ו׳ באדר ב׳ ה׳תשע״ו (March 16, 2016)

Kiddushin 5a-b: Divorce and Betrothal, In Writing

As we have learned, one of the methods that can be used to create a marriage is shetar that is given by the man to the woman. Our Gemara searches for a source for this law, and the suggestion is raised that we learn this concept from the fact that a document – a geṭ – can be used to end the marital relationship, similarly it can be used to create such a relationship. In response the Gemara asks whether we should conclude that just as a marriage can be created by the transferring of money, perhaps a divorce can be done with money, as well! A number of answers are offered; Rabbi Yossi haGalili suggests the passage sefer keritut – a written book of separation – that appears in reference to a divorce should be understood to mean that only a “written book” will effect the separation, and nothing else will. Other sages suggest that this passage teaches a different law – that a divorce must create a total separation between the husband and the wife.

When a man writes a geṭ to divorce his wife, he can make the divorce conditional on a specific thing that the woman will do, but the divorce cannot allow him to retain any level of involvement in her life. Thus, if the husband makes the divorce conditional by saying “this is your geṭ on the condition that you do not go to your father’s house for the next 30 days,” the geṭ will be a good one, assuming that the wife fulfills the condition and does not go to her father’s house for 30 days. If, however, the condition was open-ended – the husband said that the geṭ was conditional on her refraining from going to her father’s house forever – then the geṭ cannot work, since the husband would still be in control of his wife’s activities even after the divorce.

The rishonim ask why we must view the condition keeping the wife from going to her father’s house as being open-ended. Given the fact that her father may die or the house may be destroyed we should recognize the possibility of closure in this case, when it will become clear that the woman has fulfilled the condition, allowing the divorce to take effect.

The general attitude taken in response to this question is that the condition not to enter the house remains even after her father’s death. This is the case because of the husband’s use of the term, le-olam – forever, or because the husband’s intent was to put a prohibition on the house (his statement is understood to mean that she cannot enter the house which today is owned or occupied by her father), or because we view the house as the patriarchal home, even after the father’s death. Similarly, the possibility that the house may fall or be destroyed is hardly something that we can be certain will happen, leaving the wife in a state of limbo, which we will not allow.

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