1.8. Laws on Divorce. The Text and Significance of the Mosaic Law on Divorce. The Perspective of Mosaic Legislation on Divorce and Its Restrictions. The Respective Rights of Husband and Wife to Divorce

Closely connected with the laws on the legal position of women and with the laws on marital relations in general are, as could be seen from the foregoing, the laws on divorce. The question of divorce constitutes one of the most difficult questions in legislation. Legal science has to this day not established a single principle for judging this subject: some regard divorce as a matter of natural necessity, and therefore strive to make it as easy as possible; others, on the contrary, regard it as an expression of criminal passion, and therefore strive to restrict it as much as possible. The truth lies between these extremes. The moral essence of marriage as a free union of mutually complementary beings—a union in which the members become “one flesh”—presupposes the eternity of this union, and consequently excludes divorce. Such is this union in its ideal. But the ideal is never fully realized in actuality: there are always more or less abnormal conditions that violate its unattainable purity. The general corruption of human nature has been quick to surround marital relations with conditions that could violate the inviolability of the marital union, introducing into it destructive elements that necessarily led to divorce. Among such conditions one may point to the inequality of the sexes, the restriction of the freedom of choice of those contracting marriage, and the consequences arising therefrom: moral or physical incompatibility of these persons, lack of love, and so forth. All legislators took these conditions into account, and all recognized divorce to a greater or lesser extent. The Mosaic legislation in this respect does not differ from other legislations. It, however, here as in many other cases, did not enact its own laws, but took as its foundation the regulations already prepared by customary law, and only subjected them to definitions consistent with its particular aim.

History does not provide sufficient data for judging the extent to which customary law permitted divorce and what conditions it surrounded it with. It presents only one example of divorce, and even then not with a lawful wife but with a concubine—the divorce of Abraham from Hagar (Gen. 21:14). But even from this example, and principally from the provisions of the Mosaic legislation that shed light on customary law, one can conclude that divorce in general was carried out with great ease, without any legal formalities. Such a state of affairs, of course, could not favorably affect women, who, owing to their dependent position, could always be cast into a hopeless situation, as was the case with Hagar. The Mosaic legislation naturally had to subject divorce to more stringent definitions. The principal definition is found in Deuteronomy (Deut. 24:1–4):

“If a man,” says the legislator, “takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some indecency in her, and he writes her a certificate of divorce, puts it in her hand and sends her out of his house, and she departs out of his house, and goes and becomes another man’s wife, and if the latter husband turns against her and writes her a certificate of divorce and puts it in her hand and sends her out of his house, or if the latter husband who took her to be his wife dies, then her former husband who sent her away is not allowed to take her again to be his wife, since she has been defiled; for that is an abomination before the Lord your God, and you shall not bring sin upon the land which the Lord your God gives you as an inheritance.”

As is evident from the conditional form of the presented text, what is set forth here appears to be not properly a law on divorce, but a law on the remarriage of divorced persons. The law on divorce is as it were presupposed as known and not requiring definition. But it would be unjust, along with Michaelis and Saalschütz, on the basis of the conditional form of the law on divorce—which is alleged to presuppose only the ancient law of customary right—to deny in this form new regulations concerning divorce that belong not to customary law but to the Mosaic legislation itself. If the legislator in this law had in view only to define the impossibility for divorced persons to remarry each other, then the detailed form in which the ancient law on divorce is set forth would be entirely superfluous and purposeless. Yet the legislator twice, to the most minute details, repeats the legally established procedure for divorce. This circumstance involuntarily leads one to suppose that for the legislator this definition is not a mere conditional form serving only as an introduction to the main law, but has independent significance, and is not a simple repetition of the law of customary law, but on the contrary contains a new definition unknown to customary law. By the literal form of the Hebrew text, such an understanding cannot be confirmed (although at the same time the contrary cannot be confirmed either), because it reads indefinitely: cum acceperit vir uxorem et erit, si non invenerit gratiam in oculis ejus — et scribet ei libellum excidii... However, many translations, both ancient and modern, adhered to the understanding we have indicated and expressed themselves accordingly. Thus the Syriac and Arabic translations understand this text: Si ducat aliquis uxorem — et non inveniat gratiam apud ipsum, — scribat ei libellum repudii detque ei... (in the Arabic too — scribat, tradat — subjunctive instead of imperative). The same meaning may be discerned in the Chaldean paraphrase (the Targum of Onkelos) and the Hebrew-Samaritan text, which, although they do not have the imperative-subjunctive form, omit the conjunction et, which more than anything else gives occasion for the contrary understanding. Among other translations presupposing or directly expressing the understanding we have indicated, one may point to the Vulgate, which also omits the conjunction et, and even to the Greek LXX, which gives grounds for such an understanding in that according to it καί δώσει is not dependent on the conditional ἐὰν but has independent significance. Luther’s translation directly expresses such an understanding: Wenn jemand ein Weib nimmt und ehelicht sie, und sie nicht Gnade findet vor seinen Augen… so soll er ein Scheidbrief schreiben… (that is, if anyone takes a wife and enters into marital relations with her, and she finds no favor in his eyes… then he shall write her a certificate of divorce)… Finally, the law has the same form in the words of Jesus Christ in His Sermon on the Mount (Matt. 5:31): “It was also said, Whoever divorces his wife, let him give her a certificate of divorce.” In view of the presented variants of the text of the law under consideration, confirming the understanding we have indicated, we shall analyze this law as an independent law of Moses himself, resting on the ancient customary law only in its most general foundations.

