“And She Shall Go Out”;
Divorce According to the Tora.
Hakham Meir Yosef Rekhavi
In the Tora there are two passages that deal with divorce, one concerning a woman divorcing her husband and the other concerning a man divorcing his wife.
Conditions for Divorcing a Husband
According to the judgement of daughters he shall do for her. If another he takes for himself, her food, her clothing and her marital-relations he shall not diminish. And if these three he shall not do for her, she shall go out for nothing there is no money. (Ex. 21:9-11)
Conditions for Divorcing a Wife
When a man takes a woman and comes to her and possesses her, and it shall be if she does not find favour in his eyes, because he has found in her an abhorrent thing, and writes for her a document of cutting off, and places it in her hand, and sends her from his house. (Deut. 24:1)
Now, one may claim that Exodus 21:9-11 only refers to the maidservant who was bought for money. It is true that Exodus 21:7-11 refers to the maidservant who has been bought for money, but we notice that Exodus is not referring to the regular maidservant as mentioned in Deuteronomy 15:12-18. This can be ascertained by the fact that in the case of Deuteronomy, the maidservant is freed in the same manner as the manservant, but in the case of Exodus the Tora stresses, "she shall not depart as the menservants do". The maidservant in Exodus has been sold by her father and has been taken as wife either by her master or by her master’s son, the purpose is one of marriage as compared to Deuteronomy where she has entered service due to bad debts and poverty with no intention of marriage. The intention of Exodus seems to be to secure a honourable position in society for the girl by marrying her into a family of high status.
The Tora stipulates, “According to the judgement of daughters he shall do to her,” this phrase does not mean that the master is to regard the woman as his own daughter, but that he is to deal with her according to the law as regards every Yisreeli woman. For instance, in the verse, "You shall not take vengeance, and you shall not bear a grudge against the sons of your kinspeople." (Lev. 19:18) the word "son" is employed as term for any fellow Yisreeli. In the verse, "For in him YHWH your God has chosen from all your tribes, to stand to serve in the name of YHWH he and his sons all the days." (Deut. 18:5) we see the term "son" is used to mean a member of the Tribe of Lewi. Surely, in the verse, "And you shall not marry with them, your daughter you shall not give to his son, and his daughter you shall not take for your son." (Deut. 7:3) the terms "son" and "daughter" are not meant to be taken literally. If they were meant to be taken literally then it would be wrong for me to marry my son or daughter to a member of the Kena'ani, but not wrong for me to marry someone else's son or daughter to a member of the Kena'ani. Again, in Lev. 19:29 it is written, "You shall not profane your daughter to cause her to be a whore" is this to be taken literally? In other words, is it wrong for me to make my own daughter into a whore but not someone else's daughter? Surely not! Therefore, in conclusion the word "daughter" as found in Exodus 21:9 is not to be taken literally, but means according to the rights of all Yisreeli woman and one can derive from this verse that the passage in question is dealing with the law as regards every Yisreeli woman.
Should the designated husband take another wife he is still obligated to support her. The phrase in Exodus 21:11 “she shall go out” in the Mikra denotes divorce as in Deuteronomy 24:2 “she goes out from his house,” and Ezra 10:3 “to send out all the women.” If a maidservant is to go free if her husband does not provide her food, her clothing and her marital-relations, then how much more so a wife. This passage therefore implies that a wife can initiate divorce if her husband does not fulfil the duties of feeding her, clothing her, and having marital-relations with her, within his means or capabilities. The Tora stipulates, “these three he shall not do for her,” in other words if her husband neglects to provide any of the above three things she may divorce him if she so desires, even if he does not desire to divorce her, on the grounds of abandonment, for the refusal to provide her these three things is tantamount to abandonment. Just as a man can be made to marry against his will as is in the case of an unbetrothed virgin who is raped, “If a man finds a young woman a virgin, who is not betrothed, and seizes her and lies with her, and they are found. Then the man that lay with her shall give to the young woman's father fifty of silver, and to him she shall be for a wife, because he has humbled her, he shall not send her away all his days.” (Deut. 22:28-29) so can he be made to divorce against his will for the non-fulfilment of the duties of feeding, clothing, and having marital-relations. If none of these grounds for divorce exists she cannot initiate divorce. This is the law of a woman who divorces her husband.
A man can divorce his wife providing he does not fall under the following categories;
- A man who raped an unbetrothed virgin and she desired to marry him Deuteronomy 22:28-29.
- A man who had falsely accused his wife of not being a virgin when he married her Deuteronomy 22:13-21.
