THE RABBINICAL court in Tel Aviv.
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
In recent years, several high-profile divorce cases included public shaming to convince a recalcitrant husband to issue a get (Jewish divorce writ).
These tactics included protests outside of the husband’s house or workplace and reproving posts on social media.
When authorized by halachic authorities, such actions are permitted, even though communal intervention within private affairs would normally violate norms against gossip and embarrassment.
Regarding divorce, the Torah states, “And if it shall come to pass that she find no favor in his eyes, because he has found some unseemliness in her, then let him write her a bill of divorce, and give it in her hand, and send her out of his house.” The Sages derived from this verse that a husband must issue a get out of free will; otherwise, the document is deemed a get me’useh (coerced document) and the divorce is not valid.
In talmudic times, the husband could impose the divorce against the will of his wife. In the 10th century, however, the famed scholar Rabbenu Gershom imposed a ban (herem) against coercing a woman to accept a divorce writ, along with another ban against polygyny. Over the centuries, this restriction was accepted throughout the Jewish world. Accordingly, in contemporary Jewish law neither spouse may be compelled to accept a divorce.
(Nonetheless, a gender gap remains, since a group of 100 rabbis may waive the polygyny ban for men in certain cases, as discussed in a previous column.) The requirement that a husband willfully issue a get, however, does not mean that the Sages don’t sometimes believe that a man should divorce his wife. They listed a number of cases in which they asserted that a man is obligated to divorce his wife and deliver her alimony payments (ketuba). These include situations in which he takes on professional work handling repulsive, foul-smelling materials such as excrement, develops major skinsores or polyps, or declares that he will not cohabit with his wife.
As former religious affairs minister Zerach Warhaftig documented, some commentators extended these lists to include analogous cases, such as when the husband is imprisoned, commits adultery, or endangers his wife and children through disease or abuse. Former chief rabbi Isaac Herzog, among others, wanted to extend this list to all cases in which one could find a “deep injustice” being done to the wife. Others, however, asserted that the talmudic list of cases is basically closed or that we require complete rabbinic consensus that a given case mandates compulsion.
Regarding these cases, talmudic literature sometimes used terms mandating coercion (kefiya) to divorce while at other times spoke in broader terms of a general obligation to divorce (yotzi veyiten ketuba).
As Yehiel Kaplan has documented, most medieval authorities distinguished between two different types of scenarios. In one limited set of circumstances, a court (alone) may choose to coerce the husband to divorce his wife through sanctions such as flogging or excommunication. In such a scenario, we use such sanctions to “coerce him until he states I want to divorce her.” (The logic and methods behind this law will be discussed in a future column.) In other cases, the husband is obligated to divorce his wife, but the court may not use physical compulsion. Instead, it labels him a “sinner” and permits a milder form of moral denunciation.
Medieval scholars debated about how to categorize a case in which a woman claimed that her husband disgusted her (ma’is alai) and that she had no intention to live with him. This case of a so-called rebellious wife (moredet) was recognized already by talmudic sages, who ruled that the husband was obligated to divorce her after a certain time period, without paying her alimony.
In the period following the talmudic era, however, the Geonim compelled a husband to immediately issue a get in this circumstance. They feared that she would take recourse with gentile authorities to illicitly compel the husband to divorce her. This subjective factor within divorce law was strengthened by Maimonides, who contended that we compel the husband to divorce her “since she is not like a captive who must have sexual relations with a person whom she hates.”
Rabbenu Tam, followed by most later medieval scholars, rejected this position and ruled that a husband who was directly coerced under these circumstances may have issued an invalid get. However, he asserted that beyond moral opprobrium, moderate forms of indirect social pressures against the recalcitrant husband could be directed against the husband. Without formally excommunicating him, the court could mandate people to distance themselves from him (harhakot) by not speaking or eating with him, doing business together, or performing religious services such as circumcising his son or calling him to the Torah.
Over the centuries, scholars continued to debate when to apply these moderate sanctions. Yet figures like rabbis Ovadia Yosef and Moshe Feinstein argued that there are situations in the modern era in which such sanctions can be imposed, especially when the husband essentially agreed to the divorce and was holding out on the get only to wrest (or extort) a better settlement.
At the behest of Israeli rabbinical courts, the Knesset authorized these courts in a 1995 law to apply Rabbenu Tam’s social sanctions, when deemed appropriate and necessary. In recent years, courts in both Israel and the Diaspora have argued that contemporary measures may include modern forms of public shaming. When authorized by a court, members of the public should see themselves as fulfilling the mandate to make the recalcitrant spouse do what Jewish law demands from him without coercion. 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. Facebook.com/RabbiShlomoBrody