Divorce and Anullment - Woohoo!

One of the claims made against Orthodox Jewish law is that it is sexist, because while the husband must grant the wife a bill of divorce in order to enable her to be legally divorced - and thus, entitled to remarry - the husband needs no similar document from the wife. This makes the system open to abuse, by men who wish to keep their wives legally married, in order to extract money from them (by demmanding money in exchange for the bill of divorce), or to exact revenge. Such men, if they took upon themselves second wives while still not having granted their first wives a bill of divorce, would only be considered to be violating a rabbinic prohibition by Rabbi Gershom, whereas the wives they keep legally married would be considered adulteresses on a Biblical level.****

Today, it is common for communities to ex-communicate men who refuse to give their wives a bill of divorce, known in Hebrew as a get, but the man in question can simply move to another community, where his antics may be unknown, so the ex-communication has a limited effect. Technically, a woman might move to a place where her previous-marriage-that-is-still-legally-binding is unknown, and marry some hot stud, but most of Orthodox women would consider doing so to be a direct violation of the Torah commandment against adultery, so their conscience holds them back.

The Talmud was extremely aware of the system's potential for abuse. For that reason, it ruled it permissible to physically beat a recalcicrant husband into submission. Persumably, a good thrashing managed to bully men into giving their wives a get, in a way that ex-communication today does not. Also, keep in mind that at the time ex-communication was devised as a form of punishment, the world was formed of micro-communities, with each person's health and livelihood dependent on their community, so ex-communication had very serious consequences.

As a further safeguard against abuse, the rabbis instituted a legal mechanism for anulling marriages. The theory went like this: Every Jewish couple marries with the understanding that they are marrying according to the rules of the rabbis, thus, if at some point in the future, the rabbis want to anull the marriage, they technically have the right to do so. Because the couple is aware of the "This marriage is only valid as long as the rabbis say it is" clause in the marriage contract (which Rashi points out, is implied in the language of the marriage ceremony: "You are betrothed to me according to the laws of Moses and Israel"), at the time they make the contract, this "The rabbis can annul this marriage" clause is valid. Thus, rabbinically anulling a marriage after it's taken place, is simply legally using a clause that the couple themselves put in their marriage contract on their wedding day.

The rabbis are clearly not in favor of going around anulling marriages - as a matter of fact, almost every time it rules that a marriage anullment is permitted, it makes sure to include Ravina's (ultimately rejected) objection to the entire concept of rabbinic marriage anullments. I do not believe this is a mere rhetorical ploy, but rather, the editor's subtle way of underscoring that while permissible in certain circumstances, rabbinic marriage annulments are only to be used sparingly, because yes, the entire concept is problematic.*****

I plan on bringing two cases in the Talmud when the rabbinic power of annullment is used in response to inappropriate action by the husband. There are other cases when the Talmud allows anullments for different reasons, but my goal is to prove that annullment can be used in response to the husband's misdeeds, not to prove that it can't be used for other reasons.

In Baba Batra, 48:1, the Talmud explains that if a woman is forced into a marriage, the marriage is invalid. "He acted with her improperly, thus we act with him improperly, and retroactively anull the marriage." Thus, anullment is seen as something negative, yet necessary. The anullment prevents the woman from being taken advantage of by a man who acts improperly. The goal of the law is to protect the women's agency, her ability  to not be forced to stay in a marriage she does not want to be in.

Tosfot, commenting on the passage, note that the reason the "all people marry in accordance with rabbinic law, thus the "rabbis-can-annull-this" clause is built into the marriage contract, is not given as the reason behind the annullment in this case, is that the man in question clearly married in full knowledge that he was acting against the will of the rabbis.* This shows that Tosfot considered a woman's free choice in the matter to be essential enough to rabbinic matrimonial values that any man violating them must be one who consciously flouts the will of the rabbis.

The second case is in Yevamot 110., in the case of a woman in Narsh, a city notorious for cime, who was betrothed at a young age, and then kidnapped right before the actual wedding.** The Talmud rules that the woman does not need a get from her second husband (the kidnapper) because, "He acted with her improperly, thus we act with him improperly, and retroactively anull the marriage." Once again, an argument could be made that the rabbis are worried about a woman being forced to stay in a marriage she doesn't want to be in, since presumably she did not want to be kidnapped, and they were living before the discovery of Stockholm Syndrome.*** In any event, it seems that a husband's improper actions are grounds for anullment - as Tosfot points out, even if the marriage was done without the implied clause of "I'm marrying with the permission of the rabbis and this marriage lasts only as long as they approve".

Based on the above, it is clear that according to the Talmud, one of the major sources of Orthodox jurisprudence, if "a man acts improperly", the rabbis may retroactively annul the marriage, thus obviating the need for the man to give the women a get. Thus, one could argue: A man refusing to give his wife a get is acting improperly. Furthermore, it is acting improperly in such a way that it will force the woman to stay in a marriage she does not want to be in - the very type of impropriety mentioned in the two cases above. Thus, this impropriety is grounds to institute the principle of "He acted with her improperly, thus we act with him improperly, and retroactively anull the marriage.", thus annulling the marriage, and allowing the woman in question to be legally single without her husband giving her a get.

If this is the case, then the problem is not the Orthodox law per se, rather, the unwillingness of the rabbis to properly implement the law. The rabbis could make it a policy to anull the marriage of any couple where the man does not give the woman a get (unless he has a good reason behind his actions) - they certainly have the legal power to do so, they simply prefer not to use it.