These two categories cannot initiate divorce proceedings unless the wife endangers his life or becomes an apostate. Deuteronomy 24:1 concerns the law of a man who divorces his wife.
The principle of a man divorcing his wife is incumbent upon the phrase “an abhorrent thing,” therefore it is crucial that we understand the meaning of this phrase.
First of all we have to evaluate whether or not “an abhorrent thing” is the correct translation of the Hebrew “’erwath davar”. A literal translation of the word “’erwath” would be “nakedness” as in, “The nakedness of your father and the nakedness of your mother, you shall not uncover, she is your mother, you shall not uncover her nakedness.” (Lev. 18:7) With this interpretation in mind some commentators have come to the conclusion that “’erwath davar” means “a thing of nakedness” and therefore refers to sexual misconduct i.e. adultery. This view I cannot concede to for several reasons. First of all the phrase, “if she does not find favour in his eyes,” is rather insubstantial when dealing with the act of adultery, which is described by other expressions in the Tora such as, “And to (the) wife of your kinsman you shall not give your emission of seed, to become defiled by her.” (Lev. 18:20) and another example is, “Any man, any man if his wife is unfaithful, and she is treacherous with him, being treacherous.” (Num. 5:12) Furthermore, the punishment for a married woman who commits adultery is death as can be clearly seen from the verse, “And a man who commits adultery with the wife of (another) man, who commits adultery with his neighbour's wife, death, is to be put to death, the adulterer and the adulteress.” (Lev. 20:10) One may say that Deuteronomy 24:1 is referring to a case where the husband does not have any substantial evidence that his wife committed adultery but has a deep rooted suspicion that this is the case, but this understanding conflicts with the plain meaning of the verse where it states, “because he has found in her,” in other words he has witnessed or has evidence for this “’erwath davar.” Besides Numbers 5:11-31 deals with the case of a suspected adulteress and also if there is no substantial evidence against her to enable the death sentence, but she confess through her own mouth to the act of adultery she becomes forbidden to him and therefore divorced from him ipso facto. This is because the Tora states that a man can remarry his divorced wife if both parties so desire providing she has not willingly had sexual relations with any man or had been remarried and then subsequently divorced or widowed in the interim for it is written, “And she goes out from his house and she goes and shall be to another man. And the latter man hates her, and writes for her a document of cutting off, and places it in her hand, and sends her from his house, or if her latter husband should die, that took her to himself for a wife. Her first husband who sent her away he is not allowed to return to take her to be to him for a wife, after that she has made herself impure. For it is an abomination before YHWH, and you shall not bring sin upon the land, which YHWH your God gives to you as an inheritance.” (Deut. 24:2-4) If a man's former wife is forbidden to him if she has had sexual relations with another man after the annulment of their marriage, then how much more so if she plays the whore behind his back while they are married. The prophet Hoshea sent Gomer his wife away because she played the whore, see Hoshea 2:4-7.
The correct translation of the phrase “’erwath davar” is therefore “an abhorrent thing” as can be validated by Deuteronomy 23:15 where the phrase “’erwath davar” is used, “And a place there shall be for you outside the camp, and you shall go outside there. And a spade there shall be for you with your weapons, and it shall be when you sit outside (to relieve yourself), you shall dig with it, and you shall return and you shall cover up your excrement. For YHWH your God walks about in the midst of your camp to rescue you and to give your enemies before you, your camp shall be holy, and he shall not see in you an abhorrent thing, and turn away from you.” (Deut. 23:13-15)
This “abhorrent thing” that compels the husband to divorce his wife could be a physical defect or an unpleasant quality or an act of gross misconduct, which includes adultery. Now if the husband was aware of this "abhorrent thing" before he married his wife he cannot divorce her for the Tora states, “When a man takes a woman and comes to her and possesses her, and it shall be if she does not find favour in his eyes.” For the Tora stipulates that the husband found in her this “abhorrent thing” after he married her “When a man takes a woman,” had martial-relations with her “and comes to her,” and they commenced married life “and possesses her,” and was total unawares of this "abhorrent thing" before he married her “and it shall be if she does not find favour in his eyes,” then and only then may he divorce her if he so desires even if she does not desire to divorce him. Therefore the husband cannot divorce his wife upon his will but only upon a reason and that being an “abhorrent thing.” The husband must then bring the matter before the Beth Din for them to consider, for if it were up to the husband’s discretion to consider what constitutes an “abhorrent thing” he would classify a light defect as a serious one.
