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,
[David L. Lieber]
IN LATER JEWISH LAW
Talmudic literature also uses the terms shalle'aḥ, hoẓiʾ (see above). Divorce must be distinguished from a declaration of nullity of marriage in which the court declares that no marriage ever came into existence so that all rights and duties flowing therefrom – personal or pecuniary – are rendered inoperative ab initio (i.e., in the case of a marriage prohibited on account of incest according to biblical law). It must also be distinguished from an annulment of marriage, i.e., the retroactive invalidation thereof by decree of the court (see *Agunah; *Marriage). "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" (Deut. 24:1). This verse, stated in relation to the prohibition against a man remarrying his divorced wife after her marriage to another man (see *Marriages, Prohibited), provides the basis for the system of divorce practiced according to Jewish law, i.e., there is no divorce other than by way of the husband delivering to his wife – and not vice versa – a bill of divorcement, in halakhic language called a get pitturin or simply get (a word having the meaning of shetar, or bill: see Maim. Comm. to Mishnah, Git. 2:5). The rabbis stated that "whosoever divorces his first wife, even the altar sheds tears" (Git. 90b; cf. Mal. 2:14–16), and therefore she should not be divorced unless "he found something obnoxious about her" – an expression whose exact meaning was the subject of a dispute between Bet Hillel, Bet Shammai, and Akiva (Yev. 112b; Git. 90a). However, in terms of a rabbinical enactment known as the Ḥerem de-Rabbenu Gershom (see also *Bigamy, *Monogamy) it became prohibited for the husband to divorce his wife against her will (Rema EH 119:6; for the text of the ḥerem in relation to divorce see PDR 1:198). In Jewish law, divorce is an act of the parties to the marriage, whereby it is to be fundamentally distinguished from divorce in many other systems of law, in which the essential divorce derives from a decree of the court. In Jewish law the function of the court – i.e., in the absence of agreement between the parties – is to decide the question whether and on what terms one party may be obliged to give, or the other receive, a get. Even after the court has thus decided, the parties nevertheless remain married until such time as the husband actually delivers the get to his wife. At the same time, it is the function of the court to ensure that all the formalities required for divorce are carried out according to law.
Divorce by Mutual Consent
Jewish law shows a further distinction from many other legal systems in that the mere consent of the parties to a divorce,
Divorce other than by Consent
In the absence of an agreement between the parties to a divorce, the court is required to decide whether or not there is a basis for obliging or – in cases where this is permitted by law – for compelling the husband to give, or the wife to receive, a get.
The decision of the court is dependent upon the existence of any of the grounds recognized as conferring a right on the wife or husband to demand a divorce.
RIGHT OF THE WIFE TO DEMAND A DIVORCE
The wife is entitled to demand a divorce on the grounds of (a) physical defects (mumim) in her husband or (b) his conduct toward her.
Physical Defects as Grounds for Divorce.
In order to obtain a divorce on the grounds of physical defects the wife must prove that these preclude him, or her, from the possibility of cohabition, e.g., because he suffers from a contagious and dangerous disease – "afflicted with boils and leprosy" – or because the defects are likely to arouse in her feelings of revulsion when in his proximity, and the like. In the case of the unreasonable refusal of the husband to comply with the judgment obliging him to give his wife a get of his own free will in these circumstances, the court may compel his compliance (Ket. 77a and codes; PDR 3:126). The question whether judicial coercion is possible in the case of epilepsy is disputed, and the practice of the courts is to oblige – but not compel – a divorce on this ground (PDR 1:65, 73f.; 2:188, 193), save in exceptional cases, e.g., where there is the danger of the wife becoming an agunah (PDR 4:164, 171–3). The wife is also entitled to a divorce if she is childless and claims that she wishes to have a child but that her husband is incapable of begetting children (Yev. 65a/b and codes; Resp. Rosh 43:4; PDR 1:5, 8; 2:150). The wife must satisfy the court, as a precondition to divorce on this ground, that she is not seeking the divorce for pecuniary reasons or because she has "set her eyes on another" (Yev. 117a and codes; Resp. Rosh 43:2; PDR 1:364, 369). Similarly, she must prove her claim that her husband is the cause of her childlessness; the lapse of ten years from the time of her marriage without her having been made pregnant by her husband establishes a presumption that there are no longer any prospects of her bearing her husband any children (Yev. 64a and codes; PDR 1:5, 9, 10, 369). If the husband claims that the cause does not lie with him, he may demand that the matter be clarified by submission of himself and his wife to a medical examination; if his claim is established, he is exempted from paying his wife's *ketubbah (Yev. 65a; Resp. Rosh 43:12; Sh. Ar., EH 134; Beit Shemu'el 134, n. 14). A comparable cause of action arises from the wife's claim that her husband is impotent (i.e., he lacks ko'aḥ gavra; see *Marriage). The claim is grounded not on the wife's desire to raise a family but on her right to sexual relations as such, and it is therefore of no consequence that she already has children, nor is she required to wait for ten years (Yev. 65b and codes; PDR 1:5, 9, 55, 59, 82, 84; 5:154). If the evidence leaves room for the conclusion that medical treatment may possibly lead to the husband's recovery, the court will refrain from obliging the husband to give a get immediately (Yev. 65b and codes; PDR 1:81, 84–89; 5:239). In principle, the wife's claim as to her husband's impotence is accepted as trustworthy in terms of the rule that she is believed in matters between her husband and herself; however, corroboration of her statements is required (Rema EH 154:7, PDR loc. cit.). In the opinion of some authorities, a wife who succeeds in her claim would also be entitled to the sum mentioned in her ketubbah, since her trustworthiness extends also to the pecuniary aspect (Pitḥei Teshuvah EH 154:7; Ha-Gra, ibid., n. 41); according to others, full proof is required with regard to the latter aspect (Tur and Sh. Ar., EH 154 and commentators thereto). However, should the wife have married her husband with knowledge of his defects, or if she acquired such knowledge after their marriage and nevertheless continued to live with him, she is considered to have waived her objections unless she is able to show that the defects became aggravated to an extent which she could not have foreseen (Ket. 77a and codes; PDR 1:5, 9, 10; 2:188, 192; 6:221, 223). If she is able to account for her delay on grounds which negate any waiver of rights on her part (such as failure to approach the court because of her embarrassment), her right to a divorce is likely to remain unaffected even if considerable time has elapsed since she first became aware of her husband's defects (PDR 1:11–12). No claim can be based on defects or circumstances which, however serious they may be, do not preclude the wife from cohabiting with her husband – e.g., his loss of a hand, leg, or an eye, etc. – whether occurring after the marriage or before, unless she proves that she did not know or, despite investigation, could not have known of the existence of the defect, and provided that she claims a divorce within a reasonable period after becoming aware thereof (Ket.
