Woman Returning to Her First Husband

A woman was married and had children. Then her husband divorced her. She subsequently married a second husband from whom she was divorced. Now a son by her first husband died and their mutual sor row brought the first husband and his former wife together. They want to be remarried. Is there any way in which this is permissible by our Reform in terpretation of Jewish law? (From Rabbi David Sherman, Cape Town, South Africa)

There are a number of situations in the traditional law of marriage as developed from the Bible in the Talmud and the Codes which no longer seem just according to our modern ethical standards. Most of these divergences between tradition and modern feeling concern the superior right of the male over the female. It certainly seems wrong to us, in spite of what the law says, that a husband can divorce a wife but that a wife cannot divorce a husband; that a man may marry his deceased wife’s sister but a woman may not marry her deceased husband’s brother; that a man may marry his niece but a woman may not marry her nephew. Some of these instances of the superior right of the male have been mitigated by Jewish law itself; as for example, the decree of Rabbenu Gershom, of the tenth century, forbidding (in Ashkenazic Jewry) a husband to marry more than one wife, or forbidding a husband to divorce his wife without her consent.

Some more of these discrepancies have been mitigated by Reform Jewish practice. In some Reform communities, the congregation establishes a court which gives the woman divorce rights equal to those of the man (as in the West London synagogue). In most of the congregations of America, the decision of the civil courts granting a divorce is accepted and the woman is remarried without needing to procure a divorce from her husband by Jewish law.

Now, the question which you present is not one in which a husband has greater rights than a wife. Nevertheless, it is definitely one in which our modern ethical standards do not comport with the older law. Of course, we should always be cautious about abolishing or disregarding an old law, especially in questions of marriage. Yet, if there is some way in which we can do what, according to our conscience, is justice, we should do it whenever we can. Let us, therefore, look into the old law and see its reason and its extent.

The law is based on Deuteronomy 24 : 1-4 (see also Jeremiah 3 : 1) in which it is said that if a woman was divorced by a husband and marries a second man, and the second man either divorces her or dies, the first husband cannot take her back as wife “since she has been defiled.”

The Biblical law as it stands, and the explanation given for it, is difficult. The reason, “since she has been defiled,” seems a curious one. What defilement is there in the woman being legally married to a second husband? Nachmanides, therefore, feels the necessity of giving an explanation which is not found in Scripture. He says that the purpose of the law is to prevent exchange of wives, i.e., two men each divorcing their wives so that there may be an exchange, and then later remarrying them. Obadiah Sforno (ad loc.) gives an analogous explanation. He says it was for the purpose of preventing men from lending their wives for a while to other men. If these are the only reasons given by those two great Biblical commentators, then we must say that the reason is hardly a realistic one. The Biblical explanation, “since she has been defiled,” is not explained thereby. As a matter of fact, the later law makes the Biblical explanation even more difficult. If “defile-ment” is the reason, then how can we explain the additional law, that if the woman who has been divorced by her first husband does not remarry another man but instead becomes adulterous, the adulterous divorced woman may be remarried to her first husband. (See Even Hoezer 10 : 1, and Maimonides, Yad, “Gerushim” XI: 13.) Surely the adultery is more of a defilement than a legal remarriage. But the explanation given is a forced stress of the word “and she shall be” (v’hoysoh) in Deuteronomy 24 : 2 (cf. Sifre to the passage). They say that that means “she shall be” legally married to the second husband; but if she is merely adulterous with the second man, she is not considered defiled. Surely, such a distinction can hardly have meaning for us.

An interesting variation of this anomalous situation (that a man may take back his adulterous divorcee, but may not take her back if she is divorced again after having been legally married to another man) is found in the Responsa of Meir of Padua, early sixteenth century (19), namely, that if the woman was not legally married to the first husband, but was merely his concubine, and then she married a second man and was divorced from him, the first man is not forbidden to marry her after she is divorced from the second man. In other words, the prohibition exists only when her relationships to the two men were legal and moral, but not if they were quasi-legal or even immoral.

Moreover, this law, so curiously and unacceptably interpreted (i.e., that adultery is no bar, but legal remarriage is a bar) is really not so firm a law as it seems. For what would happen if the first husband, in spite of the Biblical and Talmudic prohibition, does take her back after the divorce from the second husband? He is compelled to send her away. But suppose he does not send her away and the reunited couple has children? What is the status of such children? The law is clear that if they have children, the children are kosher in every way. See Alfasi to the passage corresponding to the Talmud, Yevamoth 11 b , and Joseph Chabib (“Nimukey Yoseph” to the passage in Alfasi). This decision of Alfasi is cited as law by Isaac Lamperonti in “Pachad Yitzchok,” s.v. “Gerusha im Nisez,” p. 72c.

The law, then, so very difficult for the scholars of the past to explain logically, hardly harmonizes with our moral standards. We cannot accept the view that a second marriage is a permanent bar to remarrying the first husband whereas adultery or concubinage is not a bar at all.

Now in the face of this strange law, we are confronted with a human situation. Two older people, reunited by sorrow, desire to re-establish their married life. How can we possibly say to the woman: If you had only not been legally married to your second husband, but had been adulterous, you could now go back to your first husband; but since you were a legal wife to your second husband, you cannot go back to your first husband. This is clearly one of the cases in which we must mitigate the law. As Rabbenu Gershom did in the case of polygamy and divorce, as modern Reform Judaism has done in a number of other cases, we must make every effort to allow this couple to be reunited.

Since what stands in the way is a technical legalism, we must first see if there is not a technical way out. Was this woman divorced from the first husband by means of an unquestionable legal Jewish get? If she was divorced merely in the civil courts, then even according to Jewish law her relationship to the second man was not legal marriage and therefore she may without question return to her first husband. But aside from this technicality, even if her marriage with her first husband was ended by a valid Jewish get, then even so, justice and our moral standards should permit us to remarry her to her first husband. Of course, such remarriages should not occur indiscriminately, since the law is there in the Shulchan Aruch. But whenever the human situation especially requires it, we should be frank enough and brave enough to be humane and just. This, I am sure, is the practice in most Reform congregations. The very fact that the question has rarely, if ever, come up indicates that Reform congregations follow, in this regard, the spirit of justice and mercy, rather than the technicality of the law itself.