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Divorce: The Halakhic Perspective

by Susan Weiss

Many scholars in the area of Jewish marriage and divorce point proudly to the fact that Jewish marriage is a private ordering between individuals. Those scholars claim that Jewish marriage is a matter of contract between two willing parties, and therefore, unlike the custom in most liberal Western democratic countries, the parties, not the state, determine their personal status. The parties by agreement can decide to get divorced, in the same way that they decided to marry. No reason need be alleged for the divorce. No fault is relevant. No time need elapse between separation and divorce. In theory, parties can marry one day, divorce the next, and then remarry without delay or period of separation.

However, more critically inclined scholars, and especially feminist scholars, would take issue with those who complacently remark on the “progressive, and contractual” ease with which Jewish divorce takes place. They would argue that Jewish marriage and divorce law is not about the contractual give and take between equal parties; nor is it about a sanctification of a holy relationship—kiddushin. Rather, it is about the ordering of a relationship based on patriarchal dominion, or kinyan—purchase, in which the wife is more like the property of her husband than his equal in partnership. It is about a patriarchal bargain in which a woman exchanges her sexual and household services for her husband’s protection and maintenance.

Like the Conveyance of Real Property? (Kesef, Shetar, Bi’ah)

Rabbi J. David Bleich (Bleich 1998) would seem to agree with those who compare Jewish marriage to a purchase arrangement. He describes the legal act of Jewish marriage in the following manner:

The legalistic essence of [Jewish] marriage is in effect an exclusive conjugal servitude conveyed by the bride to the groom. All other rights, responsibilities, duties and perquisites are secondary and flow therefrom. The three methods of solemnizing a marriage, i.e. kesef, shetar and bi’ah (money, deed, and sexual intercourse) parallel the conveyances prescribed for the transfer of real property [in Jewish law]. Title to real estate is transferred by payment of the purchase price; marriage is effected by kesef, delivery of an object of value, usually specie in the form of a ring, by the groom (the “purchaser”) to the bride. Transfer of real property can be effected by delivery of a deed; a man can acquire a wife by delivery to her of a shetar kiddushin … Real property can be transferred by hazakah, i.e. the recipient performing an overt act demonstrating proprietorship, e.g. plowing a furrow … Bi’ah, or cohabitation for purposes of marriage, is the counterpart of hazakah; it is an overt demonstration of the exercise of the servitude that is being acquired. Understanding that the essence of marriage lies in a conveyance of a “property” interest by the bride to the groom serves to explain why it is that only the husband can dissolve the marriage. As the beneficiary of the servitude, divestiture requires the husband’s voluntary surrender of the right that he has acquired.

Biblical Origins and the “Unilateral, No-Fault” Grounds for Divorce

The primary source of Jewish divorce is in Deuteronomy 24:1 where it is written that:

A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her and sends her away from his house.

According to this Biblical verse, the husband writes the bill of divorce (a get), gives it to his wife, and banishes her from his house. Professor Zev Falk described Biblical divorce as the “arbitrary, unilateral, private act of the husband.” The husband initiated and executed the divorce at his will and in accordance with his subjective evaluation of the nature and quality of his marriage. His wife had no capacity, voice or power to protest. It did not matter whether she was at fault for the breakdown of the marriage, having refused conjugal relations with her husband, committed adultery, or merely burnt his dinner (in accordance with the opinion of Bet Hillel). Judith Romney Wegner maintains that even in the time of the Mishnah, a woman could be discarded like an “old shoe.”

It is from this verse in Deuteronomy that Jewish Law establishes that a Jewish divorce occurs only when a man issues a bill of divorce to his wife (a get). A Jewish woman cannot give a divorce to her husband.

The Prohibition Against the [Invalid] “Forced Divorce” (get me’useh)

In the Mishnah (Yevamot 14:1), it is written:

A man who wishes to divorce his wife is not like a woman who seeks divorce from her husband. A woman is divorced in accordance with her will or against her will. A man cannot divorce his wife except of his own free will.

Only a man can give a get, and that get must be given of his free will. A get which is given under duress or coercion (known as a get me’useh, a “forced divorce”) is void. The rabbis derive this rule from the same verse in Deuteronomy quoted above for the principle that a man could divorce his wife unilaterally. Since the husband has the unilateral power to divorce his wife, the rabbis maintain that the act of divorce can occur only if it complies with the husband’s discretion and free will.

The fact that rabbis derive the rule prohibiting the “forced divorce” from the Bible, and not from secular principles of contract, underscores the impact of this rule and distinguishes it from civil rules regarding coercion, force and duress. Because the rule against the forced divorce is attributed to the Bible and to God, the question of whether a husband has agreed to give his wife a get of his own free will is subject to strict scrutiny by rabbis.

The following are examples of questions raised concerning the context under which a get is given: Is a get valid if a husband gives his wife a bill of divorce to avoid a financial penalty that he assumed in a divorce agreement? Is it valid if a man gives his wife a get because he is afraid that a New York judge may award him less property than he would otherwise receive under the laws of equitable distribution? If a woman pays her husband significant sums of money in consideration for a get, is the subsequent bill of divorce suspect since the husband did not give her the get of his own free will but in order to enjoy the money that he has extorted? Does a premarital agreement designed to encourage the husband to give his wife a get tamper with the husband’s free will in a manner which violates Jewish law?

