IT IS VERY TEMPTING TO DISMISS Mishnah Gittin as the volume that places men squarely in control of women’s marital availability—in that only men may dissolve a marriage—and therefore responsible, to this very day, for women’s suffering serious disabilities under Jewish divorce law. However, if we look at the tractate as a whole and ask ourselves what it is trying to accomplish, we will discover that the answer is more complicated. For the goal of this tractate, as we will see, is to ensure that the get, the instrument of divorce, is above reproach, and therefore fully protects women and children from unscrupulous men who would challenge its validity. Of course, the rabbis accepted the patriarchal construction of marriage, but within this framework they sought to improve the lives of the women governed by their laws. We cannot construe their end product as egalitarian; the right to issue a bill of divorce remains, even today, in the hands of men. But the introduction of a forced get and marriage annulment gave women seeking to extricate themselves from marriage options they never had before. Before examining these provisions in detail, we will first look at the tractate as a whole in order to gain insight into the rabbi’s mindset about divorce. Unlike today, when divorce is most typically an indicator of the breakdown of marriage, divorce in the rabbinic period was often pictured as a consequence of forced, geographical separation of husband and wife.1It seems significant that the very first mishnah of Gittin, and many subsequent mishnahs, talk about a get that comes from abroad. Also unlike today, when the knottiest divorce problem among Jews is the spiteful, recalcitrant husband, in the tannaitic period the most commonly cited problem is the former husband who tries to reclaim his divorced, remarried wife.
The Biblical Basis of Divorce Law and Grounds for Divorce
Deuteronomy 24:1–4 says that if a man takes a wife and then discovers that she no longer finds favor in his eyes because he has found some unseemly thing in her, he may write her a bill of divorce, put it in her hand, and send her out of his house. It further says that if she remarries and is then divorced or widowed by the second husband, her first husband may not take her back; such an act would be an abomination.
These verses imply that a woman may neither initiate divorce nor resist it. All marital decisions are in her husband’s hands. But the Torah requires him to have grounds for divorce. As it says, she no longer pleases him because he has found in her “an ervat davar.”2The JPS translation of this phrase is “something obnoxious.” Jeffrey Tigay (JPS Torah Commentary, Deuteronomy, 221) writes that this refers to her conduct, not to a physical trait. Albeck (265) says that as a result of finding an unseemly thing, he comes to hate her, as v. 3 says explicitly, “and her second husband comes to hate her.” This expression is enigmatic. The first word, a construct of ervah, meaning nakedness, has stark sexual overtones. This same word appears in the Torah’s list of forbidden sexual liaisons (Leviticus 18). The association would imply that he dismisses her because he finds her sexually promiscuous.3See Yair Zakovitch (“The Woman’s Rights in the Biblical Law of Divorce,” Jewish Law Annual 14 [1981]: 28–46), who not only says that in the Bible no one could divorce a woman without serious reasons but also that most often that serious reason was adultery. He also suggests that the Bible records instances of divorce by women of men, e.g., if he denies her support or deserts her. See Tigay (JPS Torah Commentary, Deuteronomy, 221) for a discussion of the possibility of women divorcing men in biblical Israel. But the phrase could also mean “obnoxious thing,” as it does elsewhere (Deuteronomy 23:15),4See Tigay, JPS Torah Commentary, Deuteronomy, 214. and not necessarily refer to something sexual.
Other rules of the Torah enhance our understanding of the legal and also, perhaps, social realities of divorce in the biblical period. A priest, a kohen, may not marry a divorced woman, apparently because repudiation by her first husband has stigmatized her (Leviticus 21:7). In fact, because a priest should have the best, and a high priest, the very best, the latter cannot even marry a widow (21:14).5This rule implies that a divorcee is of lower standing than a widow, either because she has been repudiated, or else, since her first husband is likely still to be alive, because of a second husband’s anxiety over his sexual performance in comparison to that of the first. See BT Pesahim 112b. Moreover, unlike a wife or daughter, whose vows may be canceled by either a husband or a father, when a divorcee makes a vow, she must keep her word (Numbers 30:10): She is not subordinate to any man in her life who would have the power to cancel it. In this way a divorcee has more control over her religious life than a married woman.6The same is true of widows, as noted in the same verse in Numbers.
It is surprising that although the Torah stipulates that a husband must find in his wife an “unseemly thing” in order to divorce her, the rabbis nevertheless debate whether there need be any grounds for divorce at all.
Bet Shammai says: A man should not divorce his wife unless he has found in her some kind of promiscuous behavior, as it says, “because he found in her some unseemly thing [with the focus on “unseemly,” in the sexual sense]” (Deuteronomy 24:1).
But Bet Hillel says: even if she burned his food, for it says, “because he found in her some unseemly thing” [with the focus on “thing,” understood as anything at all].
R. Akiva says: even if he found another more pleasing than she, as it says, “and should she no longer find favor in his eyes” (24:1). (M Gittin 9:10)
We see here a three-way dispute: Bet Shammai morally justifying divorce only for a serious cause, such as adultery; Bet Hillel for any reason whatsoever, even her burning the food just once; and R. Akiva, for no cause at all, merely his infatuation with another woman. R. Akiva and even Bet Hillel deliberately read the verse not according to its simple meaning, reaching a conclusion opposite to the Torah’s intent of divorce for a good reason only. Although it is true that these rabbis seem to threaten a woman’s domestic position, almost sanctioning divorce for the most minor of infractions or even none at all, that may not be the correct interpretation of their views. Do they imply so great an asymmetry in the relationship that she is like a slave whose place in the household can be guaranteed only by means of continuous, outstanding service?
A plain sense reading of the words of the mishnah suggests precisely that, but I think that a deeper reading yields a different message. Several clues take us below the surface. First, this mishnah is the concluding paragraph of the tractate, and tractates often close with an aggadic, homiletic flourish, not a point of halakhah. Second, this last paragraph does not connect thematically to the ones that precede it in the chapter. Nowhere else in Gittin is there a discussion of grounds for divorce, except in this mishnah, at the very end. Third, as we learn from M Ketubot, divorce poses enormous financial challenges. A husband who divorces his wife without good reason must liquidate assets in order to pay her the amount he promised her at the time they married, 100 zuz for a previously married woman, 200 for a virgin, or more if he chose to stipulate an additional amount (tosefet ketubah). In fact, when the rabbis joke about a bad wife, several say that it is one whose ketubah is large (BT Ketubot 63b).7Roman law also recognizes the power of a dowry: “Whatever her legal position, a wife with a big dowry was never really in her husband’s control” (Susan Treggiari, Roman Marriage [Oxford: Oxford University Press, 1991], 329). “Husbands won over by dowries have to behave like maidservants to their wives” (330). The point is clear: The way a woman can dominate a man in marriage is to provide him with a large dowry. Note that these statements refer to the dowry a woman brought into the marriage, which must be returned to her upon its dissolution. In Jewish marriage, the money that makes divorce difficult is the amount stipulated in the ketubah that the husband promised to pay her out of his own pocket. In addition, as we learn from all nine chapters of this tractate, because of the attention that must be paid to detail, the execution of a bill of divorce is far from quick and simple. All these factors suggest that the final mishnah was placed here by the redactor not to examine the issue of legitimate grounds for divorce, not to teach that a man can discard his wife as easily as an old shoe, as proposed elsewhere,8Wegner (Chattel or Person? [New York: Oxford University Press, 1988], 47) considers this mishnah to represent the bottom line of the entire tractate, one that underscores its basic premise—that a wife may be discarded at the husband’s whim. Although it is true that divorce is unilateral, when this passage is read in conjunction with the rest of the laws of divorce, including payment of the ketubah, we see that dissolution of marriage is not easy. Women are not disposed of like chattel. but rather to make a closing, morally charged statement on the topic of divorce. It was appended here to warn men that despite the enormous power resting in their hands, the difficulties of get preparation and ketubah payment should make them think twice before acting without good cause.
