As I have noted in the past, is it difficult to learn halakhot directly from biblical verses. There are several reasons for this. First, it is not clear that the Torah's purpose is to teach halakhot. Its purpose may be to teach halakhic principles – and the attempt to translate these principles directly into specific laws might well lead to results that are completely different from the actual practical halakha.
Second, the Torah generally formulates mitzvot not as commandments (apodictic formulations) but as descriptions of cases (casuistic formulations). Expanding the case description into the formulation of halakhic rules can be very problematic, since it is not clear which details in the description are integral to the definition of the case and which are secondary. For example, the Torah commands that a person help his enemy's donkey if it is struggling under its load. Is one also commanded to help his enemy's camel? His bird? His car? Answering these questions will necessarily involve delving into the reasons for the commandments, which opens up a very wide range of interpretations.
A third challenge is the tendency to relate to the Torah's words too simplistically. We tend to assume we can understand the plain meaning of the text without "yeshiva-style hairsplitting" – such as, for example, the question of whether the status of hefker means a revocation of ownership or the possibility for someone else to acquire ownership. Thus, when we try to derive halakha from the verses, we find ourselves stuck.
In this shiur, we will analyze the verses pertaining to divorce. In order to arrive at the halakhic conclusions drawn from this unit, close attention must be paid to almost every word in the text; since this forum does not allow for such analysis in full, we will suffice with discussion of a few central points.[1]
Connection to the husband following divorce
First of all, it should be noted that the basic possibility of divorce is not a given. As we will see below, in some cases a man is not permitted to divorce his wife. In fact, even in cases in which he is permitted to do so, it may be that a divorce is not a complete break, and there is still a degree of connection between the divorced couple.
This connection is evidenced by the prohibition against remarrying one's ex-wife if she was married to someone else in between. The Torah stipulates that a man may not remarry his ex-wife "after she was defiled" (Devarim 24:4). Why is her second marriage considered "defilement"? She was lawfully divorced and lawfully remarried![2] We can only conclude that even after the divorce, something of the bond to her first husband remained. It is for the same reason that a kohen is prohibited from marrying a divorcee: there is a stain of sorts in the allowance to marry a divorcee, and this prevents a kohen from doing so, although it does not affect a non-kohen.[3]
Procedures of marriage and divorce
There are several indications in the Torah that forging a marital covenant involves at least two stages, referred to as eirusin ("betrothal") and nissuin. This is evidenced, for example, in the halakhic distinction that the Torah draws between the case of a man who engages in intercourse with a woman who is an arusa (betrothed) and one who engages in intercourse with a woman who is nesua (fully married).[4] Accordingly, the marriage procedure consists of two stages: "if a man 'takes' a woman" (i.e., erusin), and then, "and engages in intercourse with her (nissuin)" (Devarim 24:1).
The difference between these stages – the "taking" of a woman, i.e., eirusin, vs. the stage when she is considered fully married to him, after nisuin – stands out clearly at the beginning of the unit on the eishet yefat toar (a "beautiful woman" who was captured in war). As a first stage, we are told, "And you shall take her to yourself as a wife" (Devarim 21:11). She then lives in the man's house for thirty days; only at the end of the entire process, after he has engaged in relations with her, does she become his wife (v. 13).
The same division into stages is also evident in the unit on a man who slanders his new wife: he "takes" her as a wife and engages in relations with her (Devarim 22:13), and he discovers (or so he claims) that she is not a virgin (v. 14). He brings her to the beit din, and if his claim is found to be true, she is put to death at the entrance to her father's house – as opposed to a married woman who engages in adultery, who is not put to death specifically at the entrance of her father's house. Since the woman is not yet considered fully his "wife," the law is different from that of a married woman who was unfaithful. Only if the man's claim is found to be untrue does she fully become his wife – and then he can never "send her away" (v. 19).[5]
Like the two-step process for marriage, divorce also consists of two steps: "And he shall write her a writ of divorce, and shall place it in her hand," and then, "and send her away from his house" (Devarim 24:1). Again, if we compare the unit on divorce to that of eishet yefat toar, we find that bringing a woman into his home is a stage in the process of marriage; likewise, sending her away from his home is just one part of the process of divorce.[6]
The handing over of the get
What is the meaning of the first step of a divorce, that the get (writ of divorce) must be placed "in her hand"? We could understand this literally, i.e., that it must be physically handed to her,[7] but it may also mean the get must be placed in her reshut (domain).
Obviously, this does not necessarily mean in her financial reshut, or possession. A hint to the meaning may be found at the end of the previous parasha, in the unit on the egla arufa.
