Tuesday, February 26, 2013

On Marriage and Divorce

A few weeks ago, I was asked (via email) why the Torah empowers men to initiate divorce, and does not assign the same power to women.

I replied, in part:

As framed by the Torah, marriage is fundamentally a financial transaction, in which a man accepts responsibility to feed, clothe, shelter and look after the general well-being of his wife. In exchange, she grants him rights to her income, and certain types of assets she owns. The marriage transaction is initiated by the man as he undertakes to fulfill those responsibilities. Because the man is the one to initiate the transaction, he is also the one who is empowered to end it.

This may be compared to an employment agreement (although the transactions have many differences as well, obviously, and I would not want a husband and wife to see themselves in these roles). An employee accepts responsibility to perform specific tasks for his employer. In exchange, the employer pledges to pay a certain sum. The employment agreement is within the employee's control, even though we usually think of the employer as having power; in halachah, the employee is the one empowered to break the contract, and the employer is not. The wife is the 'employer' in our case, and the husband is the 'employee'.

I should note, though, that the wife does have recourse, even though she does not initiate the divorce. In the event that she wants to be divorced, the Rambam notes that she has the ability to refuse to be with him intimately because of her distaste for marriage to him, and then the beit din will compel him to divorce her. She would forfeit her ketubah payment in that case, but this is logical, since the point of the ketubah payment is to keep husbands from divorcing their wives precipitously. [I should note that the Shulchan Aruch Even haEzer 77:2 is less clear on the topic of compelling him to divorce her.]

Tonight I received an email reply, pointing out that presenting marriage as a financial transaction is rather off-putting. I agree, but here is my thought in response:

As I understand it, within Judaism, holiness does not come from ritual, ceremony, and a moment in time. Rather, holiness comes from the way one lives, in an ongoing way. Witness the way the Jews met their Creator at Sinai, and then created a Golden Calf. The relationship with the Divine is a product of a life lived with deep spiritual sensitivity.

The same is true, within my understanding, for human relationships. Despite the "love at first sight" dream, for most people love is a product of shared experiences and growth over time, not a chance encounter or an individual date. Each moment deepens and strengthens the bond.

Combining those two points: The single act of a wedding should not be conflated with the lifetime of marriage. A wedding is, indeed, a transaction, which sets the stage for a shared life by defining the rules by which the couple will function. It is a formal contract, outlining roles and responsibilities. Once that has been laid out, the couple are then in a position to live their lives together, in love and in holiness.

To compare it to a different field: We register in school and we pay tuition in order to make it possible for us to learn. Learning and growth are our goals, but we need to engage in a contract in order to set up the relationships which will make the learning/growth experience possible.

Does this make sense to you? What would you have said, in response to either or both of the emails I received?


  1. It's a tough question, but I've heard it suggested that the halacha was intended for the case of two non-abusive people who could make it work but just hit a bump, that in the process of him writing out "you're totally on your own and can go find whoever you want", it forces him to question if that's really what he's prepared for -- and hopefully he reconsiders. (Let's face it, men have a lot of issues, and halacha is there to address them.) And if not, it helps them make a clean break as it's clear that there are no ties between them anymore. She shouldn't feel guilty about finding someone else, as her ex put in writing that was fine. (I think there are some statistics today about how much more often men remarry after divorce, compared to women.)

    Personally, I wouldn't discuss Gittin veKiddushin in monetary terms, as almost all of the monetary agreements can be waived by mutual agreement (other than the kiddushin itself, which is simply a token action).

  2. I recall reading a piece, in translation, by Dr. Yitzchak Breuer ZT"L, to the effect that German law expected everyone to push his legal powers to the limit, while Halacha expects everyone to use discretion and self-control in applying his legal powers.

    Thus, it appears to me that, in this instance, we require the husband to act responsibly towards his wife in all possible ways, irrespective of his sole power to divorce. When a husband is irresponsible, our marriage/divorce system functions poorly.

