Tuesday, September 3, 2013

Divorce simply because you don't like your spouse - is very recent

Some of the comments dealing with marriage and divorce indicate that it is really primitive and disgusting that a person simply can't leave a marriage because they want to.Whether it is because they fell in love with someone else or because they find their present spouse boring or maybe even embarrassing. That there must be something seriously wrong with halacha because it doesn't acknowledge that the individual is the most important concern - and not the stablity of marriage, society or family. The following is from the Cambridge Brief History of Divorce which indicates these ideas reflect societies views only in the last 30 years. While it is specifically about England - it reflects changes that were happening in the Western World.
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[...] Way back in the days of yore, when the church was more powerful than the monarch, marriage was a church institution and so divorce was also the preserve of the church. Marriage was for life and divorce exceedingly rare, although the church would occasionally grant a divorce “a mensa et thoro” which enabled people to live apart if there had been significant cruelty, but not to remarry. (Henry VIII, of course, did whatever he wanted.) In the eighteenth and early nineteenth century, it was possible to get a divorce granted by Act of Parliament, but such an option was only open to the rich. The Matrimonial Causes Act 1857 was the first divorce law of general application.

The 1857 Act introduced divorce through the court. Men were able to “petition the court” for a divorce on the basis of their wife’s adultery, which would have to be proved, as would the absence of any collusion or condonation of that adultery. Women who wanted to divorce their husbands needed also to prove an aggravating factor of the adultery, such as rape or incest. The High Court in London was the only place to get your divorce, and proceedings were held in open court, enabling society to be scandalised by the personal details revealed during the process.

The huge social changes in England during and following the First World War, particularly for the role of women in society, led to divorce law reform as it did to reforms in other areas. The Matrimonial Causes Act 1923 put men and women on an equal footing for the first time, enabling either spouse to petition the court for a divorce on the basis of their spouse’s adultery. The requirement to prove the deed and the absence of collusion remained, as did the procedural requirements. In 1937 another Matrimonial Causes Act introduced three more options for unhappy spouses to take to court, and so it became possible to divorce on the grounds of cruelty, desertion and incurable insanity as well as adultery. These were termed “matrimonial offences”. As before, each allegation needed to be proved by the petitioner’s oral evidence. At this stage, parliament also introduced a bar to divorcing in the first three years of marriage.

The Second World War brought about another period of great social change, and a start to the modern era of life as we know it now. Marriages broke down under the strain of war, or its after-effects, in numbers never before experienced and at all levels of society. The church and the government became increasingly concerned that the divorce laws were no longer fit for purpose – unhappy couples would arrange for one spouse to book into a hotel at the seaside for a weekend to commit the adultery necessary for them to divorce. A Royal Commission in the 1950s could not decide the best way forward, and in the mid-1960’s the Archbishop of Canterbury took up the baton. His office prepared a report demanding reform of the law to ensure that people could obtain a divorce if they could show the breakdown of their marriage, and the government set the Law Commission to research the most appropriate way to modernise the divorce laws. This process gestated the Divorce Reform Act 1969, which although now consolidated in the Matrimonial Causes Act 1973 still contains the divorce law we are subject to today.

Like a great deal of social policy legislation, the Divorce Reform Act 1969 was a compromise. It enabled either party to seek a divorce on the basis of the irretrievable breakdown of the marriage, as the Archbishop wanted in the 1960s, but requires that the breakdown be proved by evidence of one of five “facts”: adultery, behaviour, desertion, or separation for 2 years and the other party’s consent to a divorce or separation for five years. You can see that although this Act removed the concept of a matrimonial offence, the old 1937 grounds of cruelty (now termed “unreasonable behaviour”) and desertion in essence remained. However, the big advance in 1969 was that there is no “fault” as such involved in petitions based on 2 or 5 years’ separation. Procedurally there were also changes: it was possible for the first time to get a divorce through the local county court rather than coming to the High Court in London. During the 1970s, courts developed the “special procedure” of divorce-on-paper that still represents the way things are done in the vast majority of divorces.

