By: Rabbi Zachary Truboff, Director of the IBD Institute for Agunah Research and Education
One of the most common and dangerous misconceptions regarding Jewish divorce is that the husband alone has the power to decide when a marriage is over. In actuality, nothing could be farther from the truth, at least in the eyes of halacha. The rabbis had a profound grasp of human nature and understood that a marriage could go wrong in many ways. As a result, halacha mandates that in many circumstances, a husband is required to give a get and, at times, can even be physically coerced to do so.
According to the Torah, a husband is to provide his wife with “food, clothing, and sexual relations,”1 and the rabbis viewed failure to perform these functions as a fundamental breakdown in the marital relationship. The Talmud states that if a husband refuses to have marital relations with his wife, he must give her a get and pay her the value of her ketubah.2 Because marital relations were seen as essential to the marriage, a husband’s declaration to withhold them was an indication that the marriage had been damaged beyond repair.3 The Talmud also states that the same would apply if he were to refuse to provide food for his wife.4 Since most women at the time had no way of supporting themselves, they could literally starve without his support. In this circumstance, the Talmud explains the husband must divorce his wife because “a person cannot live in a basket with a snake.”5 This expression, cited in multiple places in the Talmud, was carefully chosen by the rabbis to illustrate the impossibility of a marriage where one side inflicts pain and suffering upon the other. Being trapped inside a basket with a snake means there is no way to avoid being repeatedly bitten, and married life with a partner who acts abusively is no different.
That said, even in cases where the husband has not intended to hurt his wife, he still may be required to divorce her if his actions make married life unbearable. For example, if the husband develops a physical condition or takes on professional work that makes it physically difficult for his wife to be with him, she may demand a divorce.6
In the centuries that followed, the rabbis would go on to expand the list of behaviors that could force a husband to divorce his wife, such as physical violence,7 frequenting prostitutes,8 or abandoning religious observance.9 Like the example in the Talmud, these too represent a breakdown in the marital relationship. Shalom bayit is unquestionably an important religious value, but the rabbis recognized that some marriages could not be saved, and in many situations, the suffering caused by them is so immense that they must immediately come to an end.
Death of Marriage
Even in the absence of the reasons mentioned above, there are still circumstances when divorce may be required. Prominent rabbis rule that if a husband and wife have not lived together for an extended period of time, they must formally divorce even if one side refuses. This position, also known as the “death of marriage,” originates in Rabbeinu Yerucham (1290-1350),10 was later affirmed by Rabbi Haim Palagi (1788-1868), and was more recently endorsed by Rabbi Moshe Feinstein (1895-1986). To better understand the implications of the death of marriage approach, it is worth reading the words of Rabbi Feinstein:
Regarding a husband and wife who have not had shalom bayit for many years and have already been living apart for a year and a half, in which an established beit din has presided over the case and has not been able to make peace between them. We have seen a signed statement from the beit din that all of their efforts to make peace have not been successful. From this, it appears that the beit din believes that it is impossible to make peace between them. Therefore, the law of the Torah in this kind of situation is that they must divorce, and neither side has permission to chain the other in the marriage, not the husband to his wife or the wife to the husband, because of any financial claims.11
According to Rabbi Feinstein, if a couple has been separated for at least eighteen months and there is no possibility of reconciliation, they are required to divorce. Furthermore, neither side can make demands or place conditions on the divorce. The logic of this approach is made clear by Rabbi Haim Palagi, who explains that when a couple has been separated for such a length of time, both the husband and wife are in a position where they are likely to sin because neither has an outlet for their sexual desires.12 In the man’s case, it is inevitable that he will have hirhurim (impure sexual thoughts), and it is also possible that the wife may stray as well. As a result, they must divorce so as to prevent what was already a bad situation from becoming much worse.
Though one side may claim that they want to stay in the marriage despite the long separation, Rabbi Palagi notes that the motivation of the recalcitrant party is rarely pure. When a couple has been separated for so long but still refuses to divorce, their refusal is rarely due to legitimate halachic reasons but is often fueled by a desire to take revenge and inflict pain on the other party for ending the marriage. Rabbi Palagi severely admonishes those who do this and states that their actions not only violate the Torah, but the perpetrator will have to stand in judgment before the heavenly court for their cruelty.
In recent years, Israeli rabbinic courts have issued countless rulings affirming the position of Rabbeinu Yerucham, Rabbi Haim Palagi, and Rabbi Moshe Feinstein. Like the Talmudic rabbis before them, they recognize that not every marriage can be saved, and when this is the case, efforts must be made to ensure that a divorce takes place promptly. In an important ruling by the Great Rabbinical Court of Israel, they state this in no uncertain terms:
If there is no chance of shalom bayit, the beit din has no choice but to require the two sides to divorce. This is not to say that one side is at fault but rather establishes the fact that the marriage has reached its end. There is no reason for artificial resuscitation on a dead body.13
Though Jews believe the dead will eventually be brought back to life, this does not extend to marriages that have become broken beyond repair. If, in such circumstances, a beit din does not mandate the husband to give a get immediately, they are not acting meritoriously out of some misplaced hope to save the marriage but instead are hurting both the wife and the husband.