Although rabbis render different opinions concerning the above questions, the very fact that these questions are deliberated highlights the main problem in Jewish divorce—the fact that Jewish divorce lies within the discretion of the husband alone and that the rabbis hesitate to interfere with that discretion. The will of the husband, as opposed to notions of justice or a determination by a court of law, is the determinative factor in deciding whether a Jewish woman remains married to her husband. No court, third party or even God (except by “fatal” intercession) can free a woman. A disgruntled wife can be freed of the bonds of an unsuccessful marriage only when her husband decides that he is willing to release her.

The Prohibition Against Extramarital Intercourse of a Married Woman

Under Jewish law, men and women are not treated equally with respect to extramarital sexual relations. Under Biblical law, a man can have more than one wife. Thus a married man who has sexual relations with an unmarried woman does not commit adultery under Jewish law. Nor does Jewish law censure a married man who has sexual relations with an unmarried woman. The children of such a union are not stigmatized. However, a married woman who has sexual relations with another man without obtaining a valid divorce from her husband is considered an “adulteress” (Exodus 20:13, Deuteronomy 5:17). Moreover, the children born to an adulterous woman are branded as mamzerim and are forbidden to marry other Jews. (“A mamzer shall not enter the congregation of the Lord” [Mishnah, Yevamot 8:3; Mishnah, Kiddushin 3:12]).

The stigma of mamzer serves as a powerful disincentive to any thought of disobedience. Many modern Jewish women may be willing to ignore the religious requirement of obtaining a religious divorce from their estranged husbands, but most will refrain from bearing children who will be shunned by the Jewish community.

Agunah

A Jewish woman who seeks a divorce from her husband often pays for her freedom in order to persuade her husband to “exercise” his free will to give her a get. She may give up her right to child support, marital property and even the custody of her children to release herself from the bonds of a recalcitrant spouse and a failed marriage. Under the worst of circumstances, such coercion may not resolve the woman’s situation and she will eventually grow old, embittered and repressed by halakhah. A woman thus handicapped by the system and her recalcitrant husband is called a mesorevet get (a woman denied a Jewish divorce), though the popular literature often refers to such a woman as an agunah.

The traditional definition of an agunah is a woman whose husband is missing.

Protective Legislation: (Ketubbah, Takannah de-Rabbenu Gershom)

In her book Rereading the Rabbis, Judith Hauptman describes how, over the thousands of years during which Jewish law developed, rabbis introduced various laws to limit the unilateral power the Bible gave to men over their wives, and to shield wives from the capricious whims of their husbands. Since rabbis presumed that a woman would rather be married than live alone (BT, Ketubbot 75a), the main thrust of these laws seems to have been to ensure that the wife would remain under the aegis of her husband. The introduction of the marriage contract, the ketubbah, served that purpose by requiring the husband to pay his wife a large sum of money in the event that he divorced her for no good reason. In addition, a rabbinic edict known as an eleventh century takkanah attributed to Rabbenu Gershom (Gershom ben Judah Me’or ha-Golan, c. 960–1028) prevented an Ashkenazi Jewish husband both from divorcing his wife against her will and from taking a second wife, both of which were allowed under Biblical law.

Not all scholars, however, would agree that the ketubbah and the takkanah of Rabbenu Gershom were the products of halakhic enlightenment regarding the status of Jewish woman. Hauptman suggests that the ketubbah may originally have been a legal device contrived to enable men to pay a deferred bride price, rather than a means to protect women. According to Falk, “an examination of sources from the eleventh and twelfth centuries ... apprises us that monogamy found its way into French/German Jewry by slow degrees, and not as the result of a single legislative act [of Rabbenu Gershom].” Judith Romney Wegner refers to Rabbenu Gershom’s edict as a “jurisprudential anomaly, forced on the Ashkenazi Jews of Europe by Christianity’s rejection of polygamy.”

Dispensation to Take a Second Wife (Heter Me’ah Rabbanim)

The impact of the corrective measures taken by the rabbis to protect women from being divorced at the unilateral will of their husbands did not equalize the positions of husband and wife with respect to their autonomy over their personal status. Rabbinic laws are mutable. Biblical laws are not. Should a husband initiate a divorce and his wife refuse to accept a get, the rabbis, at their discretion, can quash the wife’s resistance by overriding their protective legislation and ordering the wife to accept the get, or by simply allowing the husband to take another wife through the “dispensation of one hundred rabbis” (heter me’ah rabbanim). These procedures still occur in Israel, where the legislature has recognized such rabbinic acts as exceptions to the criminal law that prohibits bigamy. (See § 179 Penal Law 5737–1997 (Special Volume) Laws of the State of Israel [LSI] 56.) Some Sephardic rabbis maintain that takkanah of Rabbenu Gershom never applied to Sephardic men. Other rabbis claim that the takkanah of Rabbenu Gershom was limited in time and that it no longer applies at all, thereby effectively reinstating polygamy and unilateral divorce as the halakhic norm.

Limited Grounds upon which a Woman Can Ask the Rabbis to “Compel” Her Husband to Give Her a Divorce

In the same manner that rabbis recognized the need to protect women from the rule which gives husbands the almost unfettered right to divorce them, the men who have shaped Jewish law have acknowledged that women may want to initiate divorce from their husbands and free themselves from the “protective” sphere of a marriage which no longer affords them the protection, maintenance and care originally intended. The Mishnah Ketubbot 7:10 (BT, Ketubbot 77a) (also referred to as parashat ha-madir) sets forth the grounds upon which a husband can be “forced” to divorce his wife: (kofin oto):

And these are the men whom we force to divorce their wives: A man smitten with boils, a man who has polypus, a gatherer of handfuls of excrement, a refiner of copper and a tanner. [In these cases a wife can demand a divorce since her husband is unbearably odious.] (Shottenstein commentary).