A survey of grounds for divorce, as they are presented in M Ketubot, will support the suggestion that the concluding mishnah is merely exhortatory. A cluster of mishnahs (7:1–5) discusses at length the topic of the breakdown of marriage and gives examples of situations in which divorce is recommended or required. The question in such cases is whether the wife is entitled to collect her marriage settlement, as stipulated in the ketubah. For instance, if a husband takes a vow that his wife may derive no benefit from any of his assets, that is, that he will not support her, then he must divorce her after a short period of time and pay her the ketubah. Similarly, if he forbids her to eat certain foods or wear certain clothes, he must divorce her. In yet another case, if he forbids her to visit her family or go to houses of mourning or weddings, he must divorce her and pay her the ketubah “because he locks her up.” As we saw in Chapter 1, it is clear that he has the right to control her comings and goings. However, these laws in Ketubot go so far as to tell a husband that if he abuses this privilege and denies his wife a social context altogether, the rabbis will come to her defense, forcing him to divorce her with payment of the ketubah.9The mishnah goes on to say that if he justifies the restrictions by saying that he fears she will be lured into promiscuous behavior, he is permitted to place these restrictions on her (Albeck, 112).
M Ketubot goes on to list grounds for divorce that result from women’s misbehavior:
These women leave without a ketubah: … If she feeds him food from which she has not separated tithes, or engages in sex with him when a niddah (menstruant), or does not separate hallah, or takes a vow and does not keep her word….
If she goes out without covering her head, spins in the marketplace, speaks with any man…. (M Ketubot 7:6)
Finally, the Mishnah lists a wife’s grounds for divorce that derive from her husband’s physical attributes (M 9–10). If a woman tells a rabbinical court that she cannot tolerate her husband’s blemishes, the mishnah dictates that the court assist her in obtaining a divorce. Legitimate complaints include boils, a polyp on the nose, or an unpleasant odor, such as from a husband who is a tanner. In such cases the court forces him to divorce her [כופין אותו להוציא] and pay the ketubah in full.
M Ketubot thus sets forth the relative rights of the husband and wife to end their marriage: He may divorce her for serious cause, with the benefit of not having to pay the marriage settlement; she may “divorce” him for cause, without suffering any financial penalty. By implication, he may even divorce her without good reason, but he will have to pay in full.10Treggiari, Roman Marriage, 442. The same used to be true in Roman law. Originally, only the husband could divorce. If he dismissed his wife for an offense, she lost her dowry; if for no good reason, he was penalized. She may not do the same to him.
Although this list tilts toward him, it clearly discourages the husband from divorce on a whim: If he dismisses his wife with only flimsy grounds or without any grounds at all, although within his rights, he will suffer serious financial setback. Tosefta Ketubot (12:1) says that the ketubah payment was instituted to inhibit impetuous divorce. Moreover, divorcing on impulse is not easy, given all the rules of get preparation. When we read the final mishnah of Gittin against this background, remembering that it is isolated thematically from the rest of the tractate, we find that, rather than expanding men’s options for divorce and threatening women with unstable marriages unless they toe the mark, the redactor seems to suggest (but does not say so explicitly) that exercising one’s rights for no good reason is likely to cause a man more pain than relief. Not a bad concluding homily.
Standardization of the Get and Comparison with the Writ of Manumission
According to M Gittin, a woman’s bill of divorce and a slave’s writ of manumission are two variations of the same institution. The word get merely means document, not instrument of divorce.11Tigay (JPS Torah Commentary, Deuteronomy, 221) writes that get is an Aramaic word meaning “legal document,” derived from a Sumerian term meaning “oblong tablet.” Zakovitch (“The Woman’s Rights,” 43) notes that in addition to the prescriptive verses from Deuteronomy that mention “a book of severance,” there are verses in Isaiah (50:1) and Jeremiah (3:8) that do the same. From this he concludes that bills of divorce were known to Israelite society already in the late days of the Kingdom of Judah. See M Gittin 9:3 and M BB 10:1, 2 for references to the Aramaic text of the get in the tannaitic period. Aramaic was the lingua franca in Palestine. The term for a bill of divorce is get ishah and for a writ of manumission, get shihrur. Just as an emancipated slave needs a document to prove his status as a freedman, so does a woman need a document to prove her marital availability, not just when she gets remarried but also later on to defend herself against possible challenge. By discussing these bills in tandem and according them similar names and rules, the Mishnah is suggesting that divorce of a wife by a husband is like manumission of a slave by a master: Divorce “frees” a woman from a marital relationship in which he is dominant and she subordinate.
Since the get and the writ of manumission are given for the good of the recipient, so that he or she has proof of dissolution of prior “ownership,” the attempt to standardize these documents is intended to benefit the recipient, not the donor. If a woman remarries and only later discovers that her get was flawed, Jewish law will view her second marriage as an adulterous relationship and her children from her second “husband” as “mamzerim,” of impaired lineage and maritally ineligible to anyone other than another mamzer.12See M Kiddushin, chapter 4, for a set of rules on the topic of permitted matches. In order to protect a woman and her offspring from ever acquiring such status, the rabbis spend much time laying down rules for the get. These rules are not meant to be burdensome but to set standards against which to judge a get. If it conforms, it will be above reproach.
After chapter 1 of M Gittin discusses the special rules that apply to a get sent from abroad to the land of Israel, chapters 2 and 3 present the basic rules for preparing a get.
One may write with anything: ink, arsenic, red chalk, gum, sulphate of copper, and anything else that lasts. One may not write with drinks, fruit juice, or anything that does not last.
One may write on anything: an olive leaf, a horn of a cow and he must give her the cow, a hand of a slave and he must give her the slave. R. Yossi says: One may not write on anything animate or on food…. (M 2:3)
All are fit to write the get, even a deaf-mute, a mentally impaired person, and a minor….
All are fit to bring the get [from one place to another for delivery to the wife], except for a deaf-mute, a mentally impaired person, or a minor. (2:5)
Any get that was not written expressly for the woman [to be divorced] is not valid. (3:1)
One who prepares divorce documents must leave room for the name of the man, the woman, and the date. (3:2)
It is not hard to see that the rabbis are striving in these paragraphs to produce a get that a woman will be able to present at any time in the future in order to validate her status. For this reason they require ink that lasts and paper that will not disintegrate. No restrictions at all are placed on the scribe, for the written word counts, not who writes it. In addition, since many gittin discussed by this tractate are brought from abroad to the land of Israel, the bearer must be someone who is capable of giving testimony that it was written and signed in his presence. If anyone then appears and challenges its validity, the bearer can testify that the get is valid (and his testimony will be sufficient, that is, will be considered as the testimony of two) even though the witnesses to the get are abroad. Those who are not of sound mind are excluded, since they would be unable to testify. Elsewhere in the tractate, rules are presented about the attestation of the get itself and its delivery.
The text of the get does not appear until the very last chapter of the tractate. It is written partly in Hebrew and partly in Aramaic.
The text of the get: Behold you are permitted [in marriage] to any man. R. Judah says: And this will be to you from me a document of severance, certificate of leaving, and a writ of dismissal, that you may go and marry any man whom you wish.
The text of the writ of manumission: Behold you are a free woman,13Most manuscripts read “man.” However, for the purposes of comparing the get and the writ of manumission, it makes no difference whether the model is that of a man or a woman who is being freed. behold you are on your own. (M Gittin 9:3)
Here, at the end of the tractate, where the two kinds of documents are once more dealt with side by side, the reader is again forced to confront the similarity of the two situations: Just as a slave is owned by the master and then set free, so, too, is a wife dominated by her husband and then set free, which means, in her case, able to enter into another marital relationship. In each of these instances one person, the husband or master, is relinquishing control over another, the wife or slave. In each of these cases it is not a declaration but a document that severs the relationship and will safeguard the newly won status of its recipient.
