No Fault
The most elementary grounds for divorce is basically of the
no fault variety. It is commonly assumed that no fault divorce is a late 20th
century discovery, but this is not the case. Long before, Jewish law allowed for
no fault divorce. If there were irreconcilable differences, if the couple was
simply incompatible, and they decided, after all their efforts, that they could
not make a life together, then divorce could be finalized.
It was not necessary to prove adultery, or any other
serious charge of marital malpractice, in order for husband and wife to
terminate their union. Thus, even though divorce is not a happy event, in
situations of mutual agreement it can be relatively straight-forward.
Fault
Divorce becomes more complicated when only one of the
partners wants the divorce, or demands the divorce from the other. This type of
litigational complexity arises from charges by one or the other of the partners
that the spouse has been derelict in marital responsibilities.
There is a precise halakhic (Judeo-legal) inventory
of the circumstances when either the husband or the wife has the right to a
divorce, a right which thereby obligates the other partner to cooperate. The
majority of problems arise when the husband refuses to cooperate, and to a
lesser degree when the wife, who now cannot be divorced against her will,
refuses to cooperate. Rabbinical courts do have some muscle, but lack the real
force of the Bet Din (Rabbinical Court) of yesteryear. Rabbinical Courts can
impose sanctions, and in situations of husband or wife intransigence, it would
be most helpful for the court to use all of its muscle to make sure that the
couple cooperates.
Denial of Basics
The husband may demand the divorce if his wife denies him
the benefits of conjugal visitation, what is termed in the Torah as onah.
This is a fundamental ingredient of the marital union which, if deliberately
distorted, destroys the marriage at its very root. Additionally, the wife's
desertion without any just cause is also grounds for the husband demanding a
divorce. In such instances, when it is clear that the wife is at fault, she also
forfeits the ketubah (marital contract) settlement.
The ketubah settlement is the amount promised by the
husband to the wife at marriage, should the marriage break up either through
divorce, or the death of the husband. However, when it is the wife who
precipitates the break, she is not allowed to gain materially from her causing
the marriage's disintegration.
These instances of non-cooperation by the wife, either
through denial of onah or desertion, give the husband the right to
divorce his wife. However, it does not confer upon the husband the
responsibility to divorce his wife. It is a right which he may choose not to
exercise.
Adultery
The situation of adultery is different. When there are
actual eyewitnesses who testify to the wife's adultery, the husband has no
choice but to divorce his wife. He may no longer live with his wife, in the face
of her own brazen con-tempt for the sanctity of the marriage, and her failure to
protect the integrity of the marriage institution. And it can be nothing but
brazen contempt if the adultery took place in the presence of two eyewitnesses.
It should be understood that although adultery is a
grievous breach, the type of adultery that would necessitate divorce is a rare
type, that which is carried out, after forewarning, in the presence of
witnesses. That type of arrogant, contemptuous adultery hardly occurs.
When it does occur, such irresponsible behavior eats away
at the very fabric of Jewish life and cannot be tolerated within the marriage.
Since it is the community at large that suffers from this type of behavior,
neither the husband nor the wife can place themselves above the community by
ignoring or sanctioning such behavior. The community is bigger than any
individual or any couple.
Not One-Sided
With regard to the denial of conjugal visitation by the
wife, or her leaving, whilst the grounds seem to be clear and precise, this is
not always the case. It is obvious that there may be legitimate grounds for the
wife denying herself to the husband.
One such justification is that the husband abuses her
physically or verbally, and she therefore has only contempt for him. The husband
cannot then complain that his wife refuses to engage in sexual relations.
Likewise, if the wife leaves the household because she
cannot tolerate the husband's continuing physical or verbal abuse, she cannot be
blamed. The husband certainly does not have a right to argue for divorce as a
consequence of behavior on the wife's part that was precipitated by him.
In this, as in most other instances of contentious issues
relative to the suing for divorce, the matter must be adjudicated by a competent
Rabbinical Court which is able, through careful and attentive listening, to
apply Jewish law to the specific circumstances.
Adultery Different
However, adultery is another matter, for which there is no
possible justification. One can understand why the husband's callousness and
cruelty could make the wife feel utter revulsion for her partner in marriage,
and why she thus refuses to engage in any intimate expression. However, this
does not explain or excuse the wife then sharing herself with another individual
outside the marriage.
