Lesson 1: Ki Teitzei

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Between Becoming and Departure: A Look at the Marital Bond

Deuteronomy 24:1–2

When a man takes a woman and marries her, and she does not find favor in his eyes because he has found in her something indecent, he shall write her a bill of severance, place it in her hand, and send her out of his house. Then she shall leave his house, go, and become another man’s wife.

In the Torah, the act of divorce is described only in a case where the husband finds in his wife “something indecent.” As a matter of halakha (Jewish law), however, the accepted tradition is that he may divorce her in any case—even if she spoiled his food, or if he found another woman more beautiful than she—and apparently it is even permitted to do so in the first instance. See the dispute between Beit Shammai and Beit Hillel at the end of tractate Gittin. However, compare the wording of Maimonides, Mishneh Torah, Laws of Divorce 10:21. If so, it is unclear why the Torah formulates the matter as though divorce were conditional upon finding in her something indecent.¹ We shall see that the explanation depends on how one understands the marital bond in general.

From the pair of words “and she departs” and “and becomes,” the Sages derive an analogy between the creation of the bond and its dissolution. It seems, then, that there is a certain symmetry between the process by which the marital bond is formed and the process by which it is severed. In this lecture we will try to examine the meaning of the marital relationship in light of the ways in which it is created and broken.

Sefer HaChinukh on divorce, Mitzvah 579:

There is a commandment upon one who wishes to divorce his wife that he divorce her by means of a written document.

For we were commanded that when we wish to divorce our wives, we must divorce them in writing. Regarding this writing, Scripture says, “a bill of severance.” Our Rabbis of blessed memory call this writing a get (bill of divorce), and the Aramaic translator likewise rendered this “document” as a get. Concerning this it says, “And he shall write her a bill of severance and place it in her hand and send her from his house”…

From the roots of the commandment… the Torah commanded us, when sending her away, not to send her away by speech alone, lest this become a stumbling block and a snare for us, and licentiousness come to exist among our people. For an adulterous woman would claim to her husband that he had divorced her, and the practice of divorce would become very common. But now that we are obligated to write the matter in a document and to have witnesses testify to it, any woman who claims divorce must produce the deed…

One who violates this and divorces his wife without writing her a get, in accordance with the Torah’s commandment and as our Sages of blessed memory explained, has neglected this positive commandment. His punishment is very great, because in law she remains a married woman while he treats her as divorced, and the punishment concerning a married woman is known to be among the gravest transgressions in the Torah.

What does it mean to say, “he divorced his wife but did not write her a get in accordance with the Torah’s commandment”? If so, he did not divorce her at all.

Birkat Shmuel discusses a defective get that does not prevent the divorce from taking effect.

After all, divorce is a procedure. How can one speak of a commandment to divorce, or of a get that is invalid only in the first instance?

There are situations in which there is a mitzvah (commandment) to divorce: if he found in her something indecent, or if she violates accepted Jewish religious norms. See the discussion in Babylonian Talmud, Gittin 90a. Yet there the sugya states:

Rav Mesharshia said to Rava: If in his heart he intends to divorce her, while she still sits with him and attends to him, what is the law? He applied to such a case the verse, “Do not devise evil against your neighbor, while he dwells securely beside you.” It was taught: Rabbi Meir would say, just as people’s tastes differ with regard to food, so they differ with regard to women…

The early authorities disagree about the nature of the prohibition. Is the prohibition only on sexual relations with her—so Mishneh LaMelekh and Helkat Mehokek—or even on continuing to live with her—so the Tur, the Ra’avad on the Rif, and the Meiri? Some, however, wrote that the prohibition applies only when she does not know, much like the prohibition, “You shall not hate your brother in your heart.”

The prohibition on intercourse appears in Babylonian Talmud, Nedarim 20b, and it certainly applies only when she knows of the situation. It is therefore reasonable that the discussion here concerns a prohibition on continuing to live with her.

According to the authorities who hold that it is forbidden to continue living with her, it is clear that there is a mitzvah to divorce her, and not merely permission to do so. In other words, there are cases in which divorce is obligatory, beyond the cases of culpable behavior by the wife that we saw above.

Perhaps this is also the plain meaning of Sefer HaChinukh and Birkat Shmuel cited above: from the moment he has come to reject her and has fixed his mind on divorcing her, there is a mitzvah to divorce her. If he then tries to do so improperly, he in fact has not divorced her, even though he should have, while she is already divorced in his heart. That is the neglect of the commandment. The commandment is to divorce her according to Torah law once she has reached the state of being divorced in his heart. This is what Sefer HaChinukh means in the passage on the roots of the commandment quoted above.

One can go further. If she is already divorced in his heart, then in a certain sense he has indeed divorced her. This is implied by Sefer HaChinukh’s own wording: “if he divorced her and did not write her a get,” which suggests that she is divorced even without the get. The point is only that he did this not in a halakhic manner but only in a factual one. The mitzvah is to do it in the proper legal way.