The essential similarities of these two institutions also draws attention to their differences. As tempted as we may be to call marriage slavery, we may not do so for a number of reasons. A woman always owns herself, her physical being. She cannot be passed along from one “master” to the next. She may own property even when married. She has a right to part of her husband’s estate upon dissolution of the relationship through divorce or death. She may make demands of him. He has an obligation to support her. None of this is true in reference to slaves. Whereas we may draw the inference that the means of divorce, like the means of betrothal, preserve the older purchase-of-a-wife model of marriage—she is bought like a slave and also dismissed like a slave—nevertheless, the essence of the marriage, as refashioned by the Mishnah, is significantly different from slavery. Although the husband is dominant and the wife subordinate, it would be wrong to equate subordination with slavery.
The aim of the standardization of the get, as noted, is to protect the woman from a challenge to its validity. The Mishnah, as early as chapter 1:3, makes reference to the possibility of such a challenge. But who is likely to question the validity of the get and thereby wreak havoc on her life? R. Hisda says that it is her first husband, the man who wrote the get and sent it from abroad, who is now trying to hurt her.14PT Gittin 1:3; 43c; stama d’gemara, BT Gittin 9a. Perhaps he left home against his will, for fear of persecution by a hostile government, or went on a business trip and decided to stay abroad and start a new life. Should he find his way back home, he may be displeased to discover that the wife he divorced is living with some other man, her new husband, and in a fit of jealousy may try to undermine the validity of the get that he himself sent. If he were believed, the children of her second husband would be mamzerim and she would have to leave him without receiving a ketubah. She would also be forbidden to resume life with her first husband.15Cf. M Yevamot 10:1–3.
Recurrent Themes: The Vacillating Husband and Compatible Divorce
Since the Mishnah is usually studied one paragraph at a time, the larger issues—those that the Mishnah returns to again and again—often elude the eye of the reader. But it is precisely the recurrent themes that point us to legal truths, if not social ones as well. The matters that especially interest legislators are likely to be those that speak to their contemporary situation. By identifying these motifs, we can better comprehend the rabbis’ mindset about divorce. This comprehension will lead, in turn, to a more precise understanding of their legal pronouncements.
In many different passages throughout the tractate, in five out of the nine chapters, M Gittin portrays the divorcing husband as a man who decides one day to divorce his wife but on the next changes his mind.
If a man says [to a messenger], “Give this get to my wife or this writ of manumission to my slave,” if he wishes to retract in both of these cases he may, [provided the get has not yet reached the wife or the slave]. This is the opinion of R. Meir…. (M Gittin 1:6)
… If a man prepares a get for his wife and then changes his mind [and decides not to divorce her], and someone else whose wife has the same name [wishes to use the get,] he may not do so [because a get must be written expressly for the woman who is to be divorced]. (M 3:1)
If he sends a get to his wife via messenger and he then overtakes the messenger, or if he sends a second messenger after the first, and says to him, “The get that I gave you is canceled,” it is canceled. If he reaches his wife before the get does or if he sends a [second] messenger to his wife and says, “The get I sent you is canceled,” it is canceled. But once the get reaches her hand, he may no longer cancel…. (M 4:1)
If he says [to a messenger], “Accept this get for my wife,” or “Take this get to my wife,” if he wishes to change his mind, he may do so [as long as the get has not yet reached his wife]. If the wife says [to her messenger, “Go and] accept this get on my behalf,” if the husband wants to change his mind … (M 6:1)
If he wrote a get for his wife and then changed his mind, Bet Shammai says … but Bet Hillel says … (M 8:8)
The repeating image of vacillation throughout this tractate suggests that, in the eyes of the rabbis, divorcing husbands, or perhaps men in general, are emotionally unstable, one moment so angered that they decide to divorce, as evidenced by Bet Hillel’s example of burnt food (M Gittin 9:10), and the next sufficiently calm that they regret their decision. Rather than point out women’s emotional or behavioral flaws, these laws highlight men’s. In other words, the blame for the breakdown of the marriage is placed not on women but on men.
Another repetitive theme is the divorce that results, not from incompatibility, but from the exigencies of life. The many references to a get that one sends from abroad suggests that men, through no fault of their own, were forced to live abroad for a while, or at least in a different province in ancient Israel. In these situations, it must have seemed reasonable for a man to divorce his wife, even though he was at peace with her, so that she could live out her life, remarry, and have children with another man. Divorce terminates his obligations to support her. We also read of men about to be executed or die from an illness who save their wives from levirate marriage—if a man died childless, the Torah mandates the marriage of his widow to his brother (Deuteronomy 25:5–9)—by issuing a divorce before they die (M 6:5,6; T 5:1). We similarly find men who leave town and intend to come back, but even so give their wives a conditional divorce, one that will take effect only if they do not return by the stipulated date (M 7:7). In this way they ensure that their wives will never be anchored to a man who is not living with them and possibly not even alive.
The repeated references to men in dire straits and to the arrival in ancient Israel of gittin sent from abroad leads me to believe that these laws were written in response to harsh economic and political realities. Although it is generally not wise to draw conclusions about social realities from a legal text, in this instance it seems warranted.
All in all, the husband described in many mishnahs in this tractate is not a man who is holding back a get in order to spite a wife with whom he did not get along or press her for concessions—the children were his (BT Ketubot 59b),16The Gemara cites a tannaitic source that says that if he divorces her, he can not force her to suckle his child. But if the child recognizes its mother, the ex-husband can pay her and force her to suckle. This implies that the child is his. as was true in most systems of ancient law,17See Susan Treggiari, “Divorce Roman Style: How Easy and How Frequent Was It,” in Marriage, Divorce, and Children in Ancient Rome, ed. Beryl Rawson (Oxford: Clarendon Press, 1991). and he owed her nothing but the ketubah. Rather, he does not necessarily want to let go of the woman to whom he is married, although he, for now, is unable to live with her. This tractate paints a rather poignant portrait of men who divorce their wives under duress, probably for the benefit of the wife. In cases like these, I think it important to note, divorce is not an act of anger but an expression of kindness.
Annulment of Marriage
As much as a man’s predicament may arouse our sympathy, it is also necessary to look at divorce law from a woman’s perspective. And this is precisely what one mishnah does, with far-reaching consequences.
At first, a man would convene a court in a different location [from where his wife was living] and cancel the get [he had sent and not inform her of his actions]. Rabban Gamliel the Elder passed a law prohibiting men from doing so, in order to repair the social order [מפני תקון העולם]. (M Gittin 4:2)
By restricting a man’s freedom of action, by requiring him to inform his wife that he canceled the get he sent her, Rabban Gamliel repaired the social order, which meant, in this case, improving the lot of women and children. Until that time, a woman could receive a get that looked perfectly valid, remarry, and only afterward, most likely by chance, find out that her husband had canceled it. In such a case her second union would be adulterous and the children of that union mamzerim.
In this passage, Rabban Gamliel essentially closed the gap that was developing between law and ethics. Allowing a husband to cancel a get after it was drawn up and dispatched but before it was delivered was reasonable, but it would be unreasonable and unfair if he were not required to inform his wife of the cancellation. So, even though divorce was exclusively in a man’s hands, Rabban Gamliel placed limits on him.
The Gemara comments:
==What does “for the sake of repairing the social order” mean?
––R. Yohanan said: [He made] this enactment [to reduce the number] of mamzerim.
––Resh Lakish said: [He made] this enactment [to reduce the number] of agunot. (BT Gittin 33a)
These two Amoraim disagree about which social wrong Rabban Gamliel was trying to repair. R. Yohanan holds that Rabban Gamliel’s enactment was intended to reduce the number of instances in which the news will not reach the wife’s ears and she will remarry and bear illegitimate children before she finds out about her husband’s cancellation. Resh Lakish, according to the Gemara, explains the enactment differently. He says that by making a cancellation more difficult to execute, it is unlikely that a man whose only aim is to torment his wife, to keep her tied to him but not live with her, would bother to intercept the messenger. As a result, the number of agunot—women anchored to their first husband from whom they are separated—would decrease.
