by Rabbi Jeremy Rosen
Both in the Torah and in the Talmud, marital difficulties are the topic du semaine. The Torah lays down the obligation to marry and specifies what a male is required to provide for his wife (otherwise he will be in trouble). But it gives men the right to divorce not women.
Of course, circumstances were different without any question, and until relatively recently we have been living and most of the world still, in male-dominated societies.
So that women were always at a disadvantage.
The Talmud has a whole volume, devoted to the procedure of divorce; the conditions, and whether divorce is a good or a bad thing. So clearly they took it very seriously, not dismissively, but opinions varied.
“ Bet Shammai says a man should not divorce his wife unless he has found her guilty of immorality…Bet Hillel says even if she intentionally burnt his food… Rabbi Akiva says even if he finds another woman more beautiful than she is (Gittin Mishna 9:10).”
On the one hand, the Talmud (Kiddushin 41a) insists that the principle of “ Loving Your Neighbor” applies to marriage too. So that if a relationship is not working, better to end it than to go on living in strife and hatred. Yet it also says that “The Altar (in the Temple) weeps when a marriage fails” (Sanhedrin 22a).
The rabbis of the Talmud tried to find ways to strengthen the woman’s position. They qualified the male right to bring a suspected unfaithful wife before the priests and banned the process altogether. They instituted safeguards such as the Ketubah, a prenuptial agreement that they made a condition of all marriages. They wanted to ensure that the property rights of the woman were safeguarded, and fair financial provisions made. They laid down a series of conditions that if the male did not accept his obligations or if the woman found her husband impossible to live with, she could ask the courts to insist he divorces her and even use physical force to ensure he complies. Force was reiterated by the sages of Sura and Pumpedita in 651 and Maimonides enshrined it in law (Mishneh Torah Hilkhot Ishut14:8). And Rabbeynu Gershom (960 -1040) who decreed that one could not marry more than one wife, which became the law in Ashkenaz. More importantly, he also decreed that one could not divorce a woman against her will.
Forcing Jewish men to give divorces in the Muslim world was a response to the social phenomenon of Jewish women who, in the Middle Ages, could appeal to the Muslim courts to coerce their husbands to give them a Get and who were even willing to convert to Islam if their husband would not agree. And they would then be given all the family assets. Divorce, right up to the Christian era, was accepted as a fact of life and there was no stigma attached.
But from Medieval times things began to change. Divorce was almost looked at as a crime.
Still in many communities to this day divorce is still seen as a scandal or a religious taboo.
Living under Christianity had a harmful impact on Jewish law and attitudes toward divorce and sex. Christianity’s position was that “What God has joined, let no man put asunder” (Mark 10:9). Only adultery was grounds for divorce or annulment. Whereas the idea of no-fault divorce was clearly something the Talmud accepted in Christianity then there was no such thing. So that to avoid offending Christian authorities both Rabbeynu Tam (1100–1171) and Rabbeynu Asher (1250 – 1327) banned compelling a reluctant husband by force to grant a divorce even where the courts had decreed it. Bowing to external pressure they resisted divorce where they could.
Without compulsion, the issue of an Agunah, a woman abandoned by her husband or whose husband refused to write a divorce became a problem. One which to this day has not been satisfactorily rectified. In the Diaspora one often has to rely on secular courts to put pressure on recalcitrant husbands to resolve their religious problem and grant a religious divorce. Even in Israel refusing husbands can be sent to jail. But several cases have resulted in such husbands being happy to stay in prison rather than relent. And husbands have often blackmailed and bullied women and their families to give up the struggle for independence.
We ought to resolve this ourselves since the rabbinic tools are there to be used. And probably would have been, was this a problem that affected men. After all, they managed to get around a woman refusing to accept a Get by finding ways of evading Rabbeynu Gershom’s ban on polygamy.
But leaving aside these halachic issues, divorce remains a controversial issue around the world for other reasons. No-fault divorce which Russia first introduced in 1917 did not come to the USA until 1969. And parts of Europe with their strong Catholic opposition to divorce are still fighting to hold the line. The huge rise in divorce that followed liberalization has in recent years tailed off a little. Largely because there is less pressure to get married. Although in all religious communities, divorce is much lower than elsewhere. But at the same time, there has been a parallel troubling rise in single-parent families and absentee fathers. These have all led to substantial social dislocation, alienation, dysfunction, and psychological issues.
A recent Netflix hit movie “The Son” illustrates some of these problems and the challenges that divorce can occasion. In this particular case however hard the parents tried, they could not cope with serious mental issues.
There is no doubt that divorce creates issues for adults and children. But equally, there are consequences when parents stay together for the sake of children who witness the tensions of warring adults. There is no easy answer. Children face a range of challenges, including the baleful influence of social networks, pornography, addictions, financial, social, and personal dislocation, and alienation. Strangely, we expect people to become good parents automatically with no real training. Closed societies and enclaves can be protective and offer some degree of social support. But they can also be exclusive, judgmental, and disapproving, particularly of divorced parents.
I strongly believe in the freedom to escape a failing marriage. But I am fully aware of issues of guilt. There are few easy answers. One has to reiterate that the children must be told that they are not to blame or responsible for the failings of their parents. Yet we know the insecurity usually remains. Very few are divorces without rancor. But no one should feel forced to stay in an abusive or dysfunctional relationship or in one in which one cannot feel one can thrive.
Because otherwise, the consequences can be even worse for the children. There are no perfect solutions.
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