1. Introduction: When marriage and happiness conflict
Parshat Ki Tetzai includes more of the Torah’s 613 mitzvot that any other parasha of the Torah. Among the 74 commandments included in the parasha are the mitzvah that establishes the Torah’s institution of marriage and the mitzvah that authorizes divorce. The inclusion of these two mitzvot within the Torah’s taryag mitzvot – 613 commandments – communicates a simple message. Marriage is a sacred institution. However, sometimes, marriages fail and in such cases there must be a means of terminating the relationship.
A couple considering divorce will generally experience a tension between two considerations. Divorce is usually complicated, stressful for the family, and sometimes even traumatic for some or all of the members of the family. Children whose parents divorce are sometimes deeply affected and even scared by the experience. However, sustaining a failed marriage also has consequences. The ongoing tension, conflict, unhappiness, and even dysfunction harms the members of family and can far outweigh the benefits of maintaining the marriage. In each family the advisability of ending the marriage requires a case-specific analysis. However, the Torah does provide some considerations that should be included in this evaluation. Some of those considerations will be developed in the discussion which follows.
When a man takes a wife, and marries her, then it comes to pass, if she does not find favor in his eyes, because he has found some unseemly thing in her, that he writes her a bill of divorce, and gives it into her hand, and sends her out of his house. And she departs out of his house, and goes and becomes another man’s wife. And the latter husband hates her, and writes her a bill of divorce, and gives it in her hand, and sends her out of his house or if the latter husband dies, who took her to be his wife, her former husband, who sent her away, may not take her again to be his wife, since she is defiled; for that is abomination before Hashem. And you shall not cause the land to sin, which Hashem your G-d gives you for an inheritance. (Devarim 24:1-4)
2. The unusual context of the source-text for marriage
It is interesting that the mitzvah of marriage is not expressly stated in the Torah. The casual reader will encounter the passages that are the source of the institution and not even realize that the mitzvah is included in the passages. The passages that are generally cited as providing the source-text for the mitzvah do not discuss marriage per se. The passages describe a complicated scenario. A couple divorces. Subsequent to receiving her divorce, the woman remarries. Her second marriage ends either in divorce or with the death of the second husband. The original husband and the wife wish to remarry. The Torah prohibits the renewal of the first marriage. In other words, with her marriage to a new husband, the woman abandons the opportunity to reconstitute her prior marriage. In its description of this scenario, the Torah describes the institution of marriage and authorizes divorce. These references to marriage and divorce in the Torah’s development of the scenario are the sources for these two mitzvot.
It is odd that the Torah communicates the mitzvah of marriage in this context. Marriage is a joyous occasion. Every marriage recalls the first such union – that of Adam and Chavah. The Torah regards the man and woman as complementary creations. The one completes the other. Yet, rather than presenting the institution of marriage in a manner that would celebrate it, the Torah creates the institution in the context of a scenario that features repeated failed marriages.
When a man takes a new wife, he shall not go out in the army, neither shall he be charged with any business. He shall be free for his house one year, and shall cheer his wife whom he has taken. (Devarim 24:5)
3. The marriage commitment
An indication of the Torah’s message in these passages is contained by the very next passage in the Torah. This passage explains that in the year following his marriage, the husband is exempt from serving in the army or from any other responsibilities associated with support of the army. For example, he cannot be drafted to provide the army with supplies. Instead, he is to spend the year with his new wife and he is to devote himself to nurturing her happiness.
Sefer HaChinuch explains that this passage and the mitzvah it communicates reveal a fundamental aspect of the Torah’s view of marriage. He explains that marriage and the family unit are predicated upon the husband’s and wife’s commitment to entering into a meaningful relationship. In other words, the Torah exempts the newlywed husband from military service and requires that he devote himself to his wife because marriage is intended to be a solemn commitment. As such it requires serious investment. The exemption of the husband from service and the requirement that he devote himself to his wife’s happiness is consistent with the Torah’s expectation that the partners fully invest in creating a healthy and vibrant marriage.
4. Intimacy and commitment coincide
This message is very similar to that communicated by the passages describing the prohibition against restoring a past marriage. Nachmanides and others note that the Torah associates the prohibited practice with immorality. They explain that the intent of the Torah is to prevent the perversion of the institutions of marriage and divorce into instruments for “legal” casual sexual encounters. Without this prohibition, marriage and divorce could be used to facilitate a woman’s intimacy with a variety of partners in addition to her husband. She could marry each, then divorce, and then return to and remarry her husband.
