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Attitude Toward Divorce | Process of Obtaining Divorce | Inequality of Sexes


Level:  Basic

Jewish Attitude Toward Divorce

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.

The Process of Obtaining a Divorce

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 (illegitimate children that are almost completely barred from normal marriage; see Deuteronomy 23,3 and note that "bastard" is not properly the word here, as it matters not if the child's parents are legally married or not).

Inequality of the Sexes

The position of husband and wife with regard to divorce is not an equal one.  According to the Torah, only the husband can initiate a divorce, and the wife cannot prevent him from divorcing her.  Later "rabbinical" authorities in Europe tried to take steps to ease the harshness of these rules by prohibiting a man from divorcing a woman without her consent, but the Torah remains as it was.  A rabbinical court can, however, compel a husband to divorce his wife under certain circumstances:  when he is physically repulsive because of some medical condition or other characteristic, or when he violates or neglects his marital obligations (food, clothing, and sexual intercourse).

A grave problem arises, however, if a man disappears or deserts his wife, or is presumed dead but there is insufficient proof of death.  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 an "agunah" (literally, anchored).  The rabbis have agonized over this problem, balancing the need to allow the woman to remarry with the risk of an adulterous marriage (mentioned at the end of the previous section) 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.

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