    1. Irrespective of chronological order, the Torah puts Yisro's advice of judges before the Mount Sinai experience. Similarly the book of Isaiah opens with Chapter 1, on injustice, before the prophetic revelation in Chapter 6. If you take a bunch of savages who aren't willing/able to resolve their conflicts, and then hand them a divine revelation, they'll simply use that as another tool to bludgeon one another. That's sadly how halacha can be abused.

  3. (This is an 'on one foot' answer which I might reconsider when I get time to consider the question further.)

    Historically marriage in most cultures has been a transaction, usually for more materialistic reasons than outlined in the ketubah. People married for financial or political reasons, at least among the wealthier and more powerful sections of society. Marriages were arranged by parents, regardless of the wishes of the bride and groom (no wonder that adultery was generally considered morally and socially acceptable among the European aristocracy...).

    That doesn't really justify anything, though - Judaism hardly teaches following non-Jewish societal customs regardless of the moral consequences - and I prefer your answer.

  4. Marriage as the consumation of a romantic relationship is only a little over a century old. The divorce rate going through the roof is possibly a consequence of a shift from marriage as an economic arrangement to a romantic one. After all, economic situations endure while romance almost never does.
    Besides, anyone who's seen a divorce happening knows that the entire marriage was all about money anyway.

  5. Shalom-
    Why does waiveability detract from the financial character of the contract?

    Halachah's expectations of us notwithstanding, the power is still left with only one of the parties...

    Daniel, Garnel-
    I've heard the claim that romance is relatively new, but how do you square that with Shir haShirim?

    1. No, no, romance isn't new. The idea that it should be the reason for marriage is.
      Or look at it this way: in the Bible how many romance-based marriages work out well with both partners dying together in old age happily?
      David-Michal or David-Merav?
      Even David-Batsheva hits a few speedbumps.

    2. Garnel-
      I'm not sure I understand. It's true that some biblical romance-based relationships don't pan out, but in your vision, what is the text proposing as the healthy end of a romantic relationship?

  6. I did specify that marriage for money was mainly in the wealthier sections of society. One of the few advantages of being poor was greater control over who you married, although even then (a) that control was not absolute and (b) a financial element might enter into it e.g. in early modern Europe it was common for an apprentice to marry his master's daughter as a way of securing control of the business when the master retired or died.

    This is not to claim that romance is new, merely that it was not seen as necessary for marriage, nor was marriage seen as necessary for romance (e.g. Courtly love in the Middle Ages). That's not to say it did not exist (e.g. Yaakov married Rachel because he loved her), nor that love in marriage was not promoted by Judaism (the Talmud clearly does expect men to love their wives), but it was assumed that this could follow marriage rather than be the reason for marriage (e.g it states that Yitzchak loved Rivka, but the statement comes after he married her).

    Also note that we still encourage people in the Orthodox community to be governed by factors other than romance e.g. when considering intermarriage.

  7. "Bob-
    Halachah's expectations of us notwithstanding, the power is still left with only one of the parties..."

    Since we have no authority to reallocate the formal power, we should concentrate on ensuring that the maximum number use it properly.

  8. You say, "As framed by the Torah, marriage is fundamentally a financial transaction,..."

    Marriage is more complex and the Torah knows that. I would have said that the Torah explicitly addresses the defined financial dimensions of marriage and does not address the emotional elements of the relationship such as love. (Song of Songs does some of that.) Within the financial dimensions there clearly is inequity of power favoring the husband. We really do not know why that is the case (though many assume it is because men controlled the society in which it was framed). And yes it ought to be doubly off-putting to a woman (and to a man who values egalitarian ideals) to see these two limitations in the Torah's framework regarding marriage.

    1. Tzvee-
      I think we are on the same page; I just distinguish between marriage and married life. I suppose I could have been clearer by saying, "the marriage agreement is fundamentally..."

      Hence my distinction in my second email.