The text of the law identifies as the motive for divorce the fact that the wife “finds no favor” in the eyes of the husband, “because he finds in her something objectionable.” This motive, as is evident, has no precise expression and therefore has given occasion for various interpretations. The difference in interpretation was expressed first of all in the various translations. Literally, the Hebrew text (in verbatim Latin translation) has the vague expression: quia invenit in ea nuditatem verbi, or negotii, as Pastoret translates the Hebrew ervath dabar. It is difficult to determine the precise meaning of this expression; but judging from the general usage in the Hebrew language of the word “nakedness” (nuditas) in the sense of shame or depravity (Isa. 20:4; Lev. 18:6–18), one may in general understand this expression, in its connection with the word verbi or negotii, in the sense of moral or physical depravity that arouses aversion. In keeping with such an understanding, the Syriac translation (deprehenderit in ea rem turpem), the Arabic (invenerit adversus eam rem turpem), the Chaldean paraphrase (invenit in ea aliquid foeditatis), the Hebrew-Samaritan text (deprehendit in ea rem turpem), the Vulgate (propter aliquam foeditatem), and the Greek LXX (εὗρεν ἐν αὐτῇ ἄσχημον πρᾶγμα) all express themselves. All of them understand by nuditas verbi or negotii something shameful, loathsome, arousing aversion. But evidently, from a legal standpoint, such a general definition is insufficient. Therefore the interpreters of the law strove to define its meaning more precisely. By the time of Christ two schools were known that had developed different views on the law. One of them—the school of Hillel—understood this law to mean that a husband could give his wife a divorce for anything at all that displeased him: for actions, for character, for physical deficiencies, even for poor preparation of food; the other—the school of Shammai—on the contrary, understood the law to mean that a divorce could be given only for gross carnal vices, for adultery. It is difficult to decide which of these schools is closer to the true understanding of the law. When the Pharisees submitted the disputed question between these schools to the judgment of Jesus Christ, He, viewing marriage from an ideal standpoint, naturally rejected divorce altogether (Matt. 19:3–6); but when they said to Him: “Why then did Moses command one to give a certificate of divorce and to send her away?” He answered the Pharisees: “Moses, because of your hardness of heart, permitted you to divorce your wives, but from the beginning it was not so.” He then conditioned divorce solely upon adultery. On the basis of the cited words of Christ, Michaelis concludes that He understood the Mosaic law in the same way as the school of Shammai, at which the reference to hardness of heart and to the fact that “from the beginning it was not so” seems to hint. But most likely, judging from the indication of adultery as the sole ground for divorce, the words of Jesus Christ should be understood to mean that He saw in the permission of divorce in general a necessary concession to human “hardness of heart”—that is, to a deficiency in corrupted human nature of those qualities, both physical and moral, that would make it possible to realize the ideal of marriage as an eternal union—and consequently He saw in the Mosaic law a meaning consistent with this view. Thus, according to Mosaic law, grounds for divorce include both physical deficiencies contrary to the aim of the marital union, and moral deficiencies contrary to the other, moral side of that union. In such a definition of the motive for divorce, the legislator reveals a profound view of the marital union—a view according to which, in consideration of the inevitable deficiencies in human nature that may contradict the idea of the marital union, he on the one hand makes divorce possible and thereby confers a great benefit, because “to make divorce impossible for those who feel for each other contempt, aversion, or irremovable hatred, would be cruel, contrary to free will, and a purposeless compulsion which would have, among other things, the most harmful influence on the upbringing of children, and even on the aspiration to contract lawful, indissoluble marriages”; but on the other hand, he did not leave divorce to arbitrary will and thoughtlessness, but restricted and defined it with strict legal forms.