Conduct of the Husband as a Ground for Divorce
Unjustified refusal of conjugal rights on the part of the husband entitled his wife to claim a divorce (Sh. Ar., EH 76:11; for her ancillary or alternative rights in this case, see *Moredet). Similarly, the wife may claim a divorce on the ground of her husband's unjustified refusal to maintain her when he is in a position to do so, or could be if he was willing to work and earn an income. In this event she may also claim *maintenance without seeking a divorce (Ket. 77a, according to Samuel, contrary to Rav). The court will not decree that a divorce should be given on the husband's first refusal, but only if he persists in his refusal after being warned and obliged by the court to pay her maintenance (PDR 5:329, 332). Were the husband totally unable to provide her with the minimum requirements ("even the bread she needs"), some authorities are of the opinion that he can even be compelled to divorce her, whereas others hold that there is no room for compulsion since his default is due to circumstances beyond his control (Yad, Ishut 12:11; Sh. Ar., EH 70:3 and commentators; PDR 4:164, 166–70). The husband will not however be obliged to grant his wife a divorce if he maintains her to the best of his ability, even if this be the measure of "a poor man in Israel" and not in accordance with the rule that "she rises with him but does not go down with him" (see *Maintenance; Sh. Ar. and commentators, loc. cit., PDR loc. cit.). Unworthy conduct of the husband toward his wife with the result that she cannot any longer be expected to continue living with him as his wife constitutes a ground for her to claim a divorce ("a wife is given in order that she should live and not to suffer pain": Ket. 61; Tashbeẓ, 2:8). The ground is established when his conduct amounts to a continued breach of the duties laid down as a basis for conjugal life, i.e., "let a man honor his wife more than he honors himself, love her as he loves himself, and if he has assets, seek to add to her benefits as he would deal with his assets, and not unduly impose fear on her, and speak to her gently and not be given to melancholy nor anger" (Yad, Ishut 15:19, based on Yev. 62b; see also *Marriage). Thus the wife will have a ground for divorce if, e.g., her husband habitually assaults or insults her, or is the cause of unceasing quarrels, so that she has no choice but to leave the common household (Rema EH 154:3; Ha-Gra, ibid., n. 10; Tashbez, loc. cit.; PDR 6:221). The same applies if the husband is unfaithful to his wife (Sh. Ar., EH 154:1 and commentators; PDR 1:139, 141); similarly, if he "transgresses the Law of Moses" – for instance when he causes her to transgress the dietary laws knowing that she observes them, or if he has intercourse with her against her will during her menstrual period (see *Niddah; Rema EH 154:3; PDR 4:342). If the husband is able to persuade the court that his wife has condoned his conduct (PDR 1:139, 142), or of his genuine repentance, the court will not immediately oblige the husband to grant a divorce. The court will direct the parties to attempt living together for an additional period in order to ascertain whether a divorce is the only answer for them, unless it is satisfied that no purpose will be served by such delay (Sh. Ar. and commentators, loc. cit.; PDR 1:87–89; 3:346, 351; 4:257, 259).
RIGHT OF THE HUSBAND TO DEMAND A DIVORCE
The grounds on which the husband may demand a divorce (i.e., since the Ḥerem de-Rabbenu Gershom) are mainly similar to those which afford the wife this right against him, and previous awareness or condoning of these defects invalidates his claim (PDR 1:66).
