In America today, we are used to the concept of “no-fault divorce,” whereby either spouse can end a marriage for any reason or none. But this practice only makes sense in a society that regards marriage as a voluntary union of equals for the purpose of companionship. If the purpose of marriage is happiness, then by definition a marriage that makes people unhappy should end. As we have seen over the last several months of Daf Yomi reading, however, the Talmud—like almost all legal systems in the world until very recently, and many still today—has a different idea of what marriage means. If a marriage is not a voluntary union but part financial transaction, part family alliance, and part sacred ritual, then what circumstances justify ending it?
The grounds for divorce were the subject of this week’s Daf Yomi reading, in Chapter 7 of Tractate Ketubot. One category of divorce-worthy behavior has to do with vows, which under Jewish law are serious religious obligations subject to a number of restrictions. We saw in last week’s reading that a husband who vows not to have sex with his wife must divorce her, since the rabbis view withholding sex as a cruel act that violates the purpose of marriage. In Ketubot 70a, we learn that a husband is also forbidden from making a number of other vows that would adversely affect his wife’s quality of life. More accurately, he is not forbidden from making the vows, but if he does make them, he is legally required to divorce his wife and pay her marriage contract.
Because husbands have the power to make vows that obligate their wives, the Talmud requires them to use this power responsibly. For instance, a man who takes a vow prohibiting his wife from “benefiting from him”—that is, from living off his property—is violating the first responsibility of a Jewish husband. Such a vow is allowed if it covers a period of less than 30 days, as long as the husband appoints a trustee to provide for his wife financially during that period. If the vow lasts longer than 30 days, however, then he must divorce her.
So says the mishna; but the rabbis of the Gemara immediately raise some objections. We read earlier that a marriage contract obligates a husband to provide for his wife; if so, the Gemara asks, “Is it in his power to remove his obligation to her?” Can a vow not to support your wife be valid in the first place? In fact, the rabbis conclude, such a vow is basically equivalent to telling your wife that she must support herself out of her own earnings—an arrangement which, we saw earlier, is considered valid if the wife herself demands it. But if the wife is capable of supporting herself, why does the mishna speak of appointing a trustee to support her?
This situation only arises, the Gemara argues, if the wife does not make enough money to live in the style to which she has been accustomed. For a wife to suddenly appear impoverished in front of her friends and family would disgrace her, and as we have seen many times, the Talmud is acutely sensitive to the burden of social disgrace, especially for women. “People hear about her and the matter is demeaning for her,” the rabbis explain; and it is forbidden for a husband to cause his wife this kind of pain. The lesson here is that a husband cannot simply give his wife a bare minimum to survive on and then consider his duty complete. He is required to give her as good a life as he can afford, and if he refuses to do so, he must free her to find a husband who will.
In discussing the matter of the trustee, the rabbis enter into a much broader legal discussion about the responsibilities of agents and principals in a contract. (This is an example of why Tractate Ketubot is sometimes called the Shas Katan, the “little Talmud,” since it touches on so many areas of Jewish law.) After all, if a husband vows not to support his wife but then appoints a trustee on her behalf, isn’t he effectively supporting her anyway, and therefore breaking his vow? Rav Huna offers a way around this problem, using a legal fiction of the sort that the rabbis were so ingenious in supplying. If you want to appoint an agent to perform an action on your behalf, but for some reason you are legally prevented from doing so, you can simply announce: “Whoever sustains my wife will not lose out.” In this way, you implicitly promise to reimburse whoever volunteers to act as trustee, without entering into a specific contract to do so. The same principle applies, we learn later on, when it comes to extinguishing a fire on Shabbat. Under Talmudic law, a Jew is prohibited from hiring a gentile to perform an action on Shabbat that he could not perform himself, which includes putting out a fire. If, however, the Jew simply announces, “Whoever extinguishes this fire will not lose out,” he can get around this prohibition.
A husband may not vow to deprive his wife of sustenance, but he is also forbidden from depriving her in smaller ways. “One who vows and obligates his wife not to taste a particular type of produce must divorce her,” the mishna instructs. So too with a husband who prohibits his wife from wearing perfume. Notice that the law does not hold the vows themselves to be null; a husband does indeed have the power to make vows on his wife’s behalf. But when the vows are obnoxious, calculated to make her life difficult or expose her to public disgrace, then the husband must divorce his wife, setting her free from his restrictions.
Things are different when the husband and wife change places—that is, when she makes a vow that he finds obnoxious. Legally, a wife does not have the power to nullify her husband’s vow, which is why her only recourse is divorce. But a husband, as we have seen, does have the power to nullify his wife’s vow if he doesn’t like it. This applies particularly, we read in Ketubot 72a, to vows that involve “affliction.” The rabbis disagree, however, about what constitutes a vow of affliction. Some rabbis say that a vow not to bathe or adorn oneself is a vow of affliction, but Rabbi Yosei disagrees; since these are things that affect only the woman herself, not her husband, the husband has no right to nullify the vow.
If, on the other hand, a wife vows not to adorn herself “with regard to matters that are between him and her”—that is, her appearance when naked, particularly the grooming of her pubic hair—then the husband’s interests are involved and he has the right to nullify. Rav Adda bar Ahava, however, believes that a wife’s refusal to groom her pubic hair does not constitute any real injury to her husband, as he explains with a surprisingly vivid metaphor: “We have not found a fox that died in the dirt of a hole.” The identity of the fox, the dirt, and the hole in this image are clear enough.
So far, we have identified obnoxious acts by a husband that are grounds for divorce. The mishna in Ketubot 72a lays out the corresponding acts for a wife, which fall into two broad categories. A wife who “violates the precepts of Moses” can be dismissed without payment of her marriage contract. This includes feeding her husband untithed food, or lying about her menstrual status and having sex with him while she is impure, or failing to fulfill her own sacred vows. Beyond these legal violations, a woman can also be divorced if she fails to follow “the precepts of Jewish women,” a looser category that has to do less with law than with custom. Here the mishna gives the examples of a woman who goes out with her hair uncovered, or speaks with strange men—acts considered immodest in Talmudic-era communities and in many Orthodox communities today.
Rabbi Tarfon adds another category of un-Jewish-womanly behavior: being “loud.” In the Gemara, the rabbis debate exactly what is meant by this: “What is the definition of a loud woman?” According to Shmuel, it is a woman who speaks loudly about “matters relating to intercourse”: that is, she immodestly discusses private sexual matters. A baraita, however, offers a more explicit interpretation: “When she engages in intercourse in this courtyard and her voice is heard in another courtyard.” Loud, in this reading, means being loud during the sexual act itself. The Talmud seems to imply that this means crying out in pain, which would be a considered a “blemish” that is grounds for divorce. Another, equally plausible explanation, that the wife could be crying out from pleasure, is unmentioned. Whether that is because the rabbis thought it inappropriate to mention, or because they didn’t think that kind of loudness was a problem, is impossible to decide.
To read Tablet’s complete archive of Daf Yomi Talmud study, click here.