Reasons for Divorce

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by R. Gidon Rothstein

Even HaEzer 119

Devarim 24;1 lays out how to render asunder what was once put together, the husband writes a document of divorce, gives it to the woman, they are no longer related.

Grounds for Divorce

The verse also refers to what would/should lead a man to decide on such a course of action, and its ambiguity produced three views among tanna’im, with continued discussion thereafter. Before we delve into those views, a pause to notice what many forget today, the two sides of this question: there are times when it is right, proper, perhaps obligatory to divorce, and there are times when, even in an unsatisfying relationship, divorce is not the correct way to proceed. Defining the categories is the challenge.

On the last page of Gittin, 90a, the tractate that most concentratedly studies divorce, Beit Shammai focus on the phrase “ki matza bah ervat davar, [the man no longer wishes to be married to his wife] for he found in her an ervat davar,” ervah a word usually about sexual impropriety. In Beit Shammai’s view, only that kind of wrong justifies breaking up a marriage. [Imagine a world where couples knew they had to stay together, and make it work, barring sexual misconduct. How would people change their conduct in marriage?]

Beit Shammai focus away from another phrase in the verse, im lo timtza chen be-einav, should she not find favor in his eyes. They presumably thought that simply modified the next phrase, for he found her to be sexually inappropriate, where Beit Hillel thought it expanded the reasons the man might leave, to include a wife who made a point of sniping at the husband, such as by burning dinner on purpose.

R. Akiva thought “not finding favor” put it all in his hands, as long as he no longer was happy with her, even if that was because he thought he found a better prospect, he could divorce [notice that R. Akiva thinks so despite polygamy being permissible in the time of the Mishnah; while hecouldmarry another woman without divorcing this one, R. Akiva thought the desire to have someone else was enough to justify divorce].

AH closes the first se’if of Even HaEzer, 119 with the expected conclusion, we accept the view of Beit Hillel, a man should not get divorced simply because he found a woman he considers preferable.

We’re not done, though, so don’t stop reading here!

A Pause To Consider How Times Change

[An issue that won’t really come up in this siman but bears consideration is when a woman can or may initiate the divorce. The Gemara deals with that mostly in terms of really egregious issues—the man has physical problems that make marriage impossible, or mistreats her conspicuously.

I don’t in this forum generally air my own views, so I’ll just say that I think the Gemara didn’t believe women would leave marriages for the reasons we today take for granted, because in their times to be an unmarried woman was so distasteful, financially, socially, and emotionally. We see this, I think, in the Gemara’s worry that if a woman asks for a divorce, it means she has found someone else rather than is truly unhappy in this marriage.

To me, the changed reality means courts should handle requests for divorce much differently than tradition had it, and this is one item of my long list of places where I expect/hope the new Sanhedrin will revisit, question whether Chazal were representing what was, and therefore is amenable to change, or what should be, and isn’t.]

First Marriage or Second?

In se’if two, AH points out seemingly conflicting readings of Malachi 2;16, where the navi speaks of sanei shaleach, a phrase open to opposing readings. One version in the Gemara seems to ratify R. Akiva’s view, if sanei, if you hate her, shaleach, send her away. Another reverse the subject of sanei, says God “hates” men who divorce their wives overhastily.

The Gemara reconciles the two readings, says the reading that accepted divorce at will was for a second marriage [where, interestingly, rates of divorce today are indeed much higher than for first marriages], the one opposed to divorce was for a first marriage. However, Beit Yosef thought the Gemara only meant where the husband forces a divorce on the wife; if the two agree the relationship should end, there is no problem, he said.

In our world, where Cherem Rabbenu Gershom rules out coerced divorce, the worry about first marriage falls away. [I’m not sure we can rely on that fully; there are many divorces only one party wants, but the other one will not oppose it to the extent it would become coerced.]

Second Marriages Shouldn’t Be Disposable, Some Marriages Should End

While one could read the Gemara to indicate a second marriage can follow R. Akiva completely, the husband can leave at will, AH cites Perishah and Bach, both of whom held there must be something wrong/negative even in a second marriage before he is justified in leaving.

In a first marriage, even where the woman is acting in ways that would justify divorce, the Gemara is telling the man not to rush, a first marriage should only end if unsalvageable, and that’s generally for issues of ervah or peritzut, actual promiscuity or sexual immodesty.

Se’if seven adds more situations to consider, though. A wife who curses her husband, causes him anguish, refuses to take meals with him, gives reason to end even a first marriage. Mishlei 22;10 advised divorce almost explicitly, said expel a scoffer (or scorner, in some translations) and contention (or strife) will go out. Rava, Yevamot 63b, took that to be a mitzvah, and also cited Mishlei 27;10, living with a difficult wife is like bearing a heavy rain.

[It seems obvious to me a Sanhedrin today would include a woman in this as well, would insist on divorce if a man treated his wife this way. The only reason the Gemara itself didn’t say it, I argue, is that the Gemara thought women were willing to put up with much more to preserve a marriage, because of the cost to them of being single.

In a world where that’s no longer true, I have seen no convincing arguments why a court should not treat this completely reciprocally, taking a woman’s request for divorce on these grounds with the same seriousness as a man’s.]

Making More Room For Divorce

Se’ifim four through six give more shape to these rules. Where the marriage has only had erusin (the ring ceremony, usually a meaningless distinction in our times, where we do both at once), some thought divorce did not need a reason, because the whole debate built off the verse of ki yikach ish, when a man marries a woman. Others disagree, say the example of Beit Hillel, the woman purposely burned the man’s food, was only a convenient example, not a sign they had to be married and living together.

[AH doesn’t mention that divorce after erusin also stops the woman from marrying a kohen, a factor I could have imagined being a reason to urge the man to think twice before divorce, even after only erusin.]

For another loosening of the standards, some argued that “first marriage” is defined purely by the wife, who invests more in her first marriage than later ones. Were she married before but not him, the divorce standards of zivug sheini, of a second marriage, apply. Others disagree, think the couple must hesitate greatly before divorce when it is the first marriage for either.

Rules or Advice?

AH leads se’if five with the view of Kenesset HaGedolah (found in Mishneh LeMelech), this debate is all etzah tovah, rabbinic advice, not law. AH contrasts that with the view of earlier authorities, who treated it as an actual prohibition. Rashba in a responsum (I found it in those of his responsa credited to Ramban, number 189) explained our lack of a blessing over divorce (which is, after all, a mitzvah) based on the fact that some divorces are prohibited, and Chazal did not want to institute a berachah we would make over only some divorces.

Rivash also gave legal force to the reasons for divorce, in responsum 127, where he said a man did not have to obey his father’s command to divorce his wife, because when a parent tells us to violate the Torah, we need not. By implication, he is saying the divorce was against Torah law (or rabbinic).

Se’if six summarizes what we’ve said so far, a convenient stopping point for this time as well. We never consider appropriate a divorce where the man found someone better; in a second marriage, if he came to hate her because of wrongs she did him, divorce is fine, but in a first marriage, it should mostly be for egregious misdeeds, primarily sexual.

It’s a sad world, divorce, and we can take no pleasure in living in it, but it is a reality, of all times and our times, so we might as well know some of the halachot. More next time.

About Gidon Rothstein

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