Divorce and Some Reverberations

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by R. Gidon Rothstein

Finishing Even HaEzer 119

Temporary Marriages

Se’ifim nine and ten of Aruch HaShulchan Even HaEzer 119 explore how Mishlei 3;29 impacts marriage. The verse prohibits planning evil toward a friend who feels secure with you, including marriage, said the Gemara in Gittin and recorded by Rambam, a man may not marry a woman planning to divorce her. [Late in Bava Metzia, the Gemara tells of a man who married a woman so she’d give him access to storage space she owned, and then divorced her; it did not go well for him.]

AH includes the idea for existing marriages, too, a man may not live with his wife planning to divorce her [nor could a woman do so], as if nothing is wrong. If the divorce-planning partner tells the other person, both parties could agree to continue for some amount of time, as long as all interested parties have been fully informed. Says Chelkat Mechokek; Beit Shemuel cites the Perishah, who disagreed, thought the marriage should not continue whenever one party intends to divorce.

Check the Children

The question of physical intimacy, and possibly ensuing children, adds a degree of difficulty. If one spouse hates the other, the couple may not be physically intimate, lest they have children who are benei senu’ah, the product of parents who hated each other at the time of conception [Nedarim 20b expresses the Gemara’s view that parents’ thoughts/attitudes during the act of conception affect the nature and makeup of the child, physically, emotionally, and spiritually].

Beit Shemuel allowed even having a child, as long as both members of the couple know the circumstances, and the child will then not be considered a ben senu’ah. [I knew a couple who had a child together after their divorce. That’s a multilayered halachic topic, but the point here is that if they’ve agreed to have the child, and do not actively hate each other, the child will not be a ben senu’ah.]

On the other hand, Tur thought the couple cannot stay together even without any physical intimacy.

Balancing the Advantages

I have tried to mitigate the male-centric language, and AH now shows why I had room to do so. While Torah law allowed the man to be the sole decider of divorce, the woman having no say, the ordinances we ascribe to Rabbenu Gershom, knonw as Cherem Rabbenu Gershom, banned coerced divorce.

Another way the woman was given more say comes in se’if eleven, where AH quotes Rema, Torah law did not stop the husband from divorcing his wife even if he could not currently pay the ketubah or return the dowry (which would likely cause the woman financial problems). Rosh agreed, where Beit Yosef knows a responsum of Rashba (and AH says Rif and Tashbetz responded to questions along the same lines), the man may not divorce his wife until and unless he can give her what he owes (and as long as the couple is technically married, he must support her financially).

This can be unfair to the man, too. Eichah 1;14 speaks of being held captive by an enemy from whom one cannot escape, an idea Chazal likened to a marriage where the ketubah is prohibitive, despite the woman being wicked. Eruvin 41b said a man stuck in such a marriage has spared himself Gehinnom, any need for purgatory suffering in the World To Come.

AH sees levels, in se’if thirteen. Where the woman has physical issues that make divorce clearly necessary (as can happen with a man, too, and in those cases, a court will force a divorce), the man may divorce her even if he does not currently have the funds. To exit an unsatisfying marriage, without external, objective reasons it need end, the man must have the ketubah payment available.

Limitations/Exceptions to Rabbenu Gershom

Although the basic ban on forcing divorce spread throughout the Jewish world, even where men were still allowed to marry two women, halachah still occasionally accepted coerced divorce. Not, to start with a counterexample, where the woman originally consented and then changed her mind. Until she’s divorced, the Cherem gives her the right to withdraw consent.

On the other hand, if she did consent, and after what they both thought was their divorce, a problem arose with the get. She cannot then refuse the replacement get, because Rabbenu Gershom did not anticipate nor include such a circumstance.

