Judaism And Divorce: Inequality of the Sexes

By Claire Davaine

International Women's Initiative Staff Writer  

(Photo Credit)

The definition of marriage may vary according to the different cultures, religions and even the law, but it is universally recognised as an institution. Historically, in most cultures, married women had very few rights of their own, being considered the property of the husband.

Judaism believes in the concept of soul mates, called bashert, and the Declaration of the Establishment of the State of Israel (May 14, 1948) states: “the State of Israel [...] will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex...” Thus, women actively participate in all spheres of Israeli life.  More, purpose of marriage is love and companionship, not only procreation nor money.

Marriage consists of two separate acts, called Erusin (or Kiddushin), commonly called the betrothal ceremony, and Nisuin (or Chupah), the Jewish wedding ceremony. As part of the wedding ceremony, the husband gives the wife a Ketubah, also called the marriage contract. The Ketubah spells out terms of marriage and divorce. “A husband is responsible for providing his wife with food, clothing and sexual relations” (Exodus. 21:10).

The Ketubah is a unilateral agreement drawn by witnesses in accordance with Jewish civil law and is similar to a prenuptial agreement. Except that it is not a mutual agreement; the wife agrees only to accept the husband's proposal of marriage. 

Although it is not a bill of sale in which the man purchases the bride, but an agreement designed for woman's protection, it underlines Israel is a male-oriented society, where women need more defence against the violation of personal rights. 

To be noted, marital sexual relations are the woman's right, not the man's. A man cannot force his wife to engage in sexual relations with him, nor is he permitted to abuse his wife in any way.

According to the Torah and the Talmud, a man was permitted to marry more than one wife, but a woman could not marry more than one man. Although polygyny was permitted, it was never common.

The legal arrangement in Israel for marriage, and particularly for divorce, is one of the most complex in the world. While Israel adheres to a Western-style legal system in many domains, the country maintains two parallel judicial systems, a civil and a religious one; the rabbinical courts wielding power in areas including marriage and divorce. Therefore, religious law governs family matters and patriarchal Jewish divorce laws can trap even secular women for years.

How to Get a Divorce?

According to Halakha (Torah law), divorce is accomplished simply by writing a bill of divorce, handing it to the wife, and sending her away. A man can divorce a woman for any reason or no reason, whilst rabbinical law requires the woman's consent. The writ of divorce is called a Get. To prevent husbands from divorcing their wives recklessly or without proper consideration, the rabbis created complex rules regarding the process of writing the document, delivery, and acceptance.

However, Israel’s Rabbinical Courts Jurisdiction (Marriage and Divorce) Law (5713-1953) cede jurisdiction over marriage to a sex discriminatory religious law, which provides that divorce is granted only by husband's permission.

The High Rabbinic Court,1995, states: “... even if it is true that she despises him there is no basis on which to force him to divorce her as it is written in the Shulchran Aruch [Medieval Compilation of Jewish law] section 37 page 2 ‘if the husband wants to divorce her,’ but there is not anything to obligate him and the authorities specified and it appears in the decrees of the rabbis that even to obligate him to divorce, without force, it is not allowed and this is from the language of the Shulchran Aruch which says ‘if he wants,’ that the matter depends only on what he wants, and we should therefore grant his appeal.”

The Mishnah, Codification of basic Jewish Oral Law, (Yevamot 14:1), adds: “a man who wishes to divorce his wife is not like a woman who seeks divorce from her husband. A woman is divorced in accordance with her will or against her will. A man cannot divorce his wife except of his own free will”.

Therefore, although a Jewish woman is allowed to initiate divorce proceedings, her husband must give his consent to make the divorce final. And that Get must be given of his free will, as a Get which is given under duress or coercion is void. Rabbinical tribunals may sanction a husband who refused divorce, but still do not grant a divorce without his consent.

The only halakhic category a husband may be compelled to give the Get, if he has violated any of his obligations such as beating or monetary coercion. “Irreconcilable differences” or “finding him repulsive”, which are the grounds most-oft cited by women seeking a divorce today, as demonstrated in the film “Gett: The Trial of Viviane Amsalem”, are not on the list of qualifying grounds for coercing the husband to give the Get.  As a result, many women find themselves bound to their marriage status, preventing them from moving on in their lives.

There are officially 131 “chained” women involved in rabbinical court cases in Israel, where around 11,000 divorces of Jewish couples are granted annually, said rabbinical courts director Shimon Yaakobi.  This begs the question: why is a woman’s freedom at the mercy of her husband?