Divorce – Men Hold All the Cards

I saw this post somewhere else, and thought it was a good question.

I’m FFB [frum from birth], and lately have been analyzing Judaism’s approach and views of men and women. I used to believe that male vs female was just that we have DIFFERENT roles, not that men are placed more on a pedestal. However, recently, my friend went through a divorce and there were many issues where the [soon to be ex-husband] flexed his male muscles regarding holding back a Get [religious divorce]. It took her over 2 years to get it. Why is it that a man can keep a wife chained but not the other way around? Can someone please really explain this to me??

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  1. Rabbi Emanuel Rackman, in One Man’s Judaism explains, if I recall correctly, that quite simply, if the man is the one who must initiate the transaction to “purchase” a wife, then he must be the one to terminate the transaction as well.

    I would personally explain this in Maimonidean / A. I. Kook fashion that when G-d gave the Torah, He had to give it in a way which man would understand, for “the Torah speaks in the language of men”. As Rabbi Rackman explains (ibid.), G-d chose to compromise wherever He could, and thus we see that the Torah grudgingly acknowledges and permits such things as polygamy, slavery, taking a woman captive in war (yafet toar), voluntary wars of conquest for spoils (milhemet reshut), etc.

    Therefore, G-d also made men be in control of marriage, because that’s just the way things were back then.

    But just as the Gemara says that yafet toar is a concession to ancient and primitive notions of morality, so too, says Rav Kook, it is our obligation to recover ourselves from other primitive notions which the Torah capitulated to.

    Rabbi Rackman continues that only with idolatry did G-d refuse to compromise. But seeing as how we repeatedly sinned regarding idolatry, G-d wisely knew that in everything else, He had to compromise as much as He could, so that we’d at least keep some minimal acceptable standard, even if we didn’t keep His ideal.

    What G-d did, however, was to encode into the Torah hints that would educate us. Luckily, over the centuries, we’ve learned that G-d’s ideal is not that men have multiple wives or slaves or take women captive in war, etc. According o Rav Kook, G-d teaches us through history, and G-d’s revelation was not only at Sinai, but also through the course of human history. At every point in history, says Rav Kook, we must examine the present zeitgeist and determine if it has anything to teach us about our interpretation of the Torah. We cannot change the Torah, but we can use history to help reveal things which were always in the Torah all along, but which we never realized before. Presumably, it is also not His ideal that men unilaterally control divorce. Therefore, many rabbis, especially Rabbis Yehiel Weinberg and Eliezer Berkovits, suggest prenuptial agreements stipulating contractual conditions for marriage, qidushei b’tenai. For example, the halakhah says you can say, “I marry you on condition that the sun shines tomorrow.” If the condition is met, you are married, but if it isn’t met, then retroactively, you were never married. The rabbis could all decide to refuse to marry anyone unless they stipulated something like, “I marry you on condition that you never make me an agunah.” Obviously, the terms would be more detailed than that, and more rigorous, but that’s the basic idea. What the RCA does instead is impose a financial penalty for recalcitrant husbands, which hopefully would achieve basically the same end.

    • For details on everything I’ve just said, see
      (1) Rabbi Emanuel Rackman, One Man’s Judaism, here
      (2) Professor Marc Shapiro’s article here, starting at “It is with regard to the issue of the mamzer that one can see manifested a point I have often thought about.”, until the end of the article.
      (3) Dr. Pinchas Polonsky, Religious Zionism of Rav Kook, here

      Let me add some more direct quotations from Rav Kook’s own writings:

      Rav Kook’s letters, Igrot 478, (Translation from Tzvi Feldman, Rav A. Y. Kook – Selected Letters. Ma’aliot Publications of Yeshivat Birkat Moshe; Ma’aleh Adumim, Israel, 1986. pp. 17f.):

      And if we find in the Torah certain things which other people think were based on the widely accepted notions of the distant past, but which are incompatible with the scientific knowledge of today, indeed, we do not know at all if today’s research is absolute truth, and even if it is true, certainly there is also some important and sacred objective for which certain matters [in the Torah] needed to be presented in the commonly accepted description and not the exact one, as is plain in the spiritual concepts and in certain foundations of practice, for “the Torah provided for man’s evil passions” or “to make [its words] intelligible” and upon all of them appears the living endearing divine wisdom.

