‘When a man takes a wife and marries her, and she does not find grace in his eyes because he has found her to be sexually immoral, he shall write her a bill of divorcement, give it to her in her hand, and send her away from his house” [Deuteronomy 24:1].
This text is the source for Jewish divorce law. At first glance, the Torah seems to be making two clear statements: a divorce can only be initiated if a major sin, such as adultery, has been committed, and that it is the husband who must unilaterally give the divorce to his wife.
Our Sages of the Talmud interpret these verses differently. They taught that sexual immorality is merely an example of what could go wrong in a marriage; the operative factor is the first part of the verse, “she does not find grace in his eyes.” Because they realized that marriage could become intolerable even though the couple has been faithful to each other, the Rabbis permitted divorce as long as both husband and wife agreed to one. It is still the husband who must give the divorce to the wife, but the wife has the right to initiate divorce proceedings, certainly if he is abusing her and even if she simply finds him detestable. If a rabbinical court feels a divorce is warranted, they could have the husband beaten up until he agrees to give his wife a divorce [B.T. Ketubot 63, and Rambam’s Laws of Divorce 2:20].
So anxious were the Rabbis to make certain that women would not be unfairly subjected to an impossible marriage that the Talmud brings five instances whereby the Rabbis themselves can nullify and abrogate a marriage.
Although Jewish law, as codified in the 16th-century Shulhan Aruch, was loathe to enforce a divorce when the woman had no more compelling grounds than “I am no longer in love with him; I find him detestable,” the courts did coerce the husband if they discovered more convincing objective reasons, such as sexual dysfunction, physical abuse, etc. Today, it is understood that verbal abuse can be just as insidious as physical abuse, and male philandering can be just as destructive to family life as female promiscuity. It should also be noted that no 21st-century religious court can enforce its decisions by beating an individual until he “agrees” to accept its ruling. Hence, other means of “enforcement” have been introduced, such as canceling his driving license or sending him to prison. In this way, we maintain the biblical norm; it is still the husband who gives the get, while the woman is now offered a real opportunity to “sue” for divorce. This is in accordance with the Talmud’s understanding, “in order to free an agunah (a woman denied a get by her husband), the Sages employed every leniency” [B.T. Gittin 2b, 3a.].
So, to quote a Yiddish adage, if it’s so good, why is it still so bad? In recent years — via the Knesset’s system of wheeling and dealing — one of the leaders of the haredi world has effectively taken over the chief rabbinate and its courts. One of the latest decisions regarding divorce is based on a responsum by a noted scholar, Rabbi Shmuel de Medina (known as the Maharashdam, 1506-1589), a minority opinion, which maintains that the only time a religious court can obligate a husband to give a divorce is if the husband refuses, absolutely and categorically, to give one. If however, the husband says he will give a divorce, but only on condition that he receive a substantial payment or receives visiting rights (alone) to children he has abused, then the wife must acquiesce if she wants a divorce. Tragically, the policy of many of our chief rabbinical court judges today is to accept the view of the Maharashdam.
God is defined as a God of love and a God of compassion when He is asked by Moses to explain the way in which He wants His wishes to be expressed in this world (Exodus 34: 5-6). The Talmud expresses this truth by doing summersaults to free a woman from a difficult marital situation, even to the extent of accepting the single testimony of a woman or of a gentile in order to make her free. The use of a minority stringent opinion in order to keep a woman chained to an impossible marriage, or in order to wrest from her difficult conditions of payment or children visitations in return for a divorce, goes against the spirit as well as the letter of the Talmud and the way in which it was interpreted by generations of decisors (poskim).
For the sake of the God of compassion, our religious courts must be compassionate towards the agunah.
Rabbi Shlomo Riskin is chancellor of Ohr Torah Stone and chief rabbi of Efrat.