It is interesting to note that “fault” is not an issue in these cases. The “defects” that serve as a cause of action according to the Mishnah to compel a husband to divorce his wife—boils, leprosy, tanning, dung collection, bad breath (the Talmudic definition of “polypus”)—are not due to any fault on the part of the husband. Presumably, the defects enumerated in parashat ha-madir are so odious that the wife cannot be expected to maintain sexual relations with such a man. There is disagreement in the Talmud as to whether the development of major defects such as loss of limbs or the onset of blindness after the marriage would also be grounds for coercion (BT Ketubbot 77a).

Yevamot 65b adds “sterility” to the lists of defects that amount to a cause of action to coerce a husband to give his wife a get. The Talmud in Yevamot explains that a woman must be given the opportunity to bear a child in order to have someone to care for her in her old age. Like boils and bad breath, sterility is not due to any “fault” of the husband. It is a defect of the husband that the Talmud does not expect a woman to tolerate.

The Jerusalem Talmud raises an important question regarding the lists of defects set forth in parashat ha-madir.

If he is forced to divorce on account of bad breath, all the more so [he is forced to divorce] on account of mortal danger.

If a husband can be compelled to divorce his wife simply because he has bad breath, should he not be compelled to divorce his wife if he puts her in mortal danger by beating her? (JT, Gittin 9:9, 50d).

A similar question to that raised by the Jerusalem Talmud is posed in the rabbinic literature. Is the list of defects in parashat ha-madir exhaustive or can others be added to it? The Rosh (Rabbi Asher ben Jehiel, Spain c. 1250–1327) (Shut ha-Rosh, klal 43, ot 3) maintains that the list set forth in Ketubbot 7:10 is complete. Other rabbis, like the Maharam Alshaker (Egypt, 1466–1522), take issue with the Rosh. However, the prevailing attitude among the rabbis seems to limit the grounds for compulsion to the mostly irrelevant list set down in the parashat ha-madir (Mishnah, Ketubbot 7:10).

Limited Grounds upon Which a Woman Can Ask the Rabbis to “Order” Her Husband to Release Her and Pay Her the Marriage Contract; and the Limited Effect of Such Orders

The Talmud discusses a few situations in which it concludes that a husband “should divorce his wife and pay her ketubbah” (yozi ve-yiten ketubbah). The Talmud does not use the term kofin otohe is “compelled” to divorce his wife—as it does in Mishnah Ketubbot 7:10. Because of the use of the two different phrases, the rabbis of the Israel rabbinic courts are conflicted as to whether such situations in which the terms yozi ve-yiten ketubbah are used are sufficient grounds for issuing a decision “compelling” a husband to divorce his wife; or even merely “ordering” him to do so. Many maintain that when the term yozi ve-yiten ketubbah is used, as opposed to kofin oto, the circumstances described cannot serve as grounds for “compelling” the husband to divorce his wife. At best, this can serve as grounds for “ordering” him to do so.

Like those using the term “compulsion,” the causes of action in the Talmud that use the term yozi ve-yiten ketubbah are limited. They include: the refusal of a husband to support his wife (BT, Ketubbot 47b, 48a); and the refusal of a husband to have sexual relations with his wife (mored) (BT, Ketubbot 63a).

In practice, few divorce cases are actually decided on the grounds of the withholding of maintenance or conjugal relations. The rabbis have held that the court must compel a husband to support his wife, before they can compel him to divorce her (Shulhan Arukh, Even ha-Ezer 154:3). They have also held that if the wife is supported by the state welfare system, the husband meets his financial obligation to her and failure to support cannot be grounds for ordering him to divorce her (PD”R [Judgments of the Rabbinical Courts in Israel] 4:164). The rabbis also refrain from deciding cases based on the withholding of conjugal relations. Many husbands blame the refusal to cohabit on their wives, thereby absolving themselves of responsibility. However, in recent years one promising decision of the Jerusalem rabbinic court did hold that the reciprocal refusal to cohabit is tantamount to grounds for divorce.

Traditional fault grounds—what J. Herbie DiFonzo refers to as the “unholy trinity” of divorce grounds: “Adultery, Desertion and Cruelty”—are not even raised in the Talmud as grounds for divorce. It was only hundreds of years after the redaction of the Talmud that the issue of adultery on the part of the husband or domestic violence was even mentioned as grounds to require him to divorce his wife. In both those cases, most of the halakhic literature uses the term yozi ve-yiten ketubbah, and not kofin oto. (Abandonment is never grounds for Jewish divorce, since a missing husband cannot deliver a get.)

The issue of the fornicating husband (ro’eh zonot) is first raised in the Sefer Aguddah 77 (Rabbi Alexander Zuslin HaCohen). There, the source maintains, among other things, that the fornicator is worse than all other men mentioned in the Mishnah (Ketubbot 7:10) and that fornication with women other than one’s wife should be grounds for ordering a husband to give his wife a get (yozi ve-yiten ketubbah) since the fornicator wastes his limited resources on other women. However, most decisors take issue with the Aguddah and the prevailing view is that the husband’s adultery is not ground for a divorce. (What if, for example, the fornicator has plenty of money to waste and his wife is not hurt financially by his dalliances?) Moreover, the Haham Zvi (133) maintained that an adulterous husband must be “warned” before his behavior can amount to a cause of action for divorce.