Defects (or Disabilities) of the Wife
In addition, however, defects of the wife which provide the husband with grounds for a divorce are those which are peculiar to a woman as such, and which prevent the husband from cohabiting with her, or which render her unfit for or incapable of such cohabitation (Nid. 12b; Yad, Ishut 25:7–9; Resp. Rosh 33:2; Sh. Ar., EH 39:4 and 117:1, 2, 4; PDR 4:321; 5:131, 193). Included in such defects, according to the majority of the authorities, is epilepsy (Resp. Rosh 42:1; PDR 2:129, 134–6; 5:131, 194). If the husband was aware of such defects prior to the marriage or later became aware – or could have become aware – that they had existed before the marriage but still continued to cohabit with her, he will be considered to have condoned them and they will not avail him as grounds for divorce (Ket. 75 and codes; PDR 1:66; 5:193). Similarly a defect which becomes manifest in the wife only after the marriage does not provide the husband with a ground for divorce, unless she is afflicted with a disease carrying with it mortal danger, such as leprosy, or she has become incapable of cohabiting (Ket. loc. cit. and codes; PDR 2:129, 134–6; 5:131, 194). The husband may demand a divorce if his wife has failed to bear children within a period of ten years of their marriage, and he has no children (even from another woman), provided that he persuades the court of his sincere desire to have children (Rema EH 1:3; Sh. Ar., EH 154:1; see also Oẓar ha-Posekim EH 1, n. 13–60; PDR 4:353).
Conduct of the Wife
The husband will have ground for demanding a divorce if his wife knowingly misleads him into "transgressing the Law of Moses," as when she has sexual relations with him during her menstrual period and conceals this fact from him, or when she causes him to transgress the dietary laws, etc., knowing that he observes these laws (Ket. 72a and codes), but not if she acted inadvertently, or out of fear, or in ignorance of the law, or if the husband has by his own conduct shown that he is not particular about them (Rema EH 154:3; PDR 3:346, 350). Similarly, the husband may claim a divorce if his wife shows habitual immodesty or deliberately slights her husband's honor, as when she curses or assaults him, and generally any conduct on her part tending to disrupt normal family life in such manner as to convince the court that no further condonation and continuation of the matrimonial relationship can be expected of the husband (Ket. 72; Sot. 25a; codes; PDR ibid.). Condonation of the above also deprives him of his cause of action for divorce. A similar ground for divorce arises when the husband is able
Divorce in the Case of a Prohibited Marriage
The court will always compel a divorce at the instance of either party to a prohibited marriage of the sort in which the marriage is valid when performed (see *Marriages, Prohibited), regardless of whether or not they had knowledge of the prohibition, as a matter of law or fact, and regardless of their continued cohabitation after becoming aware of the prohibition (Ket. 77a; Git. 88b; and codes).
The Will of Parties
To be valid, a get must be given by the husband of his own free will and is therefore invalid if given while he is of unsound mind, or under duress contrary to law (Yev. 112b; Git. 67b, 88b; and codes). "Contrary to law" in this context means the exercise of compulsion against him when it is not permitted in any way by law, or its exercise in an invalid manner; for instance, if he gives the get in order to escape a payment imposed on him contrary to law, even by judgment of the court. Such a case may be when he is ordered to pay maintenance to his wife or children without being at all liable for this, or when he is ordered to pay an excessive amount (PDR 2:9–14). However, if the law specifically authorizes that he be compelled to give a get – as in the cases mentioned above – or if he is lawfully obliged to make a payment to his wife – e.g., when ordered to pay interim maintenance in an amount due to his wife pending the grant of a get and he has the option of escaping this obligation by granting the get – then the get will not be considered to have been given by him under unlawful duress, since his own prior refusal to give it was contrary to law (Yad, Gerushin 2:20; BB 48a; Sh. Ar., EH 134:5). In order to obviate any suspicion that the get may have been given under duress contrary to law, it is customary, before the get is written and before delivery therefore, for the husband to annul all moda'ot, i.e., declarations made by him before others in which he purported to have been compelled to give a get (Beit Yosef EH 134:1; Sh. Ar., EH 134:1–3).
There must be free will on the part of the wife also to receive the get as laid down in the ẓerem de-Rabbenu Gershom, in order to maintain the prohibition against polygamy (see *Bigamy) lest the husband circumvent the prohibition by divorcing his wife against her will and thus become free to take another wife. The wife was therefore given a right similar to that of the husband and cannot be divorced except with her consent (Resp. Rosh 42:1; Rema EH 119:2). This applies even in those communities which did not accept the said ḥerem against polygamy (cf. Oẓar ha-Posekim 1, n. 68, 12). Already according to talmudic law, it was forbidden to divorce a woman who had become of unsound mind, even though it was not prohibited to divorce a wife against her will. If her condition is such that she is "unable to look after her bill of divorcement," the latter will be invalid according to biblical law since it is enjoined that "he shall give it in her hand" (Deut. 24:1) and such a woman has no "hand" in the legal sense (Yev. 113b and codes). Where she "knows how to look after her get" even though she "does not know how to look after herself," she still cannot be divorced, but in this case by rabbinical enactment, lest advantage be taken of her and the husband will remain liable for all pecuniary obligations to her even if he should take another wife (ibid.). This is all the more so in terms of the aforesaid ḥerem, since in both cases the wife is incapable of receiving the get of her free will. Whereas talmudic law did not require the husband to obtain permission of the court before taking another wife, the ḥerem had the effect of prohibiting the husband from doing so, save with the permission of 100 rabbis. (On the question of the first wife's legal status after the grant of permission as aforesaid, see *Bigamy.)