The Rabbanites hold that a man can divorce his wife upon his will and does not need a reason, but this contradicts that which is written in the Mikra. This comes about because the Rabbanites interpret the word “ki” in Deuteronomy 24:1 as “or” therefore reading the verse thus “and it shall be if she does not find favour in his eyes, or he has found in her an abhorrent thing” and thus making divorce rest upon an either or situation. How can this be for nowhere else in the Mikra is the word “ki” given this sense, it is always has the meanings of “since, because, when and if” in fact the word “o” is the only word in the Hebrew language that means “or”. If it was the case that “ki” meant “or” the statement, “if she does not find favour in his eyes” would be sufficient and there would be no need to add, “or he has found in her an abhorrent thing.” Further evidence against the Rabbanite understanding that a man can divorce upon his will is in Deuteronomy 22:13-21 where we have the case of a man who falsely accuses his wife of not being a virgin when he married her, the first verse says, “If a man takes a woman, and come in to her, and hates her. And puts on her baseless charge, and brings upon her an evil name, and says, ‘I took this woman, and when I approached her, I did not find in her signs of virginity’." Now if a man can divorce his wife upon his will, as the Rabbanites claim, then how come the husband in this case brings a false accusation against his wife to the elders of the city in order to divorce her, surely then if the Rabbanites were correct all the husband has to do is just offer a plea of mere hatred and this would suffice if he can divorce upon his will, for the verse states that he “hates her”. Obviously then a plea of mere hatred is not enough and seeing that the husband could not find in his wife an “abhorrent thing” he invented one, the most heinous one adultery, therefore the Tora proves the Rabbanites wrong and a man can only divorce his wife for a reason, and that being an “abhorrent thing” and not upon his will that being a plea of mere hatred.
As discussed above, divorce can only be initiated by the wife for the reasons mentioned in Exodus 21:9-11 and by the husband for the reason mentioned in Deuteronomy 24:1. There are however several exceptions to this rule;
· If the behaviour of either party puts the life of the other party at risk for it is written, “You shall not stand by the blood of your neighbour I am YHWH.” (Lev. 19:16)
· If either party becomes an apostate, since the apostate is regarded as dead for it is written, “and he became guilty by the Ba’al and he died.” (Hoshea 13:1)
· If the woman commits adultery she becomes forbidden to him and therefore divorced from him ipso facto.
· If the marriage has been contracted illegally i.e. the parties involved are forbidden to each other through the laws of incest and forbidden unions, the marriage is a non-marriage and has to be dissolved. No Sefer Kerithuth (Document of Cutting Off) is needed because the marriage was illegal to start with.
There are three elements in the procedure of divorce according to the Tora;
- The writing of the Sefer Kerithuth (Document of Cutting Off), “and writes for her a document of cutting off.”
- The handing over of the Sefer Kerithuth to the wife, “and places it in her hand.”
- The sending away of the wife from the man’s home, “and sends her from his house.”
1) “And writes for her a document of cutting off.”
The Sefer Kerithuth (Document of Cutting Off) has to contain a statement by the husband that the couple are no longer husband and wife, “She is not my woman and I am not her man,” (Hosea 2:4) and that she is free to marry whomever she desires, this is the essential clause of the Sefer Kerithuth, its purpose being to provide the wife with proof of her freedom to remarry. The Sefer Kerithuth must avoid ambiguous wording that could result in the reader’s conjecture and the writing itself must be totally legible, it should also be written for a particular woman i.e. so and so the daughter of so and so the wife of so and so the son of so and so, all this is to prevent any legal or moral mishap or confusion in the future where the woman is concerned. The Sefer Kerithuth should also be signed by at least two witnesses who understand its contents in order to make it binding. It is immaterial whether the husband has written the Sefer Kerithuth himself or has told someone else to write it for him on his behalf. There should be no conditions or terms written into the Sefer Kerithuth to enable the divorce to become actual, for divorce does not stand upon any outside conditions or terms but stands upon its own merit. It should be noted that Exodus 21:9-11 does not stipulate the handing over of a Sefer Kerithuth as opposed to Deuteronomy 24:1 where it is mandatory for the husband to do so. This is because in Exodus 21:9-11 it is the woman who has initiated the divorce and not her husband, when it is the woman who has initiated the divorce she can turn to the Beth Din and request from them a Sefer Kerithuth, this is because her husband has abandoned her as it is written, “her food, her clothing and her marital-relations he shall not diminish,” meaning that if he does not provide her these three things he has abandoned her.
