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divorce initiated by women (reposted from Reform DIR)

Karolina

Member
I am perplexed by what I have read about divorce within Judaism. Even in Reform Judaism, which has female rabbis, it seems that women are still not allowed to initiate a Jewish divorce, but at best, may try to convince the jewish court to insist that the husband initiate it. I'm thinking here specifically about situations that involve domestic violence, as I've sadly dealt with several friends recently who were in this situation.

And then there's the situation of the missing husband who can neither be confirmed as deceased nor tracked down to initiate a divorce. This seems completely illogical to me, not to mention contrary to the idea that every person is made in God's image and therefore has the same basic rights as every other person.

Can anyone enlighten me as to why it would be God's will to keep married women in a second class status?

I mean no disrespect... I'm looking into Judaism for myself and my family, so I have a personal interest in this.
 

Rival

Si m'ait Dieus
Staff member
Premium Member
It's still earlyish for some timezones but here and in Israel it's past sundown, so please be aware that some do not use PCs/phones &c.on Shabbat and may take until tomorrow evening to be with you. Thanks!
 
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Tumah

Veteran Member
Can anyone enlighten me as to why it would be God's will to keep married women in a second class status?
I don't think it's a question of status, it's a question of how a marriage is created. I think most people look at it as two people want to get married, so they shake hands, exchange vows, whatever, and boom some magical bond happens called "marriage". That's not how marriage happens in Judaism.

In Judaism, the first act of marriage, the "engagement" can be boiled down to a transaction between two parties. The woman's side owns a commodity, the intellectual right to be married to herself. The groom's side is interested in purchasing that right. The act of engagement is actually the purchase of that intellectual right with some act or item of monetary value. That's why marriages that are done strictly according to Jewish Law, only involve the groom giving the wife a ring, and not receiving one - he's actually purchasing the right to be married to her, for the value of the ring, which he gives her.

So the problem is, once he owns that right, it's his. No one else can become married to her, because she no longer owns that commodity. The only way to for her to get married again, is for him to agree to give up ownership of that right - either through divorce, which is ultimately an affidavit affirming that groom returns the right to his wife, or by dying (dead people don't own anything). It's the same problem with a husband who's location can't be confirmed: if he's still alive, then that right still belongs to him. In other words, until that right is returned to the woman, no one else can lease it from her, ie. marry her.

The next question might be, why doesn't a male have such a right that can be purchased by a woman. I haven't seen an answer for this, but I'd suggest that at it's bare-bones, marriage in Judaism is way for a man to fulfill his Biblical requirement to have children. Women are not commanded to have children. Since a man needs a woman to fulfill this commandment, she's the one with the supplies to meet his needs - she doesn't need him at all as she's not commanded to have children - so she's the one with the commodity.
 

dybmh

דניאל יוסף בן מאיר הירש
Even in Reform Judaism, which has female rabbis, it seems that women are still not allowed to initiate a Jewish divorce, but at best, may try to convince the jewish court to insist that the husband initiate it. I'm thinking here specifically about situations that involve domestic violence, as I've sadly dealt with several friends recently who were in this situation.

In the case of domestic abuse? In an Orthodox Community the religious court would intervene. Same goes with a Reformed congregation. If there is domestic abuse, a reformed Rabbi would absolutely help a woman initiate a divorce.
 

RabbiO

הרב יונה בן זכריה
In the case of domestic abuse? In an Orthodox Community the religious court would intervene. Same goes with a Reformed congregation. If there is domestic abuse, a reformed Rabbi would absolutely help a woman initiate a divorce.
Firstly, there is no movement called Reformed Judaism. It is Reform Judaism. Similarly, my colleagues within the movement are Reform, not reformed, rabbis.

Secondly, as I pointed out in the first incarnation of this thread, there are no gittin issued within the Reform movement. Civil divorce is considered adequate. However, most Reform rabbis, including me, will provide their congregants with the information they need to know about why a get may be desirable although they will have to go through another movement to obtain one.
 
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dybmh

דניאל יוסף בן מאיר הירש
Firstly, there is no movement called Reformed Judaism. It is Reform Judaism. Similarly, my colleagues within the movement are Reform, nor reformed, rabbis.

Secondly, as I pointed out in the first incarnation of this thread, there are no gittin issued within the Reform movement. Civil divorce is considered adequate. However, most Reform rabbis, including me, will provide their congregants with the information they need to know about why a get may be desirable although they will have to go through another movement to obtain one.
Thank you.
 

dybmh

דניאל יוסף בן מאיר הירש
the "engagement" can be boiled down to a transaction between two parties.

Depending on how the contract/ketubah is written, can a religious court annul a marriage if the husband is unable or unwilling to fulfill their obligations as husband? It's something that one of the documents in the JOFA website calls a "recalcitrant husband". I'm looking for a halachic definition of a husband who is essentially in contempt of court, is missing, and will not work in good faith towards a mutually acceptable solution. If I start looking at Gittin in the Talmud, do you think I'll find anything? I was going to start at 31a based on a footnote of one of the other documents I was reading, fwiw...

