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"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)
The above text is the source for divorce law in Judaism. At first glance the Torah seems to be making two clear statements: Divorce can only be initiated if a major sin has been committed, and second, it is the husband who must give the bill of divorcement into the hand of the wife.
Our sages 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, if "...she does not find grace in his eyes." But the sages ruled that requirement for the husband to give the writ of divorce to the wife is binding, and it is the law today (there are five exceptional cases in the Talmud where the husband behaved so evilly that the religious court canceled the marriage despite his protests).
We should not overlook biblical life and the reality of marriage even in talmudic times when it comes to understanding why the Torah grants the husband unilateral rights in effectuating divorce. Until the fifth century CE it was totally inconceivable for a woman to initiate a divorce; a woman living alone as a divorcee was bereft of any standing in the community, both economically and socially. This is why the Torah also ordains that a rapist must marry his victim (if she is willing) and may never divorce her - in the ancient world, as "damaged goods" she had virtually no chance of finding another husband.
The social situation changed considerably toward the end of the fifth century, when the sages ruled that if a woman said her husband was repulsive to her, the religious court could force him to give her a get, the writ of divorce (B.T. Ketubot 63a, 63b, 64a). Maimonides goes so far as to rule that the court could send legal "enforcers" to "beat him until he declares that he really wants to divorce her." In answer to the objection that 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 the Ohr Torah Stone Monica Dennis Goldberg Women Advocates and our hot-line legal aid services 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 religious court in an enlightened country in the 21st century can enforce its decision 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 professional degrees, 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 has been given a real opportunity to "sue" for divorce, initiating the process when a marriage reaches the point of utter misery.
I believe these modern methods are examples of the flexible nature of the Oral Law. Consider the sin of worshiping and dancing around the Golden Calf 40 days after the awe-inspiring revelation at Sinai. God understands that some aspects of the revelation have gone awry, and thus Moses smashes the tablets. He then prays for the nation not to be destroyed, and beseeches God to "reveal to him His glory," to show him who and what God really is, to explain God's ways in the world (Exodus 33:18). God informs him that he cannot give him a complete look but only a glimpse, and bids Moses to stand in the cleft of a rock on Mount Sinai (ibid 23).
And then God instructs Moses to fashion (psl in Hebrew) two tablets like the first ones. Although the initial tablets were hewn by God, these are to be hewn by Moses (psl means to hew out, to sculpt, as well as to declare something ritually invalid). After this four-verse excursus, God reveals a glimmer of Himself (as it were) to Moses - a God of unconditional love, of compassion, of freely given grace, long-suffering, overflowing with loving-kindness and truth..."(ibid 5,6).
According to the Midrash (ad loc) this second revelation and the second set of tablets which Moses fashioned contained not only the revelation of the first tablets but also the basis for the Oral Law, which consists of the living interpretations, decrees and enactments of human religious-legal leaders of Israel in every generation (Deut. 17:8-11), and represents God's empowerment of Jewish leadership to be His partner in the ongoing development of the law, to keep it relevant and meaningful in spite of social and economic changes.
The description of the tablets with the basis for the Oral Law is recorded in the midst of the second divine revelation of the 13 attributes of God - featuring God's love and compassion - a subtle (but not so subtle) instruction to Jewish religious leaders to make certain that the law in each generation expresses the love and compassion of the God who gave it. Indeed, fundamental principles of the Oral Law include making changes mipnei tikkun olam (for the sake of perfecting society), mipnei darkei shalom (for the sake of paths of peace) and "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, 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, Rabbi Yosef Shalom Elyashiv, has effectively taken over the Chief Rabbinate and its courts. The thrust of their decisions regarding divorce is based on a responsum by a noted scholar, Rabbi Shmuel de Medina (known as the Maharashdam, 1506-1589) - clearly 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 he says, however, that he will give a divorce, but only on condition that he receive a payment of $250,000, or receives visiting rights (alone) to children he has abused, then the wife must acquiesce if she wants a divorce.
Tragically, the policy of most of our chief rabbinical court judges today is to accept the view of the Maharashdam!
Rebbe Menahem Mendel of Kotzk put it succinctly: "'They' [he was referring to the Mitnagdim, and I refer to these court judges] serve idols; we [the Hassidim or the more 'enlightened' Orthodox rabbis] serve God; they serve the dry law, law devoid of sensitivity and understanding, concerned only for the misguided 'purity' of Israel; we serve the compassionate God of the second tablets, whose concern is for the hapless aguna."
The writer is the founder and chancellor of Ohr Torah Stone Colleges and Graduate Programs, and chief rabbi of Efrat.