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Divorce

DIVORCE (Heb. גֵּרוּשִׁין), the formal dissolution of the marriage bond.

IN THE BIBLE

Divorce was accepted as an established custom in ancient Israel (cf. Lev. 21:7, 14; 22:13; Num. 30:10; Deut. 22:19, 29). In keeping with the other cultures of the Near East, a Hebrew in early biblical times could divorce his wife at will and send her from his home. This is reflected in the use of such terms as shalle'aḥ (e.g., Deut. 21:14; 24:1, 3), garesh (e.g., Lev. 21:7; Ezek. 44:22), and hoẓiʾ (Ezra 10:3; cf. Deut. 24:2) for divorce actions. It also accounts for the survival of the view down to the Christian era that "the woman goes out (yoẓe'ah) whether she pleases or not, but the husband sends her out (moẓiʾ) only if it so pleases him" (Yev. 14:1).

The biblical, like the Mesopotamian, law codes did not set down the law of divorce in all of its details. Instead, some of its provisions were stated in brief – almost in passing – within the context of a law restricting the right of a man to remarry his divorced wife (Deut. 24:1–4). Specifically, the husband was required to write her "a bill of divorce" (sefer keritut), hand it to her, and send her away from his house (Deut. 24:1; cf. Isa. 50:1; Jer. 3:8). The content of this document is unknown, though it has been conjectured that it contained the formula, "she is not my wife nor am I her husband" (Hos. 2:4). Z. Falk is probably right in assuming that biblical divorce remained essentially an oral declaration, witnessed by the writ. This accords with the actual Sumerian practice which required the husband to pronounce the formula "you are not my wife" and to pay his wife half a mina of silver before he dismissed her from his home. Moreover, as others have shown, the term keritut itself may be derived from the ancient Sumerian ceremony requiring the husband to cut the corner of his wife's garment to symbolize the severance of the marriage bond (cf. Ruth 3:9). In any event, biblical law was concerned with the finality of the divorce action and its attendant publicity, so that there might be no questions raised later with regard to the remarriage of the divorcée. Furthermore, the requirement that a bill of divorce be issued in writing and that the wife be formally sent out of her husband's house before the marriage was dissolved, kept him from acting rashly in a moment of anger. The prohibition of remarrying the same woman, if, in the interim, she had married another (Deut. 24:4; Jer. 3:1) acted, similarly, as a moderating influence. Finally, it has been suggested that a woman was entitled to some kind of a financial settlement in the event of an arbitrary divorce action. This is not clearly stipulated in the biblical texts. Still, the existence of such a requirement appears likely from its prominence in other Near Eastern codes (cf. e.g., The Code of Hammurapi, 137–140; in: Pritchard, Texts, 172). It also helps explain a husband's willingness to defame his wife despite the scandal to his household and the possible punishment to himself (Deut. 22:13–21), because presumably he could thus rid himself of her without any penalty. The Bible records only two types of situations in which the husband was stripped of his right of divorce. The first is the one just mentioned, in which he falsely accused his wife of prenuptial intercourse. The second resulted from his having ravished a virgin who had never been engaged to another man (Deut. 22:28–29). These instances and the requirements mentioned above were the only limitations set on a man's authority to dissolve his marriage. Bet Hillel was clearly correct in its interpretation of ervat (ʿerwat) davar (Deut. 24:1) as any kind of obnoxious behavior or mannerisms, and in concluding that a man was not restricted to grounds of sexual offense in seeking to divorce his wife (Git. 90a; cf. Deut. 23:15). Still, there are no instances in the Bible when a man sent his wife away lightly. On the contrary, Abraham is depicted as resisting the expulsion of his concubine (Gen. 21:11–12), Paltiel wept when he had to give up Michal (II Sam. 3:14–16), and Ezra encountered significant opposition when he called on the men to give up their foreign wives (Ezra 10:3ff.). The ideal of marriage was that of a permanent union (cf. Gen. 2:24) and conjugal fidelity was praised (Eccles. 9:9). Divorce did remain a necessary evil and was probably resorted to most often in the event of the barrenness of the marital union (cf. Gen. 30:1). There were instances, however, when living together must have been unbearable, and women did abandon their husbands (cf. Judg. 19:1–3; Jer. 3:20) since they had no legal recourse. The Torah did recognize, though, that a man had to discharge certain obligations toward his wife, and she, presumably, had the moral right to leave him if he refused to do so (cf. Ex. 21:10–11). The lot of the divorcée was not a pleasant one (cf. Isa. 54:6). Generally she returned to her father's home (Lev. 22:13), leaving her children with her former husband. Special arrangements were probably made for suckling infants; in later law, boys, at least, had to be returned to their father's home by the time they were six years old (Ket. 65b). The divorcée was free to remarry, but was prohibited to a priest (Lev. 21:7), indicating that some stigma was attached to her. Moral anguish speaks out of Malachi's denunciation of the frequency of divorce in Judea in the fifth century B.C.E. (2:13–16). At about the same time, the Jewish military colony in Elephantine seems to have adopted practices from their Egyptian neighbors which strengthened the woman's position in her marriage. In the three complete marriage contracts of this colony published to date (see bibl.: Cowley, 15, and Kraeling 2, 7), each spouse had full power to dissolve the marriage without establishing any grounds in "matrimonial offenses." The husband had to return his wife's dowry regardless of who had initiated the divorce proceedings, and he had to give her all of her possessions before she was required to depart from his home. These practices, however, had no basis in biblical law, though some scholars have found echoes of them during the talmudic period and later.

