CCAR RESPONSA
Divorce of an Incapacitated Spouse
5756.15
She’elah
A couple in their thirties has been married for some years. The wife has contracted a debilitating and terminal disease, which by this point has left her bedridden and robbed her of the power of speech and communication. She is not comatose. She is aware of her surroundings, but she is unable to respond effectively to them. Her disease will inevitably lead to her death, but this is not imminent; the situation can continue for an extended period of time. The husband wishes to divorce his wife, on the grounds that she is no longer capable of fulfilling her role as a spouse. He stresses that he does not intend to abandon her; he will visit her on a regular basis, provide her with “emotional support,” and pay her medical expenses. He insists, however, that his marriage is for all practical purposes at an end, and he wants to be free to marry again.
Does Jewish teaching support or oppose his desire for divorce? (Rabbi Richard A. Block, Los Altos Hills, CA)
Teshuvah
1. Reform Judaism and Divorce.
Like all she’elot posed to us, this one requests that we provide an answer from the resources of “Jewish teaching.” As such, some might think it strange that we, a committee of Reform rabbis, should entertain such an inquiry. It is well known, after all, that the Reform movement in North America recognizes civil divorce as a valid dissolution of marriage and does not require a get (or get piturin, a document of divorce at Jewish law) in order for either the wife or the husband to remarry.[1] It might therefore be argued that Reform Judaism defines divorce as a purely secular matter and would have little to say about the subject from a particularly religious perspective. In our view, this is a mistaken conclusion. Reform Judaism continues to regard divorce, as it regards marriage, a matter of religious concern and a legitimate object of “Jewish teaching.”
The definition of divorce as a “secular” matter was adopted by the Philadelphia Conference of 1869, which resolved that “the dissolution of marriage is, on Mosaic and rabbinical grounds, a civil act only which never received religious consecration. It is to be recognized, therefore, as an act emanating altogether from the judicial authorities of the state. The so-called ritual Get is in all cases declared null and void.”[2] The theory was that as a civil act, divorce belongs to the traditional jurisprudential category of dinei mamonot, “monetary law,” to which the rabbis have long applied the rule dina demalkhuta dina, “the law of the land is the law.”[3] This view, put forth by R. Samuel Holdheim in Germany some two decades earlier,[4] was championed at the Conference by R. David Einhorn, who noted that “the Bible does not mention the bill of divorce (Deut. 24:1) as a subject of positive command, but only incidentally as a written instrument which the husband has to execute and deliver to the wife he intends to dismiss.” Rabbinic Judaism, too, he continued, prescribes no benediction for the act of divorce as it does for marriage. Indeed:
When two persons unite in community for life, it is the function of religion to offer consecration, sanctification, and blessing… But if the holy bonds are severed, religion can only tolerate the act in sorrow and silence; it may offer consolation to the innocent sufferer or rebuke the conscience of the guilty, but certainly can not invest the act with its consecration.[5]
As an interpretation of Jewish law, the Holdheim-Einhorn theory is hardly free of difficulty. It is highly debatable that the halakhah considers divorce an aspect of monetary rather than of ritual law (isur veheter; isura).[6] The opposite is more likely the case, since divorce, like marriage, determines the personal status of the individuals involved and establishes such ritual prohibitions as forbidden marriage, adultery, incest, and illegitimacy. The 1869 resolution remains, nonetheless, the policy of the CCAR in theory as well as practice. With that, however, we stress that Reform Judaism has never been oblivious to the religious implications of divorce. For one thing, the Philadelphia Conference qualified its acceptance of civil divorce by stating that rabbis should refuse to remarry individuals divorced at civil law until they have studied the grounds upon which the divorces were granted: “Judaism recognizes the validity of divorce then only if the cause assigned is sufficient in conformity with the spirit of Jewish religion.” One leading Reform scholar went so far as to suggest that “a body of three rabbis should attest to the correctness from the Jewish point of view of the findings of the court in matters of divorce, and attach their signature to the bill of divorce issued by the court.”[7] In other words, we as a religious body retain the power of supervision over divorce. While we have handed its administration over to the civil authorities, we have reserved to ourselves the right to judge whether their work is done “in a manner which is acceptable to us.”[8] The Holdheim-Einhorn theory, moreover, may no longer strike us as persuasive on religious grounds. Today, we might argue that divorce, no less than marriage, warrants a religious response; that a union which originated in a religious ceremony demands some form of religious closure at the time of its dissolution; and that for Judaism to respond with mere “sorrow and silence” to such a fateful experience in the lives of couples and their children is an abdication of its religious responsibility. In recognition of these facts our movement has created a “Ritual of Release” which, though it does not take the place of the traditional get, serves as “a form of religious divorce” for couples who desire it[9] and “may eventually lead us to reopen the matter of a Reform get.”[10]
Divorce, then, has never ceased to be a matter of religious concern to Reform Judaism. When we consider questions and problems relating to divorce, therefore, we do so not simply as counselors or pastors but as rabbis, scholars of Torah who draw their guidance from the sacred texts of our tradition. In the case before us, we shall need to consult the detailed halakhic discussions on the subject of grounds for divorce: would the husband in our she’elah be entitled, from the standpoint of Jewish law, to divorce his wife? We shall read these texts as Reform rabbis. This means that we seek to understand them in accordance with our commitment to gender equality and with the standards of justice and fairness to which we aspire in our personal and communal lives.
