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 CHAPTER
FIVE:Those Who don’t Fit the Model: Family Situations and Status
in Judaism and the Jewish World
5B. The Rabbis Act: Protecting the Woman
The Rabbis of the Talmudic and post-Talmudic periods did much to strengthen
the hand of the woman, realising that Biblical case law was lopsided,
in terms of the power that it gave to the man, and made great efforts
both to limit the arbitrary power of the man and to strengthen the
defence of the woman.
To explain exactly how this was done would be to enter a great deal of
superfluous detail, but it is necessary to outline some of the major developments
- and their limitations:
One of these was to state that there were certain cases
in which a man was not permitted to divorce his wife.
The basis for this had in fact already been laid in a couple of cases
brought in Devarim 24. The thrust of these cases was that there were certain
circumstances, such as the case of a man who rapes a woman (and who has
to marry her if she so desires), or that of a newly married man who makes
a false accusation that his bride was not a virgin when they were married,
which make subsequent divorce impossible.
The Rabbinical Sages added some more categories to the Biblical cases
and increased the number of instances where a man could not divorce his
wife.
Another rabbinic development came with relation to a
subject already discussed, the Ketubah.
The Rabbis developed the Ketubah as a tool to protect the woman in case
of divorce or widowhood. The sums mentioned in the Ketubah that a husband
would have to pay in the case of divorce became substantial and this
was considered both a protection for the woman and a deterrent to a husband
considering divorce.
A third rabbinic development was to create a number
of scenarios in which the woman would be entitled to ask a court to initiate
a divorce from the husband. In other words, the Rabbis listed a number
of grounds for divorce on the part of the woman. These cases included:
- the husband contracting a disgusting disease;
- impotence or sterility on the part of the husband;
- the husband’s occupation being one which would cause him to
smell disgusting to his wife;
- the husband desiring to leave the family place of residence and to
move to another country without the wife’s consent;
- and, according to some authorities, physical and verbal abuse on
the part of the husband towards the wife.
A fourth development was the establishment of a very
complex and precise procedure for writing the “get”
(as the writ of divorce came to be called).
The significance of this was, that if any mistakes were made, (and presumably
such mistakes would be made frequently, if the writ was drawn up by unqualified
or unprofessional authorities), the divorce would be invalid. In other
words, it would be technically harder for a husband to give a divorce
to his wife.
However, perhaps the most major change of all had to
wait till the Medieval period when a decision was given in the name of
Rabbenu Gershom, the great Ashkenazic eleventh century authority,
that a woman could not be divorced against her will.
This was a major step forward for the woman: now both parties had to agree
to the divorce.
All these changes and developments notwithstanding, the status of
the man and the woman was still unequal:
- In the vast majority of cases, the man was still the initiator and
the woman the recipient of the get.
- Despite the fact that the woman could, in certain circumstances,
initiate divorce proceedings against her husband through a rabbinical
Court of Law (a Bet Din - ??? ???), the man could not be forced to accept
the divorce against his will. There were certain attempts by a number
of important rabbis to overcome this hurdle, but the great Rabbenu Tam
in the twelfth century ruled, in a ruling which became accepted, that
a man could not be forced to accept a get.
A woman could not be forced either, but the difference was that there
were a number of loopholes open to a man whose wife refused him a
get that were closed to women in the reverse situation:
- For example, a man could petition a hundred Rabbis for a permission
to take another wife without divorce, something that the woman could
not do.
- Moreover, there was a more substantive problem: if a woman had children
by another man, without having been divorced with a get from
her first husband, the children would have the status of mamzerim
(illegitimate children), which could cause them lifelong problems. No
such negative status attached to the children of a man by another woman,
without being divorced from his previous wife.
Far from being an arcane study in Halachic development, it is important
to detail these issues because they are still the basis of the Halachah
today and thus determine the practice of divorce.
The crucial point to grasp here is that without a get, according
to Jewish law, a marriage continues to be valid: only death or a get
can end a marriage. Civil divorce is not recognised by Jewish law.
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