31 comments :

  1. marriage for love (as opposed to for financial considerations) is also a modern phenomenon (dating to romantic times / victorian england). and you thought only rebbes marry off their children for non romantic reasons.

    and until only a few years ago, you couldnt divorce in new york state cause the couple wanted to. you had to allege adultery or a few other narrow grounds. everyone knew it was a lie, but in the old days, it was considered very serious. thus there were many civil agunot and agunim in new york state in the old days (based on current interpretations of the word agunah).

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    1. Love comes after marriage.

      Anyone who thinks they have true love before marriage is only kidding themselves.

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    2. A,

      The Torah tells us that Yakov loved Rachel before they got married.

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    3. Yaakov's love for Rochel was not a carnal love but a holy love based on harmony between their souls. Yaakov saw in Rachel the perfect spouse and the perfect mother. He saw with prophesy that she was to be the mother of his children. See Rashi who explains this in depth.

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    4. http://www.ravaviner.com/2010/11/parashat-vayetze-yaakovs-love-of-rachel.html

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    5. אור החיים בראשית פרשת ויצא פרק כט פסוק יח

      (יח) ויאהב יעקב את רחל. פי' לא לצד יופיה אלא לצד מה שרחל בת זוגו:
      או יאמר על דרך אומרם ז"ל (שבת כה ב) בדין זיווג תלמיד חכם שצריך שתהיה לו אשה נאה כנגד יצר הרע, והגם כי ישתנה יעקב למעליותא שמושלל מיצר הרע, עם כל זה התורה תלמד לאדם דעת:

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    6. רש"ר הירש בראשית כד:סז

      (סז) אף זו תכונה, אשר, ברוך ה', לא ניטשטשה בזרע אברהם ושרה, יצחק ורבקה! ככל שהוסיפה להיות אשתו, כן גדלה אהבתו! כדוגמת נישואין אלה של הבן היהודי הראשון, כן נוסדים הנישואין, רוב הנישואין בישראל, לא על יסוד התשוקה, אלא על פי שיקול התבונה. הורים וקרובים נמלכים בעצמם, אם הצעירים מתאימים זה לזו; משום כך גוברת האהבה, ככל שהם מרבים להתודע זה לזו. אך רוב הנישואין בעולם הלא - יהודי נגמרים על - פי מה שהם קוראים "אהבה", ואין לו לאדם אלא להציץ בתיאורי הנובילות הלקוחים מהחיים, כדי להיוכח מיד, מה רבה שם התהום בין ה"אהבה" שלפני הנישואין לבין זו שלאחריהם, איך הכל אחר - כך תפל וחסר טעם, מה שונה הכל מתיאור הדמיון, וכו'. "אהבה" זו היתה עוורת, ועל כל שעל בעתיד - אכזבה; לא כן הנישואין בישראל, שעליהם הוא אומר: ויקח את רבקה ותהי לו לאשה ויאהבה! שם החתונה איננה שיא הפריחה, אלא השורש לאהבה!
      ועתה עוד ארבע מלים, אשר אין כמותן ליופי ושגב. מאז הביא ה' את חוה לאדם, ועד אחרית הימים! וינחם יצחק אחרי אמו -: גבר בן ארבעים, שאינו מוצא ניחומים על מות אמו הישישה, הנה הוא מתנחם באשתו! זו עמדת האשה בישראל! היאך לא ביקשו להעמיס חושניות מזרחית ועסקי הרמון גם על חיי הנישואין בישראל, - היאך מתגלה כל זה כפטפוט עלוב! עם פטירת שרה רחקה מהבית הרוח והנפש הנשית. יצחק חזר ומצא את האם באשתו, (משום כך: "משהביאה האהלה - נדמתה לו כשרה אמו"- עי' בראשית רבה ס, טו). הרי זה הקילוס הנעלה ביותר שנכתב אי פעם על כבוד האשה ואצילותה, - הנה הוא כתוב במעשה האבות על ספר התורה לישראל.