      Rav Kook’s Eder Hayakar, pp. 42-43 (Translation from Ben Zion Bokser, The Essential Writings of Abraham Isaac Kook (Amity House: Amity, New York, 1988.), p. 48, “Assyriology and the Bible”.):

      As to the similarities in teaching [between the Torah and the Code of Hammurabi], it was already made clear in the days of Maimonides, and before him in the teachings of the Talmudic sages, that prophecy reckons with man’s nature, for it is its mission to raise his nature and his disposition by divine guidance, as is implied in the statement that “the commandments were only given so as to refine the nature of people” (Genesis Rabbah 44:1). Hence, whatever educational elements there were in before the giving of the Torah, which gained a following among the [Jewish] people and the world, if they only had a basis in morality and it was possible to raise them up to a high moral level – the Torah retained them.

      From that above article of Professor Marc Shapiro’s, let me quote and translate two of Rav Kook’s statements:

      כשהמוסר הטבעי מתגבר בעולם, באיזה צורה שתהיה, חייב כל אדם לקבל לתוכו אותו מממקורו, דהיינו מהתגלותו בעולם, ואת פרטיו יפלס על פי ארחות התורה. אז יעלה בידו המוסר הטהור אמיץ ומזוקק.

      “When natural morality (i.e. conscience) strengthens in the world – in whatever form – everyone is obligated to receive it into his ethos, from its source – i.e. its revelation in the world – and its details [of how this new notion of morality should affect observant Jews] will be explicated by the paths of the Torah. Then pure morality will arise into his hand, strong and purified.”

      כל התורה הזאת של מלחמת רשות לא נאמרה כ”א לאנושיות שלא נגמרה בחינוך. … כל לב יבין על נקלה כי רק לאומה שלא באה לתכלית חינוך האנושי, או יחידים מהם, יהיה הכרח לדבר כנגד יצר הרע ע”י לקיחת יפת תואר בשביה באופן המדובר. ומזה נלמד שכשם שעלינו להתרומם מדין יפת תואר, כן נזכה להתרומם מעיקר החינוך של מלחמת רשות, ונכיר שכל כלי זיין אינו אלא לגנאי.

      “All these laws of voluntary wars of conquest for spoils (milhemet reshut) were given only for a mankind that had not progressed educationally. … Every heart will easily understand that only a nation that has not come to its conclusion of humanistic education – or individuals thereof – will require a concession to man’s carnal passions (yetzer hara), viz. taking a woman captive in war (yafet toar), as described in the Torah. And from this we will learn that just as we must rise beyond the law of yafet toar, so too we must rise beyond the educational principle of milhemet reshut, and we will learn that every tool of war is naught but disgrace.”

      ואם תפול שאלה על איזה משפט שבתורה, שלפי מושגי המוסר יהיה נראה שצריך להיות מובן באופן אחר, אז אם באמת ע”פ ב”ד הגדול יוחלט שזה המשפט לא נאמר כ”א באותם התנאים שכבר אינם, ודאי ימצא ע”ז מקור בתורה.

      “And if a question arises on some Torah law, that according to [new] ethical notions, it needs to be understand in another manner, then if indeed the Sanhedrin decides that this Torah law was said only regarding sociological conditions that are no longer extant, then surely they will find a source [for this new ethical notion] in the Torah.”

      • According to RambaM, many of the mitzvot in the Torah are concessions to ancient pagan practices. As Professor Menachem Kellner notes in Maimonides’ Confrontation With Mysticism, RambaM believes that had Avraham Avinu and the Jewish people lived somewhere else, where different pagan practices were the norm – say, if they were Navajo Indians – then the Torah would be different. G-d’s ideals wouldn’t change, but His response to man’s life here on earth would be different. G-d’s ideals are constant, but because He must communicate with man, His communication must change to fit man’s life. Lo bashamayim hi.

    • I’ll note that Rav Kook is the father of the settler movement in Israel, and his influence is nothing less than extraordinary in Israel. His words may sound Conservative, but he is one of the most influential Orthodox rabbis in recent history.

  2. Daniel Schwartz says:

    The notion that either side in a divorce, Orthodox Jewish, or otherwise “holds all the cards” is a load of crap. After fifteen years of representing both husbands and wives in their divorces, I can assure you that there is no shortage of nastiness, dirty tricks and corruption to be used by both sides. Indeed, more famously a man can withhold a Get. But a woman can refuse one too, leaving a husband with little recourse but to expend tens of thousand of dollars on a controversial and socially frowned upon Heter Meah Rabbanim. I’ve seen both sides of this in Beth Din. For about ten years or so, ending in around 2007, it was common for an angry mother to file false sex abuse charges against a father. That tactic equaled about $50,000.00-$100,000.00 in legal and other fees and two or so years of heartache until the father would beat it back. But the damage to his relationship with the kids was often more long lasting.

    The simple truth is neither side holds all the cards, and the fight can be as nasty as anyone wants to make it.