The Yerushalmi’s alternative explanation of Resh Laskish’s statement on agunot is more to my liking.18Gittin 4:2; 45c. It says that if a man is permitted to cancel a get without informing his wife, then a woman who receives a get by messenger will worry that it may have been revoked after it was mailed but before she received it and will, therefore, refrain from remarrying, thus becoming a self-imposed agunah. She will consider herself tied to a man she is not living with and who has, in fact, divorced her. Once the enactment was made, a woman no longer had to fear that a get that looked valid was not.
There is no need for us to choose between the comments of Resh Lakish and R. Yohanan. The two rabbis probably intended to complement each other, as suggested by R. Huna,19PT Gittin 4:2; 45c. R. Huna says that even the Amora who says that Resh Lakish holds that a woman should not “sit and be tied to him” also thinks that Resh Lakish holds that she should not find herself in a situation in which she will give birth to mamzerim. since the enactment reduces both the number of mamzerim and of agunot. In either case, Rabban Gamliel’s larger point is the unfairness of delivering to a wife a get that looks perfectly valid, only to have her discover at a later date that it was a worthless piece of paper. This leads us once more to the main purpose of the entire tractate: the attempt to create standards for the preparation and delivery of the get that will make it impossible for it later to be found invalid. Since it is only women who need a get, these standards aim to protect them.
Support for this idea can be found in the second part of the very same mishnah. It reports that Rabban Gamliel the Elder introduced yet another enactment to repair the social order: that all names by which the husband and wife are known be entered into the get so that there will be no question as to who is divorcing whom. The next mishnah (4:3) presents yet two more divorce enactments by Rabban Gamliel, one that made it possible for the woman to collect a marriage settlement upon the death of her husband at a time when many rabbis made it impossible for her to do so, and a second,20Apparently also instituted by the same rabbi (Rashi). His name is not mentioned explicitly in connection with this enactment, but it stands to reason that it is his. See the end of Tosefta Gittin (7:13). that the witnesses to the writing of the get affix their signatures to it so that verifying its validity in the face of a challenge would be easier. These four changes, all enacted for the sake of tikkun ha-olam, to repair the social order, and all obviously intended to aid women, head a long list of other enactments also introduced for the same reason. Some of these improve the lives of slaves, some protect the Jewish ownership of land in Palestine, and the rest address a variety of other issues.
Although this group of laws and the following one, enactments made for the sake of peace, mipnei darchei shalom (M 5:8, 9), are well-known collections, little attention has been paid to the fact that changes benefiting women, primarily with respect to the dissolution of marriage, head the list of tikkun ha-olam enactments and determine its placement in M Gittin. These new rules make an extraordinarily powerful statement about the rabbis’ ability to introduce legislation independent of, and even, as the Gemara will point out, contradictory to Scripture, when acting to restore a stance of social justice to the system. Once more, however, it should be noted that these changes needed to be made only because society, and divorce law in particular, was configured in a patriarchal and hierarchical manner. In contradistinction to the rules of Jewish divorce, Roman law, in the late Republic, allowed either a man or a woman to terminate a marriage, simply by one saying to the other, “Take your things for yourself.”21Treggiari, Roman Marriage, 446.
The Gemara continues with a discussion of the broader implications of this change in law:
We learned in a baraita (Tosefta Gittin 3:3): If he canceled the get [without her knowledge, after Rabban Gamliel the Elder’s enactment disallowing such behavior was already in place], it remains canceled. The opinion of Rebbe. R. Simon b. Gamliel says: He may not cancel it … for that would undermine the legislative authority of [Rabban Gamliel’s] court [and all others].
==Can it be that, according to the Torah, the get is canceled [and the woman, therefore, still married to her husband], but [in order to uphold] the authority of the court, we [i.e., the rabbis] declare a married woman to be available for remarriage?
==Yes, all who betroth accept upon themselves the rabbinic rules of marriage [אדעתא דרבנן מקדש] and [if they break them] the rabbis [of their day] may annul the betrothal. (BT Gittin 33a)
The opening passage of this unit presents a dispute that appears to be about the cancellation of a get without the woman’s knowledge but is also, at a deeper level, about the extent and limits of rabbinic authority. Rebbe holds that the freedom that a man has to cancel a get without informing his wife can be taken away from him only ab initio, but that, after the fact, such a cancellation is valid. His father, R. Simon b. Gamliel, disagrees, noting that if the husband’s obligation to inform his wife of the cancellation were disregarded after the fact, then the ability of rabbis like Rabban Gamliel the Elder, his own great-grandfather, to introduce legislative change would be seriously impaired. The Gemara, in an attempt to push the opinion of R. Simon b. Gamliel to its logical extreme, asks if later rabbis would declare a woman to be available for remarriage if in the eyes of the Torah she was still married to her husband. Such a stand would uphold the authority of earlier rabbis to make a change that they deemed necessary for the sake of social justice, even if it contravened Torah law.
The Gemara answers yes, presumably meaning that later rabbis accept the idea that earlier rabbis have the authority to do so.22There are no variant readings for this line of text. But the next line implies that this word “yes” is not to be taken literally, for the Gemara goes on to explain that when a man betroths a woman, he does so on condition that he not violate rabbinic marital law.23It is for this reason that the betrothal formula today includes the words, “according to the law of Moses and Israel” (Tosafot, s.v. kol d’mekadesh, Gittin 33a). It should be noted that this formula, in the form “according to the laws of Moses and Jewish men,” was already prevalent in the early tannaitic period and appears in marriage documents from the Bar Kokhba period that were found in the Judaean desert. It is therefore likely that Tosafot is interpreting the standard marriage formula in a way that serves the purposes of the text of the Gemara. This phrase also appears in M Ketubot 7:5, with a different meaning altogether. See Chapter 2, note 50. And since one of the rabbinic provisions is that a man not cancel a get without his wife’s knowledge, any man who does so is violating the stipulations of his betrothal. In such a case, the Gemara continues, the rabbis of his day have the right to annul his betrothal, which means to free his wife to remarry without a get.
To my mind, the Gemara has not given a direct answer to the question whether the rabbis have the right to contravene Torah law. It is merely saying that, according to R. Simon b. Gamliel, any man who cancels a get without his wife’s knowledge has stepped outside the bounds of rabbinic marital law. But since he stipulated upon betrothal that he accepted rabbinic marital law, he has now paved the way for the rabbis of his day to annul his betrothal and declare his wife free to remarry without a get. This is the Gemara’s interpretation of the words of R. Simon b. Gamliel, but, we should note, it is not an explicit statement that the rabbis have the right to rescind Torah law. All Sages would agree that breaking a stipulation of marriage invites annulment. As long as the matter is cast in this light, no groundbreaking principle emerges from this discussion. But a more subtle principle has been expressed here: When rabbis run amok of Torah, as they themselves define Torah—which, in this instance, means a man’s unfettered right to cancel a get before it reaches his wife—and recognize that by adhering to the written Torah they are promoting injustice to women, then they may in fact, if not in principle, abrogate a rule of the written Torah. In this case, the rabbinic restrictions on a man’s right to cancel a get are given precedence over the written Torah’s more problematic, unrestricted rights.
The practical implications of this discussion are far-reaching. If men accept upon themselves all of rabbinic marital law as a condition of their betrothal, then, if a man cancels a get without informing his wife, he makes his marriage subject to annulment. The rabbis of the Mishnah added that rule to the corpus of rabbinic marital law and thus eliminated one form of divorce abuse by husbands. Similarly, rabbis of a different time period could place other rules within the corpus and in this way make a marriage subject to annulment because of those violations as well. They could thus prevent other forms of divorce abuse, such as a husband’s refusing to issue a get even after a rabbinical court has instructed him to do so. I stress violations by a husband and not by a wife because it is he who is in control of the get, and so dissolving or maintaining the marriage is in his hands alone, often to her detriment.
