The Bible presents divorce as a unilateral action, undertaken by the husband. The woman may neither initiate the process herself, nor protest it. It tells us that the husband who wishes to divorce his wife issues her a Get, the writ of divorce. The women has no role or say in this process
In the Rabbinic period, many of the ancient forms remained (including the Get, the formal writ of divorce), but the dynamics of marriage had changed. No longer the purchase of a woman from her father, marriage had become a negotiated relationship between two parties, with the husband dominant and the wife subordinate. Divorce, therefore, had to change as well. The tractate Gittin deals with the laws of divorce and divorce documents.
We will engage in close study of two texts from its fourth chapter of the tractate Gittin: a Mishnah and then the comments of the Babylonian Talmud on that Mishnah. Along the way we will also mention some related texts, including the Palestinian Talmud. In doing so, we will see examples of transitions in divorce law, and the rabbinic attitudes that they reflect.
At first, a man would convene a court in a different location [from where his wife was living] and cancel the get [he had sent and not inform her of his actions]. Rabban Gamliel the Elder passed a law prohibiting men from doing so, in order to repair the social order Mipnei Tikkun Ha-Olam
By restricting a man's freedom of action, by requiring him to inform his wife that he cancelled the get he sent her, Rabban Gamliel repaired the social order, which means, in this case, improving the lot of women and children. Until that time, a woman could receive a get that looked perfectly valid, remarry, and only afterward, most likely by chance, find out that her husband had cancelled it. In such a case her second union would be adulterous and the children of that union mamzerim.
In this passage, Rabban Gamliel essentially closed the gap that was developing between law and ethics. Allowing a husband to cancel a get after it was drawn up and dispatched but before it was delivered to her was reasonable, but it became unreasonable and unfair if he were not required to inform his wife of the cancellation. So, even though divorce was exclusively in a man's hands, Rabban Gamliel placed limits on him.
Rabban Gamliel's larger point is the unfairness of delivering to a wife a get that looks perfectly valid, only to have her discover at a later date that it was a worthless piece of paper. This is just one indication of the main purpose of the entire tractate: the attempt to create standards for the preparation and delivery of the get that will make it impossible for it later to be found invalid. Since it is only women who need a get, these standards aim to protect them.
Support for this idea can be found in the second part of the very same mishnah (4:2). It reports that Rabban Gamliel the Elder introduced yet another enactment to repair the social order: that all names by which the husband and wife are known be entered into the get so that there will be no question as to who is divorcing whom. Were there a question, the validity of the get would be suspect and the wife who should be free to remarry would be tied to her (first) husband.
The Significance of these Laws
The Mishnah lists these laws in the context of a whole collection of laws enacted "For the sake of repairing thesocial order". Following it is another well-known collection of enactments made for the sake of peace, mipnei darchei shalom (Mishna Gittin 5:8,9). Little attention has been paid to the fact that changes benefiting women, primarily with respect to the dissolution of marriage, head the list of tikkun ha-olam enactments and determine its placement in M Gittin. These new rules make an extraordinarily powerful statement about the rabbis' ability to introduce legislation independent of, and even, as the gemara will point out, contradictory to Scripture, when acting to restore the system to a stance of social justice. Once more, however, it should be noted that these changes needed to be made only because society, and divorce law in particular, was configured in a patriarchal and hierarchical manner. In contradistinction to the rules of Jewish divorce, Roman law, in the late Republic, allowed either a man or a woman to terminate a marriage, simply by one saying to the other, "Take your things for yourself."
What does "for the sake of repairing the social order" mean?
R. Yohanan said: [He made] this enactment [to reduce the number] of mamzerim.
Resh Lakish said: [He made] this enactment [to reduce the number] of agunot.
These two amoraim disagree about which social wrong Rabban Gamliel came to repair. R. Yohanan holds that Rabban Gamliel's enactment was intended to reduce the number of instances in which the news will not reach the wife's ears and she will remarry and bear illegitimate children before she finds out about her husband's cancellation. Resh Lakish, according to the gemara, explains the enactment differently. He says that by making a cancellation more difficult to execute, it is unlikely that a man whose only aim is to torment his wife, to keep her tied to him but not live with her, would bother to intercept the messenger. As a result, the number of agunotwomen anchored to their first husband from whom they are separatedwould decrease.
The Palestinian Tamud (Gittin 4:2; 45c) mentions the same opinions of Rabbi Yohanan and Resh Lakish, but explains Resh Lakish's statement in a different way which is more to my liking. It says that if a man is permitted to cancel a get without informing his wife, then a woman who receives a get by messenger will worry that it may have been revoked after it was mailed but before she received it and will, therefore, refrain from remarrying, thus becoming a self-imposed agunah. She will consider herself tied to a man she is not living with but who has, in fact, divorced her. Once the enactment was made, a woman no longer had to fear that a get that looked valid was not.
There is no need for us to choose between the comments of Resh Lakish and R. Yohanan. The two rabbis probably intended to complement each other, as suggested by R. Huna, since the enactment reduces both the number of mamzerim and of agunot. In either case, Rabban Gamliel's larger point is the unfairness of delivering to a wife a get that looks perfectly valid, only to have her discover at a later date that it was a worthless piece of paper. This leads us once more to the main purpose of the entire tractate: the attempt to create standards for the preparation and delivery of the get that will make it impossible for it later to be found invalid. Since it is only women who need a get, these standards aim to protect them.