Execution of the Divorce
Divorce is carried into effect by the bill of divorcement being written, signed, and delivered by the husband to his wife. It is written by a scribe upon the husband's instruction to write "for him, for her, and for the purpose of a divorce." The materials used in the writing must belong to the husband and the scribe formally presents them as an outright gift to the husband before writing the get. The strictest care must be taken with the formula of the get, most of it in Aramaic, and the text is, with minor differences, according to the wording given in the Talmud. To obviate errors, it is still the practice at the present day to write the bill in Aramaic, although writing in any other language is theoretically permissible (Git. 19b, 87b and codes; on the rules of writing a get, its form and language, and the effect of variations therein, see Sh. Ar., EH 120ff.; for the version customary in Ereẓ Israel, see ET, 5 (1953), 656; see also Yad, Gerushin 4:12; Sh. Ar., EH "Seder ha-Get" following n. 154). The following is a translation of an Ashkenazi get, according to the general usage in the Diaspora:
The bill of divorcement is composed of the tofes, i.e., the formula common to all such bills, and the toref, i.e., the specific part containing the details of the particular case, concluding with the declaration that the woman is henceforth permitted to any man. Care must be taken to write the correct date on which the bill is written, signed, and delivered, otherwise it can be invalidated as a bill which is "anticipatory" or "in arrear" of the true date of its writing or signature or delivery (Sh. Ar., EH 127). The husband should also be careful to avoid sexual relations with his wife between the time of writing and delivery of the bill since such a bill, called an "antiquated" one (get yashan), although valid in the final instance, may not be used in the first instance (Git. 79b; Sh. Ar., EH 148:1). Once the witnesses sign the get, it is delivered by the husband to his wife in the presence of "witnesses to the delivery" (generally the same witnesses as sign; Sh. Ar., EH 133:1). Delivery of the get in accordance with the regulations renders the wife divorced from her husband and free to marry any man save those to whom she is prohibited by law, e.g., a kohen or paramour (see *Marriages, Prohibited). It is customary that after the wife has received the get she gives it to the court, who presents her with a document stating that she has been divorced according to law. The court then tears the get in order to avoid any later suspicion that it was not absolutely legal and files it away in its torn state (Beit Shemu'el 135:2; Sh. Ar., EH 154 (Seder ha-Get), ch. 6; Sedei ẓemed, Asefat Dinim, Get 1:23). The rules pertaining to the writing, signing, and delivery of a get are very formal and exact in order to avoid mistakes or a wrongful exploitation of the get, and they must therefore be stringently observed. (The exact details are to be found in Sh. Ar., EH 124–39.) As a result it was laid down that "no one who is unfamiliar with the nature of divorce (and marriage) may deal with them" (Kid. 13a). The Mishnah mentions a particular form of get which was customary in the case of kohanim, who were regarded as pedantic and hot-tempered and therefore likely to be hasty in divorcing their wives. This form of get – called a "folded" or "knotted" one as opposed to a "plain" get – consisted of a series of folds, each of which (called a ke sher) was stitched and required the signature of three witnesses (two in the case of a "plain" get) who signed on the reverse side and not on the face, between each fold. All this was done to draw out the writing and signing of the get so that the husband might reconsider and become reconciled with his wife (BB 160ff.). The "folded" get was customary in ancient times only and the rules pertaining to it are omitted from most of the codes (e.g., Maim., Tur, Sh. Ar.).
Agency in Divorce
Although divorce in Jewish law is the personal act of the husband and wife, their presence in person is not a necessary requirement for its execution. Delivery and receipt of the bill of divorcement, like any regular legal act, may be effected through an agent in terms of the rule that "a man's agent is as himself " (see *Agency; Git. 62b and codes). Appointment of the agent is made before the court by way of a power of attorney (harsha'ah), i.e., a written document very carefully and formally prepared to include all the relevant details, in which the agent is empowered to delegate his authority to another, and the latter to another in turn, etc. (Sh. Ar., EH 140:3; 141:29–30). An agent appointed by the husband for the purpose of delivering the get to his wife is called "the agent of delivery" and the get takes effect only upon delivery thereof by the husband or his agent to the wife or her agent, the latter called "the agent of receipt" (Sh. Ar., ibid.). In the latter case the fact that the wife may not know exactly when the get takes effect is likely to result in complications and doubts and it has not therefore been customary to resort to agency of this kind (Rema EH 141:29). The wife may also appoint a "delivery" agent – i.e., to deliver the get to her (and not to receive it on her behalf) after receiving it from the husband or his agent – in such manner that she will become divorced only upon delivery
A get may be written and delivered conditionally, that is so as not to take effect except on fulfillment of a stipulated condition, e.g., if the husband should fail to return to his wife within a specified period or that no word from, or concerning him, shall be forthcoming until then. The condition must not contradict the basic nature of divorce, i.e., the absolute severance of the marriage relationship between the husband and wife. To have validity it is necessary that all the complicated laws pertaining to *conditions be observed at the time of its imposition. Similarly, it must later be carefully investigated whether all the facts required to establish fulfillment of the condition have been adequately proved, since there is at stake the random divorce of a married woman. The doubts and complications attaching to a conditional get are likely to be particularly severe in the light of a rabbinical enactment to the effect that a plea of accident (force majeure, see *Ones) does not avail in divorce. Thus, contrary to the general rule that a person is not responsible for his act or omission resulting from accident, the husband cannot plead that the condition to which the validity of the get was subject was fulfilled only on account of accident – such as his failure to return in time due to an unforeseeable disruption of the means of transportation (Ket. 2b, 3a; Sh. Ar., EH 144:1; see also *Takkanot). Hence in general the practice is not to permit a conditional get save in exceptional cases, and then the above-mentioned laws may be of great practical importance, e.g., in times of persecution or war when there is separation between husband and wife and the danger of her becoming an agunah. In such cases the practice is sometimes adopted of granting a get on condition, e.g., if the husband should fail to return from the war by a certain date the get shall be deemed to be effective, and the wife divorced and free to remarry without need for a levirate marriage or ḥaliẓah. Upon fulfillment of the condition, the get will take effect either immediately or retroactively to the time of its imposition, according to the terms thereof, and provided that everything had been done in strict conformity with all the requirements of the law (Sh. Ar., EH 143, 144, 147; see also *Agunah, *Levirate Marriage). This aim may also be achieved by the conditional appointment of an agent, e.g., the appointment by the husband, before going to war, of an agent given written authority to write a get in his (the husband's) name and to deliver such to his wife, on condition that the power of attorney is not acted upon unless the husband should fail to return home within a stated period (Sh. Ar., EH 144:5, 6). The court itself may be thus appointed and may in turn, in terms of authority generally granted in the power of attorney, delegate its authority to a third party. A deathbed divorce (see *Wills) is also a conditional get, i.e., one given by a husband on his deathbed so as to free his wife from the requirement of a levirate marriage or ḥaliẓah. In practice such a get will also have no validity except if the husband dies, whereupon it will take effect retroactively from the date of its delivery (see Sh. Ar., EH 145).
Consequences of Divorce
Upon divorce, the parties are generally free to remarry as they please save as prohibited by law. The wife becomes entitled to the return of her own property from the husband, in accordance with the rules of law pertaining to the husband's liability therefor (see *Dowry). She is similarly entitled to payment of her ketubbah and dowry, save where she forfeits her ketubbah, e.g., because of her adultery. Divorce terminates the husband's legal obligation to maintain his wife, since this duty is imposed only during the subsistence of the marriage (Sh. Ar., EH 82:6). For charitable reasons, however, it is considered a mitzvah to sustain one's divorced wife more extensively than the poor at large (Rema EH 119:8). Upon divorce the parties are not permitted to continue their joint occupation of the former common dwelling, lest this lead to promiscuity (Sh. Ar., EH 6:7; 119:7, 11). If the dwelling belonged to one of them, whether owned or hired, it must be vacated by the other party and if it belonged to both it must be vacated by the wife (ibid.), as "the husband has greater difficulty in moving about than the wife" (Ket. 28a); although sometimes the courts, in order to settle financial matters between the parties, or in awarding compensation to the wife, will decide that the dwelling remain in her hands (see e.g., OPD, 158, 163 no. 6). If the divorced parties nevertheless continue to jointly occupy the dwelling, or later return thereto – as testified to by witnesses – they will be presumed to have cohabited together as husband and wife for the sake of a marriage constituted by their sexual intercourse (kiddushei bi'ah: see *Marriage). This follows from the rule that "a man does not have intercourse for the sake of promiscuity if he is able to do so in fulfillment of a precept," i.e., it will not
IN THE STATE OF ISRAEL
In terms of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713–1953, matters of marriage and divorce between Jews, citizens or residents of the state, fall within the exclusive jurisdiction of the rabbinical courts, which jurisdiction extends to any matter connected with the suit for divorce, including maintenance for the wife and for the children of the couple (sec. 3(1)). Divorce for Jews is performed in accordance with Jewish law (sec. 2). In applying the halakhah the rabbinical courts have introduced an important innovation, namely the award of monetary compensation to a wife who is being divorced; this is done even when the divorce is not specifically attributable to the fault of the husband, but the court, after close scrutiny of all the facts, is persuaded that the situation prevailing between the parties does not, objectively speaking, allow for the continuation of their marriage. In this event, the court, upon the husband's demand that his wife be obliged to accept a get, will customarily oblige the former to pay a monetary or equivalent compensation to his wife – in addition to her ketubbah – in return for her willingness to accept the get (OPD 51–55; PDR 1:137). The extent of the compensation is determined by the court, having regard to all the circumstances, including the financial position of the parties and their respective contributions to the state of their assets.
[Ben-Zion (Benno) Schereschewsky]
The legal position in Israel regarding the enforcement of divorce may be divided into two periods, the first extending from 1953 to 1995, and the second from 1995 onwards.
The Legal Position from 1953
The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713–1953 established the following procedure for enforcement of a judgment compelling the husband to grant a get to his wife, or compelling the wife to accept a get from her husband: "Where a rabbinical court, by final judgment, has ordered that a husband be compelled to grant his wife a get, or that a wife be compelled to accept a get from her husband, a district court may, upon expiration of six months from the day of the making of the order, on the application of the Attorney General, compel compliance with the order by imprisonment (sec. 6 of the Jurisdiction Law)."