We thus see that the rabbis devised an extraordinarily powerful technique for dealing with husbands who behave in ways that hurt their wives: The rabbinical court, on its own volition or at the wife’s request, has the power to step in and dissolve the marriage without his approval or participation. This provision is a move away from patriarchy and toward resolution of marital difficulties in a manner fairer to women. It still falls short of wife-initiated divorce.
Forced Divorce
Although M Gittin contains nine chapters, sixty-six paragraphs in all, only one part of one paragraph deals with the topic of forced divorce.
… A forced bill of divorce—[if executed] by a Jewish [court], it is valid; by a non-Jewish court, it is invalid. And in a non-Jewish court they may beat him [חובטין אותו] and say, do what the Jewish court asks of you, and it [i.e., the get] is valid. (M Gittin 9:8)
The simplicity of this passage is startling. Having no connection at all to what precedes or follows it, and coming very close to the end of the tractate, it says that it is acceptable for a Jewish court of law to force a man to write a get for his wife. No explanation is given of the circumstances under which a court could issue such an order. Even so, we should not underestimate the revolutionary nature of this brief statement. For more than eight chapters, the tractate has made it abundantly clear that it is men who divorce women and not women who “divorce” men.24See note 3. And this mishnah states the opposite, if we assume that it is she who asked the court to assist her in obtaining a divorce from him. At the very least, men are no longer in full control of divorce proceedings. Since the rabbis were aware of the fact that non-Jewish courts enabled women to divorce men,25See Bereshit Rabbah 18 (Theodor and Albeck ed., 166–167 and notes). See also Lieberman, “How Much Greek in Jewish Palestine?” in Texts and Studies (New York: Ktav, 1974), 226. He writes that the rabbis recognized, for gentiles, divortium given by men and repudium given by women. this ruling may have been triggered by a rabbinic desire to make such an option available to Jewish women, who, as we will see, were probably clamoring for it.
Reading this mishnah together with another from Yevamot will sharpen our understanding of both.
If a deaf-mute man married a woman who could hear, or if a man who could hear married a deaf-mute woman: if he wishes to, he may divorce [her]; or, if he wishes to, he may remain married to her [thus indicating that a deaf woman may be divorced and a deaf man may give a divorce]. Just as he betroths by [giving] a sign, so he divorces by [giving] a sign.
If a man with normal hearing married a woman with normal hearing and then she lost her hearing, if he wishes to, he may divorce her, or if he wishes to, he may remain married to her. If she lost her mind, he may not divorce her. If he lost his hearing or his mind, he may never divorce.
Said R. Yohanan b. Nuri: For what reason [מפני מה] may a woman who lost her hearing be divorced but a man who lost his hearing not give a divorce?
They said to him: A man who gives a divorce is not like a woman who gets a divorce. A woman leaves whether she wishes to or not; a man sends her away only if he wishes to [שהאשה יוצאה לרצונה ושלא לרצונה והאיש אינו מוציא אלא לרצונו]. (M Yevamot 14:1)
This mishnah does more than simply record a point of law about men and women who have lost their hearing. There is a debate here about larger halakhic issues. R. Yohanan b. Nuri’s query, why the difference in the rights of men and women who have lost their hearing, seems to fall on “deaf” ears. His colleagues respond to him as if he had asked, “Why does this law treat men and women differently?” But their answer—that women may be divorced against their will but men may not give a divorce against theirs—is almost certainly a rule he already knew, since it underlies so much of Jewish divorce law and makes so much sense in a patriarchal society. I therefore think that his question is rhetorical: He is not asking “why does this difference exist?” but is asserting that this difference in the application of the rules is not fair. R. Yohanan b. Nuri issues a challenge: If you rabbis consider divorce acceptable and even desirable in cases of misfortune like these, then it is not morally right that you allow a hearing husband to cast off a wife who became deaf, but do not allow a hearing wife to cast off a husband who became deaf. Having no real answer, his colleagues merely reiterate the well-known rule of unilateral divorce by men only. Note that this is the same R. Yohanan b. Nuri who said to R. Akiva and R. Meir, when they were listing grounds for divorce, such as suckling a baby in public(!), that according to their excessive demands of modesty, no Jewish woman would be able to remain married to her husband (Gittin 89a). We thus find in this mishnah one rabbi who was sensitive to women’s relative disablement under Jewish divorce law in this particular case—and, it stands to reason, in other cases as well.26Note that a woman who lost her mind may not be divorced, just as a man who lost his mind may not give a divorce. It could be that that relative equality triggered R. Yohanan b. Nuri’s comment. He critiques Jewish divorce law as a system in which only men can effect divorce.
If we now return to the forced divorce rule of M Gittin 9:8, we can begin to understand it better. It is possible that this rule, which undercuts so much of the legislation in this tractate, is a vestige of a different point of view, similar to R. Yohanan b. Nuri’s, that recognized that women, too, should be able to extricate themselves from a bad marriage. The redactor of the Mishnah includes it in the collection of miscellaneous rules at the end of the tractate because he is sympathetic to women’s vulnerability to abuse under divorce law and wishes to begin to act on their behalf.
The Mishnah develops further the notion of a forced divorce in a different tractate. When discussing the forced donation of sacrifices to the Temple, M Arakhin says:
… [The verse says, “He shall offer it … ] willingly” [Leviticus 1:3, לרצונו]! [How is this possible?] They exert force on him until he says, I wish to [make this donation to the Temple of my own free will].
And similarly with bills of divorce: They exert force on him until he says, I wish to [כופין אותו עד שיאמר רוצה אני] [write this get of my own free will]. (5:6)
This mishnah, strangely enough, seems to undermine the concept of a forced divorce. Once the element of willingness on the part of the husband is introduced into the process of forcing a get, execution becomes virtually impossible. Force and free will are contradictory concepts. However, it is possible that the declaration “I do this of my own free will” means that he will, in fact, give the get willingly because he wants those who are applying pressure on him to stop doing so. As the Talmud says elsewhere (BT Baba Batra 48a), the result of the application of pressure is that he reconciles himself to his fate and does what is asked of him “of his own free will.”27See also BT Kiddushin 50a, where the Gemara says that although one might think that in his heart he opposes writing the get, in fact he wishes to comply with the orders of the court. See also BT Yevamot 106a for a discussion of forced levirate release. Adina Yoffie brought this to my attention.
When this same passage appears in the Midrash Halakhah,28Sifra (Torat Kohanim) Vayikra, Parsheta 3:15, p. 5b. where it probably originated, it does not make any reference to a get, only to the donation of a sacrifice. The midrash, like the Mishnah, derives the requirement that a sacrifice be “of his own free will”—even if forced—from a word in the verse that says that it must be offered voluntarily, li-retzono. No such word appears in the verses that speak of divorce. It is therefore tempting to conclude that the clause about the freely granted, yet forced, get was added later to the mishnah in Arakhin, probably by individuals who wished to make it difficult for a woman to force a man to write a get, or even by the redactor of the Mishnah himself, who may have remained ambivalent on the subject. Both references in the Mishnah to a forced get seem to be later additions, one expressing sympathy for women and trying to help them, the other hedging this concern.29The Gemara did not see this additional requirement of “his own free will” as a problem. It held that once one pressures a man into succumbing to the proceedings, such as selling a field of which he wants to remain the owner, he does so “of his own free will.” The same would hold true of a man who is forced to give a get. Maimonides, in an often quoted passage, says that a man who is forced to give a divorce does so willingly because it stands to reason that although he wants to obey the rabbis, he has been in the clutches of his evil inclination. When forced to act properly, he is actually doing so of his own free will because he rids himself of his evil inclination and every man is interested in doing what is right (Mishneh Torah, Hilchot Gerushin 2:20).