The question thus arises; does a betrothed woman require a Sefer Kerithuth if her betrothal is annulled? The Tora states that a married woman who commits adultery has the death sentenced placed upon her, “And a man who commits adultery with the wife of (another) man, who commits adultery with his neighbour's wife, death, is to be put to death, the adulterer and the adulteress.” (Lev. 20:10) the Tora also states that a betrothed woman who willingly has sexual relations with a man who is not her betrothed also has the death sentenced placed upon her, “If there is a young woman a virgin, betrothed to a man, and a man finds her in the city, and lies with her. Then you shall bring them both out to the gate of that city, and you shall stone them with stones so they die; the young woman on the fact that she did not cry out in the city, and the man on the fact that he humbled the wife of his neighbour, so you shall burn out the evil from among you.” (Deut. 22:23-24) and again, “And if this thing was true there was not found signs of virginity on the young woman. Then they shall bring out the young woman to the entrance of her father's house, and the men of her city shall stone her with stones so that she dies, because she has done a disgrace in Yisrael, to commit whoredom in her father's house, so you shall burn out evil from among you.” (Deut. 22:20-21) Here the Tora equates a betrothed woman with a married woman, both have the death sentenced placed upon them if they willingly have sexual relations with a man who is not their husband or betrothed. In fact the Tora in the case of Deuteronomy 22:23-24 calls the betrothed woman a “wife,” therefore what is incumbent upon a married woman is also incumbent upon a betrothed woman and in conclusion the betrothed woman does require a Sefer Kerithuth if her betrothal is annulled.
2) “And places it in her hand.”
He must give it to her as a Sefer Kerithuth and not for any other reason. In other words at the moment that she receives the Sefer Kerithuth she has to be fully conscious that what she is receiving is her divorce and not something entirely different, there must be no deception involved at all. It is immaterial whether he has handed to her the Sefer Kerithuth himself or has told someone else to hand it to her on his behalf. The divorce is not valid until she receives the Sefer Kerithuth. At this stage the divorce may still be annulled providing that the wife has not as of yet received the Sefer Kerithuth.
3) “And sends her from his house.”
This indicates that her divorce is incomplete until there is separation between the two parties in question, in other words they are no longer under the same roof. This is also the case for Exodus 21:9-11 where it states, “she shall go out.”
A divorced woman should not have any sexual relations before 90 days have elapsed after her divorce so as to determine whether she may have become pregnant by her former husband and thus avoid any doubt about paternity, this is based upon Genesis 38:24.
A man can remarry his divorced wife if both parties so desire providing she has not willingly had sexual relations with any man or had been remarried and then subsequently divorced or widowed in the interim for it is written, “And she goes out from his house and she goes and shall be to another man. And the latter man hates her, and writes for her a document of cutting off, and places it in her hand, and sends her from his house, or if her latter husband should die, that took her to himself for a wife. Her first husband who sent her away he is not allowed to return to take her to be to him for a wife, after that she has made herself impure. For it is an abomination before YHWH, and you shall not bring sin upon the land, which YHWH your God gives to you as an inheritance.” (Deut. 24:2-4) This law did not apply to Mikhal who was first married to Dawidh (David) and then given to another man, against Dawidh’s consent and her own will, and finally taken back by Dawidh because Dawidh had never divorced her, see 1 Samuel 18:20-27; 25:44; 2 Samuel 3:13-16.
Before the divorce comes into effect all measures should be taken to try and reconcile the husband and the wife for in the words of the prophets, “For sending away is hateful says YHWH the God of Yisrael.” (Mal. 2:16)
All property that belonged to either party prior to their marriage remains the property of that individual when the marriage is dissolved. Any personal property that either party has acquired during the marriage, i.e. an item that they purchased for themselves or an inheritance or a gift even if it is a gift from their spouse, remains theirs after the marriage is dissolved. All joint property should be divided equally between the two parties in question. This is based upon the following principle laid down in our beloved Tora, “And you shall not deceive any man his kinsman, and you are to revere your God in awe, for I am YHWH your God”. (Lev. 25:17) and “You shall not deceive, and you shall not lie (each) man with his kinsman”. (Lev 19:11) and again “You shall not do injustice in judgement.” (Lev. 19:35-37) All that is written in the Kethubba is binding upon both parties, for the Kethubba is a legal contract drawn up between the man and the woman and signed by witnesses on the day of the couple’s marriage to each other. Whether one really needs a Kethubba to be married is open to debate. The concept of having a Kethubba is based upon analogy from the fact that divorce is only valid through the writing of a document and therefore marriage too must only be valid through the writing of a document.
These are the laws and judgements of the Tora concerning a woman who desires to divorce her husband and of a man who desires to divorce his wife.