The Torah states that if someone is found dead between two cities and no one knows who killed him, the elders of the closer city must bring an offering known as egla arufa, and declare that they are not responsible for the person's death. The Torah does not explain why it is the elders of the closer city who are obligated in this mitzva. The simplest explanation is that we assume either the murderer or the victim, or both, came from there, but this is surely not always the case: the nearest locality could be a small town, in which case it is more likely that the murderer came from a more distant, larger city. However, no distinction is made between different cases: it may be clear that both the murderer and the victim actually came from a distant city, but the egla arufa ceremony must nevertheless be carried out by the "city closest to the dead body" (Devarim 21:3).
Apparently, since murder violates the sanctity of the land (as discussed in previous shiurim), and since "no atonement can be made for the land for the blood that is shed therein, except by the blood of the one who shed it" (Bamidbar 35:33), there is a need to atone for the land while the murderer is not yet identified, so that those who dwell upon it will not be punished. The atonement of the land depends on the "jurisdiction" of the city: the area surrounding a city is considered part of the city, and therefore, it is that city which must make atonement when blood has been spilled there.[8]
Similarly, we can understand the obligation to place the get in the woman's reshut as a requirement that the get must be given within her "jurisdiction" – in a place that is in proximity to her.
Reasons for divorce
The Torah describes a scenario in which a man marries a woman and divorces her, and then she remarries and is divorced again. Although the divorce procedure is identical whether it is a first or second marriage, the Torah draws a distinction between these instances with regard to the reasons for the divorce: the first husband divorces his wife because he "found some unseemly thing" (Devarim 24:1) while the second divorces his wife because he hates her (v. 3). This distinction points to the need for a more serious reason for divorce in a first marriage, but perhaps it also comes to define two instances in which a man may not remain married to his wife: first, if she remarried (and was either divorced or widowed) after the divorce, because she has become "defiled"; and second, if he discovered ervat davar ("some unseemly thing") about her.[9] According to this understanding, the husband may not remain with his wife in a case of ervat davar; he must divorce her. The status of "defilement," then, does not only stem from the fact that she married someone else in the meantime, but may also be a matter of her having been "defiled" during her first marriage.
We might add further that although there is a parallel between marriage and divorce, it is not complete. There are cases where the Torah states that nissuin happens automatically: where the man has seduced the woman, or where he has slandered her. In contrast, there is no way in which a couple can divorce without a formal process. Even when the husband finds some ervat davar, the divorce does not happen automatically; he has to go through the procedure of divorcing her. Moreover, a person can in fact remarry his ex-wife after she has been married to someone else; the Torah prohibits it, but does not annul the marriage if it was done.[10] Nissuin creates very strong legal status, and therefore the Torah does not allow for a marriage to be "automatically" annulled, without a process of divorce. Even when a problem arises in the nissuin, the Torah does not annul it; the husband has to actively divorce his wife. This unquestionably holds an important message for our times, when divorce has come to be treated far more lightly.
(Translated by Kaeren Fish; edited by Sarah Rudolph)
[1] While there are differences between the plain meaning of the text and the practical halakha, these will not be discussed outright in this shiur.
[2] We might propose that she is considered "defiled" because there was "some unseemly thing" (ervat davar) about her – see below.
[3] The Torah includes many actions that are permitted even though they are less than ideal. An obvious example is the unit on the eishet yefat toar ("beautiful woman" captured in war), in our parasha. A more explicit example is the eating of the shelamim sacrifice on the second day after its slaughter, even though it is already considered pigul.
[4] The Torah differentiates between a woman who has already had relations with a man, regardless of whether she is arusa or nesua, and one who is still a virgin.
[5] The fact that he may not divorce her does not seem to be directly related to his false accusation: in the unit concerning a man who seduces a virgin, the Torah explains that she becomes his wife "because he afflicted her" (Devarim 22:29), but no similar explanation is offered here. It seems that the ban on divorcing the woman he had slandered arises from the fact that he had not intended to make her his wife: a person may cancel his marriage only if he was the one to create it, not if it was forced on him.
[6] From here it is also clear that one cannot divorce a woman who cannot be sent away (in the words of the Gemara, one who "is sent away but returns"; see Yevamot 113b), and this may also be the origin of the law concerning one who "divorces his wife and she [later] sleeps in the same inn as him" (Mishna Gittin 8:9).
[7] Even according to this more limited understanding, there is still room to explore the parameters of what may be considered placing the get into her "hand": for instance, may the get be placed on her head?
[8] Of course, "jurisdiction" is not meant here in the literal sense, since a larger city will likely have a larger area of jurisdiction around it. Note that we find a similar situation of atonement in a situation of uncertainty in the form of the asham talui (suspended guilt offering).
[9] The question of what falls under the definition of ervat davar is beyond the scope of our present discussion.
[10] In this unit, the term "cannot" ("her former husband, who sent her away, cannot take her again to be his wife") is meant in the normative sense: technically, the man can remarry her, but he is prohibited from doing so. We find a similar usage of the term in the mitzva of returning lost property: "you cannot hide yourself (i.e., ignore)"; a person certainly can ignore a lost item, but he may not do so.
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