But if anything, the extent to which the rabbis of the Talmud are willing to extend rabbinic power beyond the limits of what they are comfortable with, and to rely on all sorts of leniencies in order to make the laws of divorce more flexible, in a way favorable to women, shows the importance they placed on the value of protecting women from abuse within the halachik system - perhaps because they understood that such abuses violated the halachik principle of "The Torah's ways are ways of pleasantness and all her paths are paths of peace." Thus, such annullments would not only be using legal measures sanctioned by the Talmud, but they would also be upholding the values implied in those measures. Which begs the question of why the rabbis don't anull - a question whose answer depends on socio-historical, not religious, factors.

The question might then be asked: If the rabbis cared about the rights of women so much, why didn't they simply say that just as a man must give his wife a bill of divorce, so too, a wife must give one to her husband?

The answer lies in the verses themselves: Deutoronomy, 24:1: "When a man taketh a wife, and marrieth her, then it cometh to pass, if she find no favour in his eyes, because he hath found some unseemly thing in her, that he writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house, 2 and she departeth out of his house, and goeth and becometh another man's wife, 3 and the latter husband hateth her, and writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house; or if the latter husband die, who took her to be his wife; 4 her former husband, who sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the LORD; and thou shalt not cause the land to sin, which the LORD thy God giveth thee for an inheritance."

In the verses above, it is very clear that it is the man, not the woman, giving the bill of divorce. It is clear that the wife's divorce depends on the husband's bill of divorce, but that no such condition applies to the man, for if it did, the verse would mention it. The rabbis saw themselves bound by the language of the verse. There is some leeway - namely, the verse can be interpreted either in accordance with a standing tradition, even if it violates the apparent meaning of the text, or in accordance with the traditional exegetical tools (such as Rabbi Yishmael's 13 measures the Torah is expounded by), but here, there was no long-standing tradition of male divorce being dependent upon bills of divorce by women, nor did the rabbis feel the exegetical tools at their disposal justified such a reading. (It should be noted there are many midrashey halacha about the above verses that are not directly related to the topic at hand, but that do show the rabbis clearly felt comfortable expoudning midrashim about said verses.)

I believe the answer also stands in the way that the Talmudic rabbis saw the world, a way which determined how they related to the above verses: They saw it as one of natural, not positive, law. The role of the rabbis was to uphold the laws passed down through Moses, the written Torah, and various oral traditions, or to reveal laws using a variety of exegetical and legal methods - but they did not have the power to create their own laws. Even the "chiddush", the new learning, is in fact no more than a revelation of a pre-existing truth, which the learner is privileged to reveal. Thus, the midrashic story God first looked into the Torah, and then created the world: The threads of the Torah and the Jewish legal system was woven into the world, were part of the natural order since the first moment of creation. The process of the evolution of Jewish law is a process of ongoing revelation (albeit a more hidden revelation ever since the exile and the cessation of prophecy, but the relationship between revelation, prophecy, and the Jewish legal tradition is way too big to tack right now), not of ongoing creation.

Thus, the rabbis did not have the right to create a law that would enable a mutual exchanging of divorce bills. The most they could do was work within the limits they had to reveal ways in which the laws might be made more empowering of women. I believe that this model of revelation holds power for current Jewish legal jurisprudence. If I assume I am bound by the laws, but that I can look at the corpus of Jewish texts and the values contained therein, and then try to reveal ways, within the boundaries of the laws in front of me, to minimize any seeming conflict between the two, then all of a sudden, I have a plethora of options available to me. Another example of this method of jurisprudence is that of the rebellious son: The Talmud could not undo the law, because it is a Biblical passage******, but it did limit the definition of rebellious son to something so specific, not to mention impose ridiculous conditions on the parental testimony necessary for the execution, in such a way that the chances of anyone being executed under the law were zero. The Talmud itself claims, "A case (fitting all our criteria) for a rebellious son, never happened", and goes on to ask why the Torah bothered listing a law involving a case that will never take place. Conclusion: To give the Jews the benefit of the Torah study that comes from exploring that law.

So I hope you've benefited from reading my post exploring a Torah law - a law that I hope will not be used very often, because the majority of marriages will be deliriously happy, life-long unions.

*Since the built-in-clause was the way the rabbis justified their powers of anullment, Tosfot then goes through legal hoola-hoops to explain why the rabbis can anull in this case, when there was no such clause. While those hoola-hoops are not directly relevant to this piece, their commentary does include the sentence "The rabbis can uproot a Torah law" - which is admittedly much sexier when taken out of context.
** Best Jastro saying: "If a Narshean kisses you, count your teeth".
*** Yes, kidnap marriages in late antiquity are part of a larger topic. Not going to go there right now.
**** The men in question can legally remarry if they get a hundred rabbis to make them exempt from the prohibition, but getting a hundred rabbis to agree on anything is pretty hard. Also, worth mentioning for the record: A man can not force a woman to divorce - she must consent to the divorce for it to be valid. A different topic, but I couldn't resist.
***** because of the amount of power it grants the rabbis.
****** Yes, there are times the Talmud or a midrashic source will interpret the text in a way that is the complete opposite of its simple meaning. But I believe they only do so a) when the interpretation is in accordance with a long-standing tradition b) when the traditionally accepted ways of interpreting verses allow for such an interpretation. Presumably, in both the case of the man giving his wife a bill of divorce and in the rebellious son case, neither a nor b applied in such a way that would allow for claiming the verse was promulgating a mutual-bill-exchance law, or for claiming the verse was in fact not arguing for executing the rebellious son.