To this very day, the requirement that a forced get also be of a man’s own free will has made it virtually impossible to aid women in their quest for a divorce, given its interpretation by a large number of post-Talmudic decisors (i.e., rabbis—over the centuries—whose decisions of cases expand the corpus of Jewish law). For instance, any attempt on the part of secular legislators to pressure the husband to write the get under the threat of a variety of financial sanctions, such as inequitable distribution of assets, is translated by some as impairing his doing so of his own free will. The Yerushalmi raises another interesting possibility—that in certain situations the rabbis should “seduce” (but not force) a man into giving a get, convince him, and maybe even pressure him into doing what they think is right. By the time he writes it, it is of his own free will.30PT Kiddushin 3:11; 64c. The case is one in which a man says that he betrothed a certain woman’s daughter but the woman says that it was she herself whom he betrothed (M Kiddushin 3:11). A get is desirable so that each of these women is free to marry someone else without the fear of already being married to the first man.
The important question is, How did the rabbis of the Talmud respond in theory and in practice to this set of contradictory rules? I find it remarkable that the passage from Arakhin about a man’s writing a forced get of his own free will seems to have been consistently ignored by the Amoraim or else assumed not to pose a problem. The Gemara’s discussion in M Gittin 9:8—about a forced divorce—makes no reference to it, nor do the other discussions of the subject elsewhere in this tractate. The Yerushalmi parallel also makes no reference to it. We will soon see that although forcing a get became part of mainstream amoraic practice, requiring the husband to do so of his own free will did not.
––Said R. Nahman in the name of Samuel: A get compelled by a Jewish court according to the rules is fit; not according to the rules is unfit [and she remains a married woman]; even so, were a woman to receive such a get and then, upon the death of her husband, wish to marry a kohen, she would not be allowed to do so…. A get from a gentile court …
––Said R. Mesharshaya: According to the Torah [דבר תורה], a get compelled by a non-Jewish court is valid(!). Why did the rabbis go and declare it invalid? To stop each and every Jewish woman from seeking the assistance of a non-Jewish court [to compel a get] and thus release herself from the control of her husband [שלא תהא כל אחת ואחת הולכת ותולה עצמה בערכ ומפקעת עצמה מיד בעלה] …
==The statement of R. Mesharshaya was fabricated … [בדותא היא] (BT Gittin 88b)
Samuel, a first generation Babylonian Amora, limits the scope of the mishnaic rule by saying that a woman cannot seek the assistance of the court in obtaining a divorce unless she has grounds. What he apparently means by this, as noted by Rashi (s.v. kadin), is that she must register one of the claims about which the Tannaim said, “he should dismiss her and pay her the marriage settlement,” as discussed above. A court could also force a get, according to Rashi, if she were forbidden to him by Jewish law.31The marriage of a kohen and divorcee, for instance, takes effect, but is prohibited and therefore subject to rabbinic efforts to terminate it.
Several other instances of acceptable wife-initiated divorce are added by the Bavli and the Yerushalmi: if she wishes to move to Palestine and he refuses to do so, he is forced to divorce her and pay the ketubah (Ketubot 110b; PT Ketubot 13:11; 36b); if they have not had any children after ten years of marriage and she wishes to leave him, he is forced to divorce her and pay the ketubah (Yevamot 65b; PT Yevamot 6:6, 7d).32See Chapter 6.
If Samuel has cases like these in mind, then he is limiting the scope of a woman’s ability to turn to the courts for assistance. He restricts the apparently broad latitude the Mishnah granted a woman to initiate the divorce proceedings herself. But R. Mesharshaya, who lived several generations later than Samuel, says that according to the Torah, even a get compelled by a non-Jewish court is valid. However, as a political move—to stop Jewish women from seeking relief from non-Jewish courts—the rabbis decided to rule more stringently than was required and invalidate it.
This last statement is shocking. It suggests that men were so deeply disturbed by women’s newly discovered way of extricating themselves from the control of their husbands that they found it necessary to declare a valid document invalid. This is a rather troubling use of legislative power. But why were Jewish women preferring gentile courts to Jewish ones? Was it because Jewish courts were biased against them? Did Jewish courts make it hard for women to produce valid grounds?
The Talmud, perhaps embarrassed by its own callousness, claims that R. Mesharshaya’s statement was fabricated.33Some texts read that it was erroneous, ברותא. Either way, the stama, the anonymous voice of the text, exhibits extreme discomfort in dealing with this assertion. Elsewhere (BT Baba Batra 48a), however, this same statement by R. Mesharshaya is cited without such a disclaimer. This leads me to believe that the statement “it was fabricated” was itself fabricated. We may have historical evidence here of Jewish women turning to non-Jewish courts to protest the discriminatory practices of Jewish law courts.34In the Geonic period a number of rabbis write that that is precisely what Jewish women did—they secured a divorce from the secular courts. See Shlomo Riskin, Women and Jewish Divorce (New York: Ktav, 1989), 58, 67, 73ff. Many women in Israel today favor resolving divorce matters in the secular courts over the rabbinical courts. It is even possible that when M Gittin 1:5 speaks of gittin that are filed in the non-Jewish archives and are signed by non-Jewish witnesses that it is referring to instances in which women went to a secular court to obtain a divorce. See my article, “Pesiqah L’humra B’mishnat Gittin,” in Proceedings of the Tenth World Congress of Jewish Studies, Jerusalem, August 1990. We may even want to view R. Mesharshaya’s statement as a countertradition, one that views wife-initiated divorce as a moral necessity, even within a patriarchal social order.
The sugya continues:
––Abaye found R. Joseph sitting [in court] and compelling [husbands to give] gittin [to their wives]. He said to him: But we are [only] lay judges [and hence not authorized to do so]! …
––He responded: We are deputized by them [the expert judges in Palestine to judge these kinds of cases]…. We are thus empowered to decide all matters that frequently come before the courts…. (BT Gittin 88b)
This segment concludes the Gemara’s commentary on the mishnah about compelling a get. It points out that the rabbis of Babylonia, like those in Palestine, had the authority to compel a get and, moreover, that they were actually doing so. Even more surprisingly, according to the concluding note of the anonymous voice of the text, they were doing so fairly often.35See Rashi, s.v. milta d’shehiha. This note about frequent coercion appears to be a ringing endorsement of the rule of forcing men to write a get. The question that remains is whether the courts were forcing gittin because women filed complaints or because the courts opposed certain marriages, such as that between a kohen and a divorcee. Although I do not know, I find no reason to think that it was just one case or the other.
There is also evidence that other rabbis, for example R. Sheshet and R. Judah, both early Babylonian Amoraim, were forcing gittin. In one of the Gemara’s accounts (Gittin 34a), it is reported that R. Judah forced a man to write a get, and the man then canceled it. R. Judah forced him to write it again, after which the man canceled it again, upon which R. Judah forced him to write it a third time. It is hard to reconcile these details with the notion of “forcing him until he does so voluntarily” that we saw in M Arakhin. Had he agreed to do it voluntarily, he would not have canceled it immediately twice. This case, as well as the other one cited on the same page, thus suggests that a not unusual response to forcing a get was cancellation of a get. The existence of such a problem implies a husband who is acting against his own free will, not in consonance with it. As soon as the immediate compulsion is removed, his real inclination reasserts itself.
The Yerushalmi’s discussion of this topic is, in certain ways, more informative than the Bavli’s. Among several statements by Samuel that begin the Palestinian sugya is the unexpected one that the only time a court may force a divorce is if the couple violated Jewish law, such as a divorcee who married a priest or a widow who married a high priest. It continues:
––R. Jeremiah asked R. Abahu: Do we force a divorce if he refuses to support her?
––He responded: If because of [his] bad odor we force a divorce, would we not force a divorce when her very life depends on it?
