“The ‘Mitzvah’ of Divorce”

by Rabbi Ephraim Z. Buchwald

As we have previously noted, parashat Kee Teitzei contains the largest number of mitzvot of any parasha in the Torah. According to the Sefer Ha’Chinuch (the classic work on the 613 commandments, their rationale and their regulations, by an anonymous author in 13th century Spain) there are 27 positive commandments and 47 negative commandments.

Ironically, one of the positive commandments in parashat Kee Teitzei is the mitzvah to divorce one’s wife. Obviously, there is no positive commandment to divorce one’s wife if there is marital harmony. As the verse in Deuteronomy 24:1 states, “Kee yee’kach eesh ee’shah oov’alah, v’hah’yah im lo tim’tzah chayn b’ay’nahv kee mah’tzah vah er’vaht dah’var, v’cha’tahv lah sefer k’ree’toot v’nah’tahn b’yah’dah, v’shil’chah mee’vay’toh,” If a man marries a woman and lives with her, and it will be that she will not find favor in his eyes for he found in her something unseemly, he shall write her a bill of divorce and present it into her hand, and send her from his house.

There is a debate in the Talmud (Gittin 9:10) regarding the meaning of the words of the verse, “kee mah’tzah vah er’vaht dah’var,” that he found in her something unseemly. The great first century scholars of Beit Shamai argued that adultery was the sole grounds for divorce. Beit Hillel, on the other hand, ruled that “unseemly” may refer to any act that made the spouse unhappy, even something minor like his wife’s cooking. While the rabbis ultimately followed Beit Hillel’s position, they created an important safeguard for the woman known as the “ketubah,” to protect her from being treated unfairly. The ketubah made it impossible for a husband to simply dismiss his wife unless he was prepared to pay her considerable alimony.

According to an ancient Jewish tradition (Talmud Sotah, 2a), 40 days before the birth of a child, a heavenly voice proclaims: “This child shall marry that child.” If that’s the case, then how could there ever be incompatibility between partners? Some rabbis suggest that divorce indicates that the mates failed to heed the heavenly voice, and decided to marry partners of their own choosing using other criteria. Whatever the reasons, obviously marriages do become untenable, and, in such cases, it is a mitzvah to terminate them.

In most ancient societies, a husband who was unhappy or uninterested in continuing the marriage would simply send his wife away. There was no bill of divorce, no security, no alimony, no child support.

The Torah on the other hand calls the instrument of divorce, “sefer keritut,” a bill of severance. The Talmud refers to it as a “get.”

The late Rabbi Abraham Chill, in his wonderfully instructive volume The Mitzvot, The Commandments and Their Rationale, notes that our sages derive from the scriptural text regarding the sefer keritut that in the instance of divorce the following provisions have to be met:

1. The husband must issue the divorce of his own free will and may not be coerced into doing so. Even when the courts bring pressure upon a husband to divorce his wife, he must ultimately express his acquiescence.

2. The divorce is executed by means of a written document known as a “get“, and must be written and signed before two “kosher” witnesses.

3. The “get” states that the former wife is freed from her ex-husband, completely severing them from one another.

4. The “get” must be written with full intent (lishmah) for the sake of a particular woman. The husband may not tell the scribe or the officiating rabbi that he has several wives named Sarah, and then use the “get” for whichever wife he wishes to divorce.

5. The written “get” must be available for immediate delivery. It cannot be attached to the ground or to furnishings.

6. The “get” must also be delivered in front of two proper “kosher” witnesses.

7. The wife or her appointed agent must receive the “get” in front of the two witnesses. No unauthorized person may accept it on her behalf.

8. The “get “must be given by the husband as an instrument of divorce and for no other purpose.

9. Only the husband or his agent may deliver the “get.” No unauthorized person may perform this task for him.

A man who divorces his wife may remarry her, unless in the interim she has remarried someone else. Then she may not return to her first husband, even if she divorces her second husband or he passes away.

Originally, a Jewish woman could be divorced against her will. However, this was rarely practiced. In the year 1000, Rabbeinu Gershom of Mainz, (960-1028, leader and authority of the Jews in France and Germany, responsible for many responsa and ordinances) formalized the existing practice and prohibited women from being divorced against their will. That practice remains in effect today.

A divorced or widowed woman must wait 90 days before remarrying in order to determine the paternity of any child that she may be carrying. Today, with pregnancy tests, it is possible to be more lenient.

While many religions and civilizations forbid divorce, Judaism realizes that certain marriages were simply not meant to be. Today, divorces are performed by mutual consent, and incompatibility is sufficient grounds for divorce. Despite the liberal practices that have evolved regarding divorce, the Talmud in Gittin 90b cites Rebbe Elazar who says that even the altar in the Temple cries when a man divorces his wife.

Unlike other religions where marriages are a rite or ritual, Judaism refers to marriage as “kiddushin,” sanctification. If these two souls cannot build a home that will reflect a sense of sacredness and sanctification, then it is better that the relationship be terminated. The Jewish people can only be an “Am Kadosh,” a holy people, if its individual members are holy and dwell together in a holy manner. If there is no possibility of a holy union, then there can be no possibility for a holy people. G-d’s aspirations for the Jewish people will then prove impossible.

That is why divorce is a mitzvah. In the long run, it will make it possible for individuals and members of the community to live more meaningful and more sacred lives.

May you be blessed.