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    7. Making of a Godol (p 819): It is possible, too, that the Alter, though expert in understanding what made people, especially the young, tick - in my father's opinion, he understood people better than Freud  - was out of step with the change in the relationship between mates which modem trends had wrought in Jewish society as a whole, even the Torah world, by the time R' Weinberg married. We may speculate that the Alter's own domestic arrangement, which my father from his latter-day perspective described as "terrifying '', could not have endured even among bnei Torah 40 years later. Shades of the generational dichotomy in outlooks on this matter may be found in a report of an exchange between the Alter and R' Weinberg which was reported by R' Shmuel-Hayyim Domb in the name of R' Yehiel-Yankev's talmid R' Pinhas Biberfeld: When the Alter tried to convince R' Weinberg not to separate from his wife, he responded, "Where is the drugstore which sells a potion for love?" It may be assumed that R' Weinberg's purpose in repeating this conversation to his talmid was to convey this very idea - that by making the attempt to get him to stay with his wife, the Alter had demonstrated that he did not grasp what degree of compatibility was expected between couples in the new times. Even the extreme forbearance that the Alter knew R' Weinberg was possessed of could not hold a relatively modem marriage together.

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    8. Nice drashas but totally beside the point. The assertion was made that love can only come after marriage and that anyone who thinks otherwise is fooling themselves. The Torah says otherwise with respect to Yakov.

      If you want to examine the nature of Yakov's love, fine. I agree it wasnt carnal - thats lust, not love. When the Torah says love, it means love.

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  2. Exactly correct.

    This is, in reality, an invalid reason for divorce. (In the vast majority of the cases.) Many Rabbonim have been yelling exactly this for quite a while. HaRav Avigdor Miller zt'l said many times that over 99% of (frum) divorces were avoidable and unnecessary.

    We must, as a community, fight the divorce trend. We must bring back a negligible divorce rate.

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  3. On the other hand, before Cherem d'Rabeinu Gershom, divorce for any reason WAS permitted by halacha, but only for the man.

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    1. Even today Ashkenazic men may divorce their wives for ANY reason. Cherem D'Rabbeinu Gershom didn't change that. It only added the ability of the wife to reject the divorce (for any reason.)

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  4. Even New York State required divorces to prove "fault" in order for a divorce to be granted. This law was in effect until very recently (2010).

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  5. There is no reason why people should be chained together against their will.

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    1. There certainly are many reasons for married people to be required to stay married to their spouse.

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    2. There may be reasons to remained chained together but ultimately the choice must be made by the couple and not imposed by external sources.

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    3. Sometimes beis din will rightfully and halachicly require they remain married even if one spouse wants to quit the marriage.

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  6. RDE, the argument from the other side to you would just be that the church and england was equally "primitive" and "disgusting" as the halacha, until 40 years ago.

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  7. OTOH: "divorce rates among Russian Jews in the first half of the [19th]century were astronomical compared to the non-Jewish population. Even more surprising is... that these divorce rates tended to drop later in the century, in contrast to the rising pattern among populations undergoing modernization."
    "Jewish Marriage and Divorce in Imperial Russia" by Prof. ChaeRan Y. Freeze (Judaic Studies Dept. at Brandeis Univ.)

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    1. I would doubt the accuracy of those figures without corroboration.

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    2. http://www.yivoencyclopedia.org/article.aspx/Marriage


      Marriage could be dissolved only through death or a formal divorce. In the nineteenth century, Jews had one of the highest divorce rates in the Russian Empire. Although data on such rates in the Polish–Lithuanian Commonwealth are not available, evidence in rabbinic and memoir literature suggests that relatively high rates of divorce antedated the Polish Partitions. The earliest data from Vilna reveals an astronomical rate of 841.8 divorces per 1,000 marriages in 1837. The most common reasons listed for marital dissolution in the metrical books were family finances (lack of a livelihood), mutual hatred, conflicts with stepchildren and in-laws, childlessness, illness (including insanity), a depraved lifestyle, domestic violence, and conversion. Divorce rates among Jews declined by the late nineteenth century due to economic, legal (i.e., problems of residence rights, alimony, and child support), and social impediments (i.e., growing social stigma) that prevented a formal divorce. To avoid such issues, some resorted to bigamy or abandonment, which created the plight of the ‘agunah—an anchored woman who was bound in marriage to a husband with whom she no longer lived but had not been formally released from the union.