BIBLIOGRAPHY:

GENERAL: J. Freid (ed.), Jews and Divorce (1968). IN THE BIBLE: Cowley, Aramaic, nos. 9, 15, 18; Pedersen, Israel, 1–2 (1926), 71, 232; L.M. Epstein, The Jewish Marriage Contract (1927), index; Epstein, Marriage, 41–42, 53; J. Patterson, in: JBL, 51 (1932), 161–70; C.H. Gordon, in: ZAW, 54 (1936), 277–80; I. Mendelsohn, in: BA, 11 (1948), 24–44; E. Neufeld, The Hittite Laws (1951), 146ff.; J.J. Rabinowitz, in: HTR, 46 (1953), 91–7; D.R. Mace, Hebrew Marriage (1953), 241–59; E.G. Kraeling, The Brooklyn Museum Aramaic Papyri (1953), nos. 2, 7, 14; A. van Selms, Marriage and Family Life in Ugaritic Literature (1954), 49ff.; R. Patai, Sex and Family in the Bible and the Middle East (1959), 112–21; de Vaux, Anc Isr, 34ff.; R. Yaron, Introduction to the Law of the Aramaic Papyri (1961), 44–65; J. Hemple, Das Ethos des Alten Testaments (1964), 70–71, 165ff.; B. Cohen, Jewish and Roman Law, 1 (1966), 377–408; Z. Falk, Jewish Matrimonial Law in the Middle Ages (1966), 113–43; B. Porten, Archives from Elephantine (1968), 35, 209ff., 223–4, 261–2; Pritchard, Texts (19693), 159–98, 222–3. IN JEWISH LAW: D.W. Amram, The Jewish Law of Divorce … (1896); L. Blau, Die juedische Ehescheidung und der juedische Scheidebrief… 2 vols. (1911–12); I.B. Zuri, Mishpat ha-Talmud, 2 (1921), 36–56; Gulak, Yesodei, 3 (1922), 24–30; B. Cohen, in: REJ, 92 (1932), 151–62; 93 (1934), 58–65; idem, in: PAAJR, 21 (1952), 3–34; republished in his: Jewish and Roman Law (1966), 377–408; addenda, ibid., 781–3; ET, 5 (1953), 567–758; 6 (1954), 321–426; 8 (1957), 24–26; Elon, Mafte'ah, 26–37; M. Silberg, Ha-Ma'amad ha-Ishi be-Yisrael (19654), 365–75; Berkovits, Tenai be-Nissu'in u-va-Get (1966); B. Schereschewsky, Dinei Mishpaḥah (19672), 271–342; M. Elon, Ḥakikah Datit… (1967), 165–7; idem, in: ILR, 3 (1968), 432f. ADD. BIBLIOGRAPHY: M. Drori, "Enforcement of Divorce in the State of Israel at the End of the 20th Century," at: www.sanhedrin.co.il; A. Be'eri, "Harḥakot Rabbeinu Tam: New Approaches to Pressuring a Husband to Divorce His Wife," in: Shenaton ha-Mishpat ha-Ivri, 18–19 (2002–4), 65–106; "Individual versus Public Interest (Fear of Agginot as Opposed to an Extradition Order)," in: Teḥumin, 9 (1988), 63.