  3. David Tzohar says:

    If Michael Makovi thinks that Rav Kooks words sound Conservative (Gd forbid ) it is only because he is quoting them out of context and without any real understanding of their deeper meaning.
    As to the subject of the post. It is completely untrue that “men hold all the cards”. For the last 1000 years, since the edict of Rabenu Gershom it is forbidden to divorce a woman against her will. She must accept the get of her own free will. I personally know of a case where a man had to wait over 5 years for a divorce since his wife refused to accept the get. The only difference is that in extreme cases the man can get permission to marry a second wife if he can convince 100 rabbis including the chief rabbi t to sign the hetter. It was well known that Rav Lowe when he was chief rabbi refused to sign any such hetter and many men remained agunim. Also the rabbinic courts invariably lean towards the woman in child custody matters.

    • David, I myself am Orthodox and follow Rav Kook. I meant that to other Orthodox people, not sufficiently learned in the thought of Rav Kook, his thought sounds Conservative. Then again, I once got offered a pulpit at a Conservative synagogue because I quoted Rabbi S. R. Hirsch.

  4. kisarita says:

    Daniel, stop with the apologetics. Comparing a wife’s refusing a get to a husband’s witholding a get is a completely unfair comparison.

    -First. It assumes the husband belong to a community which is A. observant B. willing to uphold cherem d’rabbenu gershom. Neither is always the case.

    -Second, it assumes the husband is strictly observant of hilchos tznius, which a large percentage of divorced men are not. He may not find a Rabbi willing to perform his wedding, but he’ll find it much easier to find some older single women who are willing to sleep around with him, without violating the taboo of adultery.

    -Third. No one is enforcing compliance on the man as they are enforcing it on the woman- with the threat mamzerus of her future children.

    -4. When push comes to shove, a get can be forced on an unwilling wife. It all depends on the dayan to define when push comes to shove, but since the halacha doesn’t actually require the woman’s consent (it’s only part of the cherem) there is room to be much more meykel.

    I have heard it used when the wife left observance. The theory was that “zachin l’adam shelo b’fanav” and that it would be to her benefit to be divorced rather than sleep around adulterously.

    Agreed. Both women and men can pull some very nasty tricks. That doesn’t contradict the fact that the halacha itself favors men.

    To the original poster of this thread:
    Your original assumption, that Judaism prescribes separate but equal roles to men and women, was mistaken. You only experience it that way because you have grown up in a modern society where your equality is protected by the non-Jewish secular law. I am sorry you had to figure out the truth in such difficult circumstances.

    • Kisarita,

      I have a friend who’s in the situation of his wife refusing a get. Many men cannot get the heter meah rabanim to circumvent herem d’rabenu gershom, and in Israel, through the Rabbinut, it apparently takes three years. My friend has already spent one year with an absent recalcitrant wife, and he has two more years to go, and that’s assuming he actually gets his dispensation in the end.

      It is absolutely uncalled for, for you to discuss that some men are loose and willing to find another woman sleep around with. I’m sure you can find agunot who are loose and willing to sleep around with men. It is irrelevant that some chained husbands are loose, just as it is irrelevant some some chained wives are. How would you like it if someone told an agunah that her plight wasn’t real just because some chained wives sleep around? You’d want to punch that jerk in the nose, so please don’t speak in like wise to Daniel here.

      Yes, the original subject of this post was about the basic Biblical law favoring men, but nevertheless, please don’t disregard the fact that some men still do have problems nevertheless with recalcitrant wives. The idea of egalitarianism is that women are equal to men, not better than them, so please don’t devalue men.

      Thank you.

      • fille says:

        “It is irrelevant that some chained husbands are loose, just as it is irrelevant some some chained wives are”

        Not at all

        1) Not all jewish communities are under the ban of Rabbi Gershon. I know of a woman married to a man from a community that is allowed to be polygamous by minhag. The husband left her and will not give her a get, because “I am allowed to marry a second wife anyway”.

        2) Even in the (frum) ashkenasy world, there are enough apologists of male infidelity (“The Ravad allows it” “lovesh sh’horim…” “Pilegesh is allowed”)

        3) The punishment on a married man sleeping around with (not married) women is way less harsch than the punishment for married women having affairs.

        4) If a man sleeps around with (not married) women, there are no consequences for the next generation, whereas the child of an aguna (not with her husband) is deemd a mamzer, with all the discrimination that ensues.

        Considering the fact that the torah is muuuuuch less rigorous for man having extramarital affairs, the appropriate solution would be that a divorce is possible without the husband’s consent, but not without the wife’s consent.

        If she agrees to divorce (and gains her liberty), she looses his economical support.

        If she does not agree to divorce, he can still have affairs…

  5. kisarita says:

    Actually most observant chained wives are NOT loose. (and many divorced women as well- they just want to be left alone). Why? because they don’t want to cross the adultery line.