In practice today, the attitude of the Israel rabbinic courts regarding the infidelity of husbands is not at all uniform or clear. Unfortunately, many rabbis show incredible tolerance and compassion for husbands who have sexual relations with other women and they do not automatically compel (or even order) them to give their wives a divorce. Eliav Shochetman has suggested that a court may even compel an unfaithful husband to give his wife a get since he is endangering his wife’s life by exposing her to sexual diseases such as AIDS. Most courts have not adopted this view.

One of the first times the issue of domestic violence is mentioned as ground for divorce in the Shulhan Arukh, Even ha-Ezer 154:3. There Rabbi Joseph Caro (1488–1575) maintains that beating one’s wife is a “sin” if unprovoked, and holds that a violent husband might be ordered to divorce his wife if he were warned that his behavior could result in such an order.

In 1991, Mordechai Frishtik surveyed modern rabbinic court decisions regarding domestic violence as grounds for divorce. He concluded that the vast majority of Jewish scholars would “impose” a get on a violent husband if it could be proven conclusively that the husband presented a threat to the life of his wife. However, if the violence was not a matter of habit or custom, the courts “do not tend to impose divorces in such cases.” Recently, some courts have exhibited greater empathy for the pain of women and have ordered husbands to divorce their wives even on the ground of emotional violence.

The distinction raised in this section between “compelling” (kofin oto) a husband to divorce his wife and “ordering” a divorce (yozi ve-yiten ketubbah) is not semantic. “Compulsion” authorizes the use of physical violence or imprisonment against a recalcitrant husband without the specter of the invalid forced divorce. In the words of Maimonides, “where the law allows for compelling a husband to divorce his wife and he refuses to do so …, he can be beaten until he says ‘I agree’ …” (Mishneh Torah, Hilkhot Gerushin [Laws of Divorce] 2:20).

“Ordering” a divorce, however, does not, at least according to some rabbinic judges, authorize the equivalent use of unlimited pressure on a recalcitrant husband that the term kofin oto does. Thus, the distinction between kofin oto and yozi ve-yiten ketubbah stays the hand of some rabbinic court judges who are asked to decide cases on grounds that are not specifically ones in which the Talmud uses the term kofin oto—compulsion. In those cases—which amount to almost all the cases that come before them—the rabbis sensitive to the distinction between kofin oto and yozi hesitate to apply any force against recalcitrant husbands that is more than merely persuasive. They are reluctant to apply those penalties enumerated in Hok Battei Din Rabbaniyyim (Kiyyum Piskei Din Shel Gerushin) 5755–1995—such as imprisonment, or the withholding of banking privileges, or the cancellation of professional licenses. Their halakhic dilemma which allows them to apply such penalties only under the very limited kofin oto circumstances is exacerbated by the fact that the law specifically allows them to impose those penalties even when they “order” the husband to give the divorce, or merely “advise” him to do so.

Irretrievable Breakdown of the Marriage (Ma’is Alai)

People often quote Maimonides’s position regarding the “repulsive husband” to support the notion that Jewish law allows for divorce based on the irretrievable breakdown of the marriage. According to Maimonides (Mishneh Torah Hilkhot Ishut 14:8), if a woman claims that her husband is repulsive to her (ma’is alai), the rabbis must compel her husband to give her a get immediately. Maimonides’s logic is that a woman is “not like a captive who can be compelled to have intercourse with those whom she despises.” It is unclear, however, whether Maimonides’s progressive position is based on the Talmudic reference to the rebellious wife (moredet) (BT, Ketubbot 63b–64a); or on the takkanat ha-geonim (regulations of the heads of the academies in Babylonia, 6th to 11th centuries) and dina de-mesivta (the legislation of the academy) (Breitowitz).

On the one hand, the Talmudic material regarding the rebellious wife maintains that a woman who despises her husband cannot be forced to have intercourse with him. But it is a matter of Talmudic debate whether a man must be forced to divorce such a woman. On the other hand, most rabbinic authorities maintain that the Legislation of the Academy specifically authorized rabbis to force Jewish husbands to give their wives a Jewish divorce in the event that their wives claimed that they were repulsive to them. The Legislation was issued by the sages of Sura and Pumpedita in the year 651 and was applicable until the thirteenth century (the time of Rabbenu Tam [Rabbi Jacob ben Meir Tam, c. 1100–1171]). The Legislation was apparently a response to the social phenomenon of Jewish women who, in the Middle Ages, appealed to the Muslim courts to coerce their husbands to give them a get and who were even willing to convert to Islam if their husband would not agree to divorce them.

Rabbenu Tam and the Rosh both take issue with Maimonides’s position that it is possible to coerce a husband to give a divorce to his rebellious wife who abhors him. The Shulhan Arukh (Even ha-Ezer 77:3) resolves this debate: A rebellious wife cannot be forced to have intercourse with her repulsive husband; but her husband cannot be forced to divorce her. He has the choice of keeping her to serve all his needs except his sexual ones; or to divorce her, at his discretion.

Rabbi Shear-Yashuv Cohen of Haifa has claimed that cases today should be decided in accordance with the Legislation of the Academy. A similar position could be attributed to Rabbi Eliezer Judah Waldenberg (b. 1912) regarding young women who, if their husbands refuse to divorce them, may be tempted to “act immodestly” i.e.: to ignore the need for the get and cohabit with other men (Ziz Eliezer 5:26).

