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Divorce Court

In this week’s ‘Daf Yomi,’ Talmudic sages explore the grounds for divorce and in so doing reinforce ethical leniency and humane interpretation over strict constructionism

Adam Kirsch
March 15, 2016
Main image: The Supreme Court of the United States
Main image: The Supreme Court of the United States

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

This week, Daf Yomi readers came to the end of Tractate Gittin, after three months of studying the laws of divorce. During that time, we’ve learned in overwhelming detail about the document, the get, that effects divorce under Jewish law: how it is to be written, signed, delivered, and witnessed. We’ve also followed the rabbis’ discussions of conditional divorces, probing the kinds of conditions that can legally be included in a divorce settlement, such as monetary payments, child-custody agreements, and limitations on the right to remarry.

But it is only in Gittin 90a, on the very last page of the tractate, that the Talmud addresses what one might have imagined should be the first question of all: What are the grounds for divorce? In American law, it used to be the case that a married couple could not get divorced without showing that one of the spouses had committed a wrong against the other: adultery, abandonment, cruelty. More recently, this system was replaced in most states by no-fault divorce, in which a couple could get divorced without declaring any particular reason. This change corresponds with a change in our sense of what marriage is for: Rather than a lifelong contract for the sake of children and property, it is now regarded as a mutual arrangement based on affection.

Jewish law differs profoundly from secular law in one respect: As we have seen again and again, Jewish divorce is a one-way street. A husband can divorce his wife, but a wife cannot divorce her husband. Throughout Tractate Gittin, it is always the husband who is imagined as drawing up and delivering the get, and always the wife who is imagined receiving it. This means that, when it comes time for the sages to examine the grounds for divorce, they are asking only why a man might want to divorce his wife, not vice versa. (In real life, of course, things must have been more complicated; one can easily imagine a case in which the impetus for divorce comes from the wife, even if the paperwork must be drawn up by the husband.)

Even given this assumption, it turns out that there are sharp disagreements among the sages about when and why a man should initiate divorce. The biblical text that governs divorce law is, as usual, ambiguous, allowing of different interpretations. Deuteronomy 24:1 reads: “When a man takes a wife, and marries her, and it comes to pass, if she finds no favor in his eyes, because he has found some unseemly matter in her, and he writes her a scroll of severance, and gives it in her hand, and sends her out of his house.” There seem to be two different grounds for divorce here: “if she finds no favor,” that is, if the husband simply doesn’t like her; and “because he has found some unseemly matter in her,” that is, if she has done something wrong.

According to Beit Shammai, traditionally the strictest school of legal interpretation, the emphasis falls on the “unseemly matter,” in Hebrew ervat davar. Beit Shammai interpret this phrase to refer to sexual misconduct; so they rule, “A man may not divorce his wife unless he finds out about her having engaged in forbidden sexual intercourse.” Only adultery is grounds for divorce, on this stringent reading.

Beit Hillel, on the other hand, is characteristically lenient in interpreting ervat davar to mean anything displeasing. Thus they rule, “He may divorce her even because she burned his dish”—even ruining a single dinner is good enough grounds for a man to divorce his wife. (Maimonides, perhaps uncomfortable with such a trivial example, suggested that Beit Hillel was speaking metaphorically here, referring not to an actual spoiled dinner but to a general incompatibility.)

Meanwhile, Rabbi Akiva is even more permissive, shifting the emphasis from “something unseemly” to the other part of the biblical sentence, “because she finds no favor in his eyes.” According to Akiva, “He may divorce her even if he found another woman who is better looking”: The husband’s preference is all that matters, and he need not point to anything deficient in his wife’s conduct at all. If it would make him happier to have a different wife, he should divorce and remarry.

Obviously, in this situation leniency toward the husband means cruelty toward the wife. Beit Shammai’s rule offers a wife some protection against divorce: So long as she is faithful, she doesn’t have to worry about being discarded. Akiva’s rule, on the other hand, means perpetual vulnerability for a wife, who can be traded in at any moment. This suggests why the marriage contract, which guaranteed a woman a settlement in the case of divorce or widowhood, was such an important part of the betrothal; it provided a disincentive for a man to casually divorce his wife.

The Gemara, however, is eager to clarify that just because a man has this power, it doesn’t mean he should use it whimsically. If a husband divorces his wife for no good reason, the divorce is valid: “What he did, he did,” the Gemara says. But Rava invokes a verse from Proverbs to show that this kind of thoughtless or malicious divorce is unethical: “Devise not evil against your neighbor, seeing he dwells securely by you.” Later, in Gittin 90b, we hear another admonition, from the prophet Malachi: “For I hate sending away, says the Lord, the God of Israel.” Divorce itself is bad in God’s sight and should be avoided if possible. This is especially true when it comes to a man’s first marriage: According to Rabbi Elazar, “Anyone who divorces his first wife, even the altar sheds tears over him.” Later commentators adopted this distinction between first and later wives, holding that a first wife could only be divorced for adultery, while a second or third wife (and remember that Talmudic society was polygamous) could be divorced without cause.

This attempt to moderate the law, to distinguish between what a man can legally do and what he ought to do, is a recurrent feature of the Talmud. Clearly, the sages were already uncomfortable with some of the provisions and assumptions of biblical law. They could not simply change what the Bible said. Thus divorce remained a one-way process, as it does in Orthodox Judaism today. But the sages took seriously their responsibility to make sure that Jews acted ethically, as well as legally. Very often, the law as applied turns out to be more humane and egalitarian than the law as written. This tendency of the Talmud should not be forgotten, especially when the law itself seems to strike us as unfair—as it so often does when it comes to the way men and women are treated.


To read Tablet’s complete archive of Daf Yomi Talmud study, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.