Talmidav Shel Aharon
15-5767 Mitzvah 44 Part II
February 26, 2007
Mitzvah 44 – It is a positive commandment to a wife by Kiddushin (consecration, the wedding ceremony). [What follows is the second half of the Hafetz Hayyim on this Mitzvah]
Hafetz Hayyim: Now, we were commanded in our holy Torah that if someone wishes to divorce his wife because he has found some aspect of indecency about her, he needs to send her away with a get, a bill of divorcement, as the custom is in Jewry. For scripture says, “And it shall be, if she does not find favor in his eyes, because he has found some unseemly thing in her, that he shall write her a bill of divorcement” (Deut. 24:1) [Which means a get]. All matters concerning a get are to be carried out only through expert learned rabbis who are familiar with the subject of bills of divorce. Whoever is not familiar with the nature of a get, even if he is a great scholar in other areas of the Torah, should not occupy himself with this. For in a get there are many basic, important details, and whoever is not very well versed in them is likely to come to grief over them. If a woman is bad in her concepts, which is to say that she denies faith in Hashem and His Torah, and she is not modest in her ways like the daughters of Jewry; and certainly if he [the husband] becomes sure that she does not go to have the ritual immersion [in the Mikveh, to purify herself] from the menses – it is a religions duty for him to divorce her, as Scripture says, “cast out the scorner, and the contention will go out” (Proverbs 22:10)
It applies everywhere and at every time.
I repeat here how I started the last lesson. When Jewish Law is the subject, there always will be gender issues to address. There are plenty here and I will deal with them as we go along. I only ask that the reader be patient since the Hafetz Hayyim was writing for a different time, before the advent of equal rights for Women and he is relatively liberal in his approach to them.
First let me note that there is divorce in Judaism. Even in the Torah, there is the possibility raised that a marriage may not work and there is a process to end marriage. According to the Torah, a man writes a bill of divorcement to his wife to end the marriage. The problem is, of course, that it never says what the document is supposed to say and how the divorce is supposed to take place. The Torah often is long on ideas and short on explanations. Therefore the Sages of the Talmud try to fill in the gaps.
Since marriage is established by the Sages, it can be undone by the Sages as well. The Hafetz Hayyim, and other, understand well that if a Rabbi does not do a wedding right, it is annoying, but not a great catastrophe. If a divorce, however, is not done correctly, than the lives of a husband, wife and their children can be destroyed forever. This is why all the Rabbis and Sages insist that every divorce be handled by someone who is an expert in this ritual, a person called a “Messader Gittin” the one who sets up a get. It will take a small court, three Rabbis, to finalize the get and to insure that all the details are addressed. It sometimes seems like it is a stilted ritual, without any recognition of the strong emotions that the couple are experiencing. While this may be true, a boring ritual is a small price to pay if one never has to revisit the divorce again.
I am a bit surprised about the grounds for divorce raised by the Haftez Hayyim. There is an argument in the Talmud between Hillel and Shammai about what constitutes grounds for divorce. Basically, Hillel maintains that if the man wants the divorce, than he should be able to get it for any reason at all. That is the rules that are still in effect today. The issues that the Hafetz Hayyim raises, immoral behavior, scorning Jewish Law, or acting immodestly ( and the famous sin of being barren for over 10 years) are issues that may REQUIRE a man to divorce his wife. Modern Rabbis do not hold by these. If a couple want to work out differences and stay together and work on improving the marriage, than we do not require a get. If one of the partners does want out, we do not force a man or a woman to stay in a marriage that makes them unhappy.
It is true that a get, the bill of divorcement, has to pass from the hand of the husband to the hand of his wife to end the marriage. It is not true that only a man can initiate a divorce. Either the man or the woman can ask a Rabbi to call a Rabbinic Court together to write a get. The Husband and the Wife have to agree before the get can proceed. One cannot be divorced against one’s will. Either party can delay or prevent a get from happening. Rabbis work hard to get both sides to agree to finish the get and to move on with their lives. 95% of the time this is enough. Some couples are so angry at each other over some unresolved issues (one Rabbi noted that most of the time they are financial issues between a husband and wife who are so wealthy that the sum is insignificant) That they refuse a get out of spite or as blackmail. This is a grave sin and a useless action. In times of great need, Rabbis can avoid one side’s posturing to make sure that the refusing spouse will not be able to remarry, but the one who wants out will get out anyway and will be permitted to marry. Remember, what the Rabbis create, they can undo as well. In short, no person should block a get from happening if one of the parties truly wants the marriage to end. In spite of the hurt, both sides should want this to be over and to move on with their lives. This also applies when a husband or wife disappears and can not participate in the process of a get. There are ways the Rabbis have to prevent someone from being “chained” to a marriage that needs to end. The text of a get basically “undoes” the wording of the Ketubah. In modern times it is only written and delivered after the civil divorce is final and the divorce courts have resolved all financial and other issues. The get is then just the formality of ending the Jewish part of the marriage.