Divorce in Judaism

Thursday, April 23, 2009

The fact that the groom writes the Ketubah is really a reflexion of an asymmetric relationship between husband and wife in historical Judaism. It was the husband’s prerogative to divorce his wife. The wife could not equally divorce her husband. Certain groups within Judaism have tried to restructure the Ketubah in such a way that it will equal the play field between husband and wife.

Judaism considers divorce to be an act taken by the parties involved. Divorce does not require a court’s ratification. If the husband and the wife go through the procedure properly, they are divorced. What is interesting is that this is not always considered a great tragedy. This was not to be and they should be divorced and get with life.

Divorce was of mutual consent, although the husband had the initiative. It was he who initiated the process. That was the unequal status. A husband gives the divorce document, which in Hebrew is called the get, of his own free will. The woman must receive it at her own free will. If this equal free will is not experienced, then the divorce is not valid.

Over the centuries, steps were taken to grant some greater leverage to the wife. The wife can petition a court to force her husband to divorce, based on a variety of claims, such as the husband’s improper behavior towards her. Unfortunately, if the husband refuses to offer the get, he place his wife in a situation of limbo. She cannot marry again because she is still technically married to him. The husband has to consent. If he refuses, for all sorts of reasons, he is imposing upon his wife a life of misery.

When the husband refuses to grant his wife the divorce, and the court believes that the wife’s claims are justified, it can enforce all sorts of coercion, even jail, to pressure the husband to grant the divorce.

The Rabbinic formulation consisted in pressuring him until he says “I conses”.