––R. Hezeqiah came [and reported]: R. Jacob bar Aha … R. Yohanan said: If a man says, “I refuse to support my wife,” we say to him, “Either support her or divorce her.” (PT Gittin 9:9; 50d)
Although the Mishnah declares a forced divorce legitimate, it is left to the Amoraim to figure out precisely when this rule could be implemented. Some opinions, it seems, were more lenient in defining the validity of the woman’s complaint, and some more stringent, but the focus is on women’s needs, not just violation of marital law. After laying out this dispute for the reader, the sugya moves toward resolution, offering an extraordinarily powerful logical argument. If a man is forced, according to the Mishnah (Ketubot 7:10), to divorce his wife because she cannot tolerate his odor, certainly he may be forced if he refuses to support her. A statement by R. Yohanan, a giant among Palestinian Amoraim, reiterates this position, adding that one should first attempt to repair the relationship by requesting that he start supporting her. But if he refuses, the court may force him to divorce her. Again, we note, there is no reference here to forcing him to divorce “of his own free will.”
The Babylonian and Palestinian discussions of the Mishnah create the impression that recalcitrant husbands and forced divorces had already made their appearance in the amoraic period. Both Talmuds view legitimate grounds for divorce as a limiting factor on a woman’s ability to exercise her right to ask for a forced divorce. But the concept of the forced divorce, although interpreted and restricted, becomes entrenched. Much of this legal development, it seems to me, is a response to the injustice of allowing men, but not women, to dissolve a bad marriage.
A Husband Who Claims That He Issued the Get Under Duress
The following difficult passage informs us that even though the courts forced men to write a get “of their own free will,” the men devised ways of thwarting these efforts to help women. Yet another layer of legislation had to be added to safeguard the validity of the forced divorce.
––Said R. Sheshet: He who issues a statement that he is about to be forced to give a get [מסר מודעא אגיסא], his notification is valid [and the get that he then gives is not].
==But that is obvious!
==No, it needed to be stated for the following case, that they forced him [to write a get, after he had issued a notification of duress], but by the time he wrote it, he did so of his own free will [דעשאוה ואירצי].
==What erroneous conclusion might we have arrived at [had R. Sheshet not issued this statement]? That it stands to reason that he canceled the notification of duress prior to writing the get. [Therefore, R. Sheshet] comes to teach us otherwise: [that although the man is, in the end, writing the get voluntarily, even so, we must not assume that he canceled the notification of duress but must require him to do so explicitly].36This means that if one could assume that in all cases he cancels his notification of duress, the mishnah in Arakhin would have said they force him until he gives the get. Since the mishnah said that they force him until he says he acts voluntarily, this implies that it is necessary for him to repudiate any notification of duress that he had issued. And this, as noted by Tosafot (s.v. hai man), became a standard part of the divorce proceedings in the post-Talmudic period, i.e., to nullify prior notifications of duress. (BT Arakhin 21b)
This segment indicates that there was another difficulty associated with forcing a man to issue a get: He could sidestep the pressure by prior notification of duress. According to Jewish law, such notification invalidates the document that he then writes, be it a bill of divorce or a bill of sale (BT Baba Batra 48a). A woman who received such a get might believe it to be a valid document, but it was not.
R. Sheshet’s statement that a notification of duress is valid, issued in conjunction with the Mishnah’s statement (Arakhin 5:6) that a man may be forced to write a get but must do so “of his own free will,” might appear to undermine the Mishnah, to reject its solution to the problem of a recalcitrant husband. A man had the right to issue a prior notification of duress, according to R. Sheshet, and if he did so, the get that they then force him to write “of his own free will” is not valid.37Notice, however, that the anonymous voice of the Talmud interprets R. Sheshet’s statement in such a way that a get given following a notification of duress is valid. In this instance, the later redactional addition/interpretation obviates the difficulty by making further demands of him. However, since R. Sheshet himself is one of the three rabbis reported in the Talmud to have forced men to write a get (BT Gittin 34a; 88b), he is not trying to preserve a man’s freedom of action to invalidate a forced get but, like Rav (as we will see), only trying to anticipate loopholes. It is this same rabbi who requires that cancellation of a get be done in the presence of three individuals, not just two, thereby making it somewhat more difficult for a man to cancel a get (BT Gittin 32b). The solution to this new problem, as indicated by the anonymous voice (and interpreted by Rashi), is explicit cancellation of the prior notification of duress.
Rav, who lived a generation earlier than R. Sheshet, provided a practical solution to the problem of men’s prerogative.
––Rav would prescribe lashes for anyone who betrothed in the marketplace, or betrothed by means of sexual intercourse [even though permitted by M Kiddushin 1:1], or without shiddukhin [prior negotiations], or who canceled a get, or issued a notification of duress…. (BT Kiddushin 12b)
Rav’s rulings attempt to correct the apparently widespread habit of taking marriage and divorce law lightly. The last two provisions speak to the issue of a man who is unable to make up his mind, who would write a get and then cancel it, or who issued a statement that he was going to be forced to write a get. Such behavior would seriously harm women: They would discover, at a later date, that the get they had received, on the basis of which they had remarried, was not valid. Or they would remain tied to a husband they were not living with in peace. Rav is sympathetic to the injustice of this situation and, perhaps because he could not single-handedly change the law, or because he felt that the law was fixed, sought to discourage these exploitative practices by ordering lashes for a man who engaged in them.
Where does all this Talmudic discussion leave women? To an extent, where they were before, but also somewhat better off. Men are compelled, in certain circumstances, to issue a bill of divorce; they are punished if they issue a prior notification of duress; they can cancel a get, but only in ways that do not put a woman at risk; the rabbinical courts can annul a marriage if a man violates any of their marital stipulations. All of this adds up to a reduction of women’s disabilities under divorce law.
The World of Divorce According to R. Meir
Chapter 8 of Tractate Gittin, as we will soon see, presents a series of rulings that treat women who have unwittingly violated Jewish law with excessive harshness. This is perplexing. How can a tractate that makes the many helpful changes already discussed also include and subscribe to such views?
If the scribe dated the get according to a king who did not rule in that province, or according to a past ruler, …, if the scribe was in the east but wrote in the get that it was prepared in the west, …, a woman [who remarried on the basis of such a get] must leave her second husband and also her first … (M Gittin 8:5)
In any one of these cases, a woman who remarries suffers a series of punishments, called in the Tosefta “the thirteen things” (6:6, 7, 9). A partial listing is as follows:
She must leave her first husband [from whom she is not legitimately divorced] and her second husband [to whom she is not legitimately married], and must get a get from each one of them; she is not paid her ketubah, nor do these men return to her the usufruct [income of her assets] that they collected, nor [do they pay her] alimony…. A child born from either one of them is a mamzer [from the second husband because she is not married to him, and also from the first—although she is married to him—if she went back to him after leaving the second]. If she dies and the two men are kohanim, neither need defile himself in order to bury her [because she is not considered their wife]; neither one of them is entitled to what she finds or what she earns, and neither is able to cancel her vows…. (M8:5)
It is particularly troubling that although it was the scribe who made the mistake in preparing the get, one that not many people would catch, it is the woman who will suffer as a result. These punishments lead to marital and financial disarray for her, and a serious stigma for her children. The succeeding mishnahs prescribe the same punishments for several other instances of divorce irregularity: if he changed his name or she changed hers or the name of the city was changed and the get was prepared with the new name only (8:5); if the scribe mistakenly gave the get to the woman and the receipt to the man and they then exchanged documents—as was usually the case with a get and a receipt—and only some time later did they discover their mistake (8:8); if a “tied” get, usually signed by one witness on each of many folds, was one witness short (8:10).
In all, this is a shocking set of rules. In these cases most people would not even know that they were acting in violation of Jewish law and yet they would be held responsible for their behavior, the woman in particular. If the date on the get, or the names, or the number of witnesses on a “tied” get did not conform to the standards set by earlier rabbis, or if the scribe mixed up the documents, the woman would suffer—with no reprieve possible—whereas the man, who is able to take the ketubah moneys back from her because she was living adulterously, would be rewarded.38The same punishments also appear in M Yevamot 10:1. There, too, they are meted out in a case in which the woman acted reasonably, remarrying only after she heard testimony that her husband had died and received permission from the rabbinical court to remarry. See a discussion of the moral problems posed by this mishnah in Shamma Friedman, “A Critical Study of Yevamot X with a Methodological Introduction,” in Texts and Studies, ed. H. Z. Dimitrovsky (New York: JTSA, 1977), 277–282, in particular.