Supreme Court Justice Moshe Silberg took the position that the debate between the Rosh, Rabbenu Tam and Maimonides did not refer to the cases in which the claim of the rebellious woman was reliable, sincere and above suspicion. He claimed that the Rosh and Rabbenu Tam, like Maimonides, would certainly agree to coerce a husband to give his rebellious wife a get, if the following could be proven:

a) that the wife truly despises her husband;

b) that such revulsion was for good reason (i.e.: the fault lies with her husband); and

c) that she does not merely “have her eye” on an alternative lover.

Zilberg’s claim is that the Rosh and Rabbenu Tam objected to the coercion of a blameless husband to release a wayward wife, but that they certainly would not object to such coercion if the husband were the cause of his wife’s suffering. This position was also taken by Rabbi Shlomo Dechovski, at least in one case.

Unfortunately, most contemporary rabbinic court judges do not order husbands to give their wives a get on the basis of their revulsion towards them.

Annulment (declaration that marriage is void ab initio since there was no meeting of the minds): Mekah Ta’ut

In 1997, Rabbi Emanuel Rackman set up a new rabbinic court to free women chained to dead marriages by recalcitrant husbands, without the need for a get to be given by the husband to the wife. This court has declared hundreds of Jewish marriages void, issued bills of divorcement in place of the husbands and has even married those freed women to other Jewish men.

The rationale behind the actions of the Rackman court is that since “grave errors,” “mistakes,” or “salient defects,” underscore the marriages at issue, the wives’ initial consent to marry their husbands was marred, rendering the marriages void. If the women had known of these errors, mistakes, or salient defects, they would never have entered into the marriage in the first place. Included in the Rackman court’s list of “grave errors” is: a) the fact that Jewish women are unaware that Jewish marriage renders them more like the property of their husbands (kinyan) than their partners; b) the fact that Jewish women are unaware that rabbinic courts in the Diaspora do not have the police power to compel a divorce when there are grounds for compulsion; and c) salient defects in the husband, including such character defects as violence, and the obstinacy to refuse to give a get.

Rackman’s activities have garnered the support of feminist scholars and activists such as Professor Susan Aranoff, Attorney Sharon Shenhav and Dr. Ruth Halperin-Kaddari. Dr. Aviad Hacohen, deputy dean of Sha’arei Mishpat, has written a defense of the Rackman court—in particular of the court’s declaration that a marriage is void based on a hidden but salient defect of the husband—entitled The Tears of the Oppressed: An Examination of the Agunah Problems: Background and Halakhic Sources. But most Orthodox leaders have responded to the propositions of the Rackman court with disdain and disregard.

One of the first written oppositions to the Rackman court was by Rabbi J. David Bleich in his 1998 article entitled Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem, mentioned above. Rabbi Bleich dismisses the possibility of arguing that the mistakes of Jewish women as to the property nature of Jewish marriage, or as to the lack of police power to enforce a compulsion order of the Diaspora rabbinic courts, can be the basis for declaring Jewish marriages to be void. He argues that most women would probably still enter into Jewish marriages even if they were fully informed of those mistakes.

Similarly, Bleich dismisses both character defects and salient non-character defects as grounds for annulment. Regarding character defects, Rabbi Bleich claims that such defects may well have developed only after a marriage (and perhaps as a result of marital discord), and that there is a halakhic presumption that such flaws did not pre-exist their appearance. Regarding salient non-character defects, it appears that Rabbi Bleich takes issue with those authorities who would allow for annulment in these cases. He summarizes his position as follows:

As Rabbi Yehuda Henkin has observed, there is no mention in Shulhan Arukh of annulment as a vehicle for dispensing with the need for a get. The notion that an undisclosed “grave defect” in a female constitutes grounds of nullification of a marriage as a matter of certainty while based upon early-day authorities who adopted such a position with regard to an eilonit [a woman with certain physical characteristics that indicate that she cannot bear children], is not to be found in the Shulhan Arukh. Extension of the principle in the course of the last century to include “grave defects” in the male can only be described as a post–Shulhan Arukh leniency.

Bleich seems to be taking issue with no less post-Shulhan Arukh “lenient” authorities than Rabbi Eliyahu Kletzkin, Rabbi Elhanan Spector, and Rabbi Moses Feinstein. All of those authorities have held that marriages to Jewish men who refused to give their wives a divorce could be annulled if, unknown to their wives, their husbands were homosexuals, impotent, epileptics, mentally ill or apostates when their wives married them.

Unlike Bleich, Rabbi Dr. Michel H. Broyde supports the position taken by the “lenient” post–Shulhan Arukh authorities. Indeed the Rabbinical Council of America, with Broyde at its head, has annulled at least one marriage based on the homosexuality annulment precedent set by Rabbi Moses Feinstein. However, Rabbi Broyde has expressed his vehement objection to the Rackman court (and Hacohen’s defense of that court), stating, among other things, that the Rackman court allows for the annulment of marriages based on defects in the husband that arose after the marriage was entered into—something that Rabbi Broyde feels is unfounded in the halakhic literature.

Annulment (declaration that marriage is void since it has not met the necessary legal prerequisites): Technical Defects

In order for a marriage to be considered to be “in accordance with the laws of Moses and Israel,” it must, like most legal transactions, meet certain formal requirements. Among such requirements are that the witnesses to the act of marriage must have the necessary eligibility to be witnesses. By Jewish law, this means that the witness must be a man; he cannot be a relative of the bride or groom; and he must observe the commandments (Maimonides, Mishneh Torah, Hilkhot Ishut 4:6: Hilkhot Edut 9:1; 13:1). Another formal requirement is that the ring with which the husband marries the wife (performs the act of kinyan) must have value and belong to the husband (BT Kiddushin 52a, b). It should not be borrowed from a third party or purchased by the wife.