2. Grounds for Divorce.
One way to think about this she’elah is to compare it to those cases in which our tradition recognizes the existence of valid grounds for divorce. Judaism holds divorce, like marriage, to be a private act, effected by the parties and not decreed by the court (beit din) or other legal agency. If both husband and wife agree to the divorce,[11] the role of the beit din is limited to supervising the details of the writing and delivery of the get. In cases where only one spouse seeks a divorce, however, the court is empowered to determine whether legitimate grounds exist to grant that request and to require the other spouse to acquiesce.
Our analysis assumes that the husband and his wife entered into no prior agreement authorizing divorce under circumstances such as these.[12] We shall inquire whether this situation is a valid grounds for divorce in the absence of explicit consent from either spouse.
The grounds for divorce in Jewish law can be classified into two categories: those based upon “objective” factors and those stemming from the inappropriate behavior of the other spouse. Among the “objective” factors are “defects” (mumim) in the spouse which render conjugal relations impossible.[13] Since the wife has a Toraitic right to conjugal relations,[14] certain blemishes, diseases, or occupations of her husband which cause her disgust and revulsion, to the point that she cannot bear to have sexual relations with him, can justify a finding for divorce.[15] In the case of the husband, traditional halakhah allows him to divorce his wife when she is afflicted with certain “defects” particular to women that preclude the possibility of conjugal relations.[16] Another “objective” factor is the husband’s sexual impotence: if he cannot fulfill the mitzvah of conjugal relations, his wife is entitled to a divorce.[17]
Now to the present case. If we approach the question in this way, as an issue of “grounds for divorce,” the husband would appear to have a strong claim. His wife, who as a result of her illness “is no longer capable of fulfilling her role as a spouse,” cannot provide him with a functional “marital life” (chayei ishut). Jewish law regards the impossibility of conjugal relations, to which in our egalitarian reading of the tradition the husband and the wife are equally entitled,[18] as a legitimate warrant for the dissolution of a marriage. Based upon these considerations, we would be inclined to respond positively to the husband’s argument.
3. Marriage, Disease, and Healing.
There is, however, another way to understand this case from a traditional perspective. The halakhah declares that the husband is obligated under the terms of the marriage to provide his wife’s medical expenses (refu’ah). Yet the mishnah which speaks of this requirement also offers a device whereby the husband can free himself of it: he is entitled to say “here is her get and her ketubah; let her heal herself.”[19] He can, in other words, divorce his wife, thus limiting his liability for her medical treatment to the amount specified in the ketubah as the indemnity for divorce. This doctrine is extremely controversial in the law. While the leading codifiers adopt the mishnah’s rule as authoritative, they add that “it is unethical” for the husband to divorce his wife under these circumstances.[20] Other authorities go farther, ruling on the basis of a passage in the Sifre that the husband does not enjoy this power at all and that he is not permitted to divorce his wife on account of her illness.[21] And in the opinion of R. Shelomo Luria (Maharshal, an outstanding posek of 16th-century Poland), even if the husband has that power in theory he no longer enjoys it in practice. Today, under the edict of R. Gershom, a husband is prohibited from divorcing his wife without her consent. Therefore, under no circumstances may a husband use divorce to free himself of the requirement to provide her medical care.[22]
Seen in this light, our she’elah demands a negative response. The husband wishes to end his marriage due to his wife’s illness. The sources, however, either condemn or explicitly prohibit divorce under such circumstances. The duty to provide for the healing of one’s spouse[23] is part and parcel of the commitment of marriage and cannot be separated from the existence of the marital bond. It is therefore wrong to divorce one’s spouse on account of the latter’s illness.
