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.

The rabbinic qualifications took several different forms… :

Enlarging cases of prohibition of divorce: One example of the absolute prohibition of divorce involved the wife who had become insane and would thus be unable to take care of herself. Another was of a wife taken captive: the rabbis obligated [the husband] to send even the dowry money to ransom her. A third example was a child-bride.

Embellishing [and making more complex] the formalities: ….The standard process of divorce was so exact and so detailed that those in attendance had to be experts at it. The real purpose of the complexity was to bring the couple into contact with the rabbinic court whose members understood their function as extending far beyond that of interpreting the law; they used their offices to try to effect a reconciliation. Furthermore, a significant effect of this procedural change was ultimately to undermine the notion of absolute right. In practice as well as in the popular mind, the husband now had to look to the rabbinic court for sanction.

Enlarging the husband’s financial responsibilities [toward a divorced wife]: These responsibilities, incorporated into the ketubah (marriage contract), entitled the wife to a return of her dowry and any property she had brought with her into marriage, plus support until she remarried…. The Talmud did not formalize the standard ketubah text. It did establish a minimum level of recompense; beyond that, it allowed many variations. Throughout the ages, there have been examples of tailor-made ketubot. In several recently discovered ketubot that are more than 1,000 years old, the wife stipulated that her husband must grant her a divorce if he takes a concubine. It is clear that some women negotiated their own conditions for a viable marriage.

[Enlarging the] wife’s rights of consent: The theoretical right of the husband to “put away” his wife, continually eroded throughout rabbinic times, was formally limited by the halakhic [legal] decree of Rabbenu Gershom of Mayence early in the 11th century. From that point on, a woman could not be divorced except by her consent. The woman’s will now carried legal force.

When a Wife Can Initiate a Divorce

Although the rabbis did not have the will or the strength to make a takkanah (a formal rabbinic decree) that would have granted the woman greater equality in divorce matters, nevertheless they did try to protect her and to limit the situations in which she was vulnerable to abuse. Some grounds entitling the wife to sue for a divorce were quite sensitive to her needs, among them her sexual satisfaction. In the case of the husband’s refusal to meet her conjugal rights, if she did not want to exercise her option for divorce, he could be fined, week by week (Ketubot 61b-62b)…. Impotence was also legitimate grounds for divorce, with the burden of proof upon the man (Yevamot 65b)….

Where We Are Now

By such legal fiction, the old theory of man’s right remained intact, whereas the wife’s real power increased. Thus, a pattern emerges. In the case of the husband, the original right was open-ended and absolutely private, but the historical development of the law served to continually limit it. In the case of the wife, there was but an initial hint of some sort of rights.

As halakhah [Jewish law] developed through the post-biblical generations, wider powers accrued to her. This unmistakable pattern is sufficient to refute the simple-minded charges that the rabbis seized every opportunity to keep women powerless. Quite the reverse is true; considering all the power the rabbis had–what with the biblical guidelines and their own transfer of male authority from one generation to another–there is an impressive degree of sensitivity and benevolence in the unfolding of the law. The growing set of obligations of the husband to his wife and the increasing formalization of her rights to redress through the beit din [Jewish court] are clear indicators of an attitude of concern for the women.

Still, we are left with some large and serious problems. First, instead of grappling directly with the sexist principle that only a man had the right to divorce, the rabbis used various legal fictions to subvert its original intent. The exclusive right as derived from the Bible was never challenged or abolished; it was simply chiseled away bit by bit. As a result, the rabbinic authorities in any given generation could revert back to the original notion of the husband’s power over the wife.

That brings us the second problem: that a woman is not empowered to present a get [Jewish bill of divorce] to her husband and thereby divorce him. A legal theory supporting this is that since he is the one who creates the marriage bond, he must also be the one to sever it. There is no proceeding in Jewish law whereby a divorce is granted by a court in the absence or without the consent of the husband. Thus, there is great potential for abuse built into this law–and there have been, in each generation, countless sinister tales of resistant husbands’ extortion and delay.

Moreover, this aspect of the law has led to the tragic situation of the agunah (“anchored wife”), a woman whose husband has deserted her, or is insane, missing, or presumed dead (though his death has not been verified by the requisite two witnesses). In every generation, the rabbis tried to alleviate the plight of the agunah….

Thus, in an attempt to close the gap between men’s power and women’s powerlessness in the divorce issue, the rabbis tried hard, but not hard enough. It would have taken little more collective maturity to close the gap altogether, to create a situation of real equality under the law. The rabbis assumed wide powers of interpretation–and even of innovation–in situations where the general needs of the community called for accommodation rather than rationalization of an unwieldy situation. Failure of contemporary rabbis to acknowledge that past improvements in divorce law are but part of a continuous process–“on the way to becoming”–leads one to conclude that, in their heart of hearts, many would like the gap to exist, apologetics notwithstanding.

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