"Torah Lights"
 
Video Insights on the Parsha
 
 by Rabbi Shlomo Riskin

"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)

Efrat, Israel – This text is the source for divorce law in Judaism. At first glance, the Torah seems to be making two clear statements: first, that a divorce can only be initiated if a major sin of adultery has been committed, and second, that it is the husband who must give the bill of divorce into the hand of his wife unilaterally.

Our sages within the Oral Law of the Talmud interpreted 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 can 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. 

They also ruled that it is still the husband who must give the divorce to the wife, though the wife has the right to initiate divorce proceedings, certainly if he is abusing her and even if she simply finds him detestable. If the rabbinical judges feel that a divorce is warranted, they could have the husband beaten up until he agrees to give one to his wife. (B.T. Ketubot 63, Rambam Laws of Divorce, Chapter 2, Law 20).  So anxious were the rabbis to make certain that women would not be unfairly subjected to an impossible marital relationship that the Talmud brings five instances whereby the rabbis themselves can nullify and abrogate a marriage, if the husband acts like a scoundrel and refuses to give his wife a divorce.

And when there were objections to the principle that a religious court could send legal "enforcers" to "beat him until he declares that he really wants to divorce her" – since such corporal enforcement is the very antithesis of a volitional act –  Maimonides explains that since every Jew really wants to do what is right, and since it is right for the husband to free his wife from a marriage she finds intolerable, the corporal enforcement merely helps him do what he knows he should do.

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. One of the important functions of Ohr Torah Stone's Monica Dennis Goldberg women advocates and their Yad L'isha Legal Aid Center and Hotline is to expand the possible reasons for compelling husbands to give divorces. For example, 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 in an enlightened country 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 rescinding the recalcitrant husband's passport, canceling his driving license and - if all else fails - 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, initiating the process when a marriage reaches the point of utter misery.

In this way the religious courts in Israel remain true to Jewish law at the same time that they can do everything possible to alleviate the suffering of a woman whose husband will not free her of his own volition.  And this is fully in accordance with the statement in the Talmud, "in order to free an aguna [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, then why is it still so bad? In recent years – via the Knesset's religious political party 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 that 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 her one. If, however, the husband says he will give a divorce, but only on condition that, say, he receive substantial payment or visiting rights (alone) to children that 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!

G-d is defined as a G-d of love and 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 somersaults 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 Talmudic Law and the way in which it was interpreted by generations of decisors (poskim).  For the sake of the G-d of compassion, our religious courts must be compassionate towards the agunah.

Shabbat Shalom