Our discussion suggests that the commandment of divorce is directive rather than constitutive. Divorce is not merely a formal halakhic act. Divorce is the sending out of the home, in the ordinary human sense. The Torah directs us how to do that correctly. When one does it incorrectly, she is in fact “divorced” from his house in the ordinary human sense, but she is not halakhically divorced. That is the neglect of the commandment of which Sefer HaChinukh speaks.

An analogy may be drawn from the verse, “And it shall be for you as fringes.” Even before the Torah’s definition, the concept of fringes already exists. Ibn Ezra explains it as something like a banner or emblem. The Torah merely directs us and instructs us how to make the fringes correctly. Thus, the Torah does not constitute the concept of fringes; it directs it.

Let us return to divorce. As we have seen, from the moment he has fixed his mind on divorcing her, she is considered divorced in his heart, and in factual reality she is already divorced, even if not yet halakhically.

It follows that there are two dimensions to the marital bond. There is the factual dimension, in which an actual marital relationship exists between the spouses. And there is the halakhic dimension, in which a legal bond is created between them. The bond on the first plane is severed by sending her out of the house; the bond on the second plane is severed by a get.

These are the words of Maimonides at the opening of the Laws of Marriage:

Before the giving of the Torah, if a man encountered a woman in the marketplace, then if he and she wished to marry, he would bring her into his house and have intercourse with her privately, and she would thereby become his wife. Once the Torah was given, Israel was commanded that if a man wished to marry a woman, he must first acquire her before witnesses, and only afterward would she become his wife, as it is said: “When a man takes a woman and comes to her.”

Before the giving of the Torah there was only the factual bond, without a halakhic dimension. The Torah commands us to place before that factual bond an additional halakhic stage: erusin (formal betrothal). That is why Maimonides records this law, even though it no longer applies in practice: to teach that even after the giving of the Torah, the earlier universal dimension still remains within the relationship.

Maimonides continues there, in the second law:

These acquisitions are a positive commandment of the Torah, and a woman is acquired in one of three ways: by money, by document, or by intercourse; by intercourse and by document according to Torah law, and by money according to rabbinic law. These acquisitions are what are called kiddushin or erusin everywhere, and a woman acquired by one of these three means is called mekudeshet or me’oreset.

We learn from this that kiddushin, or erusin, creates the halakhic bond, whereas nissuin (marriage proper) is the factual stage. Therefore, according to most opinions, witnesses are not required for nissuin, and no halakhic condition is demanded beyond bringing her into his house and domain. That is the factual bond, not the legal one.

In halakha, this bond is called she’erut, a kind of flesh-kinship. “His kin”—that means his wife. Only after nissuin does she become his she’er. For example, at the beginning of the section of Emor, regarding a priest’s impurity for his wife, the Sages expound the word “his kin” as referring to his wife, and from there infer that he becomes impure for the wife who is fully married to him. All of the husband’s obligations toward his wife derive from this she’erut. See Maimonides, Laws of Marriage 12:1: “When a man marries a woman… he becomes obligated to her in ten matters.” Most of these are rabbinic, stemming from the laws of the ketubbah (marriage settlement), according to the opinion that the ketubbah is rabbinic. See Maimonides, Laws of Marriage 12:2.

Let us now return to the woman divorced in his heart. In the terminology we have now established, this is a reversion to erusin. Just as marriage is built of two stages, which create two planes of bond, so too divorce. True, regarding a woman who is already only in the state of erusin, Mishneh LaMelekh on Laws of Divorce 10:21 disputes with Maharashdam, cited there, whether there is a prohibition against divorcing her. But here we are dealing with erusin on the way out, and on that there is no disagreement, as we have seen.

Let us now bring several proofs that this is indeed a state of erusin.

First, we saw above that once he has fixed his mind on divorcing her, it is forbidden to continue living with her, or at the very least there is a mitzvah to divorce her. And according to all opinions it is forbidden to have intercourse with her. This is exactly like erusin, in which he is forbidden to have intercourse with her while she is still in her father’s house. See Maimonides, Laws of Marriage, beginning of chapter 10.

The Gemara in Babylonian Talmud, Gittin 18a, says that according to Rabbi Shimon, from the moment he has fixed his mind on divorcing her, he no longer has rights to the produce of her nichsei melog, property whose principal remains hers while the husband enjoys its yield. And on Gittin 17b Rabbi Yohanan and Resh Lakish dispute this as well, since the time of writing the get is equivalent to the moment when he has fixed his mind on divorcing her. The early authorities also disagree about how to rule; see the Rif there, 8b in Rif pagination.

The Rif explains that it cannot be said that the fruits cease from the time of writing, because his obligation to redeem her from captivity certainly remains until the get is actually delivered. See Babylonian Talmud, Ketubbot 47b, where redemption from captivity stands opposite the right to the fruits.² The Ran and the Ramban there challenge this: why not say that the obligation of redemption also ends at the time of writing?

Korban Netanel, there sec. 5, writes that one cannot say the obligation of redemption ends at the time of writing, because that obligation is her right against him, not his right against her. Her rights do not lapse merely because he has fixed his mind on divorcing her.

The explanation according to the Ramban and those who follow him is that she reverts to the state of erusin, and therefore the obligations that stem from nissuin lapse.

