Reply To: Macha against men not giving gittin

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ujm
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philosopher: Au contraire. You have it backwards. For all of world history until starting around 1960 the entire world instinctively and naturally knew and understood that marriage was mutual, both in establishing marriage and in ending marriage. Just as one person cannot marry another person without that person’s consent, one spouse cannot unilaterally end a marriage without the other spouse’s consent. L’havdil elef havdolos, secular courts, for centuries, often denied one spouse’s request for a divorce if the other spouse contested the request. Even as late as around ten years ago courts in New York sometimes denied requests for a divorce.

And such has always been the Halacha. The Posuk in the Torah clearly says a divorce can only occur if it is the ratzon, will, of the husband. If it isn’t his will then he has no halachic, legal, moral or ethical obligation to divorce simply because his wife wants to divorce. Obviously if the wife has a legitimate provable “cause” where her husband wronged her (i.e. beats her), in a situation that Chazal decreed fits the specific criteria where in such a situation she’s entitled to a divorce, then she can indeed force him through Beis Din to divorce her. But in a case where there was no cause, that meets halachic requirements to mandate a divorce, then she has no right to a divorce.

And if a spouse has no right to a divorce, demanding one doesn’t obligate the other spouse to acquiesce. Halacha describes situations, also, where the husband wants to divorce his wife but he is not permitted to. No one protests against those halachos to demand the husband be granted the unfettered right to divorce his wife, in such situations. Similarly, if the wife has no right to a divorce, if her husband elects to continue maintaining the marriage after declining her request, then al pi halacha she’s required to accept that, and perform her wifely obligations to her husband. And if she still refuses, then it is her who will get gehenim whereas he’ll get gan eden for the suffering she caused him by wrongfully demanding a divorce and then refusing to perform her obligations to him.

Throughout history all this was understood and accepted by Yidden the world over. It was only after the goyish world started “No Fault Divorce”, which was a novel concept 50+ years ago, unprecedented in history, that slowly certain segments of Jews started to have this new gentile idea unfortunately seep into their own hashkofos, despite the halachos to the contrary and despite it never have been Jewish practice, halachic jurisprudence or psak before (or since, for that matter).

Cherem Rabbeinu Gershom took away from Ashkenazic husbands their right to unilaterally divorce their wife. Since Rabbeinu Gershom’s decree, wives have the right to veto her husband’s ability to divorce her. Is anyone alleging that Rabbeinu Gershom created an unfair situation where a husband cannot divorce his wife when he wants to? No, because Rabbeinu Gershom is obviously correct. A husband shouldn’t divorce his wife if she doesn’t want to divorce. Similarly, as per the Torah directly itself, a wife cannot get a divorce if her husband doesn’t want to divorce.