What Gives the Rabbis the Right to Say When a Marriage is Over?
Though we often conceive of marriage as a contractual agreement between two individuals, it must be understood that it is also a communal act. This is why halacha mandates that betrothal (kiddushin) must be done in public before at least two witnesses because there can be no communal recognition of the act without their presence.14 To further emphasize this dimension of marriage, the Geonim made the additional requirement that a wedding (nissuin) must occur before ten men to ensure the community’s involvement.
Even though a rabbi does not need to officiate at a wedding, before the groom gives the ring, he must state to the bride that she is to be betrothed to him “according to the laws of Moses and Israel.” These words indicate that Jewish marriage is done according to the will of the rabbis, and therefore, it is logical that they are empowered to determine when a marriage must end.15
Unfortunately, we have found that all too many rabbis in America simply don’t know that halacha mandates divorce in circumstances where there has been abuse or if the couple has been separated for a length of time. In one particularly difficult divorce case, the IBD collaborated closely with the local beit din to secure the get, and while the local beit din was sympathetic to the plight of the woman, they thought there was little that could be done. It was only after we explained to them about the halachic position of “death of marriage” that they finally realized they could tell the husband he must give a get immediately according to halacha and apply communal pressure for him to do so.
Due more to ignorance than malice, a significant number of women are condemned to abusive marriages or nonexistent ones. By allowing this to happen, batei din fail in their basic responsibility to ensure that both women and men do not remain trapped in marriages against their will. The Levush states this clearly in his discussion of the circumstances in which a husband must divorce his wife, and his words should be read as expanding upon the Talmudic statement that “a person cannot dwell in a basket with a snake”:
The rabbis were greatly concerned and therefore acted to ensure that Jewish women were not forced to dwell and have sexual relations with their husbands if they despised them, like what takes place when a woman is held hostage by her captor. Furthermore, it can happen that she will leave Jewish life entirely when she sees that she cannot be free from her husband.16
Unfortunately, the Levush’s prediction is a common response of many women who have been failed by batei din, and it is something we witness regularly at the IBD. It is on each of us to understand the plight of the captive women in our communities and educate ourselves about long standing attitudes and policies that enable it so that we can act to prevent it from continuing in the future.
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1 Exodus 21:10. See Rambam, Minyan Ha-Mitzvot, Mishneh Torah, 265.
2 Tosafot, Ketubot 63a “ve-ha-amar”; Rosh, Ketubot 5:32; Shulchan Aruch, Even HaEzer 77:1, 154:3. So too a husband would be required to divorce his wife were he to vow it is forbidden for him to derive benefit from her, as this action would also prevent them from having marital relations. See Mishnah Ketubot 5:6, Ketubot 61b, Shulchan Aruch, Even HaEzer 76:9.
3 See for example, the additional teshuvot of the Rosh at the end of teshuvah 30.
4 Ketubot 77a; Yerushalmi Gittin 9:9; Rambam, Mishneh Torah, Hilkhot Ishut 12:11; Shulchan Aruch, Even HaEzer 70:3, 154:3. That said, the beit din would first try to compel the husband to provide for his wife, but if this would not be possible, he would be required to divorce her.
5 Ketubot 77a. For additional uses of the expression, see Ketubot 72a, Ketubot 86b, Yevamot 112b, and Tosefta Demai 3:12.
6 Mishnah, Ketubot 7:10.
7 Or Zaruah, Bava Kamma 161; Shu”t ha-Rashba (attributed to the Ramban) 102; Shulchan Aruch, Even HaEzer, 154:3; Shu”t Shemah Shlomo, vol. 1, Even haEzer 15.
8 Agudah, Yevamot 77; Shulchan Aruch, Even HaEzer 154:1.
9 Orchot Haim, Hilchot Gittin p. 156; Mordechai, Gittin, Perek HaMegaresh 450; Shulchan Aruch, Even HaEzer 154:1.
10 Mesharim 8, Netiv 23.
11 Shu”t Iggerot Moshe, Yoreh Deah, 4:15. In case there was any doubt as to how Rabbi Feinstein’s words were to be interpreted, in a teshuvah from the Tel Aviv Rabbinic Court, they wrote, “Iggerot Moshe makes clear this is not just “good advice” for the beit din to require the husband to give a get. Rather, there is an absolute obligation to divorce in this situation and the beit din is required to prevent either side causing the other to be chained to the marriage.” See (905329/1, 3.31.19).
12 Shu”t Haim ve-Shalom 2:112.
13 Case 82, 5754. Dayanim were Rabbi Mordechai Eliyahu, Rabbi Shlomo Daichovsky, and Rabbi Yosef Nadav.
14 Rambam, Mishnah Torah, Hilchot Ishut 1:1; Guide for the Perplexed, Shlomo Penis, vol. 2, p. 602.
15 Rashi, Yevamot 110a, “ve-ka afkainhu”. See also Responsa, Radbaz 4:157 (1228) who argues that in situations where Chazal stated that a get can be compelled by physical force, the get is only valid because Chazal also instituted hafkaat kiddushin in such cases.
16 Levush, Even HaEzer 154:1.