I'm not talking about a precondition in the ketubah that removes the husbands rights... I'm talking about a court finding that a husband is literally not able to do what they said they would do in the ketubah. In these cases, what happens? Is there a get? Is it divorce, annulment, something else entirely?
 

Harel13

Am Yisrael Chai
Staff member
Premium Member
In these cases, what happens? Is there a get? Is it divorce, annulment, something else entirely?
Seems to me that this is what is considered, according to halacha, as "grounds for divorce", at which point the beit din would start pressuring the husband to give a get.

BTW, nowadays, there's a growing movement within orthodox communities to have a halachic prenuptial agreement signed by couples in order to prevent possible problems should they divorce.
 

dybmh

דניאל יוסף בן מאיר הירש
Seems to me that this is what is considered, according to halacha, as "grounds for divorce", at which point the beit din would start pressuring the husband to give a get.
In a case like this, what is the process for alerting the beit din of the problem? How does a wife petition the beit din for assistance?

Essentially I'm addressing the concern in the OP that a woman cannot initiate a divorce. It seems like a woman can initiate a divorce. The circumstances when she can't sound more like a loophole where the husband is not negotiating in good faith or abandons the wife ( and children ) and the community?
 
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Harel13

Am Yisrael Chai
Staff member
Premium Member
In a case like this, what is the process for alerting the beit din of the problem? How does a wife petition the beit din for assistance?

Essentially I'm addressing the concern in the OP that a woman cannot initiate a divorce. It seems like a woman can initiate a divorce. The circumstances when she can't sound more like a loophole where the husband is not negotiating in good faith or abandons the wife ( and children ) and the community?
You have a good point. So a better way to phrase the problem is that the woman can't end the divorce process. A husband could force the wife to receive a get (almost wrote 'get a get'...;)), while a wife couldn't force her husband to give one, hence the agunot problem.

It should be noted that according to Wikipedia, if the husband still fulfills the ketubah yet only the wife wants a divorce (for other reasons), she's not considered a mesorevet get.
 

Tumah

Veteran Member
Depending on how the contract/ketubah is written, can a religious court annul a marriage if the husband is unable or unwilling to fulfill their obligations as husband? It's something that one of the documents in the JOFA website calls a "recalcitrant husband". I'm looking for a halachic definition of a husband who is essentially in contempt of court, is missing, and will not work in good faith towards a mutually acceptable solution. If I start looking at Gittin in the Talmud, do you think I'll find anything? I was going to start at 31a based on a footnote of one of the other documents I was reading, fwiw...

I'm not talking about a precondition in the ketubah that removes the husbands rights... I'm talking about a court finding that a husband is literally not able to do what they said they would do in the ketubah. In these cases, what happens? Is there a get? Is it divorce, annulment, something else entirely?
The halachic word you're looking for is a mesarev (from the word siruv - to refuse). That's someone who ignores a court order to appear in court.

In general, I wouldn't suggest turning to the Talmud to find the actual Law. For that, we would turn to codifiers like Maimonides or the Shulchan Aruch. It's a little bit tricky with the Talmud, because we don't always rely on the Talmud to tell us what the Law is, we rely on rules for that. So you can have the Talmud quote someone who says that the Law is X, or the Talmud may even do so itself, but in that particular type of circumstance, we don't actually hold by that opinion and the Law is really Y. The rules themselves also come from the Talmud, so it's not like we're not really relying on the Talmud. The point being, that unless you're already aware of the relevant rule (which likely won't appear on the same page, if even the same chapter or tractate!), you can be lead to thinking that the Law is what it's not.

I'd like to preface the rest of my response by explaining that marriage/divorce is handled very carefully in Jewish Law. Aside from the severe prohibition involved (if the divorce or annulment wasn't done correctly and the woman unknowingly remarries both her and her second husband have unknowingly committed adultery), the children of a second marriage could potentially be ruined for life if a mistake is made. A significant amount of the responsa literature is devoted towards cases of marriage/divorce simply because the Laws are complicated and the stakes are high, so the local Rabbi would rather forward unusual cases to an expert in the field. I even vaguely recall having read one responsa where a young local Rabbi attached his own thoughts to the question he sent and the answering Rabbi (I believe it was Rabbi Moshe Schreiber) spent the first page or column just ripping into him for even thinking about it at his level of expertise.

Back to your question. It's not really possible to annul a marriage unless there was a problem in the process of the marriage itself. Which is possible (let's say if there's a problem with the witnesses), but pretty rare. They both know what the product is that's being bought/sold (or at least, it's pretty difficult to prove otherwise), so we'd need to find a problem with the sale itself to invalidate it. It's like walking into a shoe store and complaining three months later that you thought you were buying an apple instead of a pair of Nikes.

