Bar-Ilan University's Parashat Hashavua Study Center

Lag Baomer 5760/2000

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity.
Prepared for Internet Publication by the Center for IT & IS Staff at Bar-Ilan University.
Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible,

Lag Ba'omer 5760/May 23, 2000

Love Thy Spouse as Thyself?

Rabbi Dr. David Mescheloff

Naftal-Yaffe Dept. of Talmud

The eve of Lag Ba'Omer (or the following day) is the only date between Passover and Shavuot on which all Jewish traditions agree that one may get married. Therefore, fortunately many wedding are held on this day. Unfortunately, however, approximately twenty-five percent of marriages in Israel today end in divorce. The divorce process is often accompanied by ugly manifestations of vengefulness and extortion, costing the couple great expense and causing them and their children much misery. Has Jewish tradition nothing to offer in the face of this hardship?

Proponents of civil rights would like to shape a society in which the individual can determine his or her personal status and duties as he or she wishes. In establishing a partnership with mutual obligations, the decision must be made by the consent of both sides. Legal institutions only have the authority to force one of the parties to uphold his or her obligations in order to protect the rights of the other side, if necessary.

This, however, is exactly the position taken by the halakhah with respect to the personal status of man and wife in married life. A rabbi will perform a wedding only if the man and woman wish to marry each other. Their mutual undertakings, with all their financial, moral and legal consequences, are binding on them until they both consent to sever the bond. Save for certain rare exceptions, only if both wish to sever the relationship will the rabbinical court oversee the process of giving a get, a divorce according to Jewish law. The halakhah strictly safeguards the right of the man and woman themselves to decide whether to remain married or be divorced. The court will not impose its will on the couple, nor will it allow one of the spouses to force the other to sever the marital relationship.

Herein lies the difficulty, for this approach is asymmetric. It enables one spouse to force his or her will on the other not to break up the marriage by refusing to cooperate. A couple reaches the point of divorce out of anger, pain, disappointment, and bitterness, out of inability to cope with differences of opinion between the two; thus arbitrary noncompliance is likely to forestall giving a divorce. Adopting the method of western states, where the judge is authorized to proclaim a couple divorced, would not solve the problem. In these states as well the divorce process is accompanied by anger and pain, can be drawn out a long time, and exacts a high price from both parties to the conflict.

Civil courts in Israel have adopted a practice of attempting to pressure the husband to consent to divorce by forcing him to pay high alimony prior to divorce. That this practice is not sufficiently effective is attested by the sad reality in the state of Israel today. It appears that mutual consent of both spouses is the key to solving the problem. The approaches discussed above are founded on imposing the will of one spouse on the other. They evoke the opposition of the other side and cause more harm than benefit. However there are other ways, both more effective and more pleasant, to assist people in reaching an accord. Below we present three alternatives to the existing approaches. All focus on relations between spouses and are in accord with halakhah and Jewish morality.

1) Preparation for marriage. Married life presents a challenge to any person insofar as one has to cope with legitimate differences between oneself and one's spouse. A course in preparation for married life can give a couple practical tools for successfully meeting these challenges. A growing number of schools now offer such pre-marital programs. Thousands of couples have participated in "Living Together," a series of classes offered to religious and secular couples by the religious councils throughout the country in general and at Bar- Ilan University in particular.

2) Mediation. This is an alternative to legal struggle between spouses on the way to divorce. The mediator meets with both spouses to help them overcome emotional hurdles, and provides them information necessary to arrive at wise and fair decisions of their own free will. The mediation process is brief, strengthening and supportive of each person individually and of the family as a whole. The mediator helps the couple reach agreement on their points of difference and records the details to which they consent in a divorce agreement. Afterwards the actual divorce is carried out forthwith under rabbinic supervision.

3) Pre-Nuptial agreements. These agreements are drawn up in the beginning of a marriage by couples who desire thereby to guarantee cooperation between the spouses in the event that they later decide to separate. Generally these agreements impose sanctions on the side that refuses to give or receive a get. However, such an agreement is problematic insofar as a get given with the object of avoiding payment of a penalty is not given altogether of one's free will and hence may be declared invalid, for the halakha considers a coerced get not given according to due process to be invalid.

This is the place to report on a new development in the rabbinic courts that might help solve the problems of many couples who, unfortunately, are facing divorce proceedings. A new prenuptial agreement has recently been drawn up according to which each of the spouses consents to a certain monetary obligation, with the proviso that this sum may be collected only if the obliged party does not cooperate in the mediation process, according to a timetable and methods stipulated in the agreement at the outset. Such an arrangement does not violate the principle of a voluntary get, as the money is not a penalty for refusing to give a get but rather a sum agreed upon which is to be paid from the day one of the partners requests a divorce, unless negotiations and mediation commence, in which case the sum is waived by the other side. This prenuptial agreement is already in use both in the USA and Israel and has the endorsement of leading halakhic authorities in both countries. If widely approved and put into general practice, such agreements may help to avoid the anguish which often accompanies divorce proceedings and to establish cooperation between spouses. Lag Ba'Omer, the day of weddings, may yet become truly a day for rejoicing.

Prepared for Internet Publication by the Center for IT & IS Staff at Bar-Ilan University.