We’ve recently seen many examples of conditional divorce, especially in cases when the husband travels overseas. If he disappears, the divorce is validated and the wife is not left an agunah. A mishnah on today’s daf offers what appears to be an enhanced version of this kind of conditional divorce:
If a husband said to his wife: “This is your bill of divorce if at any time I will depart from your presence for 30 consecutive days,” — then even if he was continually going and coming, going and coming, since he was not secluded with her during these 30 days, this is a valid bill of divorce.
In the larger context of husbands who offer conditional divorces when they travel overseas, this husband offers his wife a much more dramatic version: an automatic divorce if he leaves her presence at all. But what does it mean to leave her presence? Does it mean he must stay in the country? The town? Can he go to the bathroom alone? In the Gemara, Rav Huna explains:
It means sexual intercourse. And why does he call sexual intercourse “your presence”? He employed a euphemistic expression.
If “your presence” is code for marital relations, this makes much more sense of the second part of the mishnah, which states that even if the husband comes home every night, the divorce takes effect if he fails to be alone with her.
On the other hand, this interpretation of “your presence” would mean that this teaching stands apart from the others we’ve seen about traveling husbands. Perhaps it’s not a euphemism?
Rabbi Yohanan said: Actually, literally your presence.
Is the mishnah teaching that she is divorced immediately? No, it is teaching only that this is a valid bill of divorce. (And if he was not secluded with her during those 30 days) this is not considered to be an outdated bill of divorce. And when the 30 days are fulfilled, this will be a valid bill of divorce.
Having or not having sex has nothing to do with the husband’s conditional divorce, says Rabbi Yohanan. His condition is purely spatial — he means it literally when he says that he will not leave her presence. The mishnah mentions sexual relations only because if he did depart from her physically during the month, triggering a divorce, and then subsequently returned and had relations with her, that act of intercourse could create some confusion over whether she now requires a second get. (A discussion of how sex after a get can sow confusion about whether the couple is actually divorced will be addressed in a mishnah found on Gittin 81a.)
The scenario seems far-fetched. It’s hard to imagine that a husband would say anything of this sort to his wife, and so the mishnah may be presenting one of those theoretical cases the Talmud uses to explore the boundaries of the law. But whether we think Rav Huna or Rabbi Yohanan’s reading of “your presence” is correct (and the Gemara doesn’t decide), this mishnah is suggestive about what might constitute the end of a marriage: either failure to live together or failure to engage in sexual relations.
When a husband gives a conditional divorce to his wife before traveling so that she is protected from becoming an agunah, he is protecting her. In cases where men do the inverse — deny their wives a get out of spite — there must be legal recourse. Sadly, there have been real cases of men doing just this.
Modern Jewish movements have devised creative solutions to protect women from becoming agunot. The Conservative movement frequently adds a line to the traditional ketubah (called the Lieberman clause) which states that in the event of the functional end of the marriage, the husband and wife will appear before a beit din (rabbinic court) to which they grant the authority to compel him to give her a get. In the Modern Orthodox world, the Rabbinical Council of America requires couples to sign a prenup with two primary stipulations: (1) In the event that either party requires it, the spouses will appear before the Beth Din of America and abide by its decisions, and (2) If the couple stops living together, the husband is obligated to pay his wife $150/day (indexed to inflation) until he tenders a get. The latter is meant to simultaneously provide financial support to the wife and place pressure on the husband to free her from a marriage that is functionally over.
And when is a marriage functionally over? That is best decided by the couple themselves. But some metric is required. And both the RCA and today’s daf chose a similar one: whether or not the couple lives together.
Read all of Gittin 76 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 31st, 2023. If you are interested in receiving the newsletter, sign up here.
