husband. As in most disputes, rabbinic law followed Hillel.
For the next few centuries, major talmudists reiterated the principle of the unrestricted right of the husband to divorce his wife. The opposing view restricting this right made itself felt in the many critical moral judgments against divorce (such as Rabbi Yohanan's statement that "He who divorces his wife is hated by God") and in the growing number of curbs on a man's absolute right.
Husband's Absolute Power Delimited, But Not Ended
Throughout much of rabbinic history, three interacting forces were adjusted in each decision concerning divorce law:
1. the theory of man's absolute right;
2. the biblical precedents establishing some qualifications of this right; and
3. the earliest rabbinic sources, which construed the biblical laws strictly or broadly.
These three variables could be juggled, depending on one's teacher's views, the climate of the times, one's inclinations in these matters, and the particular divorce case at hand.