    Many of those self same m’agnim who sleep with single women, and would marry them if he could convince them too, still stop short at carrying on with a married woman, even another agunah. Because he would also stop short at committing adultery.

    And many m’agnim, as well as some men who are still cohabiting their wife, justify their behavior from the Torah (and according to the letter of the law, they have a strong side in their favor).

    For one its just improper behavior, wink wink. For the other, it’s adultery.

    Three years? I’m sure it feels interminable but relatively speaking its not a lot for a messy divorce. Now find me a case of a male denied for 5, 10, 20 years, even lifelong, as women are.

    Even if it takes a while, the very knowledge that there is a process, there is an end in sight that doesn’t depend on the whim of one estranged person, shows in whose hands the cards are.

    My advice to agunot? No, I don’t say sleep around, unless they really want to. No, I say Marry a goy. Your children will be Jewish, and I think there are opinions who say they are not mamzerim.

    You can be sure if this were to happen on large scale, it would level the playing field.

    Unfortunately or fortunately, this is not a practical option for most.

  6. Duvii says:

    Yeah right.

  7. LeahGG says:

    I know a woman whose husband disappeared for 15 years and then took another 4 years or so to give a get. The rabbis would not grant her any way in which to date or get remarried, because there was not sufficient evidence that he was dead. In fact, he wasn’t. He was on the run from the law (he says) or the mob (I suspect) or something (who knows?), but couldn’t be bothered to send home a get.

    When he left, she was in her twenties. By the time she had a get in hand, she was already a grandmother.

    Her chance for more children was gone. Her children’s chance for a good male role model in their home was gone.

    If it had been a woman who left her husband, the heter would have been given after 3 years. You can see the difference.

  8. kisarita says:

    The very existence of a loophole, even a burdensome and tortuous one, discourages get recalcitrance. Women are less likely to be recalcitrant because they know that in the long run, the husband can get around it. In the same way, if a loophole such as anulments would be accepted, you would find that they would seldom be used. However, its existence would serve as a deterrent.

  9. Michael says:

    Interesting discussion. I dont know about any loopholes. I have been waiting over 3 years and expect it will continue as the ex wife refuses to attend a beth din here in the UK unless various conditions/undertakings are given by them in advance. and without her attendance or co-operation i’m stuck. no orthodox beth din will sort out a get without her attendance. My attitude is to appreciate what i do have, both family and materially and have simply accepted you cant have everything in life. If Hashem wanted us free it could happen in a moment, i’m still waiting? This issue is certainly far from a one sided issue where the victim is only the woman.

  10. kisarita says:

    you would prob do better in a diff bet din.

  11. LeahGG says:

    I don’t know what her conditions are, but I know more than one woman who has bought her way out of a marriage with a husband who was physically abusive.

    The other side of the coin is that in civil courts, *usually* the women get the upper hand on custody arrangements, which is why my stepson lives in another country and we get to see him 2 weeks a year…

  12. kisarita says:

    In New York State that would be illegal too. The custodial parent may not move out state, or risk losing custody.

  13. LeahGG says:

    kisarta – it was illegal when she did it too, but there were… circumstances… The depressing part is that when those circumstances changed, the facts on the ground are virtually unchangeable.

  14. Michael says:

    We digress, but for the record, in the UK, if circumstances are right for the mother, and she needs to start a life somewhere else in the country, she will be given an order to move with the kids. The father will then have contact with children during the holidays only. The problem as i see it is the Beth Dins allowing the parties to proceed (by consent or otherwise) in the civil courts and then being expected just to supervise the Get, by which time there may be all sorts of problems and anger (after the lawyers get involved) that will frustrate the process. All matters should be dealt with by a BD, and thereafter if a party is not complying they can be named and shamed and sanctions placed on them. Its when the parties choose to use the civil courts first (or after transferring away from the BD) that the BD then has no power to get the parties back to them or to place sanctions. They cannot place sanctions on a recalcitrants party on the basis of whats happended in a civil court, as there has been no din torah. The parties must come before the Beth Dins. So to conclude, if women (and i say women because the civil system seems to give them greater reward at the moment and they know this) wish to proceed through the civil system then that is their free choice and good luck to them, but it may result in no Jewish divorce. As the Judge told my ex, she must attend a BD if she wants a Jewish divorce and follow their rules, if its important to her, BUT it may compromise some of the gains obtained in the civil court, thats her choice to make. And i’m afraid, some women would rather complain than proceed down a process where they may have to part with something (possibly obtained illegally according to halacha). there is always the reform movement of course, who i believe will arrange the Get without the husbands involvement for a fee or membership of their synagogue…but thats another subject and i dont recommend that route!

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