If we now turn to the Tosefta, we find that some of these very same paragraphs appear there, but with significant differences. First of all, the Tosefta says that if a mistake occurs in the dating of the get, it will be declared invalid, but she will not suffer the series of thirteen punishments (T 6:3). In a second and rather amazing paragraph, the Tosefta says that if gittin come to Palestine from abroad and the names in them are non-Jewish, they are still valid, because Jews living abroad are known to take non-Jewish names for themselves(!) (T 6:4).39The Tosefta appears to be talking about a case in which a Jew with a Hebrew name, who came from Israel, changed his name in the diaspora and then sent a get to his wife in Israel with his new non-Hebrew name but without his old Hebrew name. See the first part of T 6:4. This seems to be in outright disagreement with M 8:5, cited previously. The Tosefta also talks about a man with two names and two wives, one in the Galil and another in Judaea, and says that he must divorce each of these wives with the name he is known by in the place where she lives. This paragraph thus provides a solution to the problems generated by men who adopt a new name and then want to send a get to a wife who knows them by their old name. Mishnah 4:4 also deals with this problem: it says that if someone changes his name, he should enter any and all names into the get so that the wife not suffer from any challenges raised in the future. The Mishnah thus solves in chapter 4 the serious problem it first describes in chapter 8.
The Tosefta, like the Mishnah, then brings other instances in which women suffer a full complement of penalties, but in reference to each it points out that this is the view of two Tannaim only: R. Meir who said it in the name of R. Akiva. In the very last case, that of a “tied” get with one witness too few, the stringency is presented as the view of R. Meir on his own.40So reads the Erfurt ms. The Vienna ms. includes a reference to R. Akiva. The Tosefta then notes that the Sages disagree with him, which means they do not prescribe penalties in such a case, because they do not hold that the additional witnesses’ signatures that are affixed to the “tied” get—above and beyond the first two—are critical. They are only a preventive measure to make the get easier to validate.
We thus see that for five out of the six cases in which the Mishnah prescribes harsh penalties, the Tosefta either provides a dissenting, more lenient view or else limits the stated, harsh view to R. Akiva and R. Meir alone. This contrast suggests that the Mishnah is far more stringent in these matters than the Tosefta; the redactor could have cited both opinions or, at the very least, listed R. Meir as the author of these extraordinary stringencies. By doing neither, he indicates that he subscribes to these extreme views. But, as we will now see, both Talmuds distance themselves from this set of rules.
…
––Said Ulla: Why did they require that a get be dated according to the ruling government? For the sake of maintaining good relations with the government.
==Can it be that for the sake of maintaining good relations with the government we force a woman out of a marriage and declare her children to be mamzerim [if the scribe wrote the date incorrectly]?
==Yes, R. Meir [who is presumed to be the author of all anonymous mishnahs] is consistent with his own reasoning.
––As R. Himnuna said in the name of Ulla: R. Meir used to say that [if a scribe, when preparing a get,] deviated from the standards that the rabbis set for drawing up gittin, the offspring [of the divorced woman’s second marriage] will be considered mamzerim. (BT Gittin 80a)
The Bavli, or R. Himnuna, first asserts that the Mishnah is authored by R. Meir and then offers a “noble” rationale for his stringencies: to achieve standardization of the get, which, as we noted above, is good for women. The Gemara continues and says:
––Said R. Judah said Samuel: This is the opinion of R. Meir [that the year of the current reign must be mentioned, and if it is not, the get is invalid]. But the Sages say, even if he only dated the get to the term of office of the city officials, she is divorced….
––Said R. Abba said R. Huna said Rav: This is the opinion of R. Meir. But the Sages say that the offspring is fit. (80b)
We see here an outstanding and clear-cut instance of Amoraim setting aside an excessively harsh mishnaic ruling by attributing it to one Tanna only. They then say that the Sages ruled far more leniently, as we saw in the relevant Toseftan passages. The Yerushalmi’s treatment of these stringencies is no less remarkable.
––R. Huna in the name of Rav: This [entire] chapter is authored by R. Meir, except for “if he changed his name etc.” (PT Gittin 8:5; 49c)
R. Huna, in Rav’s name, narrows the scope of the problem. He claims that the majority of rabbis would not have punished innocent women in these six cases, but R. Meir alone. One can rule otherwise in these matters.
These liberal amoraic views prod us to ask: Why did the redactor of the Mishnah incorporate R. Meir’s view as the dominant one, leaving out all reference to the Sages’ leniencies? One answer is that he did so to teach that one must be scrupulously careful when it comes to preparing the get because a woman’s marital availability depends on it. A document that indicates that her second husband is actually her husband, and her children with him are fit, must be treated with utmost care. But if the gravity of the get is the point of these mishnahs, it is unfortunate that they make it by presenting rulings that shock and distress the reader.
A second answer is that the redactor accepts R. Meir’s and R. Akiva’s views and rejects the Sages’ more lenient approach to these matters. If so, we find within this tractate, as we did in Sotah, internal struggles and contradictions. On the one hand, the redactor presents a frightening picture of the fate of a woman whose get was drawn up with mistakes, but on the other, he talks about the possibility of a woman’s initiation of the divorce proceedings. He also presents a whole series of measures taken to repair the social order, the first several of which are adjustments in divorce law. Thus he pits the unusually sensitive enactments of Rabban Gamliel the Elder against the grossly insensitive ones of R. Meir. I would submit that the tractate captures for us a moment in time when rabbis are beginning to think about the differences in status between men and women and are beginning to take tentative steps toward eradicating injustice to women.
Conclusions
On the whole, the development of divorce law reflects a movement from fewer rights for women to more. The Gemara upholds the Mishnah’s liberal enactments and sidesteps R. Meir’s harsh ones. Moreover, the Gemara gives evidence that perhaps the most important provision of the Mishnah for women—that a court may force a man to give a divorce—was accepted by the Amoraim and applied by them to real instances of recalcitrant husbands. The Gemara’s description of men who issued a statement of duress is further evidence that the rabbis were pressuring them to write a get against their will, even though the men were trying to avoid it. In addition, the Gemara itself introduces the possibility of annulling a marriage, when it responds to Rebbe’s unusually strict legislation that a canceled get remains canceled despite the preventive decree established “to repair the social order.” Even within the Mishnah itself we see laws passed to benefit women, such as its prescriptions to standardize a get, to make every get look like every other so that no one could possibly, after a woman’s remarriage, challenge its validity. Although the biblical grounds for divorce were given some expansive definitions, especially in the final “glib” mishnah, the substantial financial outlay required by divorce, as well as the scrupulous attention to detail that characterized the preparation of a get, served as strong barriers to the impetuous initiation of divorce. We also saw that divorce realities in the tannaitic period did not necessarily posit a spiteful husband but one who, in a fit of pique, divorced his wife only to regret it later, or one who divorced his wife out of concern for her welfare, not his.
Even so, there is no real movement in the Gemara in the direction of altering the patriarchal construction of divorce. It is the man who has virtually all the power in this area: He decides to divorce, issues the bill of divorce to the woman—just as one issues a writ of manumission to a slave—and she can neither initiate nor resist. Since she cannot remarry without a get, she is dependent upon him for her future marital well-being.
The changes that are made to improve a woman’s lot require her to seek the assistance of a court, either to force her husband to write a get or to annul her marriage. Despite the improvement, she is still dependent upon others for resolving her marital difficulties. But these others are instructed to function on her behalf. If we judge the rabbis, not in terms of how close they came to eradicating all inequity, but in terms of how they improved the status quo, it is clear that they were aware of women’s suffering and were in the process of alleviating it. The meta-message of the tractate is that the rabbis identify problems and provide solutions.