Divorce, Jewish

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Divorce, Jewish

Divorce, while always regarded as sad, has been permitted in Judaism since the days of the Bible. Even though Genesis 2:24 describes marriage as becoming "one flesh," the Jewish tradition never understood that ontologically—that is, never understood that the husband and wife become one being, impossible to separate—but rather metaphorically, for their unity in sexual intercourse. Moreover, Deuteronomy 24:1–4, in the process of forbidding a man to remarry his original wife after taking another woman in marriage and divorcing her, specifically describes the approved grounds and method of divorce: "She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorce, hands it to her, and sends her away from his house."

The method of divorce prescribed by the Torah is clearly a writ handed to the woman by the man. No court has the power to dissolve the relationship without the husband's act. While this protects the parties from public interference, it leaves the wife in a disadvantageous position. The rabbis of the Mishnah (ca. 200 c.e.) and Talmud (ca. 500 c.e.) tried to mitigate that by spelling out the duties of the husband toward his wife in marriage—duties that required him to provide her with food, clothing, housing, sex, medical care, and redemption from captivity—so that if a husband fails to furnish one or more of these things, the rabbinic court would exert social and ultimately punitive pressure on him either to fulfill his marital duties or to divorce her. In the end, though, in classical Jewish law only the husband can initiate a divorce, and several modern feminists are seeking to change that outright or to mitigate its sexism.

Because American law asserts authority over marital status, a divorcing American Jewish couple must first satisfy the state's requirements. Jewish law, though, also asserts authority over marital status, and it does not recognize the power of any court to substitute for the husband's initiative. To be remarried by an Orthodox or a Conservative rabbi, the couple must also obtain a Jewish writ of divorce (a get).

In a small number of cases, one or the other spouse refuses to carry through the procedure of Jewish divorce. If the woman refuses, the court will accept the husband's writ on her behalf and permit him to remarry. On the other hand, if the man refuses to authorize a writ of divorce, the court cannot act in his stead. If the man refuses for good reason—for example, as a means to pressure his former wife to adhere to the civil court's decree granting him visitation rights with his children—then the rabbinic court will not exert any pressure on him to authorize the writ until she complies with the terms of the divorce. If, though, he is simply trying to vex her or even to bribe her, the court will try to convince him to change his behavior, using social pressure if necessary. If that fails, the Conservative rabbinate will annul the original marriage so that she can remarry. The Orthodox rabbinate will not do that, and so a number of Orthodox women are "chained" (agunot) to their first husbands, unable to remarry in accordance with Jewish law. To avoid this problem, many Conservative rabbis and a few Orthodox ones use a special marriage contract (ketubbah) or write a special prenuptial agreement (t'nai b'kiddushin), indicating that the couple agrees that their marriage will be retroactively dissolved if they are divorced in civil law but fail to be divorced in Jewish law.

The Reform movement accepts the civil decree as the substitute for the Jewish writ of divorce. This, of course, simplifies the procedure and ensures a more egalitarian treatment of the individuals involved, but it poses the possibility that some Jews will be ineligible to marry others. Specifically, if a woman does not obtain a get before remarrying, her sexual relationship with her second husband is adultery, and her children by her second marriage are illegitimate (mamzerim) — disqualified from marrying another Jew for ten generations (Deuteronomy 23:3)!

The ambiguous language in Deuteronomy 24:1 led to a dispute in the first and second centuries regarding the grounds for divorce:

the school of shammai says: a man may not divorce his wife unless he has found something improper in her [that is, she violates jewish law], as it is written, "because he find something obnoxious in her." but the school of hillel says, even if she spoiled his food, as it is written, "because he finds something obnoxious in her." rabbi akiba says, even if he found another more beautiful than she is, as it is written, "she fail to please him." (mishnah, gittin 9:10)

The law followed the School of Hillel, and so the couple need not show any grounds to justify their divorce; incompatible differences are enough. This is starkly different from the position taken by most forms of Christianity and most American states until the 1970s, where the couple had to show adultery or insanity to justify a divorce.

Even though Judaism does not consider divorce a sin, and even though divorce in some circumstances may be the best thing for all concerned, nevertheless Judaism recognizes that divorce is always sad. It represents, after all, the broken dreams and hopes of the couple, and it inevitably makes life more difficult for any children involved. The Talmud (Gittin 90b) declares that the altar in God's Temple sheds tears over divorce.

Thus the Jewish community historically has made every effort to keep marriages intact. Moreover, in Jewish tradition people should get married not so much for love, but rather to fulfill the divine plan for both men and women in enjoying sexual relations, having children, raising them, and caring for each other throughout life. For these reasons, the Jewish divorce rate before the last third of the twentieth century was less than 5 percent. The fact that the Jewish divorce rate in the United States is currently more or less the same as the rate among non-Jews—approximately 50 percent of all marriages—indicates that Jews have adopted America's individualism and its understanding of marriage as primarily a vehicle for romance. Rabbis are increasingly requiring couples to enroll in courses preparing them for marriage to diminish the instance of divorce.