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Leo Beck Ccllrc p- -h . ?L¢ ’A LIBERAL GET? Some Background Notes by JDR BIBLIGAL BACKGROUND In ancient Judaism, marriage was unilateral. The bridegroom 'took' or ’bought' off' (npb ) or 'carried ( RWJ) the bride. Rabbi Shim'on ben Yochai found it necessary to rafionalise the fact that the Torah says, ' nwx w’x np’ ’3 ’If a wife' H , a man takes (Deut. 22:13), and not, w~x nwx 7: 'If a husband' npn , a woman takes (Kid. 2b). Correspondingly, divorce was unilateral. The husband 'sent away' or 'dismissed' 'drove away' or 'expelled’ 'made (nbm ), (wfix ) or go out' (8'313) the wife. This fact; too, was noted by the Rabbis, when Yochanan Nuri's ben colléagues said to him: ’mp-unbn nwx’; grub“ mix” 5511 1393 131315 «Ex «’31:: 13'x‘w’xn1 ,n3131’7 x'nn #31315 nxxw nwxrm' 'The husband who divorces is not like the wife who is divorced, for she goes out with or without her consent, whereas he makes her go out only if he wishes' (Yev. 14:1). An exception was the 5th century BCE Jewish soldier colony in Elephantine whose marriage contracts make it clear that usband and wife had equal rights in the matter of divorce. (If one of their Gittin had survived it might have served us as a model for a reciprocal Get!) Another exception is recorded by Josephus (Ant. XV, 7, 10) concerning I Queen Salome who divorced her husband Costobarus. The chief source for biblical divorce (although an oblique one) is Deut. 24:1-4, which shows that, in addition to any oral declaration, the divorcing husband was required to write a note of dismissal ( n1n’13 150} and hand it to his wife. I There was nevertheless some ethical disapproval of divorce: see the Malachi passage (2:14—16) which inspired the famous comment of Rabbi Eleazar,. n1yn1 175V 1'113 nzru 13’5x ,n31wx7 1nwx aflzbn 5:. that 'when a man divorces his first wife, the very altar weeps over him' (Git. 90b). More generally, it follows from the use of the verb P37 in Gen. 2:24, and especially from the frequent prophetic use of marriage as a metaphor for the Covenant between God and Israel, that marriage was regarded as ideally life-long. RABBINIC BACKGROUND ) This ethical distaste for divorce was among the motives which prompted Shim'on ben Shetach, in the lst century BCE, to institute the Ketubbah. (Tos. Ket. 12:1 and J. Ket. 8:11). LEO BECK CCLLRC §;;f\‘IJBFU¥RY»\h x Similarly, there was a tendency to believe that-a man should only divorce his wife if she had given him ground to do so, as thg phrase 1:1 n11yin Deut. 24:1 suggested. Beyt Shammai took this to mean adultery (Git. 9:10), as did Jesus according to one Gospel tradition (Matt. 5:32, 19:19), but Beyt Hillel, whose View prevailed, did not.understand it necessarily to refer to a matrimonial offence of any gravity, and Akiva found in the biblical ‘ phrase, 1~avya 1n xxnn x5 ax nvn1, 'and if she did not find favour in his eyes' (Deut. 24:1), warrant to allow a husband to divorce his wife even in the'absence of any matrimonial offence, if he had fallen in love with another woman: flJD’fi nx: nfinx xx: 15’5x (Git. 9:10). Since there was.no need to prove Before a court that a matrilmnial offence had been committéd, divorcé remaihed essentially a private act, at least during the tannaitic period, when there were no stringent rules about the wording of the Get. “1n'13 It is not known how the biblical 75° was worded, though Sumerian sources make it likely that it would have contained some such phrase as “w'5 ’nwx “5 '3331 “5 87” '3(Hos. 2:4). According to the Mishnah the essential D1“ 535 n1n1n “K ’1” 'You phrase is , are free to marry any man'; Rabbi Judah ben El-ai preferred the Aramaic formula,- bab «Joannb jab? ,1'11u5 w11 1~p11w n11x1 1*:11n 150 ’xzn ~3’5 '1nv1 111 \ 1’33n7 131, 'Let this be to you from me a writ of expulsion, a letter of dismissal and a document of release, so that you may go and marry any other man you wish', but his was a minority opinion (Git. 9:3). ;; Consequently, too, it was possible to entertain the notion that divorce documents executed by Gentile authorities might be valid in Jewish law, a View maintained by Rabbi Shim’on hen Yochai but.not accepted by his colleagues: ...n’w: ~uxa 71H ,D’fiWD...G’1J 5w nuxafiy: u~51yn n11uwn 5: 1’1w: 13x ax :1n1x 11yaw '31 (Git. 1:5L Nevertheless was agreed that a Get might 5D: it be written 11w5 , in any language (Git. 19b). ‘ In the course of time, and specifically in 4th—century Babylonia, there evolved the Aramaic Get as we know it, and the rules goveining its exectmion and delivery were increasingly elaborated, making necessary the supervision of it by an expert, so that it bécame a principle thatn’n: 911’ 13'kw 5: 153? P0? 