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History & Development of Divorce

Married women were particularly vulnerable to the vagaries of their husbands during the biblical period. The husband could “send [his wife] away” because of ervat davar, some fault or indecency [understood as a grave form of disloyalty, almost an adultery], without recourse on her part. The result for her was economic, physical, and psychological upheaval.

Yet qualifications in the biblical text became important as later generations used them to build a protective legal structure for the wife: First, because the husband had to write a bill of divorce and present it to his wife, he could not simply lose his temper and divorce her in a fit of pique. Second, the husband was required to pay some kind of alimony. Third, the Bible records instances in which a man could never divorce his wife: if he had falsely accused her of premarital sex or if he had been forced to marry her because he raped her as a virgin.

Although these safeguards were minor in themselves, they established the right of the community to place limits on a man’s absolute right of divorce

Rabbinical Requirements for Divorce

The rabbis placed additional qualifications on the husband, yet never challenged men’s exclusive right to divorce. The rabbis enlarged the number of cases where divorce was prohibited, for example, if the wife became insane or was taken captive. They also increased the complexity of the divorce process, both to allow the beit din (rabbinic court) to open the possibility of reconciliation and generally to make the rabbis more active players in the divorce process. In addition, the rabbis enlarged the husband’s financial responsibilities toward a divorced wife, by specifying the following in the ketubah (marriage contract): a lien to be paid by the husband in the case of divorce; the requirement that the wife’s dowry and any other property she brought into the marriage be returned; and a minimal level of support until she remarried. Finally, the rabbis required the wife’s consent to a divorce.

The Talmud required that the get (bill of divorce), be granted with the husband’s “full consent,” thereby seemingly limiting the kinds of sanctions that could be applied in the wife’s favor. The Mishnah, an early rabbinic legal code, however, specified circumstances under which a wife could request that the beit din “compel” the husband to grant a divorce: if the husband had unendurable physical defects; failed to perform his marital obligations of providing food, clothing, and sexual satisfaction; was repulsive to his wife; or beat his wife.

But if a man is compelled to appear before the beit din, can he be considered to be acting with his “full consent”? The rabbis answered “yes” by creating a legal fiction that 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 device gave to the Jewish court the right to coerce the husband, or to a non-Jewish court the power to apply pressure at the behest of the Jewish court.

angry familyJewish law does not permit physical violence or the issuing of a communal ban against the husband, but does allow coercion using words, for example, pressuring him through an issue unrelated to the divorce or withholding assistance that he requests but is not entitled to. But in the end, if the court is unable to convince him, the beit din cannot mandate a divorce if the husband refuses to give the wife a get.

Issues with Divorce

Yet serious problems remain. Traditional rabbis have been unwilling to directly challenge or abolish the husband’s absolute power in the divorce situation. Hence, a woman cannot present a get to her husband in order to divorce him (although this is a possibility within Reconstructionist Judaism, and both the Reform and Reconstructionist movements accept civil divorce as fully dissolving a marriage). And even a Jewish court cannot grant a divorce without the consent of the husband.

The potential for abuse remains for wives in the Conservative and Orthodox movements, as husbands may extort money from their wives in exchange for a get or may refuse to grant a get out of spite or anger, leaving the woman an agunah, or deserted wife. The agunah cannot remarry and if she has children with another man, they are considered mamzerim, who may only marry converts or other mamzerim [according to biblical law].

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