The institution of marriage is cited as early as the second chapter of Genesis, albeit in rather abstract terms – “Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shall be one flesh.” As for divorce, the Torah speaks in a more lawyerly voice. In Deuteronomy 24, we read: “When a man takes a wife, and marries her, then it comes to pass, if she find no favor in his eyes, because he has found some unseemly thing in her, that he writes her a bill of divorcement, and gives it in her hand, and sends her out of his house.”
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The contents of this “bill of divorcement” — what in modern Hebrew is commonly known as a get — were left unstated in the Bible, so the rabbis of the Mishnaic and Talmudic periods (from the late 1st to the early 6th centuries CE) drafted the legal contract. The product of their discussions is the Talmudic tractate of Gittin, which is traditionally taken up by yeshiva students prior to studying Kiddushin, the tractate that pertains to marriage. Jewish wags say that one should know the cure before being subjected to the disease.
As organized religions go, Judaism has been relatively permissive and progressive on the subject of divorce, taking into consideration that although marriage is desirable, not all unions should be sustained when they lose their vitality. Divorce has always been an option. Second, women have always had a voice when it came to ending a bad marriage.
The changing status of women in society certainly poses a challenge to Jewish divorce law, which was formulated in the early centuries of the first millennium. Women are no longer considered to be the property of their husbands, and Jewish law has at times found itself outmoded.
About 1,000 years ago, Rabbeinu Gershom of Germany began the process toward gender parity by issuing an edict requiring both parties to agree to a divorce, and this has been the prevailing legal judgment in Judaism ever since. Until then, it was possible for a man to decide he wanted to end a marriage and have the first, last and only word on the matter.
Still, Gershom’s progressive edict did not alter the basic premise behind the age-old Jewish marriage contract. The man, not the woman, traditionally signs the ketubah. If and when the marriage fails, he serves her with the get. He initiates all the actions; she takes the passive role.
In fact, if a woman files for divorce and her husband refuses to grant it, there is precious little she can do. In this situation, the woman is “chained” to a marriage she does not want. In Hebrew, she is called an agunah, literally an anchored woman. Sometimes the husband will demand, subtly or not, that his wife buy her way out of the marriage. Without a get in hand, she will never be able to marry again. The rabbinical court may intervene, and will try to persuade the husband to grant his wife a get, but it cannot compel him to do so.
In Israel, the courts have been granted legal sanction to jail a recalcitrant husband until he frees his agunah wife. Sadly, even that is sometimes not enough. In one famous case, a Yemenite Jewish man was jailed for 32 years, and refused to grant his wife a divorce. He eventually died in prison.
Agunah is one of the hot-button topics in Judaism today, particularly in light of the fact that the status of women in all of the religious movements, from Reform to ultra-Orthodox, has made immense strides in recent decades. Many Orthodox couples still use the standard ketubah when they marry, but back up its insufficiencies with a parallel civil pre-nuptial contract that fines the husband (or wife) substantially should he/she refuse a get; there is also a growing trend among rabbis to refuse to perform a marriage if such a pre-nup has not been signed.
Earlier this year, Tzohar – a group of nearly 50 Israeli religious Zionist rabbis who perform thousands of weddings each year for secular couples – drafted such a pre-nup in collaboration with the Israel Bar Association. According to press reports, the idea of pairing the ancient ketubah with the modern pre-nup has received widespread endorsement in the ultra-Orthodox community, as well.