The contractual obligations of the kesubah aren't stipulations for the marriage, but reciprocal agreements within it, ie. he provides X, Y, Z and she gives A, B, C. You can maybe say, I'm not giving you X if you don't give me A, but the marriage itself wasn't on condition of receiving X or A. The thing is that the kesubah isn't part of the process of engagement, it's part of the process of marriage. In Jewish law, marriage is a two-step process: the engagement (described above) and the matrimony. The kesubah [is generally signed after the engagement and] doesn't come into force until the matrimony. So it takes place after the groom has already bought the right to marry her and that needs to be returned to her.

What we do have, is a different condition - I'm sure there's a legal parallel for it - where the court has jurisdiction on your property (not ownership), so they can somewhat retroactively remove the money from the husband's possession that was used to buy the right, so that the sale never took place. In practice though, this is only done in situations where there's a technical issue with the marriage or divorce process itself (and even then, very very rarely) not a problem with their relationship or dispositions. We're not socialists after all and the court doesn't own everybody's stuff. This is a tool for enabling the court to impose fines and facilitate inheritances, not for making sure people act like mature adults.

What the court can and does do with cases where the husband or wife doesn't fulfill their marital obligations - either those that are Biblically mandated or those that are stipulated in the kesubah, is to try to embarrass them into giving/receiving the divorce, by publicizing his/her recalcitrance. Obviously this has limited results. There are also some cases the court can also "converse" with the husband until he changes his mind. You may have read about a case in NY recently of a Rabbi who was arrested for having made use of this type of conversation to help women get divorced.
 

Tumah

Veteran Member
You have a good point. So a better way to phrase the problem is that the woman can't end the divorce process. A husband could force the wife to receive a get (almost wrote 'get a get'...;)), while a wife couldn't force her husband to give one, hence the agunot problem.
One of the enactments of Rabbeinu Gershom is that a woman has to willingly accept a get. So in all communities where his enactments were accepted (basically all Ashkenazi communities and today, possibly Sephardic as well) a husband can't force his wife to receive a get. There are actual cases of "agun", although it doesn't get as much attention.
 

Harel13

Am Yisrael Chai
Staff member
Premium Member
One of the enactments of Rabbeinu Gershom is that a woman has to willingly accept a get. So in all communities where his enactments were accepted (basically all Ashkenazi communities and today, possibly Sephardic as well) a husband can't force his wife to receive a get. There are actual cases of "agun", although it doesn't get as much attention.
Yeah, I remembered this later and was about to edit my post. Thanks.

In conclusion, do we still have a problem, or are men and women evenly matched?
 

Tumah

Veteran Member
Yeah, I remembered this later and was about to edit my post. Thanks.

In conclusion, do we still have a problem, or are men and women evenly matched?
It depends in what. The enactment requires that both parties agree to be divorced and that's the accepted custom, which is why there are male aguns today. I wouldn't say that they're evenly matched in general though (although I'm also not sure why we'd be looking to put more people into a problematic situation). A man still has a slight advantage in that he can get 100 Rabbinical signatures to remarry without a divorce (since technically polygyny isn't forbidden). It's not easy to do and the only case I know of personally was where the wife wasn't halachically capable of receiving a get (she wasn't sane anymore). I'd imagine it was also used more frequently after WWII to allow men to remarry. That's something a woman wouldn't be able to do under any circumstances, as I explained in my earlier post.
 

Harel13

Am Yisrael Chai
Staff member
Premium Member
A man still has a slight advantage in that he can get 100 Rabbinical signatures to remarry without a divorce (since technically polygyny isn't forbidden). It's not easy to do and the only case I know of personally was where the wife wasn't halachically capable of receiving a get (she wasn't sane anymore). I'd imagine it was also used more frequently after WWII to allow men to remarry. That's something a woman wouldn't be able to do under any circumstances, as I explained in my earlier post.
I heard it happens in Israel a few times a year, with permission from the chief rabbinate.
 

Tumah

Veteran Member
I heard it happens in Israel a few times a year, with permission from the chief rabbinate.
I have't heard that, don't know why they would need to give their permission and didn't know there were 100 Rabbis that work there. But it could be true.
 

Harel13

Am Yisrael Chai
Staff member
Premium Member
I have't heard that, don't know why they would need to give their permission and didn't know there were 100 Rabbis that work there. But it could be true.
I personally heard Chief Rabbi Lau say recently that they had such a case over the last year (don't remember what the wife's problem was). Not sure about the 100 signatures issue, but I assume that the more complicated divorce issues eventually make their way to the high beit din.
 

dybmh

דניאל יוסף בן מאיר הירש
On average how many people participate as part of a beit din for divorce cases? On average?
 

dybmh

דניאל יוסף בן מאיר הירש
halachic prenuptial agreement
Wouldn't this still require a get? If one of the spouses is missing, isn't someone left stuck?

That's why I'm looking at the annulment route. One possibility: if a spouse is found to have a repeated pattern as a "refuser", maybe it could be viewed as an undisclosed defect? And then this would support annulment rather than divorce, and the "refuser's" cooperation would no longer be needed?

Edit to add: Basically the end result is... a spouse can only be a refuser 1 time. After that they have to disclose it prior to their second marriage. If they don't, if they refuse again, then the marriage could be annulled.
 
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