October 4, 2022

PHOTO BY SARAH FALUGO

Divorce Matters in Jews

For the better understanding of this article, you can read ‘Nature of Jewish Marriage and its Requirement.”

How a Jewish Marriage can be dissolved?

A Jewish marriage can be dissolved either by the death of one of the parties or by divorce. The principal passage concerning divorce in the Torah is to be found in Deuteronomy, xxiv 1, 2, and reads as follows in the authorised version: –

“When a man hath taken a wife, and married her, and it comes to pass that she find no favour in his eyes, because he hath found some uncleanness in her; then let him write her a bill of divorcement, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man’s wife.”

The meaning of ‘Uncleanness’ as a matter of Divorce

Rabbi Hertz uses the words “unseemly thing” for “uncleanness” in his translation. The interpretation of the expression “some uncleanness’ used in the above passage as the ground for divorce led to a cleavage between the schools of Shammai and Hillel, which flourished in the last century of the Second Jewish Commonwealth.

The school of Shammai maintained that the expression “some uncleanness” was used in an ethical sense and consequently the husband’s right of divorce could only arise in the case of a marital delinquency or unchastity on the part of the wife, while the school of Hillel construed that expression to relate to anything offensive and displeasing and permitted divorce for any cause that might disturb the domestic peace on the ground that such a cause entailed a rupture of domestic harmony resulting in a daily violation of one of the main purposes of marriage, viz. companionship.

The opinion of the school of Hillel prevailed over that of the school of Shammai though divorce was morally disapproved by the Rabbis in general.[1]

In the eleventh century Rabbi Gershom ben Juda passed the law which prohibited divorcing a wife against her will except in certain cases which constitute the grounds on which a husband can obtain divorce. Though the Mosaic law did not make any mention of a right of divorce in the wife in case she was the complaining party, this omission was supplied by the traditional law which provides for the cases in which a wronged wife could obtain divorce.

Kinds of divorce in Jewish Personal Law

According to the Rabbinical law there are four kinds of divorce: –

(1) divorce by mutual agreement of the parties; in this case the wife becomes entitled to receive the amount of the dowry fixed in the Kethuba;

(2) divorce upon the petition of a husband made to a Court, in which case the wife as the guilty party forfeits her dowry;

(3) divorce on the petition of a wife made to Court, in which case the wife becomes entitled to receive her dowry; and

(4) divorce enforced by the Court without petition of either party where, for example, the wife was found guilty of adultery or a marriage had been contracted which though formally binding is regarded as voidable on account of being against a Biblical or Rabbinical law prohibiting such a marriage.

In all these four cases divorce was effected by the husband giving a bill of divorcement or a “get” to the wife and in a case where a divorce was enforced by the Court at the instance of a wife or without petition of either parties, the Court compelled the husband to give the wife a bill of divorcement.

Ground of divorce by Jewish wife

The grounds on which a Jewish wife can obtain divorce are set out at pages 123 and 124 of Dr. Mielziner’s book. They are: –

  1. On account of loathsome chronic diseases which the husband contracted after marriage.
  2. On account of a disgusting trade, in which he engaged after marriage, the same being of such a nature as to render cohabitation with him intolerable.
  3. On account of repeated ill treatment received from her husband, as for beating her, or turning her out of doors, or prohibiting her from visiting her parental home.
  4. On account of his change of religion.
  5. On account of his notorious dissoluteness of morals,
  6. On account of wasting his property and refusing to support her.
  7. On account of having committed a crime, compelling him to flee from the country.
  8. On account of his physical impotence, if admitted by him; and, according to some authorities, also on account of his persistent refusal of matrimonial intercourse.

Cruelty

The third ground is compendiously described in modern matrimonial law by the term “cruelty”, though the second part of the ground, viz. turning the wife out of doors, would also be tantamount to the husband deserting the wife. Cruelty to wife was not tolerated and the Sulchan Aruch described it as the duty of the Beth Din (Jewish National Council) to punish a wife-beater, to excommunicate him and, if this be of no avail, to compel him to divorce his wife with full Kethuba (Eben Hoezer, cliv. 3).

Adultery

The fifth ground would include husband’s adultery. Adultery was considered an abomination in the sight of God and was regarded not only as a matrimonial offence but as a crime. The Seventh Commandment prohibited it. It was a capital offence, the punishment being death of the guilty party by stoning. When the Rabbinical Courts had no more power to enforce their orders or to mete out punishment, the adulterous party was prohibited from marrying his or her partner in adultery.

In Rachel Benjamin v. Benjamin Solomon Benjamin Crump, J., held that a Jew could not lawfully contract a second marriage except in certain cases and that, apart from these exceptional cases, a Jew marrying for the second time was guilty of adultery.

Reference

Mozelle Robin Solomon vs Lt. Col. R.J. Solomon; (1979) 81 BOMLR 578


[1] See Mielziner pp. 116, 118-119; and Hertz’s Deuteronomy, p. 314