4. Analysis.
Our tradition therefore offers us two different approaches for thinking about our she’elah. Is the case before us one pertaining to “grounds for divorce”? Or should we perceive it as an instance of refu’ah, the duty to care for a spouse who is ill? We think that the latter of these two concepts affords the better understanding of the religious and moral aspects of the question.
In our view, the language of “defect” or “blemish” is inappropriate here. When the tradition speaks of mumim that are grounds for divorce, it refers to particular physical afflictions or particular occupations which are so loathsome or dangerous that the spouse is not expected to attempt to build a marital life with him or her. Such “defects” are understood as exceptional situations and are in no sense the norm in the population. Not every imaginable “defect” falls into this category;[24] those which do affect such a small proportion of the community that it can plausibly be argued that one is “entitled” to marry a spouse who is free of them. Disease, by contrast, including serious and even terminal disease, is an inescapable and universal element of the human condition. If a “defect” is unusual and unacceptable departure from the norm or the average, disease is the norm for all creatures of flesh and blood. It is by no means an exceptional circumstance that one is “entitled” to avoid.[25]
The same can be said for “impotence,” which we interpret as the physical or psychological inability of either spouse to engage in conjugal relations. The impotence which Jewish law recognizes as grounds for divorce was seen as a defect, the exception rather than the rule in human life.[26] The wife in this she’elah does not carry a “blemish.” She is incapable of “fulfilling her role as a spouse” not because she suffers from the female equivalent of impotence but because she has become ill. Every single one of us becomes ill; we are all of us subject to diseases that may leave us unable to fulfill our marital and other responsibilities. And any one of us, prior to our death, may experience a protracted illness that renders us incapacitated for an extended period of time. These are unhappy realities, but they are realities, an inevitable part of the package called life. To say that we are somehow “entitled” to avoid these facts of human existence is tantamount to a claim that we are entitled to avoid marrying a spouse who will grow old and die. And that is patently absurd.
The question we should ask when confronting a situation such as this is not whether we enjoy the “right” to escape from it. We should rather inquire as to how our religious heritage and our most deeply-rooted moral values would have us respond to a spouse who lies on his or her deathbed. That responsibility, according to Jewish teaching, is not divorce but refu’ah, not abandonment but care and compassion. It is true that the husband in this instance promises to provide financial and emotional support to his wife following their divorce, and such good intentions are commendable. But we are not talking here about good intentions but about moral and ethical duty. Our tradition holds that it is marriage itself which creates this duty: this man is obligated to offer monetary and personal support to this woman precisely because they are united in a covenant of marriage which imposes responsibilities upon each spouse at the same time that it entitles them to “rights.” Nowhere does Jewish law recognize “disease,” even serious and incapacitating disease, as grounds for divorce. As befits a tradition which deplores divorce even though it allows it,[27] Judaism instead expects us to continue to fulfill the duties we accepted upon ourselves at the moment of kidushin and nisu’in.
This is a teaching we fell called upon to affirm. As liberals, participants in a culture that proclaims the rights and dignity of the individual person, we most certainly recognize the “right” to divorce. We understand that divorce can be an entirely proper alternative when a marriage has irrevocably broken down. But we also believe in marriage. We hold that the marital union remains a sacred commitment, a bond that ought to be broken only on valid “grounds,” for the gravest of causes. And we cannot define the circumstances of this case as “grounds for divorce.” On the contrary: precisely because the difficulty stems from the wife’s illness, the correct response to it is refu’ah, a response which rules out divorce and which demands her husband’s care, compassion, and continuing presence with her.
A final note. We are not unmindful of the anguish that this husband must be suffering. It is a painful thing to confront the decline and death of a loved one, and our teshuvah must not be read as an effort to minimize or belittle that pain. Our role in this question, however, is that of teachers of Torah, and the counsel we offer must reflect our best understanding of what Torah, the accumulated religious and moral experience of our people, would have us do when faced with this situation. And what Torah would have us do, we think, is to act in such a way that we leave no doubt as to our faithfulness to the values and to the commitments by which we measure the moral worth of our lives. To adhere to this standard may demand a high degree of personal sacrifice from us. Yet it is without question the best choice we can make.
Conclusion.