The gemara continues with a discussion of the broader implications of this change in the law of get cancellation. The opening passage of this unit presents a dispute that appears to be about the cancellation of a get without the woman's knowledge, but is also, at a deeper level, about the extent and limits of rabbinic authority -
The sages taught: If he cancelled the get [without her knowledge, after Rabban Gamliel the Elder's enactment disallowing such behavior was already in place], it remains cancelled. That was the opinion of Rebbe.
R. Simon b. Gamliel says: he may not cancel it ... for that would undermine the legislative authority of [Rabban Gamliel's] court [and all others].
In this passage, Rebbe holds that the freedom that a man has to cancel a get without informing his wife can only be taken away from him ab initio, that he can be told he is not allowed to go ahead and cancel it without informing her. But, after the fact--if he went ahead and cancelled without her knowledge--the cancellation is valid. His father, R. Simon b. Gamliel, disagrees. According to him, if cancellation without informing the wife remains valid after the fact, then the ability of rabbis like Rabban Gamliel the Elder, his own great-grandfather, to introduce legislative change would be seriously impaired.
The gemara then comments:
Can it be that, according to the Torah, the get is cancelled [and the woman, therefore, still married to her husband] but, [in order to uphold] the authority of the court, we [i.e., the rabbis] declare a married woman to be available for remarriage?!
Yes, all who betroth accept upon themselves the rabbinic rules of marriage (literally "they betroth only with the acquiescence of the sages") and [if they break them] the rabbis [of their day] may annul the betrothal.
The gemara, in an attempt to push the opinion of R. Simon b. Gamliel to its logical extreme, asks if later rabbis would declare a woman to be available for remarriage if in the eyes of the Torah--but not in the eyes of R. Simon b. Gamliel--she was still married to her husband. Such a stand would uphold the authority of earlier rabbis to make a change that they deemed necessary for the sake of social justice, even if it contravened Torah law.
The gemara answers yes, presumably meaning that later rabbis accept the idea that earlier rabbis have the authority to make such a change. But the statement that follows implies that the "yes" is not to be taken literally. The gemara goes on to explain that when a man betroths a woman he does so on condition that he not violate rabbinic marital law. [It is for this reason that the betrothal formula today includes the words, "Kedat Moshe V'Israel," 'according to the law of Moses and Israel' (Tosafot s.v. kol d'mekadesh, Gittin 33a). It should be noted that this formula, in the form 'according to the laws of Moses and Jewish men,' is already prevalent in the early tannaitic period and appears in marriage documents from the Bar Kokhba period that were found in the Judean desert. It is therefore likely that Tosafot is interpreting the standard marriage formula in a way that serves the purposes of the text of the gemara. This phrase also appears in M Ketubot 7:5, with a different meaning altogether.] And, since one of the rabbinic provisions is that a man not cancel a get without his wife's knowledge, any man who does so is violating the stipulations of his own betrothal. In such a case, the gemara continues, a panel of rabbis has the right to annul his betrothal, which means to free his wife to remarry without a get.
To my mind, the gemara has not given a direct answer to the question, Do the rabbis have the right to contravene Torah law? It is merely saying that according to R. Simon b. Gamliel any man who cancels a get without his wife's knowledge has stepped outside the bounds of rabbinic marital law. But since he stipulated upon betrothal that he accepted rabbinic marital law, he has now paved the way for the rabbis of his day to annul his betrothal and declare his wife free to remarry without a get. This is the gemara's interpretation of the words of R. Simon b. Gamliel, but, we should note, it is not an explicit statement that the rabbis have the right to rescind Torah law. All sages would agree that breaking a stipulation of marriage invites annulment. As long as the matter is cast in this light, no groundbreaking principle emerges from this discussion. But a more subtle principle has been expressed here: when rabbis run amok of Torah, as they themselves define Torah--which, in this instance, means a man's unfettered right to cancel a get before it reaches his wife--and recognize that by adhering to the written Torah they are promoting injustice to women, then they may in fact, if not in principle, abrogate a rule of the written Torah. In this case, the rabbinic restrictions on a man's right to cancel a get are given precedence over the written Torah's more problematic, unrestricted rights.
The practical implications of this discussion are far-reaching. If men accept upon themselves all of rabbinic marital law as a condition of their betrothal, then, if a man cancels a get without informing his wife, he makes his marriage subject to annulment. The rabbis of the Mishnah added this rule to the corpus of rabbinic marital law and thus eliminated this form of divorce abuse by husbands. Similarly, rabbis of a different time period could place other rules within the corpus and in this way make a marriage subject to annulment because of other violations as well. They could thus prevent other forms of divorce abuse, such as a husband refusing to issue a get even after a rabbinical court has instructed him to do so. I stress violations by a husband and not by a wife because it is he who is in control of the get, and so dissolving or maintaining the marriage is in his hands alone, often to her detriment.
We thus see that the rabbis devised an extraordinarily powerful technique for dealing with husbands who behave in ways that hurt their wives: the rabbinical court, on its own volition or at the wife's request, has the power to step in and dissolve the marriage without his approval or participation. This provision is a move away from patriarchy and towards resolution of marital difficulties in a manner fairer to women. It still falls short of wife-initiated divorce.
Sources: This article was adapted from Women in Rabbinic Literature, an on-line course currently being developed by Dr. Judith Hauptman, the Rabbi Phillip R. Alstat Professor of Talmud at the Jewish Theological Seminary of America. The course includes close study of text, glossaries, reading hints, class discussions and exercises, and uses a special font to allow mixed English and Hebrew text. Reprinted by permission.