The legislator establishes the following restrictions for divorce. First, he requires a ground for divorce and thereby sets a limit to unlawful arbitrariness. In order to divorce a wife, the husband must identify in the wife such qualities as contradict the idea of marriage. The necessity of attesting to the actual existence of the deficiencies identified by the husband in the wife naturally presupposes the transfer of the matter to a public court, as is for example directly enacted in the case of a charge against a wife of lack of virginity (Deut. 22:13–21). Consequently, second, divorce is determined by a court judgment. Third, for the validity of divorce a legal written document was required, which at the then low level of development of literacy was a matter of the greatest importance, demanding much effort—for example, recourse to the Levites, who alone were familiar with writing, for the drafting of the document. All of this together made divorce not very easy and eliminated from it the motive of thoughtlessness and rashness. The same aim of the law—to make divorce an act of strict deliberation—is also evident in the very expression (twice repeated in Deut. 24:1–3) by which divorce is defined: “he shall write her a certificate of divorce, and give it in her hand, and send her out of his house.” Apart from the fact that the document must have legally attested validity, the husband is obligated by law, it would seem, to deliver it personally into the hands of the wife being dismissed. The law, thereby ensuring the reliability of the wife’s receipt of the divorce document, at the same time brings together the divorcing husband and wife for a final, personal face-to-face meeting, so that in this final moment of their cohabitation they may weigh for the last time the importance of the motives that gave them occasion for divorce. Then he himself should “send her out of his house.” Here again occasion is presented for reflection: where will the dismissed woman go? By what means will she be sustained? Moreover, there may be obstacles to her dismissal from the house, such as the wife’s pregnancy or illness. In view of all these circumstances, it could easily happen that even the determination to divorce might waver. The rabbis, in their interpretation of the law under consideration, while preserving its general basis, surround it with more detailed definitions. A divorce is valid, they say, when the husband’s will thereto is clearly expressed, attested by a written act in which it must be clearly designated that from such and such a time all connection between the spouses is severed, that the husband renounces possession of his wife and dismisses her from his house. When the document is prepared, it must be delivered to the wife or to one of her slave girls authorized by her to receive it, in the presence of a rabbi, a scribe, and two witnesses—or more often the husband himself is made to deliver the document personally into the hands of the wife. To avoid confusion in names, the rabbis stipulate that the document should contain the three closest generations of both spouses. As for the document itself, it must be written in rounded letters—clearly and distinctly, on oblong paper on which there must be no defect or even the smallest blemish. It begins with the time and place of the act, the names of the divorcing parties and their nearest ancestors; then the husband declares that he is releasing his wife, that she departs of her own free will and that he grants her full right to marry another. Two witnesses affix their seals.

From the examined Mosaic law on divorce and its Talmudic interpretation it is apparent that the right of divorce is attached as though exclusively to the husband, as though the wife appears in this act as a completely passive, rightless creature. Such a deprivation of one party of all rights and conferral of all rights upon the other party in an act that equally concerns both parties would be manifest injustice. Therefore it is of deep interest to the student of Mosaic law to ask: did the wife have any right to divorce?

