Jewish Divorce

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Jewish Divorce

According to the Torah every effort must be made to preserve the sacred relationship of marriage: making peace between a husband and wife is considered a high religious duty. However, if every effort has been made and still there is no hope of reconciliation between a couple, the marriage may be dissolved.

If a marriage has been consecrated “according to the Law of Moses and Israel” (the key words in the Jewish marriage ceremony), then it must be dissolved accordingly. A civil court judge acting in accordance with the secular laws of the State can decree a civil divorce, but this does not mean the couple is divorced according to Jewish law. A civil divorce alone is invalid in Jewish law and any future marriage of either partner will not be recognised within Judaism.

THE JEWISH DIVORCE PROCESS

In order to be free to remarry Jewishly, a person must obtain a Jewish Bill of Divorce, called a gett. The granting of a gett is governed by halacha (Jewish law). A gett is the only official documentation of divorce according to Jewish law. It is, therefore, extremely important that divorcing couples follow the proper procedure.

Not obtaining a gett creates grave religious problems for those divorcing, as well as for their future partners and future children. Without a gett a Jewish person cannot remarry within Judaism and any children they may have from future unions will be considered the offspring of adultery. As such they will beillegitimate (mamzerim) under Jewish law and subject to severe social disabilities. These strictures are held to be immutable and of divine origin by Orthodox Jews.

Sufficient grounds for divorce according to Judaism include every effort at reconciliation having been made and/or a civil divorce and property settlement having already been granted. The divorce should be by mutual agreement, but sometimes the process is complicated by a dissenting husband or wife. In Jewish practice, a wife can institute divorce proceedings, but it is the husband who actually grants her the gett. He must ‘free’ his wife from their marriage or they remain bound according to religious law.

The Jewish divorce process must be supervised by a Beth Din (rabbinic court). This is a court constituting three rabbis competent in halacha (Jewish law). Also present must be a scribe (who will write out the bill of divorcement) and two witnesses, who may also be rabbinic members of the Beth Din. All of these participants must be observant Jews unrelated to each other or the couple.

In instances where geography or other reasons make it impossible or undesirable to have both parties together, the procedure can be performed through a proxy or power of attorney. It is possible to arrange a proper gett without any contact between the divorcing husband and wife. The entire process normally takes only a couple of hours and does not require hearings or other additional proceedings.

After the grounds for the divorce have been presented, each member of the Beth Din takes it in turn to ask the husband if he is still determined to divorce his wife. Each time the husband must reply in the affirmative. The free will and agreement to divorce of both husband and wife are next ascertained by each of them answering a number of standardised questions. If their answers prove mutual consent, the gett is then written.

THE GETT

The gett is actually a 12-line religious legal document which breaks the existing bond created through marriage and acknowledges that the couple divorcing are now free to remarry according to Jewish law. It makes no reference to responsibility, blame, fault or settlement details. The required statements made during the proceedings are neutral and non-recriminating or demeaning.

The gett has no bearing on any aspect of the civil divorce and settlement. No religious blessing or divine reference is included. No prayer or profession of faith is required. Before qualified witnesses and the officiating rabbi, the gett is prepared at the request of the husband. The witnesses sign the document and it is reviewed carefully for every requirement.

The completed gett is then physically handed to the husband. Based upon Biblical instructions, he holds it over his head and drops it into his wife’s hands while reciting a formula which frees her from him and their marriage, thereby enabling her to remarry.

The hand-over process symbolises a spiritual break and separation between the couple. The woman then walks to exit the room with her gett. This demonstrates that she is free to leave with the document without restraint. She then comes back into the room where the rabbi and witnesses are located, displays the gett and the divorce is concluded and documented. Proof that the proper procedure has been followed is given to both parties.

The wife hands the gett back to the rabbi, who tears it a little to show it is used and cannot be reused. It is thereafter retained by the Beth Din in a permanent file.

An official letter called a ptur (release) is given to both the husband and the wife, affirming their right to remarry. A gett document is impossible to replace, but a copy of a ptur can be obtained if necessary.

After receiving her gett, a woman cannot remarry for 92 days in case of doubt as to paternity should she become pregnant. If the woman has had an adulterous relationship with a (married or unmarried) man, she is forbidden to marry that man after divorcing her husband. The adulterous man’s name is mentioned in both the gett and the ptur, thus preventing the possibility of them marrying later. If such a marriage does inadvertently (through ignorance) take place, it must be dissolved.

THE ISSUE OF AGUNOT

A major social justice issue concerning Jewish families today is that of the agunot or ‘chained women’. Agunot (also known in Hebrew as mesuravot gett – ‘those refused a gett’) are women who are figuratively ‘chained’ because, as discussed above, without a gett they are trapped in a Jewish legal and social limbo: they are unable to remarry and they know that any future children they have will be excluded from participation in the social life of the Jewish community.

An agunah can do nothing but listen to her biological clock ticking and watch life pass her by as she waits around for her husband to divorce her. Often this never happens. Or it happens too late. Neither married nor divorced, she remains trapped according to her husband’s whim. Meanwhile, her husband may take a new partner and produce children who are considered completely legitimate by Jewish law, even if the man and his partner are not married.