And indeed we find additional obligations that lapse in a case where he has fixed his mind on divorcing her.

Rashbam on Babylonian Talmud, Baba Batra 146b, s.v. “naflah עליה,” writes that even his right to inherit her lapses from the moment he has fixed his mind on divorcing her. This point should be sharpened: rights to fruits and the obligation of redemption stem from the ketubbah enactments, but his right to inherit her and his obligation of conjugal relations are biblical, derived from “his kin”—that is, his wife—as Rashbam himself writes there.

Rashash there adds that he does not mourn for her, and a priest does not become impure for her, for those too derive from “his kin”—that is, his wife.

See also Meshekh Chokhmah on the portion of Beha’alotekha, who asks who served as the priest in the Sanhedrin of Moses our teacher. Tosafot likewise ask who the priest was that examined Miriam’s skin affliction. He writes there that from the moment Pinhas distanced himself from his wife, he no longer inherited her, and therefore he was fit to testify regarding her relatives.

Likewise, in Babylonian Talmud, Gittin 35b, it is stated that a priest married to a divorcee, and therefore disqualified from the Temple service, may serve in the Temple from the moment he undertakes by vow to divorce her.

To sharpen the point further: even according to the opinion that she may say, “I do not wish to be supported, and I will not work,” one still cannot waive the obligations of redemption from captivity and burial, nor even his right of inheritance. See Shulchan Arukh, Even Ha-Ezer 69:8.

Therefore it is also forbidden to have intercourse with her at such a stage, and according to our approach this appears clear even if he tells her openly what is in his heart. For in the end she has the status of a betrothed woman, and is prohibited to him by rabbinic law.

All these laws are derived from the rule that from the moment he has fixed his mind on divorcing her, he loses his right to the fruits—a rule that is itself only rabbinic. It is clear that they understand this as a reversion to erusin, and therefore it has consequences even at the level of biblical law.

We thus see that there are two legal aspects in the wife: she’erut and acquisition. The laws of she’erut—inheritance, ritual impurity, and mourning—apply to her only from nissuin onward, not from the moment of acquisition.

[A woman is analogous to consecrated property: there are acquisition and sanctity. In the case of a woman there is acquisition—which is specifically what parallels sanctity; the statement that sanctity spreads to the whole is made in tractate Kiddushin—and there is she’erut. See Rabbi Gustman’s introductory lecture to Kiddushin.]

Klei Hemdah on the portion of Emor, sec. 2, notes practical differences between these two aspects; see Babylonian Talmud, Yevamot 55b and Rashi, and Tosafot s.v. “mah” on Baba Batra 114b. There can be she’erut after death: death terminates the acquisition, yet the she’erut remains. That is she’erut without acquisition. Usually—at the initial stage of erusin, and again at the end-stage of marriage—the acquisition exists without she’erut.

From the moment he has fixed his mind on divorcing her, the acquisition remains while the she’erut lapses. We have thus returned to a state of acquisition alone, which is, in effect, erusin. In these terms, the commandment of which Sefer HaChinukh speaks is the commandment to dissolve the acquisition after the she’erut has already lapsed.

Regarding eating terumah (priestly produce), some of the early authorities explained that a married woman partakes also by virtue of the verse, “Every pure member of your household may eat the holy thing,” whereas a betrothed woman partakes by virtue of “the acquisition of his money.” The practical difference is, for example, with regard to an acquisition made by one who is himself an acquisition. See Avnei Milu’im, Responsum 17. Thus we see that a betrothed woman is his acquisition, whereas a married woman is “the pure member of his household”—part of his very self.

We have seen that halakha is directive rather than constitutive. There is a distinct halakhic tier built upon the ordinary human tier of marriage.

We have also seen that halakha contains a metaphysical layer.

The metaphysical definition is this: a wife is as a man’s own body, and a husband is as his wife’s own self.

• With respect to testimony, one can divide the woman’s legal status; yet the principle that a husband is as his wife is not counted in the ordinary chain of kinship that disqualifies witnesses.
• Tosafot on the words “and they shall be,” Babylonian Talmud, Ketubbot 52a: a man’s duty to redeem his wife is grounded in the principle that his wife is as his own body.
• Maharik on the phrase “and she commits a trespass,” Responsa, root 167, s.v. “ve-al.”
• As a matter of conceptual analysis: if they merit, the Divine Presence rests between them—the Rogatchover’s idea. The divine name creates all composite unities; a whole is made out of particulars through the divine name.

We can now return to the question with which we began: why does the Torah make divorce depend on the fact that she no longer finds favor in his eyes, and that he has found in her something indecent? According to our proposal, the Torah’s intention is that once there is, in his eyes, something indecent about her, a factual state is created in which she is already divorced in his heart, and now there is a mitzvah to divorce her. One who does not do so neglects this positive commandment, and his punishment is severe. This is the meaning of Sefer HaChinukh cited above. “She does not find favor in his eyes, and he has found in her something indecent” is not a condition for the legal validity of the divorce. It is the state in which divorce becomes a commandment and not merely a permission. It is a state that precedes the formal halakhic act of divorce.

Footnotes