In the legislation there are no clear, legally defined indications of this, and therefore some scholars, relying on the law examined above, are firmly of the opinion that “the right of divorce is vested exclusively in the husband.” But such a view does not have entirely firm foundations. It does not explain certain facts that appear to have the opposite meaning. First of all, if the right of divorce were vested exclusively in the husband, it would naturally have to become his absolute right; yet there are positive and indirect indications that this right is limited for him—and specifically, which is especially important in the present case, limited by certain conditions of the wife’s position. Thus, the husband lost the right to divorce if he declared that he had not found virginity in the wife, but it was proved in court that this was a malicious slander: “he may not divorce her all his days” (Deut. 22:13–19). “Moreover,” Saalschütz justly says, “the very fact that the husband, in order to divorce his wife, resorted to such a means indicates that divorce did not lie exclusively within the scope of his arbitrary will, but that for this he was obligated to present valid reasons.” The law (Deut. 21:15) presupposes as possible the case of a husband who, having two wives, hates one of them. What then compels him to keep this latter with him, if the right of divorce belongs exclusively to the husband and lies in the power of his arbitrary will? Another case when the husband “may not divorce his wife all his days” is when he, by court verdict, takes her as wife for the offense committed against her virginal honor (Deut. 22:28–29). All these facts are important for us now in that they restrict the husband’s right to divorce precisely on account of his known relations to the wife—that is, as it were, the wife herself restricts this right in the husband. Finally there are positive indications that the wife could demand divorce in certain circumstances. Thus, even a concubine, purchased as a slave but subsequently admitted to the “rights of a wife,” if she did not receive from her husband “food, clothing, and marital cohabitation,” had the right to depart from her husband—that is, had the right to demand divorce (Exod. 21:7–11). If, accordingly, the deprivation of the necessary conditions of a marital union empowered even a concubine to divorce, then of course this right had all the more force with respect to a lawful wife. History has not preserved for us facts of this kind, and therefore this right cannot be confirmed by fact; but the rabbis, who often stand firmly on the ground of ancient Jewish tradition, fully confirm this right of the wife to divorce. Thus, according to rabbinic law, the wife had full right to demand divorce in the event of deprivation of marital cohabitation on the part of the husband; likewise she had the right to demand divorce in the event of ten years of childlessness, or even earlier, if the sexual impotence of the husband was proved, wherein the wife’s testimony was accorded special credibility. The rabbis extend this right of the wife to the point that it fully equals the right of the husband as defined in the law of Moses, so that the wife has the right to demand divorce in all cases when the husband “finds no favor in her eyes, because she finds in him something objectionable”—such as physical deficiencies or even occupations that are displeasing or repugnant to her, for example the occupations of tanners, smelters, grave-diggers, and others that are inevitably associated with uncleanness and foul smell. It goes without saying that the wife had the right to divorce a husband suffering from any contagious disease, such as leprosy—such a rabbinic regulation is so consistent with the spirit of the Mosaic legislation, whose sanitary provisions are among its most developed parts, that, having no historical facts or positively expressed law in its support, it finds fully sufficient justification in the general spirit of that legislation. All these particular rabbinic definitions have their general expression in the provision according to which the wife could demand divorce from the husband if she found in general the fulfillment of marital duties toward the husband repugnant.

Such a broad right of divorce, however, did not serve to weaken the purity and strength of family bonds. It found for itself a happy counterweight in the extraordinary strength and vitality of the familial instincts of the people, and only contributed to the cleansing of family relations from that morally and physically destructive evil which is sometimes unavoidable when the marital bond is inviolably eternal—when the compulsory cohabitation of spouses who do not love or even hate each other truly becomes a moral and physical torment for both. Moreover, the legislator, in granting the right of divorce, at the same time surrounds it with such definitions as shown above that were capable of eliminating any interference of thoughtlessness and rashness in the matter, and making it an act of genuine, strictly considered necessity. Such an aim of the legislator may be seen, among other things, in the law by which those who have divorced may no longer remarry each other (Deut. 24:4).

After divorce, the divorced persons could contract marriage with whomever they wished, and in regard to them the law makes no special regulations, extending to them the operation of the general laws. The restriction consisted only in the fact that they could not remarry each other (and that only after the wife had been married to another husband), and exclusively for the divorced woman in the fact that she could not marry a priest or the high priest (Lev. 21:7, 14).