Unilateral Divorce against the Husband’s Will

The following is interesting - but contains nothing new. He seems to think that halachic options that were once available can be made available - but provides no mechanism. This is the wishful thinking of feminism - "where there is a halachic will there is a halachic way." However that is not the way halacha works. If the majority of contemporary rabbis agreed to a particular view - then these ideas are relevant. But who decides that the majority has decided? How do you change the normative halacha which has been accepted for hundreds of years.

Jewish Ideas by Rabbi Marc Angel

1. Does Such a Possibility Exist under Torah Law?

The Torah (see Deut. 24:1) describes a divorce occurring through a “writ of [marriage] termination” (sefer kritut) given by the husband. Indeed, the Mishnah (Yevamot 14:1) states: “A woman can be divorced when she agrees and when she does not agree; but a man divorces only at his will.” Thus, there seems to be no way in which a woman can receive a divorce if her husband is recalcitrant.

However, our most ancient rabbinic sources state that such a possibility exists. In vaYikra 1:3, the Torah notes that in certain circumstances, a person must bring a sacrifice, and he is required to do so willingly (yakriv oto lirtzono). This seems to be an oxymoron: Either an act is mandatory and one is obligated to perform it, or one is free to act at one’s own personal discretion; can these seemingly contradictory elements be reconciled? The ancient halakhic Midrash answers in the affirmative: “We apply pressure upon him, until he says ‘it is my will to do so.’”[1] In other words, an act that is mandated by the Torah will be considered as having been performed willingly even if such “will” was formed under pressure by legitimate agents of Torah. The Sifra does not extend this principle beyond the issue of sacrifices, but the Mishnah (‘Erkhin 5:6) does. After stating that a sacrifice is considered as brought willingly after the person was pressured until he says, “It is my will to do so,” the Mishnah adds: “and the same is true for women’s bills of divorce.” [2]

Several explanations may be offered for this principle. One explains this in light of the general halakhic principle, “What a person harbors in one’s heart is halakhically irrelevant.” [3] Thus, when the Mishnah refers to “will,” it is not relating to an internal psychological disposition, but rather to an externally verified condition. Thus, if a person declares: “I do not want to do X”—we hold that performing X is against his will, and are not concerned with his internal thoughts. Conversely, if he declares: “I want to do X”—we hold performing X to be in accordance with his will.[4] Others suggest that if a husband refuses to divorce a wife who hates him and will in no case remain with him, he is acting only out of spite in order to deny her to others.[5] Such behavior, denying to others something that in any case cannot bring the individual any benefit, is halakhically unacceptable; we can therefore apply the general principle kofin ‘al middat Sedom. A third explanation was given by Maimonides:

Since he was compelled, why is this divorce not invalid? … Because a person who was overcome by his evil inclination to desist from performing a positive mitzvah or to commit a transgression, and who was then coerced [by the authorities] until he did what he ought to do or desisted from what he was forbidden to do, is not considered to be acting under compulsion …since he does want to be a Jew, he ipso facto wants to fulfill the commandments and to refrain from sin, but his evil inclination overcame him. When he was beaten, his evil inclination weakened, and so when he says “I want [to divorce]”—the divorce is in accordance with his will. (Laws of Divorce, 2:20)

Maimonides has a theory of human personality that recognizes several “levels” of will that can be in simultaneous conflict. The “will” required for divorce is not a subjective feeling but an objective mental position, which is assessed according to the overall context of a person’s life choices. A person who wants to be a Jew, surely consents at heart to what is entailed by being a Jew. If according to Torah he should in the case at hand divorce his wife, his refusal to do so is in conflict with what he deeply assents to. By physical coercion, the court is merely enabling him to overcome a powerful urge that conflicts with his own deeper and more serious will.

2. Who May Coerce a Husband to Divorce?

Having seen that Torah law contains the option for coercing a husband to divorce, the question arises: Who may do so? It should be pointed out that today, with a get regarded as a document required only because of adherence to a religious tradition, physical coercion to give a get flies directly in the face of the principle of freedom of religion. When we discuss today physical coercion of a get, we are therefore arguably doing something analogous to discussing the death sentence as a punishment for adultery, i.e., marking certain actions as worthy of extreme censure. With this in mind, let us return to the question: When physical coercion was a real operative option, who might be involved in this? The upshot of the talmudic discussion in Gittin 88b seems to be that physical coercion of divorce is not a matter that should (or may!) be undertaken by individuals. No matter how much I personally may be convinced that Zalman (for example) should really divorce his wife Rivka, I am not allowed to take matters into my own hands and beat him up in order to get him to agree to do so. Indeed, if he does give a divorce after being manhandled by self-appointed guardians of Torah (or by thugs they employ), the get thereby produced may well be halakhically invalid. Rather, it is only legitimately appointed communal leaders who were authorized to decide to apply such physical coercion. Having reached such a decision, they could appoint agents—whether Jews or non-Jews—to actually do so (in much the same manner that civil courts today direct law-enforcement officials to act against those who refuse to follow court rulings).

