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Tuesday, February 21, 2012

Grounds for Divorce? (Part 4: More Svara)

We determined last time that the machlokes between Beis Shammai and Beis Hillel revolves around determining what constitutes a failure of a woman to uphold her end of a marriage agreement and thereby justifying divorce. In order to proceed further, we need a little background on the Torah’s structure of marriage.

The essence of marriage, d’oreisa, is an institution made for the purpose of the mitzvah of having children.  (The Rambam in the koseres of Hilchos Ishus defines the commandment of marriage as “to acquire a woman to have children from”).  The prohibition of a woman committing adultery directly relates to the essence of the marriage.  How would the man know if his children were truly his, if his wife slept with other men? Thus an adulterous woman certainly breaks her end of the marriage agreement.

The rabbanan instituted secondary aspects of a marriage called tana’ai kesuva, or conditions of the marriage contract.  These include a woman’s obligation to cook, among other obligations of the couple to each other. Thus, a woman who regularly burns her husband’s food is failing in these secondary obligations of marriage.

With this introduction, perhaps we can explain the machlokes.  Beis Shammai maintains that a man and woman only commit themselves to the d’oreisa essence of marriage. The rabbinically ordained secondary obligations merely result from the commitment.  They are not part of the commitment itself. Since she only commits to the primary role of having his children, only if she commits adultery is she considered to have violated their agreement, thereby allowing the man to divorce her. Burning food is not valid grounds for divorce.

Beis Hillel disagrees and maintains that once the rabbanan instituted secondary responsibilities in a marriage, the practical reality of the marriage commitment changes.  The commitment that each party makes to each other is now expanded to include other responsibilities as well (such as cooking).  Thus, if the wife fails in her role as a cook, that too constitutes a failure in the marriage agreement and is grounds for a divorce.

There will be a final post that will deal with an issue that has come up over the course of this sugya.
Rabbi Akiva seems very harsh.  Divorcing your wife for a prettier girl intuitively seems like something the Torah should not condone.  Is this a good question or a bad question? Is it a halachik question or a philosophical question? Or something else? We're interested to hear your comments.

6 comments:

  1. If according to BH this idea is breaking the drabanon responsibilities, why is the mishna specifying burning the food only? Also is that the least problematic aspect of the kesuva to break, such that that is the biggest chidush(thus the the afilu)?

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    1. right...BH means "even if she cant cook, but fulfills the rest of her responsibilities." Maybe they thought cooking was the least significant of them all. its hard to know.

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  2. It doesn't seem like asking why RA holds you can divorce your wife if you find someone prettier is philosophical. If we asked what the perfection/imperfection would be if you didn't/did divorce your wife then that would be a philosophical question. What do you think?

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  3. I think that asking that question on RA is philosophical. His position is well defined halachically. As explained, he's holding that the din of commitment is limited to the action of getting married and does not engender an commitment in the abstract sense to the woman. It turns out that he can divorce his wife for a trivial reason and this may seem harsh to us, but harsh or not is a halachic question. It's a question of why the Torah would opt for this formulation of commitment in ishus as opposed to another one that wouldn't result in such a harsh result. That's not to say that there is no answer to this question. Perhaps we have some preconceived notions about the nature of marriage that need analyzing.. I'm just saying that the scope of that discussion is not halachic.

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  4. i agree with Matt, however, you could phrase the question in a different manner: Why would RA express his position with that particular example if he is simply expressing the concept that the committment is limited to the action of getting married and can be absolved for a trivial reason...does his specific example, "as vain as it seems" enhance the understanding of his position in any way?

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    1. Good question. The selection of the case indicates that RA does not demand ANY failing on her part. As long as the reason emerges after the marriage, it doesn't reflect on his action of commitment and is therefore OK. A different trivial reason could've been interpreted as "even a trivial failing on her part is enough".

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