Jewish tradition, as we understand and interpret it, does not recognize this husband’s claim as sufficient grounds for divorce. Instead, it calls upon him to accept his responsibility to provide refu’ah, material and spiritual care, to his ailing wife.
NOTES
1. See Ma`agalei Tzedek: Rabbi’s Manual (New York: CCAR, 1988), historical notes by W. Gunther Plaut, 244-246. We stress that this statement applies in general but not to every specific case. Suppose, for example, that a couple were married under the auspices of traditional Jewish law. In the event that their marriage ends in civil divorce, the husband’s refusal to issue a get to his wife would render her an agunah and prevent her from remarrying according to halakhah. While we would recognize both parties as divorced and permitted to remarry, the husband’s act is one of blatant injustice to his wife and a violation of his implicit promise, made at the time of kidushin, to accept the injunction of rabbinic law to execute a religious divorce when and if such is demanded. In such a circumstance, the husband should not be allowed to remarry in a Reform ceremony unless and until he executes the religious divorce. See our responsum 5754.6, Teshuvot for the Nineties, 209-215.
2. In R. Solomon B. Freehof, Reform Jewish Practice I (New York: UAHC Press, 1963), 107. Freehof, 99-110, provides a full discussion of the history of Reform thinking on the validity of civil divorce. See also R. Moses Mielziner, The Jewish Law of Marriage and Divorce (Cincinnati: Bloch, 1901), 130-137.
3. Freehof, 106. On the rule dina demalkhuta dina see our responsum 5757.1.
4. R. Samuel Holdheim, Ueber die Autonomie der Rabbinen und das Princip der juedischen Ehe (Schwerin/Berlin, 1843), 143ff.
5. Freehof, 106-107; Mielziner, 132-133.
6. See Mielziner, 131, citing R. Zechariah Frankel’s critique of Holdheim’s theory in Zeitschrift fuer die religioesen Interessen des Judenthums, 1:277ff (1844).
7. Freehof, 108. The leading Reform scholar was R. Kaufmann Kohler; see Freehof loc. cit. and CCARY 25 (1915), 377.
8. R. Walter Jacob, Questions and Reform Jewish Answers, no. 233, at 373.
9. For the “Ritual of Release” see Rabbi’s Manual, 97-104. The citation “a form of religious divorce” appears at p. 245.
10. QRJA, no. 233, at 374.
11. The foregoing is a necessarily brief and incomplete description of the traditional Jewish law of divorce. In reality, while divorce is technically effected by both husband and wife, it is the husband who is the active party. It is he who writes or issues the get to the wife, whose role in the process is but to receive it. Thus, “the husband may divorce only with his consent; the wife can be divorced with or without her consent” (BT Gitin 49b; see Deut. 24:1 and Yad, Gerushin 1:2). The wife cannot divorce the husband. On the other hand, much of the history of the Jewish law of divorce has consisted of an effort to redress this imbalance. Rabbinic law permits the wife to “sue” for divorce on a variety of grounds and authorizes coercion of the husband, “with whips” if necessary, in order that he may “consent” to issue the get (M. Ketubot 7:10; BT Ketubot 77a-b; on the question of eliciting “consent” by means of force, see Yad, Gerushin 2:20). On all this, see further in the text. Moreover, the famous enactment (cherem) of Rabbenu Gershom b. Yehudah, “the Light of the Exile” (10th-11th cent., Mainz) forbids the husband from utilizing his Toraitic authority to divorce his wife without her consent (see Isserles, EHE 119:6). This enactment is accepted by Ashkenazim and by a number of other communities. It serves, writes one leading medieval authority, “to equate the power of the wife with that of the husband” in matters of divorce law (Resp. R. Asher b. Yechiel 42:1). While this estimate, sadly, is an exaggeration–the power to issue the get still rests exclusively with the husband, who can exploit that power to tragic effect–it does underline the tendency of the halakhah toward improving the legal status of the wife with respect to divorce. We Reform rabbis, committed to the principle of gender equality, simply propose to follow this tendency to the conclusion demanded by its inner logic and morality. Our analysis will assume as a matter of course that husband and wife shall function as equals throughout the divorce process.
12. Such an agreement would resemble the “conditional get” (get al tena’i), which takes effect only upon the meeting of certain specified stipulations; see SA EHE 143. Another possible analog is the “living will” in which individuals their instructions to physicians and family members concerning their desires regarding medical treatment during the last stages of terminal illness. We mention these legal devices for purposes of comarison only; this is not the place for an extended discussion concerning either of them.