      http://muse.jhu.edu/journals/shofar/summary/v021/21.4shneer.html

      Most scholars of the family suggest that divorce rates increased during the nineteenth century as modernization, mobility, education, and new expec tations about conjugal life changed each partner's, but especially women's, expectations about what to expect from marriage. In theory, people came together for love rather than to please the parents, and the economics of the family changed, making divorce a financial possibility for more people. But Freeze argues that "the Jews showed the contrary tendency with modernization: from astronomically high divorce rates in the early nineteenth century, they demonstrated a striking tendency to reduce, not increase, the divorce rate" (p. 146, emphasis in original). In what might be Freeze's most startling statistic, in 1845, the province of Vilna registered more divorces than marriages, the only time Freeze found such a statistic in her research.

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    3. This assertion of astronomical divorce rates is rejected by Dr. Marc Shapiro
      http://www.h-net.org/reviews/showrev.php?id=30034

      "People have generally assumed that marriages in Jewish Eastern Europe were very stable, with divorce being quite rare. Stampfer, however, provides evidence to demonstrate that divorce was common and not shameful. Based on his evidence, he is fundamentally correct. In addition to citing statistics, Stampfer also refers to memoir literature that mentions divorce. Yet I also think that Stampfer (and ChaeRan Y. Freeze before him) exaggerates the frequency of divorce. For example, one of his statistics of marriage and divorce is from the 1860s in the city of Berdichev where for every three to four marriages, there was one divorce. He cites similar statistics for Odessa (p. 46). Stampfer goes so far as to claim that “it may well be the case that there were thirty divorces for every hundred weddings in the nineteenth century” (p. 128). However, these numbers are certainly skewed for the simple reason that while marriages took place in every town, to obtain a divorce couples had to travel to a larger city where there was a beit din (rabbinic court) and scribe. Thus, divorces from any one city do not reveal a ratio of marriage to divorce. The situation is identical to what happens today. Couples get married anywhere they want, but must come to a central location for their divorce."

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  8. Who wrote the disgusting, ignorant anti Torah screed at the beginning of this post? Why would you publish it?

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  9. I must disagree with your premise. The Christian church for reasons unbeknownst to me, did not allow divorce accept in the rarest of cases. Henry viii left the Catholics and headed up the church of England in order to get around this particular problem.

    The difficulties in obtaining a divorce in the 19 & 20th centuries was - as is usually the case - the legal system tends to follow the will of the people; or at least the people who are in a position to shape the law. The Victorian attitudes to marriage and divorce were that one simply didn't get divorced, it's not cricket old chap. This attitude was reflected in the divorce laws.

    The Jewish attitude to divorce, would be considered extremely chauvinistic, as we read just 3 weeks ago in
    פרשת כי תצא "...כִּי יִקַּח אִישׁ אִשָּׁה וּבְעָלָהּ וְהָיָה אִם לֹא תִמְצָא חֵן בְּעֵינָיו כִּי מָצָא בָהּ עֶרְוַת דָּבָר וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ..." (דברים פרק כד:א).
    The Mishna tries to define the parameters for when a man is entitled to divorce his wife. Beit Shammai says only if he finds in her an abomination, beit Hillel say any dissatisfaction, even if she burnt his meal. Rabbi Akiva says even if he has found another woman to whom he is more attracted.

    Rabbeinu Gershon set out to equalise the playing field as much as is possible. Whilst it is the husband who must issue the Get, he cannot force the wife to accept it against her will.