This Law enumerates the following preconditions for imprisonment as a means of compelling the husband to grant a divorce: (a) the rabbinical court judgment ordering a compulsory get is a final one; where an appeal against the judgment is pending, it cannot be enforced; (b) the authority is granted exclusively where the judgment compels the giving of the get, and not where the ruling is that there is an obligation to give a get (HC 822/88 Rozensweig Borochov v. Attorney General, 42 (4) PD 759, 760); (c) six months have passed since the final judgment was given, and the get has not been given; (d) after that period, the Attorney General, and not the spouse, is authorized (at his own discretion – see HC 85/54 Zada v. Attorney General, 8 PD 738) to apply to the district court, requesting it to enforce compliance with the judgment, by way of imprisonment. The district court, and on appeal the Supreme Court, is the only legal instance empowered to compel the giving or receiving of a get by imprisonment of the spouse who refuses to comply with the judgment of the rabbinical court. The Law does not stipulate the length of the period, nor is it of fixed duration. The imprisonment terminates upon the granting of the get. In one case, the recalcitrant husband remained in prison for a number of decades until he died (CA 164/67 Attorney General v. Yichhieh & Ora Avraham, 22 (1) PD 29).
The power to determine whether there is a need to compel the granting of a get in a particular case is vested exclusively in the local rabbinical court, and in the Supreme Rabbinical Court, as an instance of appeal (see entries on *Bet Din and *Appeal). The Jurisdiction Law of 1953 established a mechanism for dual civil supervision over the compulsion of a get: (a) the initiative was neither of the spouse nor of the rabbinical court, but rather of the Attorney General; (b) the judicial instance that actually decided on the imprisonment of the recalcitrant spouse was the civil instance (the district court) and not the rabbinical court. According to the decision of the Supreme Court sitting as the High Court of Justice, the rabbinical court was not permitted to circumvent this supervisory mechanism by way of "intimidatory maintenance" (excessively high maintenance payments as a way of pressuring the husband into granting a get). This is because the legislation explicitly provided that the only way of enforcing judgments to compel the granting of a get is by way of an application made by the Attorney General, followed by a decision of the civil court. It follows therefore that this power was not conferred on the rabbinical court. An attempt on the part of the rabbinical court to procure the compulsion of a get by way
The Legal Position since 1995
About 40 years after the enactment of the Jurisdiction Law of 1953 – and in view of the surfeit of unresolved agunah cases as a result of the complex mechanism described above – the Knesset pioneered a solution to the problem by the enactment of a special law to deal with enforcement of divorce judgments: The Rabbinical Courts Law (Upholding Divorce Rulings) (Temporary Provision), 5755–1995 (see *Agunah for a brief description of this Law).
The Law was initially enacted as a temporary provision, but after a few years it became a permanent law. Over the years a number of additions and amendments were introduced in the wake of the lessons derived from its implementation.
The Law introduces the following innovations, in contrast with the situation that had existed since 1953: (1) the rabbinical court judgment need not be final (as in the 1953 law); even if the judgment can be appealed, the provisions of the 1995 Law apply; (2) the power to compel the granting of a get under the 1995 Law is not limited specifically to cases in which judgment was given for the compulsion of a get (as in the 1953 Law). Hence, section 1 of the 1995 Law provides: "For purposes of this section, it is immaterial if the judgment used the wording of compulsion, obligation, mitzvah (positive precept), suggestion or any other wording"; (3) moreover, the 1995 Law can be invoked 30 days after judgment is given for granting the get, and there is no need to wait six months, as was the situation under the 1953 Law; (4) the authority to compel the spouse to comply with the divorce judgment no longer rests with the civil authorities (the Attorney General and the district court) as under the 1953 Law; this authority has been conferred on the rabbinical court; (5) the procedure itself is initiated by the spouse, who is no longer dependent on the Attorney General's application to the district court; (6) the rabbinical court is permitted, at its own initiative, to impose or to amend restrictive orders; (7) under the 1995 Law, the period of coercive imprisonment cannot exceed five years, but, if necessary for the purpose of fulfilling the judgment, the rabbinical court is permitted to extend this period from time to time, provided that the total period of imprisonment does not exceed ten years (under the 1953 Law the imprisonment period was unlimited).
Another innovation of the 1995 Law was the establishment of a hierarchy of sanctions, collectively known as "restrictive orders," which the rabbinical court is authorized to impose on the recalcitrant husband (see *Agunah for a specification of the restrictive orders).
Regarding criminal inmates who refuse to give or accept a get, the Law establishes special provisions within the framework of restrictive orders, which include the denial of benefits generally granted to inmates, such as: receiving furloughs, sending letters, receiving visitors, work in prison, and the like. Similarly, the rabbinical court is authorized to issue an order stating that an inmate of this ilk will not be released on parole, or will not be entitled to an administrative release.
The aforementioned restrictive orders of the 1995 Law are a modern application of the harḥakot (sanctions) of Rabbenu Tam, which allow the ostracizing of husbands who refuse to grant a get by prohibiting all social contact with them (SHEZ 154:211 Rema, and see in further detail *Agunah). Indeed, the rabbinical courts have not regarded themselves as being limited to the specific restrictive orders enumerated in the 1995 Law, and in appropriate cases they added social-religious sanctions, such as not including the recalcitrant husband in a minyan, not giving him an aliyah to the Torah, prohibiting his burial in a Jewish cemetery, publicizing the entire matter, etc.
