Issues in Jewish Ethics: Divorce
While divorce is not looked at favorably in Judaism, it is by no means prohibited and, in certain cases, it is even encouraged.
The rabbis of the Talmud considered marriage a holy contract, and the dissolution of marriage an unholy act. They quote the prophet Malachi, “. . .the Lord has been witness between you and your wife of your youth against whom you have dealt treachorously, though she is your companion, the wife of your covenant” (2:14). Jewish Oral Law added in Sanhedrin (22a), “Even [G-d] shares tears when anyone divorces his wife.”
In biblical law, a husband has the right to divorce his wife but a wife cannot initiate a divorce. About 1,000 years ago, Rebbeinu Gershom ben Yehuda (965-1028) decreed that a husband could no longer divorce his wife without her consent. This decision was accepted as binding by European Jewry.
A Jewish religious court can compel the husband to grant a divorce when there is a just case, such as when a husband refuses to have marital relations, when he does not provide adequately for her support, when he is unfaithful, when he is a wife-beater, or when he has a loathsome disease, such as leprosy, etc.
Get is the Hebrew word for divorce document. Since a Jewish marriage is entered into by the issuance of a legal contract between husband and wife, it can be terminated only by the issuance of a legal writ nullifying the original contract. A get may not be issued unless a civil divorce is first obtained, just as a Jewish marriage ceremony may not be conducted without first fulfilling all civil requirements. Reform Jews believe that a civil divorce is sufficient for remarriage. According to Jewish law, a marriage is not dissolved until a bill of divorce, get, is exchanged between husband and wife. Most nonReform American rabbis, and all rabbis in Israel, will not officiate at a wedding if either party has been divorced without a get.
A Jewish divorce is similar to many presentday legal transactions. A divorce contract is drawn up under rabbinical supervision and signed by witnesses. The husband and wife are not subject to personal questions. If they choose to, they need not be present together. A Jewish divorce usually takes an hour or two, during which time the get is prepared and executed. The parties are expected to provide proof of identification, and will be asked some formal questions to make it clear that the get is being executed on their behalf without coercion. Costs may vary in different cases, but, on the average, a get costs $350.
Based upon the statement in Deuteronomy (24:1), which states that when a man wants to divorce his wife, "then let him write her a bill of divorcement," the rabbis conclude that a get must be handwritten by a scribe for the occasion. The document is written in Aramaic as this was the vernacular during the mishnaic and talmudic periods. Proper witnesses must be present at the time of the writing of the document and at its delivery.
In some communities, there is a custom of cutting the get with a scissor or knife after it is written. This tradition began during Hadrian's rule over Palestine (117-138 CE), when all legal authority was denied to the Jewish community. During that time, Jewish courts continued to function secretly. When a get was issued, the document was cut so that if it were dicovered by Roman authorities, the Jews could always deny that the document was legal.
Regardless of one's personal convictions or practices, or one's affiliation, obtaining a get is important. This simple procedure does more than just assure the couple that they will be free to remarry should they so desire. It also prevents a tragic problem: a child born to a Jewish woman whose previous marriage did not terminate with a get may be considered illegitimate. Any Jew, whether observant or nonobservant, needs to share in the concern for Jewish unity and in providing their children with a clean slate for the future.
One of the most agonizing, and pressing, issues facing the Jewish community arises when a husband refuses to grant his divorced wife a get, thus preventing her from marrying again in the future. Such women, called agunot (literally, "chained wife"), have little recourse in the matter since the issuance of a get lies solely in the responsibility of the husband. The problem of agunot has a long and painful history in Judaism and it remains even more problematic today, especially outside of Israel, since the Jewish establishment has relatively little power in terms of domestic law.
In Israel, however, steps have been taken to ensure that the problem of agunot is mitigated. In 2012, the Israeli parliament, the Knesset, ruled that a husband has 45 days maximum to provide his wife with a get once a rabbinical court has ruled that one is needed. If the husband refuses to do so within that time frame, the court must hold a hearing to arbit whether to impose punitive sanctions, which can include preventing the husband from traveling abroad, confiscating his driver's license, and even incarceration.
A couple who has had a legally Jewish divorce are forbidden from remarrying each other. Both men and women are permitted to remarry after a divorce; however, a Kohen, a descendant of the holy priests, cannot marry a divorcee.
The Israeli Justice Ministry issued an order in November 2016 that allows the Israeli civil judiciary authority to prosecute men who refuse to grant their wives a get.
Sources: Adapted from Shamash.
Alfred J. Kolatch, The Jewish Book of Why/The Second Jewish Book of Why, (NY:
Jonathan David Publishers, 1989).
“Israeli men could be jailed for refusing divorce,” Times of Israel, (November 15, 2016).