True, one can understand the wife's being turned off from
her husband. But in such instances, the proper thing to do is to confront the
issue, and either correct it, or leave the scene permanently via divorce. The
sanctity of marriage remains intact even when the marriage itself is shaky. If
it were left for each individual to arbitrarily decide at which point in time
the marriage is shaky enough that extra-marital relations can be pursued, then
understandably the sanctity of the marital union would be destroyed.
When there is suspicion of adultery, with no direct proof
or actual eyewitnesses to the adultery, but with legitimate suspicion that the
adultery actually took place, the situation is more complicated. Here, the
husband has the right to divorce his wife, but he is not constrained to exercise
that right.
There are other behaviors of the wife which would give the
husband the right to divorce. They include a broad range of actions by the wife,
including immodest conduct, the wife's cursing or insulting her husband, her
insulting their children or the husband's parents in the presence of the
husband, or the wife's hitting him.
Again here the matter is not as simple as it appears. The
husband must show bad intentions on the part of the wife. He must be able to
prove that her behavior was more than an isolated incident, or reaction to
provocation, or even just a temper tantrum. He must be able to show that this
was a calculated, well-thought-out, and pre-planned spiteful verbal or physical
assault.
It is understood that if the wife's conduct in this manner
is in reaction to the husband's being the instigator via his own verbal or
physical abuse, or improper conduct, that he can-not then demand a divorce from
his wife for behavior that he elicited.
Similarly, the husband may pursue divorce if his wife
perverts him with regard to matters of Jewish law. This may pertain if she feeds
him food which is not kosher (fit to be eaten according to Jewish law),
or fools him into marital relations when she is still in a menstrual state.
Here too, the situation is not one-sided. The husband must
be able to show that it was intentional religious subversion that was
perpetrated by his wife. He must likewise be able to show that he really cares
about these matters, that they are not merely an excuse whereby to gain divorce.
Thus, a husband who digests a steady diet of cheeseburgers cannot legitimately
claim that he wants a divorce because his wife gave him food that was not
kosher.
Impediments
Another precipitant for which the husband may press for
divorce is if the wife has a physical blemish which the husband finds so
distasteful as to make it impossible to continue in the union.
However, here the husband may demand a divorce only if he
was unaware and could not be aware of this blemish prior to the marriage. A
blemish which develops only after the wedding cannot be used as grounds by the
husband to press for divorce.
If the husband and wife have lived together for ten years,
and they have no children, he has the right to ask for divorce, so that he
should be able to remarry and attempt to fulfill his obligation for procreation.
In this instance, the husband is not obliged to pursue divorce. He has this
right, and also the right to refuse to exercise it.
These are some of the major issues of contention that may
arise in marriage, and for which the husband has the right to seek a divorce.
Spoiling the Meal
Mention should be made of another possible just cause for
the husband seeking a divorce. This is the situation of the wife spoiling her
husband's food. Obviously, the rate of divorce would be astronomically high, and
married life would be a continual pressure cooker, if every spoiled supper or
burned breakfast toast could be used by the husband as an excuse for divorce.
The language of the Talmud in this situation seems to focus
on the element of spite. The language of this clause is, precisely, that "she
spoiled his food" (Gittin, 90a). This means that her own food was not
spoiled, but that his was spoiled. This would indicate that the wife
deliberately spoiled her husband's food but made sure that her own meal was
okay. Such culinary spite speaks of the wife's purposeful setting out to ruin
her husband's meal, and indicates that the marriage has reached intolerable
levels.
Again here, as in most of the other instances of the
husband's right to divorce, the wife can counter-attack with legitimate reasons
for why she spoiled her husband's food, such as that he used offensive and foul
language to her, or abused her, and she was so mad that she took it out on the
vegetables or the meat. One can assume that the Rabbinical Court would have
nothing but admiration for her restraint, rather than imposing the husband's
unwarranted desire for divorce upon her.
Divorce Not Instantaneous
Needless to say, just leaving the matter of an obviously
conflicted marriage without intervening to get at the root of the problem would
be unwise and irresponsible. When speaking of the husband having the right to
seek a divorce, or of the wife's ability to counter the husband's desire for
divorce, this does not imply that the Rabbinical Court will behave in a
precipitous manner.
The very notion of a get procedure is to fore-stall the
instantaneous termination of a marriage. The Rabbinical Court will deliberate,
and the first point of deliberation will be to see if outstanding issues between
the couple can or cannot be corrected. It is only after this avenue of approach
has been explored and found to be futile that the court will entertain the
matter of the legitimacy of the claims.