Again, the message communicated is that marriage is predicated upon the partners’ commitment to one another in a monogamous relationship. It is in the context of this message that the Torah introduces the mitzvah of marriage. Although the context does not describe a pleasant or healthy scenario, it does communicate the Torah’s concept of the institution of marriage as a committed relationship between husband and wife. It also expresses the Torah’s perspective on sexual intimacy. Intimacy should not be casually sought of given. It should be accompanied by meaningful commitment of the parties to one another.
It must be acknowledged that the Torah permits a man to have more than one wife. However, extra-marital or pre-marital intimacy is prohibited. The husband must be devoted to his wife or wives. He must be completely committed to the martial relationship. Intimacy with other women is strictly forbidden. Furthermore, the experience of intimacy should take place in the context of the marriage and be an expression of a committed relationship between husband and wife.
If any man takes a wife, and goes unto her, and hates her, and lays wanton charges against her, and brings an evil name upon her, saying: I took this woman, and when I came nigh to her, I found not in her the tokens of virginity; (Sefer Devarim 22:13-14)
5. A second source-text for the mitzvah of marriage – the slanderous husband
In his Sefer HaMitzvot – an enumeration and description of the 613 mitzvot – Maimonides cites the text previously discussed as the source-text for the mitzvah of marriage. However, in his Mishne Torah he cites the first of the passages directly above as the source-text for the institution of marriage. It is notable that he selects this passage rather than the passage discussed earlier. This passage presents the same difficulty as the first passage discussed. The passage appears in the context of the Torah’s discussion of a cruel, unscrupulous husband. Understanding the scenario described by the passages requires an introduction.
The Torah’s institution of marriage is composed of two components. The marriage is initiated by the betrothal – kiddushin. Kiddushin is the entry of the parties – the prospective husband and wife – into an agreement to live together as a couple. Our practice is to create this agreement through the man giving and the woman accepting a ring accompanied by verbalization of the agreement. The second aspect of marriage is nissuin – the man and woman actually initiating their lives together. Current practice is to use multiple means to accomplish the initiation. The husband and wife stand under the marriage canopy as an expression of their initiation of life together. Also, after the public ceremony it is customary in many traditions for the husband and wife to retire into a private room for a brief period. This is a second means of expressing the initiation of their shared life.
Our practice is to combine both components into a single process. Kiddushin is followed immediately by nissuin. However, this was not the practice in former times. In former times, following kiddushin the prospective wife returned to her family. When she and the husband-to-be were prepared to establish a household and begin life together, nissuin took place.
In the scenario described by the passages, a young woman – prior to reaching her majority – is given into marriage by her father. Kiddushin takes place and, in time, is followed by nissuin and the consummation of the marriage. Immediately following the consummation, the husband has remorse over his decision to marry and attempts to escape the marriage. He claims that in consummating the marriage he discovered that his bride was not a virgin. Ultimately, the husband is found to have falsely accused his bride. The passages explain that because he defamed his bride, the husband is subject to three consequences. He receives lashes; he is fined; and he forfeits the right to ever divorce his bride. In constructing this scenario, the Torah makes mention of the husband and wife marrying. In Mishne Torah, Maimonides selects this reference to marriage as the source-text for the mitzvah of marriage. Again, this text raises the same question as the text more often cited. Marriage is mentioned in the context of constructing a scenario describing the consequences to which a slanderous husband is subjected. Why is this the context in which the Torah creates the institution of marriage?
6. Marriage is intended as an enduring relationship
Apparently, because these passages communicate an important message about marriage, Maimonides selects them as a source-text for the mitzvah. These passages describe a husband who decides to marry a woman and then has remorse over his decision. He attempts to escape the marriage through unscrupulous means. One of the consequences imposed upon him is that he forfeits the right to ever terminate the marriage. This suggests that the Torah’s expectation is that a couple entering into marriage recognize that the union is intended to be enduring. The husband described in the scenario did not meet up to this expectation. He betrothed a wife and upon consummating the marriage had remorse. He attempted to terminate the marriage in the most unscrupulous manner – through the defamation of his bride.