3. What Circumstances Justify Coercion of a Husband to Divorce His Wife?

If in general a husband divorces his wife only at his will, but in certain cases legitimate community leaders may coerce him to do so, the question arises: What are those “certain cases”? The Mishnah (Ketubot 7:10, cited at Bavli Ketubot 77a) gives a very specific and very short list of men whose extreme objective physical repulsiveness justifies coercing them to divorce if their wife demands a get. The more interesting case, however—not discussed by that Mishnah—is when a wife declares that her husband is subjectively repulsive to her and demands a get. This matter comes up with regard to a “rebellious” wife, i.e., a wife who openly refuses to have intimate relations with her husband. The Mishnah (Ketubot 5:7 cited at Bavli Ketubot 63a) states, that the communal authorities are not allowed to physically force her to change her mind, but that economic sanctions may be employed to cause her to reconsider, i.e., they may sanction her by impairing her right to payment of ketubah, thus threatening her with a situation in which her husband can divorce her not only against her will, but at no cost to himself. However, in the talmudic discussion Ameimar (c. 400 CE) states, that the above does not apply to a wife who justifies her refusal to remain with her husband by explaining that she finds him repulsive (ma-ees ‘alai). Well then, what is to be done when a woman so declares? Here the picture becomes really interesting, because we have at least three variant wordings of the talmudic phrase defining what is to be done in such a case. The printed text of the Talmud (based of course on manuscripts the first printers had before them), states:

But if she says ma-ees ‘alai—we do not coerce her.

On this version, it is not the business of the court to in any way pressure such a woman to have sex with her husband. If he is fed up with such a situation, he can divorce her. Of course, in those times, polygamy was also an option: if he was sufficiently well to do, the husband could simply take a second wife. But the court will take no sides in this marital crisis. This version seems to have been the one known to most rishonim, including Rabbenu Hananel (d. 1055), Rabbi Yitzhak AlFasi (1103), and many others.

However, a second version exists, in a talmudic manuscript known as ms. Firkovich-Leningrad. In that manuscript, the Talmud states:

But if she says ma-ees ‘alai—we coerce him.

On this version, the court will actively intervene on behalf of the rebellious wife who declares her husband repulsive, and coerce her husband to divorce her! Thus, in addition to the short list in the Mishnah of physically repulsive men who are coerced to divorce, a husband who is subjectively repulsive to his wife is also so coerced. Rabbenu Gershom, “Light of the Exile” (c. 960–1028), the greatest scholar of Ashkenazic Jewry of his time, ruled that if a woman found her marriage so unbearable that she was willing to totally forfeit her ketubah if only her husband would divorce her—the court is required by Torah law to coerce her husband to do so. As he writes (Teshuvot Rabbenu Gershom Meor haGolah, #42):

If she wants to be divorced and forfeits her ketubah, and he does not want to divorce her, the authorities must coerce him to give her a get. As the rabbis taught […] “We apply pressure upon him, until he says ‘It is my will to do so.’” And such is the actual halakha.

Note that the Mishnah stating that a husband could be coerced to give a get when the Torah mandates this, did not state when the Torah so mandates a divorce; it is Rabbenu Gershom who determined that Torah so requires whenever a woman is so desperate for a divorce that she is willing to forfeit her ketubah!

Another great authority who held this to be Torah law was Maimonides, who ruled that coercion of a divorce when a woman declared ma-ees ‘alai was mandated by the Torah (Hilkhot Ishut/Laws of Relationships, 14:8; note that at 14:14 he rejects post-biblical legislation on this issue):

If a wife declares “I find him repulsive, and am unable willingly to have sex with him”—the authorities immediately coerce him to divorce her. For she is not a captive of war, who must have sex with a man she despises.

This brief ruling reflects Maimonides’ assumptions about the basics of marriage. He holds that the status of a married woman is not like that of a captive enemy, and that she is under no obligation to submit to the sexual advances of a man she finds repulsive—even if that man is her lawful husband. He also clearly assumes that sex is an essential component of marriage, that a woman cannot be expected to be bound in a sexless marriage, and that divorce is therefore an absolute necessity in such situations. Now, the Torah never expressly states either of these things about marriage. While some biblical passages might seem to support such views of marriage, others might be cited against them, as in Psalms 45:11 where the bride is enjoined, “He is thy lord, and do homage to him.” Clearly, Maimonides’ decision that the Torah here requires an immediate, forced divorce is dependent upon his value-laden understanding of what marriage is all about—an understanding that informs his reading of the Torah no less than it derives from such reading. And such an understanding may well have been what led Rabbenu Gershom to also mandate coercion in such cases—and what informed the talmudic author of ms. Firkovich-Leningrad, who wrote: “But if she says ma-ees ‘alai—we coerce him.”

