Juxtaposing Marriage and Divorce

This week’s alumni Dvar Torah is by Yoni Zolty

According to many monei hamitzvot (commentators who count the number of mitzvot) Parshat Ki Tetzeh contains the most mitzvot in the Torah (see for instance Sefer HaChinuch). It should be unsurprising then that the bulk of seder nashim can be found enumerated within the parsha (22:13-23:4, 24:1-6, 25:5-10). Yet, the Torah’s description of the mitzvah of kidushin (marriage) is surprisingly terse. The Torah in the beginning of chapter 24 describes a scenario in which a man has married and now wishes to divorce his wife:

:כי יקח איש אשה ובעלה והיה אם לא תמצא חן בעיניו כי מצא בה ערות דבר וכתב לה ספר כריתת ונתן בידה ושלחה מביתו

When a man takes a wife, and marries her, if she finds no favor in his eyes, because he has found some unseemly thing in her, that he writes her a bill of divorcement, and gives it in her hand, and sends her out of his house.

The Torah carefully details the proper procedure for divorce and in the next two subsequent pesukim proceeds to describe the prohibition of machazir gerushato– remarrying one’s ex-wife. The laws of divorce are richly enumerated: The Torah specifies the motivations for divorce as well as the procedure of writing a writ of divorce lishma (in her name), placing it in her hand and sending her out of the home. The details of a get, further unpacked in mesechet gitin, are precisely stated in the pasuk.

Chazal understand that the first half of the pasuk describes the process of kidushin and nisuin (marriage). However, in strong contrast to the elaborate detail of the divorce process, kidushin is sparely described. The gemara (kidushin 2a, 9a) learns out from the words “yikach” and “uba’ala” that a woman can be betrothed through kesef and biah (money and intercourse). These derivations are not obvious though. The gemara jumps through multiple hurdles to arrive at these conclusions and suggests that there might be another separate source for kidushei kesef (3a). Likewise, the yerushalmi (1:1) proposes that perhaps betrothals would require both kesef and biah, and that each method could not be performed independently. The question then is why the Torah did not describe the details of kidushin as elaborately as it did by geirushin?

Furthermore, the very juxtaposition of marriage and divorce is itself jarring. When introducing the institution of marriage, one would not have expected to discuss divorce. Divorce is an unfortunate and undesired termination of marriage, and while it is sometimes a necessary and important institution, why must it be mentioned when introducing marriage? Why should divorce be referenced and muddy the romantic institution of marriage? It seems to be out of place!

Rav Michael Rosensweig suggests that the Torah intentionally discussed divorce while introducing marriage in order to denote the seriousness and commitment of marriage. Marriage is considered a legally binding contract between two individuals and like many contractual agreements, can in many ways be best understood by studying how it can be broken. An agreement which can easily be dissolved is not much of an agreement. The relative irreversibility of an agreement demonstrates its seriousness and durability. Thus, while a marriage contract can be broken, the Torah stipulates a very precise, legal, formal and intricate process. It is not a simple agreement which can be easily discarded or broken, but a serious commitment. The Torah thus juxtaposes marriage with divorce to demonstrate the strength of marriage bonds and ironically focuses on the details of divorce instead of those of the creation of marriage to emphasize this point.

The Rambam in the beginning of hilchot ishut explains that before matan Torah if a man wanted to marry he would simply begin living with a woman and she would be considered his wife. A relationship was much less binding and lacked any formal legal elements to it. Divorce was much more informal—the Yerushalmi (Kidushin 1:1) suggests that non-Jews (who retain the same rules of marriage as pre-Matan Torah) may simply “walk-out” of a relationship as they please. The Rambam explains, then, that the chidush (novelty) of the mitzvah of kidushin was to add a formal legalistic aspect to marriage, reinforcing the commitment of marriage and its contractual element. Kidushin necessitates the creation of a legal mechanism for divorce—what halacha terms a get, and is therefore intentionally linked together in the Torah’s presentation of these laws.

Yoni Zolty (SBM 2016) is a junior at Columbia University.

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