In short, these passages express the Torah’s vision of marriage as a committed relationship. It should not be entered into lightly and when a couple does decide to marry they should understand that they are making a permanent commitment to one another. Of course, the Torah does authorize divorce. However, the message of the passages is that divorce should not be the result of a lack of commitment. It is only appropriate when, despite mutual commitment, the marriage has failed.
Maimonides’ selection of this passage as a source-text for marriage can now be understood. He selects this passage in order to communicate the enduring nature of the marriage commitment. This message is not communicated by the passage discussed earlier. That passage communicates important but entirely different messages – the commitment of husband and wife to one another to the exclusion of extra-marital intimacy and the requirement that intimacy be accompanied by commitment.
7. Two aspects of marriage
In summary, two texts are cited by Maimonides as source-texts for the mitzvah of marriage. The text cited in his Sefer HaMitzvot focuses upon a couple’s commitment to one another to the exclusion of extra-marital intimacy and the requirement that intimacy coincide with commitment. The text that Maimonides cites in his Mishne Torah focuses upon the Torah expectation that a couple regard their union as lasting and enduring.
8. Maimonides’ discussion of marriage in antiquity
This explains an interesting aspect of Maimonides’ discussion of marriage. He introduces his discussion of the laws of marriage by explaining that prior to the implementation of Torah law marriage was affected through the mutual consent of a man and a woman to live together. The marriage remained in effect as long as this consent was present. The Torah altered the structure of the institution and implemented a requirement that, prior to living together, the parties enter into a formal agreement. It is interesting and odd that Maimonides introduces his discussion of the laws of marriage with an explanation of the institution’s historical development. What message is Maimonides communicating by contrasting the pre-Torah marriage with the Torah construction of marriage?
The analysis above provides an obvious explanation of Maimonides’ intention. Maimonides’ intention is to focus the reader’s attention upon a fundamental aspect of the Torah’s concept of marriage. Prior to the Torah, marriage resulted from and was predicated upon the mutual consent of the man and woman to live together. It was a state that existed only so long as the underlying consent was present. It ended with the termination of the underlying agreement. No divorce was required. In this construction of the institution, marriage was not a permanent relationship and could be dissolved at any moment by either party.
The Torah introduced a major alteration of the institution. It requires that marriage be initiated by a formal agreement between the parties. This agreement communicates a message that was absent from the pre-Torah marriage institution. It communicates that marriage is not a casual arrangement that can be created and abandoned upon a whim. It is intended to be an enduring relationship. In fact, Maimonides explains that with the execution of the betrothal agreement – the kiddushin – the man and woman are bound to one another. Their relationship – not yet consummated with nissuin – can only be severed by death or formal divorce. Effectively, the couple is husband and wife even though they have not yet lived together. It is in this context that Maimonides cites his source-text for the mitzvah. It is appropriate that he select the passage that focuses upon the permanence of marriage.
9. Rescuing a failed marriage
In closing, the Torah recognizes that some marriages are doomed and cannot be fixed. However, the Torah does require the commitment of husband and wife to create an enduring and committed relationship. This suggests that a troubled marriage should not be quickly abandoned. Husband and wife should seek reconciliation. This usually requires that each be willing to honestly consider his or her own behavior and accept responsibility for contributing to the marriage’s crisis. Sometimes this process can only occur in a counseling environment. The process can be painful and humbling. However, engaging in the process is an expression of commitment to one another and to the institution of marriage. If despite the efforts of the couple the marriage cannot be salvaged, then divorce may be the only real option.
In practice, reconciliation is sometimes precluded. Marriage counseling sometimes is not an option. Also, one spouse’s commitment may not be shared by the other and reconciliation requires the combined efforts of both. These are just a few of the many factors that can completely undermine any effort to preserve the marriage. Therefore, the discussion above should not be interpreted as a presentation of hard and fast rules. Instead, this discussion represents an attempt to reconcile the Torah’s attitude toward marriage with its authorization of divorce.
1. Rabbaynu Aharon HaLeyve, Sefer HaChinuch, Mitzvah 582.
2. Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Commentary on Sefer Devarim 24:4.
3. Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Eyshut 1:1.
4. Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Eyshut 1:1.