The absence of one or more of these legal formalities allows for a declaration by the rabbinic courts that the marriage never took place and therefore that the wife does not need a get to end the marriage. Recently, a difficult Israeli case was resolved when a rabbinic court held that the marriage of a woman whose husband was incapacitated (he had unsuccessfully tried to kill himself and was in a permanent vegetative state) was void since one of the witnesses to the marriage was not a Sabbath observer. Sadly, the case was decided only after the woman had been denied relief for over six years; only after intense efforts were made by her rabbinic pleader, Rivka Lubitch; and only after pressure was applied by the printed and electronic media.

The “legal formalities” exceptions to the need for a get have also been applied with respect to marriages in which a double-ring ceremony took place, as well as to Jewish marriages that are performed by Reform or Conservative rabbis. Rabbi Moses Feinstein ruled that Reform and Conservative ceremonies never meet the formal requirements of a valid marriage “in accordance with the laws of Moses and Israel” (Igrot Moshe, Even ha-Ezer part 3, siman 25; part 4, siman 77 and 78). However, Rabbi Hayyim (Howard) Jachter, in an article entitled “Conservative Kiddushin,” has taken the position that, with respect to Conservative marriage ceremonies, such blanket rulings cannot be made and that the validity of each Conservative marriage must be decided on a case-by-case basis (Tehumin 18 [1998]: 84–91).

In an Israel rabbinic court ruling of 2003, Rabbi Shlomo Dichovsky was asked to determine the status of Reform marriages. He held that an Israeli couple who married both in Cyprus in a civil ceremony and in Israel in a Reform ceremony were not married “in accordance with the laws of Moses and Israel” but were married in accordance with Jewish law. Dichovsky deemed the Cypriotic-Reform marriage to be a “Noahite” marriage. A “Noahite” marriage is not null and void ab initio. It is a marriage that Jewish law recognizes and whose termination must be declared by a court of law. Dichovsky held that the Israel rabbinic courts could terminate the Noahite marriage following the determination that the marriage had irretrievably broken down. But since the “Noahite” marriage was not “in accordance with the laws of Moses and Israel,” there was no need for the husband to give his wife a get, or for the wife to accept the get in order for the marriage to terminate. Thus, by applying the “formalities” of Orthodox marriage ceremonies in such a manner as to invalidate Reform ceremonies, Rabbi Dichovsky’s ruling presents an interesting solution for those Israeli couples who choose to marry in non-Orthodox ceremonies and who want to avoid the pitfalls of Jewish divorce law. It also preserves the jurisdiction of the rabbinic courts over such marriages (Ha-din ve-ha-dayyan [The Law and Its Decisor] 5 (February 2004): 5–9).

Some Israeli Orthodox rabbis have thought of using other formalities of Orthodox marriage ceremonies to provide solutions for the problem of Jewish women and divorce, suggesting, for example, the introduction of invalid witnesses into Orthodox ceremonies. The rabbis seem to be particularly willing to adopt this solution in cases in which the couple getting married is not Orthodox. In Israel, all Jews must marry in Orthodox ceremonies in order for their marriage to be recognized by the state; hence most Orthodox marriage ceremonies in Israel are actually conducted among couples who are neither Orthodox nor even religious. Other Orthodox rabbis find it offensive to suggest that the marriage ceremony be deliberately flawed in any way.

Prenuptial Agreements

Since the 1950s advocates of Jewish divorce reform have been suggesting various types of prenuptial agreements to ameliorate the imbalance of power given to men over women in Jewish law in the event of divorce, as well as to remedy the resulting injustices.

In the United States, the prenuptial agreement most recommended is one attributed to Rabbi Mordechai Willig and introduced by the Rabbinical Council of America in 1996. It is composed of two documents: (1) Prenuptial Agreement, Husband’s Assumption of Obligation and (2) Prenuptial Arbitration Agreement Between Husband and Wife. A similar prenuptial agreement for use in Israel was initiated by Rabbis Elyashiv Knoll, Mordechai Ben Zazon and rabbinic pleader Rachel Levmore. It too is composed of two documents: (1) Agreement of Mutual Respect and (2) Property Agreement. This PNA was reviewed and moderated by a group of lawyers, rabbis and rabbinic pleaders who assembled together at the initiative of Kolech.

“Increased Maintenance”

Most prenuptial agreements, like the ones recommended by the rabbis of the Rabbinical Council of American and the Kolech initiative, are based on the halakhic authorization given to a husband to agree to pay his wife higher amounts of maintenance than he would ordinarily be obligated to under Jewish Law. (See Rashi on Genesis 27:9 citing Midrash Genesis Rabbah 65:14). Jewish law requires a husband to maintain his wife at minimal levels and does not obligate him to pay for her support if she works and keeps her earnings for herself, or if they are living apart. However, a husband can voluntarily agree to pay his wife higher support amounts, even if she is working and even if they are not living together. Under most of the suggested prenuptial agreements, a husband agrees to pay his wife a certain significant sum for every day that they live apart after they have been civilly divorced, or after a designated separation period. Since Jewish law does not require a husband to support his wife after their divorce (there is no alimony under Jewish law), such agreements give a husband a financial incentive to divorce his wife.