However, the most important and primary sanction established by the 1995 Law is the authority of the rabbinical court to imprison a person who refuses to comply with the divorce judgment. This imprisonment has proven to be particularly effective, and there have been quite a few cases in which the recalcitrant husband gave a get after just a short period in prison by order of the rabbinical court.
A special problem arises when the reluctant husband is in prison, serving a sentence for a criminal offense. How does one wield the imprisonment sanction against this kind of prisoner in order to compel him to give a get to his wife? The Law stipulates that, in such a case, service of the criminal sentence is discontinued, and from the date of the rabbinical court's order, the sentence being served by the inmate is regarded as being for his failure to give a get. After having given the get, he resumes the service of his criminal sentence (see section 47 of the Penal Law, 5737–1977).
Regarding inmates serving a sentence for a criminal offense, there may be cases in which the rabbinical court deems that imprisonment for compulsion of the get is not effective. In such cases, under section 3A of the 1995 Law, it is empowered to order that the inmate be held in solitary confinement for short, 14-day periods, and thereafter for seven-day periods, with intervals of seven days.
The rabbinical court has particularly broad discretionary powers under the 1995 Law. The Supreme Rabbinical Court supervises the rabbinical courts' implementation of the Laws by way of its power to stay execution of a restrictive order and within the framework of an appeal. This supervisory power applies both to restrictive orders and to the imprisonment that can be imposed on the husband refusing to give a get.
When recalcitrant husbands refusing to give a get petitioned the High Court of Justice, claiming that the imprisonment order issued by the rabbinical court violated their constitutional rights, their petitions were dismissed by dint of this brief and incisive argument: "The petitioner holds the key to his release from prison; when he gives the get to his wife, he will go free" (HC 3068/96 Goldshmidt v. Goldshmidt and the Supreme Rabbinical Court; HC 631/97 Even Tzur v. Supreme Rabbinical Court).
Originally, the 1995 Law regulated the manner of enforcing the get in cases where the husband is the party obliged to give the get. But the Law was amended shortly after its enactment, prescribing slightly different provisions for cases in which the wife refuses to accept a get from her husband. While the nature of the sanctions against the husband or the wife is essentially the same, with respect to their imposition on women, sections 1(c), (e), and (f) of the Law place the following two limitations: the first is the requirement of the advance approval of the president of the Supreme Rabbinical Court; the second is that, if restrictive orders against the wife have already been issued, the husband's application for permission to marry will not be adjudicated until three years have passed since the restrictive order was given.
It should be mentioned that the provisions of the 1995 Law do not detract from the provisions of the 1953 Law, and it is possible to enforce a divorce under either one of the two laws. However, in view of the effectiveness of the new law, since its enactment in 1995 it has been used exclusively, and the 1953 law is no longer applied.
Great importance is attached to the 1995 Law and the sanctions that have been imposed by rabbinical courts for enforcement of divorce judgments, and they have led to a significant reduction in the number of agunot in Israel. The rabbinical courts also relied upon the existence of enforcement measures in Israel as a justification for extending their jurisdiction to include Jewish couples with a limited connection to Israel, especially in cases in which they were civilly divorced abroad, and the woman requires a get according to the halakhah in order to be able to remarry (see judgments of the Supreme Rabbinical Court, Appelbaum v. Appelbaum, File 1239–53–1, and Anon. v. Anon., judgment from 30.6.04). The latter judgment was adjudicated in HC 6751/04 Sabag v. Supreme Rabbinical Court. The majority view (Justices Procaccia and Adiel) was that the rabbinical courts in Israel do not have jurisdiction to adjudicate these cases. The minority view (Justice Rubinstein) was that the rabbinical court is competent to adjudicate the maintenance payments for a wife who is prevented from marrying due to the husband, even when the spouses are foreign residents, but Jewish. It should be noted that the Law was amended in 2005, and subject to a number of conditions stipulated in the amended Law, the Israeli Rabbinical Court now has jurisdiction over Jewish couples that were married abroad in accordance with din torah, and the 1995 Law applies to those couples as well (see in detail in the entry *Bet Din).
The aforementioned Knesset legislation of 1995 therefore makes an important contribution towards the resolution of the problem of the agunah, but the solution it provides is partial only, and the entire subject of the agunah still awaits an appropriate and desirable solution. The appropriate path for a comprehensive solution of the agunah problem is discussed in detail under *Agunah.
In other dimensions too, the Israeli legal system operates in order to enforce the divorce and prevent a situation of agunah. For example, Elon opined that extradition abroad of a person suspected of murder could be delayed for at least one year in order to enable the rabbinical court to process the divorce of the parties involved, and thus prevent a situation in which the wife of the candidate for extradition would become an agunah; see HC 852/86 Aloni v. Minister of Justice, 41 (2) PD 1, 70 onwards (see 9 Teḥumin, 63 for the judgment of the rabbinical court).
