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The benefit of irreconcilable differences
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The benefit of irreconcilable differences

Ki Tetze | Deuteronomy 21:10-25:19

For most of human history — certainly in the Torah and Talmud and rabbinic Judaism periods — until the last few hundred years, the basic economic and social unit of society was the household, a family centered around a married couple. The Torah, and everything that flows from it, sees marriage as the preferred state. However, the Torah also recognizes that sometimes staying married isn’t in the best interests of two specific people.

The Torah says: “A man takes a wife and possesses her. She fails to please him because he finds something obnoxious [ervat d’var] about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house.”

Sometimes divorce is permitted, even necessary — but under what circumstances?

According to this passage, divorce is permitted when the husband finds ervat d’var about his wife. The new (1985) Jewish Publication Society edition of the Bible translates these words as “something obnoxious.” The old (1917) JPS translation was “some unseemly thing.” The Artscroll Stone Chumash (1993) renders them as “a matter of immorality.” Clearly, the Torah’s language is not specific, and so we have a range of translations that reflect early rabbinic discussions about permissible grounds for divorce.

The Mishna in Gittin records this debate: “The School of Shammai said: A man may not divorce his wife unless he found something unchaste about her. The School of Hillel said: He may divorce her even if she spoiled a dish for him [i.e., burned his dinner]. Rabbi Akiva said: Even if he found another woman more beautiful than she.”

At first this seems odd. The School of Shammai, known for being elitist and conservative, would permit a husband to divorce his wife only for the most serious reason, but the School of Hillel, known for being welcoming and liberal, would permit a woman to be divorced for the slightest failing, and Rabbi Akiva, famous as an advocate for the powerless, whose opinion becomes the final halacha, permits a man to divorce a woman even if she has done absolutely nothing wrong.

In a society in which there was almost no opportunity for a single woman to earn a living, this seems heartless — until we think a bit more about it. Judaism has always considered marriage the norm and, until recently, economic survival was a family matter. Therefore, the rabbis assumed that a divorced man or woman would remarry, and sooner rather than later.

If the halacha had been decided according to Shammai, a divorced woman, by the very fact of her divorce, would be suspected of some sort of immoral (sexually improper) behavior and might never find a new husband. But with the halacha established according to Hillel and Rabbi Akiva, there would be no reason to think that a divorced woman would not make a wonderful wife to her new husband.

The rabbis regarded divorce as tragic but sometimes necessary. Therefore, from the earliest days, the get, the “bill of divorcement,” has said nothing about the reason for the divorce. It is simply understood that there were what we call today “irreconcilable differences.” 

The rabbis teach us that when a marriage ends, there is no point in trying to assign blame, because it is an extremely rare case in which both parties do not share the responsibility.

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