    So too the kesuba was instituted as a punitive instrument to deter husbands from cheapening marriage, by literally making it expensive to divorce.

    Whilst the Jewish attitude to marriage was always Holy matrimony, even the act of betrothal is called kiddushin. The act of getting divorced was and continues to on a banal level.

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  10. even granting all this, this is based on the church's view of divorce, as you yourself note. where Jesus explicitly held like Bet Shammai,
    http://www.biblegateway.com/passage/?search=Matthew+19%3A1-10&version=NKJV
    and so forbade no-fault divorce, allowing it only for Ervat Davar in the sense of sexual impropriety. but we pasken like Rabbi Akiva, and the Pharisees who disagreed with Jesus in their story, and allow no fault divorce, even if he finds one more pleasing than her.

    So you are really endorsing the Christian view of marriage, rather than the halachic view.

    kol tuv,
    josh

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    1. The halachic view only allows the husband the option of issuing a no-fault divorce. The halachic view does not afford the wife this opportunity. Rather, the halachic view allows the husband to stay married to his wife against her will unless she has actionable cause of him harming her.

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  11. Daas Torah,

    I would assume that it is very rare in the frum world for someone to divorce because they found someone better looking or more fun. It is usually an indirect cause not a direct cause. What happens is that because they no longer find their spouse as attractive or fun to be with, so every little wrong or bad habit that their spouse does bothers them so much that there is so much fighting until the marriage breaks down. However, when a person finds their spouse attractive, they naturally overlook all the small things.

    AZ

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    1. No I strongly disagree - it is not rare. Especially in our age where it is normal for women to go out to business, to take course and to have access to literature.

      A woman in an office has opportunities to compare her husband to other men. If he doesn't measure up to her coworkers it is a problem.

      I was told years ago that one of the major sources of divorce are the women's magazine which provide a standard of what they should expect. Similarly men's standard of beauty comes from the secular world. Lakewood has many unmarried young men who are demanding beauty queens who are masters of tznius, have wealthy fathers- or at least.a job that will pull in $50,000.

      In addition there are communities where newly married couples are discourage from socializing with other young couples because comparisons of their husband or wife to someone elses causes serious problems.

      And yes there is adultery in the frum world which is facilitated by internet and smartphones.

      In sum, expectation are raised very high in our times which leads to be dissatisfied with one's spouse and an interest in someone else. It is not from indirect causes but direct ones.

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    2. "I would assume that it is very rare in the frum world for someone to divorce because they found someone better looking or more fun. It is usually an indirect cause not a direct cause. What happens is that because they no longer find their spouse as attractive or fun to be with, so every little wrong or bad habit that their spouse does bothers them so much that there is so much fighting until the marriage breaks down."

      I agree with AZ on this point. It is rare.

      It is rare that a frum Jew will divorce their spouse in order to marry a specific other person they are interested in.

      It is rare for a frum married person and another person to agree that they would get divorced and marry each other.

      In fact, it is fairly rare for frum people to even get married very soon after divorce. (Not that if they do it indicates that's why they divorced.)

      --------------------------------------

      While there are very rare cases of actual adultery in the frum community, it is excruciatingly rare.

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  12. ktivah chatimah tovah

    2. ask any pulpit rav (RW or MO) there are plenty of cases of adultery. no community / edah is immune. nothing to do with going to work, internet, or whatever. (one couple in my community recently divorced so the wife can marry her (ex) brother in law. rabbonim didnt care; they even married the couple, in violation of halacha. the (ex) even wife admitted she was with her (married) paramour while she was married.)

    1. while there are / were cases of romantic love before the 19th century, most marriages were really financial arrangements. among jews and among non jews.

    yaakov avinu was one of the exceptions (and had issues with it as the narrative flows), yitzchak avinu was an out and out setup which he accepted, and avraham avinu we know little about, except that his wife was family, and he did not realize what he had till he had to go to mitzrayim, etc.

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    1. I would certainly not say that there are "plenty" of cases of adultery. There are some, but they are few and far in between.

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