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.

MODERN BACKGROUND Since the Emancipation, several important developments havé taken place. First, a general shrinkage (except in the State of Israel) of Jewish judicial autonomy, with the result that divorce became a matter of civil law and Jewish authorities only retained the vestigial power to grant or refuse remarriage according to whether or not a Get had been transacted pver and above the civil divorce. (*)

Secondiy, a general decline in respect for Rabbinic_Law, as its fundament— alist basis became quespionable in the light of critical-historical scholarship, and as it came to bé seen as antiquated in its failure and inability to give equal rights to men and women, and in the injustice of specific regulations such as those which penalise innocent children with the stigma ahd disaBilities of “11TDD if their mbthers (but not their fathers) should-have remarried on the basis of a civil divorce without a Get.

Thirdly, especially in the most recent years, an expénentiél increase in the incidence of divorce among Jews. This, together with the two preceding factors, has led to a huge growth in the number of Jews obtaining civil divorces without taking the additional step of transacting a Get, and then remarrying either civilly or in synagogues (sucH as those of the ULPS) which do not insist on the Get.

(*) Abraham Chaim Freimann, in his history of Jewish marriage-law, 1'31W°31 I’WTT’P 11° , entitles its last s3cticn, dealing with the modern period, n’uswzm H’D'IJHJ'IKH 1133: :n'y'31n91pn. 4 ORTHODOX RESPONSE The Orthodox authorities, alarmed by this proliferation of D1111? and of D'WTDD done everything possible within the parameters of Rabbinic , have Law to facilitaté, encourage and enforce the transaction of Gittin. Already in the 19th century Rabbi Solomon Kluger, in a famous responsum, permitted 'divorce by post' (see Solomon Freehof, 'The Responsa Literature'._ pp. 136—140) by proving that a Gentile could act as HD5155 nvfiw and that, therefore, the Post Office could fulfil that role. Similarly, Orthodox Judaism has set up organisations such as the Jewish Marriage Council which, inter alia, help to trace and bring pressure on recalcitrant husbands to givé a Get to their civilly divorced wives. Chiefly, however, Orthodox authorities have tried to ease thg problem by the device of the Conditional in§olves the insertion in the Ketubbah of a Get ( vxgn 5y as) which clause whereby t b husband authorises the execution of a Get in case he should'

- disappear or after the lapse of a certain time following a civil divorce, and by seeking to enlist the help of the civil law in.enforcing such a clause. (The concept of the Conditional Get is talmudic: Ket. 9b .)

CONSERVATIVE RESPONSE Abraham Klein ('A Guide to Jewish Religious Practice', pp. 498f) reports: "The latest effort on the part of the Rabbinical Assembly was in 1968, when the Law Committee adopted an antenuptial agreement signed by the man and the woman in which they agree that if the marriage should end with a civil divorce, and one of the parties refuses to agree to the granting of a £23, the marriage should retroactively_become null and void.‘ Such annulment is called ’H’JD '["V7""P‘7 1331 1n3’9P53(see the article so entitled n’1135n n’1a15p7xax _ 1’w11yn nypan, in the , Vol. 2, pp, 137b 140b) or It is based on the statement in Git. 33a, W17: 13:11 xny1x w1pnw 5: inzvypsx1 'When a man betroths a he does so under the 1:11 , woman, authority of the Rabbis; therefore_the Rabbis may annul such a betrothal.‘ See also Louis Jacobs, 'A Tree of-Life', pp. 272-274, on 'Nullification of the First Marriage’, which section he concludes by remarking: 'Obviously, however, extreme remedies of this kind are only available in the minority of cases where there are reasonable grounds for invalidating the first marriage. No solution is offered in those many cases in which the first marriage cannot really be questioned as to its complete validity’. We might add that it is contrary to common-sense to declare that a marriage which clearly existed did not‘exist, as well as morally repugnant, since it involves declaring the first marriage to have been n1JT nfi'ya. PROGRESSIVE RESPONSE Samuel Holdheim (Autonomie g2; Rabbinen, 1843) argued that divorce should be regarded as a civil act only and that the Get was therefore superfluous. At the Leipzig and Augsburg Synods (1869 and 1%71) Geiger, Wechsler and others submitted motions modifying the form of the Get, using the vernacular for it, and allowing the wife to remarry without it if the husband refuses to give it. These matters were referred to a committee which was to report to the next Synod, which never took place. The Philadelphia Conference (1869) endorsed Holdheim's position on the basis of David Einhorn's pro: posals (see Sefton D. Temkin, 'The New World of Reform', pp. 84-87) and finally resolved: ’The dissolution of marriage is, on Mosaic and Rabbinical grounds, a civil get only, which never received religious consecration. It is to be recognised, thefefore; as an act emanating altogether from the judicial authorities of the State. The so-called'ritual Get is in all cases declared null and void. The dissolution of marriage, pronounced by a civil court, is also fully §alid in the eyes of Judaism, if it can be ascertained from the judicial documents that both parties consented to the divorce; where, however, the court issues a decree against one or the other paIty by constraint, Judaism recognises the validity of the divorce then only, if the cause assigned is sufficient in conformity with the spirit of the Jewish religion. It is recommended, however, that the officiating rabbi,

‘ in rendering a decision, obtain the concurrence of competent colleagues.‘ (The resolution was moved by Rabbi Samuel Adler; see Moses Mielziner, ’The Jewish Law of Marriage and Divorce', Secofid Revised Edition, Bloch, 1901, p. 135.)

