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Judaism recognized the concept of "no-fault" divorce thousands of years ago.
Judaism has always accepted divorce as a fact of life, albeit an unfortunate
one. Judaism generally maintains that it is better for a couple to divorce
than to remain together in a state of constant bitterness and strife.
Under Jewish law, a man can divorce a woman for
any reason or no reason. The Talmud specifically
says that a man can divorce a woman because she spoiled his dinner or simply
because he finds another woman more attractive, and the woman's consent to
the divorce is not required. In fact, Jewish law requires divorce in some
circumstances: when the wife commits a sexual transgression, a man must divorce
her, even if he is inclined to forgive her.
This does not mean that Judaism takes divorce lightly. Many aspects of Jewish
law discourage divorce. The procedural details involved in arranging a divorce
are complex and exacting. Except in certain cases of misconduct by the wife,
a man who divorces his wife is required to pay her substantial sums of money,
as specified in the ketubah (marriage contract).
In addition, Jewish law prohibits a man from remarrying his ex-wife after
she has married another man. Kohanim cannot
marry divorcees at all.
According to the Torah, divorce is accomplished
simply by writing a bill of divorce, handing it to the wife, and sending
her away. To prevent husbands from divorcing their wives recklessly or without
proper consideration, the rabbis created complex
rules regarding the process of writing the document, delivery, and acceptance.
A competent rabbinical authority should be consulted for any divorce.
The document in question is referred to in the Talmud as a sefer k'ritut
(scroll of cutting off), but it is more commonly known today as a get. The
get is not phrased in negative terms. The traditional text does not emphasize
the breakdown of the relationship, nor does it specify the reason for the
divorce; rather, it states that the woman is now free to marry another man.
It is not necessary for a husband to personally hand the get to the wife.
If it is not possible or desirable for the couple to meet, a messenger may
be appointed to deliver the get.
It is important to note that a civil divorce is not sufficient to dissolve
a Jewish marriage. As far as
Jewish law is concerned, a couple remains married
until the woman receives the get. This has been a significant problem: many
liberal Jews have a religiously valid marriage, yet do not obtain a religiously
valid divorce. If the woman remarries after such a procedure, her second
marriage is considered an adulterous one, and her children are considered
mamzerim (bastards, illegitimate).
The position of husband and wife with regard to divorce is not an equal one.
According to the Talmud, only the husband can
initiate a divorce, and the wife cannot prevent him from divorcing her. Later
rabbinical authorities took steps to ease the
harshness of these rules by prohibiting a man from divorcing a woman without
her consent. In addition, a rabbinical court can compel a husband to divorce
his wife under certain circumstances: when he is physically repulsive because
of some medical condition or other characteristic, when he violates or neglects
his marital obligations (food, clothing and sexual intercourse), or, according
to some views, when there is sexual incompatibility.
A peculiar problem arises, however, if a man disappears or deserts his wife
or is presumed dead but there is insufficient proof of death. Under
Jewish law, divorce can only be initiated by the
man; thus, if the husband cannot be found, he cannot be compelled to divorce
the wife and she cannot marry another man. A woman in this situation is referred
to as agunah (literally, anchored). The rabbis agonized over this problem,
balancing the need to allow the woman to remarry with the risk of an adulterous
marriage (a grave transgression that would affect the status of offspring
of the marriage) if the husband reappeared. No definitive solution to this
problem exists.
To prevent this problem to some extent, it is customary in many places for
a man to give his wife a conditional get whenever he goes off to war, so
that if he never comes home and his body is not found, his wife does not
become agunah.
© Copyright 5757-5760 (1996-1999), Tracey
R Rich
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