Some “increased maintenance” agreements are reciprocal. They provide an equivalent incentive to a Jewish woman to agree to accept a divorce from their husbands. Some agreements provide an absolute requirement to pay increased maintenance; some subject the increased maintenance to review by a rabbinic court. Some agreements authorize a rabbinic court to determine matters that are ancillary to a divorce, such as child support, child custody, or division of family property. Some limit rabbinic authority to the issue of the get.

Though well-intentioned, prenuptial agreements based on increased maintenance allowances are for the most part palliative. They ameliorate the plight of the woman refused divorce but they do not solve it. If a husband has disappeared, is insane, has no assets, or is rich and vindictive, such pre-nuptial agreements will, sadly, have no impact on him whatsoever.

“Tripartite”: Conditional Marriage, Agency and Communal Ordinance

In November 2004, Rabbi Dr. Michael Broyde attached what he refers to as a Tripartite Pre-nuptial Agreement to an article published by him in the electronic Edah Journal (4:2, Kislev 5765), entitled “An Unsuccessful Defense of the Bet Din of Emanuel Rackman: ‘The Tears of the Oppressed’ by Aviad Hacohen”). This agreement authorizes the rabbinic court to void a marriage by communal ordinance; establishes that a consecutive fifteen-month period of separation is a condition to void the marriage; and appoints agents to give the get in the husband’s stead. Should such an agreement be authorized by the Orthodox establishment, it would indeed resolve almost all problems of Jewish women and divorce.

Annulment: Hafka’ah

Another way of solving the problems of Jewish women and divorce is by having the rabbis, or a third party, end the marriage when a husband refuses to deliver a get to his wife or is unable to do so. Zahava Fischer of Kolech has spearheaded an attempt to introduce legislation that would effectively do just that. Based on halakhic maneuvering suggested by Professor Berachyahu Lifshitz, the legislation would give the rabbis, or the Knesset, the power to declare that the wife’s wedding ring did not belong to the husband. This legal act—a type of eminent domain, or legal confiscation of property—would retroactively invalidate the formal requirements of the halakhic marriage contract that the wedding ring with which a husband betroths his wife must belong to him. By declaring the wedding ring not to be the husband’s, the rabbis “invalidate” the marriage act, annulling the marriage and precluding the need for a get. In the legislation proposed by Lifshitz, this power to invalidate the marriage would be dependent on the husband’s refusal to give his wife a get after the rabbinic court had ordered him to do so.

The Knesset refused to pass this law and it has had very limited backing from the rabbis. Another problem with the law is that, as it is currently proposed, the Knesset’s right to confiscate a husband’s property interests in his wife’s wedding ring would again be dependent on the decision of the rabbinic court that orders the husband to give his wife a get. As described above, such decisions are difficult to come by and are usually awarded in very limited circumstances.

Civil Responses: New York Get Law, Tort Litigation

Over the years, Jewish women all over the world have appealed to the civil courts for help in resolving the problems of Jewish women and divorce.

France was one of the first states willing to open up its civil courts to redress the harm done to Jewish women by husbands who wielded their liens maliciously. Since the 1950s, French courts have consistently awarded damages to wives whose husbands refused to remove barriers to their remarriage despite their civil divorce, declaring that such actions inflicted mental distress in violation of section 1382 of the French Civil Code. French courts have made such judgments even when husbands tried to justify their behavior by pointing to the fact that their wives had violated their contractual or legal rights (to visitation, for example). The French courts do not accept any excuse from husbands for wielding their unilateral power to withhold the get. And despite attempts by French husbands to claim that damage awards violate the halakhic prohibitions against the forced divorce, French rabbis seem to have taken the position that, insomuch as such damage awards relate to time past (and not to the future), they do not violate Jewish law.

British courts have also responded to the needs of Jewish women. In 1967, a London court awarded a wife a delayed lump sum payment of £5,000 for spousal support if her husband did not grant her a get within three months (Brett v. Brett [1969] 1 All ER 1007). The judges justified the deferred award by claiming that the conduct of the husband “preclud[ed] the possibility of the wife remarrying and thus finding some other man to support her”; and that the husband was trying to “use his power to bargain and avoid payment of part or any maintenance award.” In 1980, a family court in Sidney, Australia, citing Brett, issued a similar decision awarding $2,000 (Australian dollars) in deferred alimony to a wife, claiming that her husband was using “his power to prevent the wife from remarrying and gaining the benefit of additional financial support which might come to her from marriage.”

New York State has one of the largest concentrations of Jews outside Israel. In 1985, the New York State legislature passed a law (familiarly known as the first New York Get Law) (N.Y. Dom. Rel. §253) (McKinney 1988), requiring plaintiffs, as a prerequisite for filing for divorce, to declare that they had removed, or were willing to remove, the barriers to remarriage of their spouse. Not satisfied with the deterrent impact of that law, in 1992 the New York legislature passed an additional law (the second New York Get Law), allowing a judge to take into consideration the failure to remove barriers to remarriage when awarding alimony or dividing marital property. (N.Y. Dom. Rel. §236B Section 5(h)) (McKinney 1988).

In addition to applying specific legislation on the matter, New York family courts (as well as those in New Jersey and Illinois) have also shown great creativity in helping Jewish women defeat their vengeful husbands, deciding on various occasions, for example, that the ketubbah requires husbands to give their wives a divorce and ordering husbands to do so; and that extortionist divorce agreements could be invalidated as unconscionable. In 2000, Judge Gartenberg of the New York Family Court voided such an agreement in which a Mrs. Giahn gave up almost all of her rights to marital property in exchange for the get. Despite the agreement and the fact that the wife fulfilled her part of the bargain, Mr. Giahn “sadistically” failed to give his wife a get for eight years. The judge held that the “coerced, unconscionable, and overreaching” divorce agreement “exploit[ed] the power differential between the parties” and invoked principles of “equity” and the “intentional infliction of emotional distress” to award all the marital property to the wife (some $400,000).