The most interesting proposal for our purpose made in Germany was by Rabbi Israel Goldschmidt in 1910; see Gunther Plant, 'The Growth of Reform Judaism', pp. 262-265. Hé suggested a reciprocal Get, in modified language, to be transacted in the context of a religious ceremony stressing both the sadness of the breakdown of the marriage and the need for healing. 'The Rabbi then should show that in this tragic moment there could be found a reconciling element which could silence the anger of the heart. Tragedy is a power which often is stronger than the human will. It must purify

the heart and not poison us with hatred' (p. 263).

For a summary of the CCAR position and its history see Walter Jacob's responsum, dated 1980, in'American Reform Re3ponsa', pp. 511-514). For a summary of the ULPS position and its history see my memorandum to the meeting of our Rabbinic Conference on lst November, 1983. For the position of the RSGB (whose Beth Din dates from 1948) see fCurrent Procedures and Practices of the Rabbinic Court of the Reform Synagogues of Great Britain and Proposals for their Alteration and Amendment'; RSGB Agsémbly of Rabbis. 1977). POINTS FOR CONSIDERATION What makes the isSue an acutely important one from an Orthodox point of View is above all the fact that, in the absence of a valid Get, the ~ children of the remarriage of the civilly divorced woman would be D’WTDD, and that therefore they and their descendants until the endnof time would be precluded from marrying other Jews, not so tainted. Since we reject the whole concept of n1firan as manifestly unjust and therefore based on 5 misunderstanding of the Divine Will, the Get loses most, though not

- necessarily all, of its traditional importance.

One reason why it does not lose El; of its importance is that, however misguided we may cohsider the Orthodox to be in maihtaining the law of the Mamzer, it is a fact that they do. and that this can Have unfortunéte consequences for individuals whicH — though they, the Orthodox, and not we are responsible for them — we ought on humanitarian grounds to prevent from occurring in so far as we can do so without compromising our own principles. Therefore, whether or not we go in for a Get of our own, since we know that it would not be recognised by the Orthodox authorities, we ought to continue with our present policy, at least in the case of a civilly divorced woman who applies to us for remarriage, of suggesting to her (with what degree

hof persuasion, needs to be considered) that it would be wise for her; if possible, to obtain an Orthodox Get. (If we were to go in for our own Gittin, that could be either additional to or accepted in lieu of one of our own.)

.Another argument in favour of some sort of Gét, which the RSGB makes much of, is the 531W’ 553 argument. The argument is that, in so far as we are able to maintain a tradition and to conform to the practice of the majority of our fellow Jews, without offending any ethical principle, we ‘ought to do so; and that, even if the Orthodox authorities do not now accept non—Orthodox Gittin, a time may come when at least some of them will do so, and we will then be séen to have made a contribution to Jewish

ynity. This argument is not, I think, without some little force, and it is perhaps worth pointing out that even a reciprocal Get, written in Hebrew or the vernacular, could, with certain provisos, be considered halachically valid by a liberally minded Orthodox rabbi, if its 311“ (which alone, as pointed out above, is Rn”11x1n) were halachically correct.

If that is far-fetched, more cogent is the argument that Judaism could, and therefore should, play a valgable role in relation to the breakdown of a marriage, first by trying £0 help to retrieve it, then, when a civil divorce has taken place, by showing its concern and using its influence to minimise the emotional and moral damage to the divorcing parties and their chiidren and to encourage all to remain affiliated to the Synagogue:

y-‘ and that a suitably devised Get procedure could be constructively used to these ends. I find this argument persuasive, and would therefore favour ‘the institution of'a Liberal Get, but with a number of provisos.

First, it must be unequivocally reciprocal, either in the form of a single document in which husband and wife are placed on a par or (which would be ‘easier) in the form of two identical documents. Secondly, it should probably| be written in Hebrew and English, like our_Ketubbah, since there is no good reason for perpetuating the Aramaic text. (The most likely explanation of the use of Aramaic in talmudic times is a strong concern that husband and yife should fully understand the document, which is precisely what motivated fhe Rabbis in permitting the use of the vernacular in regard to certain legal declarations and litupgical gtems, Sotah 7:1, and argues for an English even more than a Hebrew text;) Thirdly, we ought to consider whether the traditional phraseology (apart from the question of language) is appropriate or whether it reflects too much the ancient concept of divorce as an act of 'expulsion' rather than a sorrowful recognition that there has been failure and the relationship needs to be terminated without recrimination. Fourthly, it is essential that the whole transaction, from beginning to end, should unequivocally reflect the equal rights of men and women, so that, for instance, women witnesses must be allowed. Fifthly, we must deal satisfactorily with those cases in which either husband or wife cannot be traced or refuses to co-operate. Clearly, in such cases we must abandon the ancient concept of divorce as necessarily a private act between husband and wife and accepfl the concept of European law that a court has power to dissolve a marriage. Whether the principle of 1'w1175 ny?an(see above) could be invoked for this purpose, needs to be considered. (Perhaps it could, after all, be interpreted as a dissolution, rather than annulment, of the previous marriage.) Finally, we should not, in my View, proceed with this matter in any hurry but take our time and obtain the best possible help and guidance both on'the halachic side and on the psychological side. If, however, the 'merger' talks should require us to make a decision sooner, we might think it right temgorarilx to agree to a reciprocal Get leaving unaltered the traditional, Aramaic text how used by the RSGB Beth Din, and merely devising a second, wife—to-husband version of it.

3th January, 1985