13. See Benzion Schereschewsky, Dinei Mishpachah, Third Edition (Jerusalem: Rubin Mass, 1984), 373ff.
14. Exodus 21:10; BT Ketubot 47b; Yad, Ishut 12:2.
15. The classic list of these mumim is preserved in M. Ketubot 7:10. In BT Ketubot 77a we read that the sign of some of these diseases is “a foul odor of the mouth or nose”; hence, the halakhah determines that the presence of “disgusting” symptoms (“so strong that one cannot bear them”; Resp. R. Eliyahu Mizrachi 2:19) justifies divorce. See Yad, Ishut 25:11-12 and SA EHE 154:1.
16. For example, a woman whose menstrual cycle is irregular to the point that she is never certain as to when she is a nidah (BT Nidah 12b; Yad, Ishut 25:7-9).
17. BT Yevamot 65a. The details of this issue are spelled out in SA EHE 154:6-7.
18. The sources do not speak of an “obligation” on the part of the wife to provide sexual relations to the husband, but rather of his obligation to so for her. For us, this gender-based distinction carries no relevance. We would regard both parties to the marriage as equally entitled and equally obligated in the realm of chayei ishut.
19. M. Ketubot 4:9. See Bartenura ad loc.: he is entitled to do this because “a man is not obligated to provide maintenance (mezonot) to his divorcee,” and the duty of refu’ah is considered a subset of mezonot. See BT Ketubot 52b.
20. Yad, Ishut 14:7; SA EHE 79:3. See Magid Mishneh to Yad ad loc.: it is “obvious” that for the husband to use this power is an affront to ethical standards.
21. This view is found in the chidushim of Rashba and Ritva to BT Ketubot 52b and is attributed to R. Avraham b. David of Posquierres (Rabad). See also Meiri ad loc. The Sifre passage is ch. 214 (to Deut. 21:14), which states that the Israelite soldier may not send away his female captive of war (eshet yefat to’ar) while she is ill. The midrash reasons that if this is the case with the captive, whom the Torah with great reluctance permits one to marry (see BT Kidushin 21b and Rashi to Deut. 21:11), then it is certainly true of one’s wife. Rabad, noting the contradiction between this passage and M. Ketubot 4:9, suggests that the mishnah’s rule applies only when the wife is not seriously ill.
22. Maharshal’s ruling is cited in Bayit Chadash to Tur, EHE 79, fol. 102a, and in Beit Shmuel to SA EHE 79, no. 4. On the edict (cherem) of R. Gershom, see note 11, above.
23. Again, we stress our egalitarian reading of the tradition. In our view the duty of refu’ah is as incumbent upon the wife as it is upon the husband.
24. For example, should a husband become blind or lose a limb his wife is not entitled by that reason to a divorce, even though such conditions are described as “serious defects” (mumim gedolim). See M. Ketubot 7:9; BT Ketubot 77a; Yad, Ishut 25:11; SA EHE 154:4.
25. Indeed, we are not always entitled to avoid even those mumim that are accepted as grounds for divorce. For example, if a wife knew about the “defect” prior to marriage or continued to live with her husband following its discovery, some authorities rule that “she thought about it and accepted it” (savrah vekiblah), thus waiving her right to divorce (BT Ketubot 76a; Yad, Ishut 25:11; Isserles, EHE 154:1). With respect to mumim in the wife, the tradition holds that should these “defects” develop subsequent to marriage the husband has no claim to divorce. The principle is nistachfah sadehu (literally, “his field has flooded,” an occurrence which Western legal tradition would call “an act of God”): it is the husband’s fate that this has happened, and there is nothing he can do to remedy the situation. See BT Ketubot 75a; Yad, Ishut 25:9-10; SA EHE 117:1.
26. The use of the past tense in this sentence is indicative of today’s awareness that “impotence” is a condition that can be treated with medical or psychological therapies. “Impotence,” in this regard, may not be an automatic grounds for divorce; see SA EHE 76, the glosses of Chelkat Mechokek, no. 18, and Beit Shmuel, no. 17.
27. See M. Gitin 9:10. The talmudic discussion (BT Gitin 90a-b) leads to the conclusion that “a man should not divorce his first wife unless she has acted as a harlot” (Yad, Gerushin 10:21; SA EHE 119:3). Moreover, “when a man divorces his first wife, even the altar sheds tears on his account” (BT Gitin 90b).
If needed, please consult Abbreviations used in CCAR Responsa.