Another one of those ordinances stopped men from having two wives. In a contested divorce where the woman is the one in the wrong for hindering the divorce [it’s more often the man, but it’s wrong when either party does it], rabbis disagreed over whether it was preferable to find a way to let him marry a second wife [through a heter me’ah rabbanim, not this chapter’s issue], or force a divorce on her. AH thought the coerced divorce better, because it is a one-time abrogation of Rabbenu Gershom’s ideal, where having a second wife is a continuing one. Noda Bi-Yehuda disagreed, for reasons that would take us too far afield.

A Woman Who Loses Her Mind

This does come up practically in our times (as AH discusses in se’ifim 19-23). Suppose a woman develops early-onset dementia [where the man did, the only solution is to arrange a get before he becomes so demented we consider him a shoteh], but this woman can still understand what a get is. Do/should we force a divorce (and ensure there are arrangements for her care) or allow him a second wife (with, still, arrangements for her care, as well as writing a get for her to take should she ever recover)?

I think there are continuing differences of opinion, although usually we opt for the second wife.

Exes Living Near Each Other

Here’s a wrinkle of divorce I think generally ignored in our times, for reasons not completely clear to me. Se’if twenty-five points out that Ketubbot 28a prohibits a divorcee from remarrying and living in her ex-husband’s neighborhood, because they might find themselves tempted (as Rashi says; AH in se’if thirty-three points out the Talmudic discussion assumes women were more portable, and therefore places the burden of moving on her, and her second husband, if he happens to live near the first. Were that no longer to be true, it would be another issue to investigate).

Were the ex a kohen, the two cannot remarry even before she remarries, so the Gemara bans her living in the same mavoi. AH thinks a shechunah is a group of three houses, a mavoi a whole alleyway of homes. Since the prohibition of an unmarried divorcee to a kohen is less stringent than a remarried woman, Chazal required greater distance to avoid the temptation.

In se’if twenty-six, he records Rosh and Ran, who thought the opposite, a “neighborhood” is larger than a mavoi, the more serious prohibition of a remarried woman militates for greater distance. [I find the Gemara here insightful; we often see divorce portrayed as if the couple hate each other so unalterably they would never ever ever get back together. Yes, sometimes, and sometimes not.]

It at the very least seems true the remarried ex cannot live in the same chatzeir, for sure the same apartment building. A mavoi, alleyway/street, being enclosed on two sides, might be enough to think they are not going to have to interact or meet. Yerushalmi says that if a reshut harabbim, a public thoroughfare, separates their domiciles, that is enough as well.

[AH doesn’t say it, but this puts our topic in some tension with laws of eruvin. To build an eruv, we generally first decide the area has no reshut harabim, which would make it harder to say the woman is far enough away.]

I wonder about this when travel is significantly easier than it was, and exes tend to interact more regularly than once. Today, the ex-couple often must meet, too, because of child care issues. We’ll come back to it.]

Exes Should Avoid Contact

In se’if twenty-nine, AH says a divorced couple’s children from their other marriages may marry each other. [Man A is married to Woman A, they get divorced and have children with Spouses B. If a child from Man AB marriage wants to marry a child from Woman AB marriage, that’s fine, although it will bring their parents together.] I only mention it because of the underlying reason, we do not multiply gezerot. A rule I have seen forgotten, people assume if Chazal prohibited this and it’s similar to that, that must be included. We do not multiply gezerot.

On the other hand, Chazal clearly thought exes should limit contact. In se’if thirty, we learn the woman should collect money the man owes her through a messenger (and vice-verse, even if he is supporting her above and beyond the required, as an act of charity, says AH in se’if thirty-two), Chazal prohibited them from appearing in court together, and Beit Yosef (AH, se’if thirty-one) thought they should not be in the same place/event, even with no interaction.

How We Handle It

These last se’ifim surprised me, because they seem so at odds with our conduct today. I did find an article/responsum allowing a divorced couple to continue to live on the same kibbutz, for reasons I found unconvincing other than perhaps the size being enough to think they will stay apart.

I remain in search of a fuller answer to the question, but will meanwhile move on next time to how to collect loans and/or take collateral, without violating the Torah’s protections for the borrower.

About Gidon Rothstein

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