Ask the Rabbi: Should soldiers grant divorces before going to war?

The Talmud asserts that soldiers in King David’s army issued divorce documents before going out to war. In fact, one medieval commentator even attributes this practice to wars in the time of Moses.

By SHLOMO BRODY
Updated: NOVEMBER 2, 2017 15:55
‘THE VICTORY of Joshua over the Amalekites’ (1624-25) by French painter Nicolas Poussin (photo credit: Wikimedia Commons)
‘THE VICTORY of Joshua over the Amalekites’ (1624-25) by French painter Nicolas Poussin
(photo credit: Wikimedia Commons)
In recent decades, terrorists have kidnapped Israeli soldiers, dead or alive, to ransom them or their bodies (or even information about their fate) for the release of their comrades held in Israeli captivity. In some cases – such as those of Ron Arad and Ehud Goldwasser – the captured soldiers were married, thereby raising the possibility that their wives would remain agunot until the fate of their husbands was legally determined. This tragic phenomenon has led to renewed discussion over the wisdom of authorizing halachic divorces before military service.
The Talmud asserts that all soldiers in King David’s army issued divorce documents before going out to war. In fact, one medieval commentator even attributes this practice to wars in the time of Moses.
Such traditions testify to the fact that Jewish law is deeply concerned with the fate of spouses waiting on the home front. A husband may be killed in action without having had children, leaving his wife chained to his brother through levirate marriage (yibbum). He may be captured or declared missing in action, thereby leaving his wife’s status in limbo. For this reason, these wartime divorce writs were sometimes called “divorces of love,” as they manifested the husband’s concern to protect his wife’s interests if he were to meet a tragic fate.
The medieval commentators debated how such a divorce mechanism works. Rashi contended that the document is written as a conditional divorce: Should I die, the divorce will work retroactively from the time of its composition. On the one hand, this formulation prevents a husband from formally separating from his spouse, a demoralizing prospect while heading off to war. On the other hand, it creates many problematic situations by leaving their status in limbo. How does one decide when the divorce should kick in – only if the soldier is killed in action, or also if he goes missing? If the latter, when do we declare the spouse as missing in action? What happens if the spouse is known to be alive in captivity but without any foreseeable chance of freedom? Such conditional divorces leave many questions open, which is why many medieval decisors were against employing them in other circumstances as well, such as when husbands embarked on extended trips across dangerous oceans.
Due to these problems, Rabbenu Tam asserted that the soldier should issue a fullfledged divorce, with both sides swearing that they would remarry upon his safe return. This method seems to have been the most popular throughout the ages, and was also used in cases of spouses traveling abroad or wishing to divorce their wives (to prevent yibbum) on their deathbeds.
This solution, however, might be quite demoralizing for both spouses and destabilizing for their relationship. (In fact, according to one talmudic opinion, King David took advantage of this situation to fraternize with Bathsheba, the wife of one of his soldiers.) Moreover, it created problems in situations where a husband might return on a temporary furlough yet no longer be technically married. Furthermore, it would not work for kohanim (priests) who are not allowed to remarry their divorcées.
For many centuries, this question remained largely theoretical, since Jews did not serve in foreign armies. Yet, as rabbis Shlomo Yosef Zevin and Shiloh Raphael documented, the issue reemerged in the modern era, once Jews were drafted into armies that had protracted battles in far-flung territories.
Numerous responsa indicate that rabbis helped draft such wartime divorces during the Russo-Japanese War and both World War I and World War II. On many occasions of mass conscription, there was insufficient time to write personalized divorce documents for each soldier. Instead, the soldiers signed documents that authorized so-and-so scribes and witnesses to issue their wives divorces if they didn’t return home by a certain date. While these documents raised some legal questions, they held the distinct advantage of not requiring an actual divorce writ to be written until the question of remarriage emerged. As such, generic documents were made available during World War II by Agudath Harabonim in America and the Chief Rabbinate in the Land of Israel.
Following the creation of the State of Israel, Rabbi Shlomo Goren, then-chief rabbi of the IDF, prepared similar documents for Israeli soldiers. His efforts were supported by chief rabbis Isaac Herzog and Ben-Zion Uziel, who asserted that signing such documents should be mandatory for all married IDF soldiers. Similarly, Rabbi Eliezer Waldenberg attested that he prepared such a document for an Israeli soldier performing covert operations preceding the Six Day War (Tzitz Eliezer 11:90). Yet as professors Amihai Radzyner and Dror Fixler have documented, the IDF no longer offers such documents, because Goren later determined that soldiers did not want to sign them, and that it had a demoralizing effect on their state of mind. Others have further argued that with increased technology and communications, we no longer have the problem of not knowing a soldier’s fate.
Ramat Gan Chief Rabbi Yaakov Ariel, however, has countered that especially given the increased threat of extended captivity, such documents should be available to married soldiers. He further noted that soldiers already sign forms to authorize bereavement payments to their chosen loved ones, and give fingerprints and have dental impressions made by which their bodies could be identified. If that doesn’t harm morale, then neither should authorizing a rabbinic court to protect the welfare of their spouses in case their fates are unknown.
I humbly suggest that Ariel is correct and that such an option should be made available to married IDF soldiers and reservists.
The writer, author of A Guide to the Complex: Contemporary Halakhic Debates, directs the Tikvah Overseas Students Institute and is a presidential scholar at Bar-Ilan University Law School.
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