There is now a new method for assisting in the enforcement of divorce judgments of the rabbinical courts if the wife receives a judgment obligating the husband to divorce her, and the husband refuses to comply: in such a case, the wife can sue him for the damage caused to her. In a recent ruling, the Jerusalem Family Court awarded damages in a case of this kind, basing itself on the general rules of negligence. The court ruled that the husband's failure to comply with the rabbinical Court's ruling, ordering him to give his wife a get, constituted a grave violation of the wife's autonomy and her right to self-realization. It violated her dignity and her freedom, causing her emotional damage by sentencing her to a life of loneliness, lack of partnership, intimacy, and sexual relations with a member of the other sex (FF 19270/03 Anon. v. Anon.: given by Judge Menahem Hacohen on 24.12.04).
[Moshe Drori (2nd ed.)]
In 1897, the Russian Jews in the Pale of Settlement had a much higher divorce rate than other religious or ethnic groups. Jewish men in the relatively large cities had, on the average, 5.4 divorces per 1,000 males, while the others had only 2.2 per 1,000. In the case of the females the index was 19.1 and 5.4 respectively. Those who lived in smaller communities or rural places had a smaller percentage of divorces. It thus appears that the Jewish population had a much higher divorce rate than non-Jews. In both instances there was a larger percentage of divorces among the women than the men (since women are less likely to remarry) and those who lived in large cities had a higher divorce rate than their coreligionists in towns and rural communities. European Jewish communities witnessed in the years before World War I an upward trend in their divorce rate. One-eighth of those who were divorced or separated in Austria in the years 1882–89 were Jewish, but in the decade 1890–99 they constituted 15.8%, falling to 9.7% in the years 1900–12. Since in Austria the Jews formed only 4.8% of the population in 1890 and 4.6% in 1910, divorce was more prevalent among them than among other religious groups, many of whom were Roman Catholics. However, during this period, relating the number of divorces and separations to the number of marriages, the Jews had a lower rate of increase in divorces than others. The same was true of Prussia where during the same period the Jewish divorce rate continued to rise, but not as fast as the one of non-Jews. This suggests that the attitude of non-Jews to divorce was changing, and once this
In Australia, where the number of divorces increased between 1911 and 1954, the male index rising from 7 to 38 and the female from 11.5 to 48.7, the Christians had in 1954 about the same percentage of divorces as the Jews. Canada had in 1931 a very small percentage of divorces, partly because those who had been separated from their spouses were not reported as such. Moreover, adultery was officially the only ground for divorce. The 1941 census report, however, had data on divorce and separation according to ethnic origin in cities with at least 30,000 inhabitants. Taking Montreal, Toronto, and Winnipeg, the three largest Jewish communities, the results were: the index for Jewish males was 14.8 and for Jewish females 24.8, while for the other males and females it was 26.3 and 40.7 respectively. The differences are mainly due to the fact that Jews have a low separation index.
Muslims usually have a large percentage of divorces. The Jews in Egypt had a much lower index of divorces than the Muslims. In and around Alexandria and Cairo, the index of divorces of the Muslim males in 1927 was 44.9 and that of the Jews 12.7; the corresponding female indices were 64.1 and 25.6. The Christians had about half as many divorces as the Jews. Twenty years later, the index of the Muslim males had dropped to 26.5 and that of the females to 49.7, while the Jewish indices had increased to 15.1 and 27.0. In 1951 in Morocco Jewish males had a relatively smaller number of divorces than Muslims, the indices being 14.4 and 22.6. However the female index of 57.6 was higher than that of Muslim females.
As far as the United States is concerned, it is difficult to assess the divorce rates of any of its religious or ethnic groups since the agencies which collect data on marriage and divorce do not use such classifications. Nor does the Bureau of the Census report the marital status of the population according to religious or ethnic origin. The only sources of information are surveys of Jewish communities or samples of the population in which Jews are included. As few attempts have been made to survey very large communities and some of the investigators do not use standard definitions or classifications, the results of these surveys and studies are suggestive rather than conclusive. Though the so-called family crisis at the beginning of the period of mass immigration was probably neither very serious nor of long duration, Jewish social agencies became very much interested in the family life of the immigrant. Studies made in the early 20th century showed that desertion was not as prevalent among Jews as among other ethnic and religious groups. An analysis of the Chicago Court of Domestic Relations in 1921 demonstrated that only 10.4% of the deserters whose religion was the same as their wives were Jewish. In 1929–35, when about one-tenth of Chicago's population was Jewish, only 5.5% of the non-support cases were Jewish couples, with those of Jewish origin whose spouses were not Jewish accounting for another 0.7%. In Philadelphia in the years 1937 to 1950, when Jews constituted about 16% of the white population, they accounted for 11.8% of the white couples who were divorced. Baltimore Jews also had low desertion and divorce rates. In 1936 and 1938, when at least one-tenth of the white population was Jewish, they formed only 5.3% of the white deserters. Similarly in the Detroit Jewish community broken homes were less prevalent than in other religious groups there. According to a metropolitan survey in 1958 only 4% of the Jewish respondents who had ever married reported that they had been divorced, as compared with 8% of the Catholics and 16% of the Protestants. However, a study made in 1955 reported that the Jews in several cities had a higher divorce and desertion rate than Protestants. Taken on the whole, these results show that divorce, separation, and desertion were less prevalent among American Jews than others, and surveys of Jewish communities made since 1946 showed that they have a relatively smaller number of broken homes than the rest of the white population. Divorce was more prevalent among those whose spouses are not Jewish than when both of them are of Jewish origin. (The above statistics are quoted by N. Goldberg
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.
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