15 xnv N5 17W11P1 1’u91, ‘anyone who does not understand the nature of divorce doeuments and abts of be'bothal should have xnothing to do with them7 (Kid. 13a). Thus 'divorce was no longer a private act carried out by the husband, for it was subject to public supervision by a tribunal, or by representatives of the coumunity’ (Ze'ev Wr Falk, 'Jewish Matrimonial Law in the Middle Ages', pp. 122f). MEDIEVAL BACKGROUND During the Middle Ages two major developments occurred. One was the decree making the wife's consent mandatory and thus overturning the principle of Xev. 14:1 quoted at the beginning of this paper. This is traditionally, like the prohibition of polygamy, attributed to Rabbenu Gershom. ‘Thus Isserles, commenting on Caro's statement in the Shulchan Aruc‘n, nny‘r x5: nw'u‘v ‘712’. that a man may divorce his wife without her consent, states; «5 UK nny1n abw nwx W115 xfiw‘avwnn 1"1 53x 'But n1 by n139W , Rabbenu Gershom decreed under pain of ex— communication that a man might not divorce his wife except with her consent, unless she had apostasised' (EH 119:6, gloss). However, Ze'ev w. Falk (op. cit.) has shown that this is_an incorrect attribution. 'From the sources available,‘ he says, 'it appears that the ruling which required the wife's consent to divorce was accepted by German Jewry before the middle of the twelfth century, after Gershom’s time' (p. ll9). The other major development was a tendency to 'de-privatise' divorce and make it conditional on some kind of communal authorisation. Thus the Maharil reports: K"W"D'|"|'l W"K"’BW) U"'IJ"'|' DJ’TDJ D"'HD 1115’”? 131D u’nwb 1:5 ui1pb 1bxw’w Inn nnx: w; 13n’w: D’J1D1Pfi 5": 1J'n131 nnpn («"3313 1nvn: unnaon: u; Inznb quay avaonfi n11nxn'The custom of the Three Communities of the Rhineland, namely Speyer, Worms and Mainz, was in accord- ance with the enactment of our Rabbis of earlier times: when they intended to give a Get in one of these communities they would first ask the othef two to agree with them, so that the Get might be given with their author- isation and permission' (Sefer Maharil, 68a). According to Falk, 'The ruling, which required the communities to give their agreement also, seems to have been passed at one of the council sessions of the Rhineland commun— ities during the thirteenth century' (op. cit., p. 119). Thus, by the end of the Middle Ages, Jewish divorce was mainly by mutual consent but not reciprocal, for it was still the husband who had to cause the Get to be written, and it was required that the writing be done by an .expert scribe, acting on the express instructions of the husband, kOre 3D9nfi a court and in the presence of witnesses ( ’1Y). The delivery, too, had to take place before the court and in the presence of witnesses 31’0D '77). on the 1n1DD nvx 5w 1n13W, that ( However, principle, 'a perSon’s agent is considered like himself’ (Ned. 72b), the husband could appoint an agent to deliver the Get ( HD5155 n’bd and the wife could n’bw appoint an agent to receive it ( nhnpb L In certain cases, however, a court would allow a man to divorce his wife without her.consent (namely if she had committed a sufficiently serious .‘4- matrimonial offence); in other cases a court might 'compel’ a husband to divorce his wife against his own inclination (namely if he had committed a matrimonial offence of sufficient gravity); and in still other cases (e.g., of condoned adultery or apostasy, or if the marriage contravened the so-called 1'135 ’WTD’K, as when a I”! had married a nw111) a court could, at least in theory, 'enforce' a divorce by 'compelling' the husband to give the Get to his wife against the wishes of either party. It should be added that the fi11flof the Get, i.e. the specifics such as names, place and date, is considered xn~’11x1, whereas the oa1u, i.e. the standard formula, is considered only 1:311 ; that the term Get is 1'11u'5 a: n’w: short for or u: ; and that the custom is after the to be re delivery of the Get for it mrnefl to-the 1i1 hv: , Which (' defaéeS'it by cutting it cfoséwié; :1y1»1nw ) and stofés it away, so that its validi¢y may not be questioned thereafter, while the wife is given a certificate (called 11n5 or 1vw11~1 n11yn ) to the effect that the Get has been executed.
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