A third variant of this talmudic phrase was proposed by Rabbenu Yaakov ben Meir (also known as Rabbenu Tam, France c. 1100–1171), but it can be understood only after tracing developments in the halakhic history of coerced divorce from the time of Ameimar to the twelfth century.[...]

8. Conclusion

When I was growing up, I was taught that the holiness of Jewish marriage is based on the serious commitment of man to woman and of woman to man, expressed (inter alia) in their entering a relationship in which neither party can cast off the other against his or her will. Later, when I leaned in the Yeshiva, I became aware that such had not always been the case: Originally, “in the time of the Torah” (and indeed, also the time of Hazal and the first millennium of the Common Era), a husband could arbitrarily be rid of his wife whenever he wanted. Only later, in the eleventh century CE, did Rabbenu Gershom decide to come to the aid of Jewish women and defend them against such a possibility by forbidding divorce without the woman’s consent. From time to time, a strange question would pop up in my head: Did Torah and Hazal not know that a true Jewish marriage means a serious commitment that cannot be unilaterally terminated by one of the parties?

Subsequently, I became more acquainted with the sources, and realized that over the course of time, holy Jewish marriage with huppah and kiddushin has undergone many metamorphoses. Originally, a husband could divorce a wife against her will, but a wife could not be divorced without her husband’s agreement (pace, e.g., Rabbenu Gershom and Rambam, who hold that under original Torah law any woman really fed up with her husband could forfeit her ketubah and receive a coerced divorce). Later, at the end of the talmudic period or at least from the seventh-century Rabbanan Sevora’ei, halakha moved to a symmetrical situation: Not only the husband but also the wife could unilaterally end the marriage. Then, after Rabbenu Gershom forbade the husband to unilaterally divorce his wife, the pendulum swung to the opposite pole: For about a century, only the wife could coerce the husband to divorce her, while he was forbidden to do so against her will. At this time, halakha (at least in Ashkenaz) was directly contrary to Torah law. After that, Rabbenu Tam restored symmetry between the spouses—but in a manner opposite to what had been the case until Rabbenu Gershom: Now, not only the man but also the woman could not exit the marriage unless the partner concurred. For the first time since Mount Sinai, both partners entering a Jewish marriage knew that they might become hostage to the other.

In recent years, the ideal of no-fault divorce has become prevalent in many societies around the globe: Marriage should not be a prison in which each side holds the only key to the other’s freedom. Hearing rabbis speak (nay, sermonize), one gets a clear message: Such is not the way of the Torah. Our marriage is holy, and that is why it is called kiddushin. And marriage cannot be holy unless it is a total, unconditional commitment that can be abrogated only after much travail and by mutual consent. No-fault divorce is thus a halakhic non-starter.

After reading this article, one thing should be clear: Whatever this or that rabbi may think of no-fault divorce, such was exactly the character of Jewish divorce for a very long time. According to Rabbenu Gershom and Maimonides (et al.), this was original Torah law from the time of Moshe Rabbenu (and according to many others, from the sixth or seventh century until Rabbenu Tam, i.e., for at least half a millennium). Was Jewish marriage not holy then? Similarly, if today, or in several years, halakhic authorities find the will and the courage to (re)institute halakhic no-fault divorce, this will not at all undermine the holiness of marriage under huppah and kiddushin. In fact, the opposite may well be true.

[1] “Kofin oto ‘ad she-yomar rotze ani.”Sifra, ad loc. (Dibbura di Nedava, 3).

[2] “veKhen b’gittei nashim.”

[3]“Devarin she-baLev einam devarim.”

[4]See e.g., Tosafot on Gittin 32a s.v. mahu de-teima.

[5]See Rashbam on Bava Batra 48a s.v. hatam nami neima.

[6]Responsum of Rav Sherira Gaon, Otsar HaGeonim to tractate Ketubot, no. 478. This responsum was known to the rishonim. See e.g. Rabbi Yesh’aya di Trani (thirteenth-century Italy), Tosfot RID on Ketubot 64a–b.

[7]Responsum of Rav Sherira Gaon, Otsar HaGeonim to tractate Ketubot, no. 478.

[8]Rabbi Yitzhak AlFasi (Morocco and Spain, 1013–1103) ruled that the takanah was in force throughout the Jewish world. Rabbenu Hannanel (d. 1055) does not mention the takanah, and thus some have held that he rejected its validity. But this is not self-evident.

[9]To prove the categoric difference between talmudic and post-talmudic authority, Rabbenu Tam cites the talmudic statement (Bava Metzi’ah 86a) “Ravina and Rav Ashi are the termination of instruction (sof horaah).” However, the notion that these words teach that after the Talmud no enactments authorizing coerced divorce are possible—may well be an original interpretation of Rabbenu Tam.

[10]Responsa of Rabbi Asher ben Yehiel section 43:8.