Like Europe and the United States, Canada has passed civil legislation and has issued judicial decisions meant to help Jewish women seeking a Jewish divorce. The Canadian Divorce Act and the Ontario Family Law Act both include statutes that, like the first New York Get Law, limit legal relief available to recalcitrant spouses. (Canadian Divorce Act §21.1; Ontario Family Law Act §§2(4); 2(7)). A specific Ontario law enables courts to set aside settlement agreements—in whole or in part—in which “removing a barrier to remarriage was a consideration in reaching the settlement or agreement.” (Ontario Family Law Act § 56(5)–(7). In 2003, a Montréal judge ordered a husband, who had for fifteen years refused to give his wife a get, to pay his ex-wife $37,000 (Canadian) for having been “restrained to marry according to the Jewish faith”; as well as $10,000 (Canadian) for “having been restricted of having children.” (In October 2005 this decision was overturned on appeal.)

Following the examples of New York State and Canada, South Africa, England and Wales have also passed variations of the first New York Get Law. Australian interest groups have made recommendations to pass a similar law in Australia, but to date have not succeeded.

Israeli civil courts have been more reluctant than Canada, Europe, South Africa, Australia and the United States to tamper with the sanctity of Jewish divorce. Israeli courts have historically refused to overturn contracts in which women gave up their rights in exchange for the get, citing “consideration” or the “sanctity of contract” as reasons to uphold such agreements. On rare occasions, the Israeli civil courts have awarded increased marital support to a wife whose husband refuses to give her a Jewish divorce. But such awards are dependent on rabbinic court orders and are limited both in sum, as well as to cases in which a woman is not otherwise entitled to marital support.

In December 2004 , in a case litigated by attorney Susan Weiss, Judge Menahem HaCohen ordered a husband to pay his wife NIS 425,000 for not giving her a get. The Center for Women’s Justice, an Israeli feminist NGO, is bringing litigation in the attempt to expand the HaCohen precedent. There is, however, no Israeli statutory equivalent to the New York Get Laws, the Canadian Divorce Act, the Ontario Family Law Act, the South African Divorce Amendment, the British Family Law Act or the French Civil Code. Attempts are currently underway in Israel to adopt such legislation.

Bibliography

Ahituv, Yoske. Ma’is Alai (Hebrew). Lecture for Kolech: 2003; Bleich, J. David. “Modern Day Agunot, A Proposed Remedy.” Jewish Law Annual 167 (1981); Bleich, David. “Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem.” Tradition 90 (1998): 33; Breitowitz, Irving A. Between Civil And Religious Law, The Plight Of The Agunah In American Society. Westport, Connecticut: 1993; Epstein, Louis M. Sex Laws And Customs In Judaism. New York: 1981; Falk, Ze’ev. Jewish Matrimonial Law In The Middle Ages. London: 1966; Frishtik, Mordechai.Physical and Sexual Violence by Husbands as a Reason for Imposing a Divorce in Jewish Law.” Jewish Law Annual 145 (1991); Halperin, Ruth. “Adulterous Behavior on the Part of the Husband as a Cause of Action to Coerce Him to Divorce His Wife” (Hebrew). Mehkarei Mishpat 7 (1989): 297–329; Hauptman, Judith. Rereading the Rabbis. Boulder, CO: 1998, 102–105; Herring, Basil and Kenneth Auman, editors. The Prenuptial Agreement: Halakhic and Pastoral Consideration. Lanham, MD: 1996; Horsburgh, Beverly. “Lifting the Veil of Secrecy: Domestic Violence in the Jewish Community.” Harvard Women’s Law Journal (1995) 171:19; Jachter, Rabbi Hayyim (Howard). “Conservative Kiddushin” (Hebrew). Tehumin 18 (1998): 84–91; Niddam, Jean Claude. “The Position Taken by the French Civil Courts in Suits for Jewish Divorces against Recalcitrant Husbands” (Hebrew). Diné Israel 385 (1981–1983): 10–11; Schereschewsky, Benzion. Family Law in Israel (Hebrew). Jerusalem: 1984; Shochetman, Eliav. “Annulment of Marriages” (Hebrew). Shnaton Ha-Mishpat Ha-Ivri 20 (1997): 349–397; Idem. “AIDS as a Cause of Action for Divorce” (Hebrew). Mishpatim 25 (1995): 19–44; Wegner, Judith Romney. “The Status of Women in Jewish and Islamic Marriage and Divorce Law.” Harvard Women’s Law Review 5 (1982): 1–33; Weiss, Susan. “Sign at Your Own Risk: The RCA Prenuptial May Prejudice the Fairness of Your Future Divorce Settlement.” Cardozo Women’s Law Journal 6 (1999): 49–101; Silberg, Moshe. “Personal Status in Israel” (Hebrew). Publications of the Faculty of Law at Hebrew University 4 (1961).

How to cite this page

Weiss, Susan. "Divorce: The Halakhic Perspective." Jewish Women: A Comprehensive Historical Encyclopedia. 1 March 2009. Jewish Women's Archive. (Viewed on August 27, 2014) <http://jwa.org/encyclopedia/article/divorce-halakhic-perspective>.

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