Saturday, October 29, 2005

Can non-Jews get divorced?

The Medrash on this weeks parsha (Bereishis) discusses this issue. The medrash has 2 opinions, 1 opinion seems to state that there is no divorce for non-Jews (or alternatively the medrash means that there is no formal divorce procedure) while the second opinion states that either side (husband or wife) can initiate a divorce. A similar discussion occurs in the Yerushalmi at the beginning of Kiddushin.

The Rambam (Hilchos Melachim 9:8)paskens that there is no formal divorce procedure and either side can initiate the divorce. This is difficult because he seems to pasken like both opinions.

The Ran in his chiddushim on Sanhefdrin (48b) quotes the Rambam and then quotes Rabbenu Dovid who disagrees and states that there is no divorce for non-Jews like the simple reading of the medrash and the Yerushalmi.

The Pnei Yehoshua also holds that there is no divorce for non-Jews but he goes further he states (Kiddushin 13b) that even the death of the husband does not free the women, the husbands death is a chiddush of teh Torah for Jews and therefore does not apply to non-Jews, this is how he wants to explain Yehuda and Tamar.

In summary, there is a dispute whether non-Jews can get dicorced, according to the Rambam (and this seems to be the accepted opinion) they can informally while according to a minority of Rishonim and Acharonim they are stuck, once a woman marries she is stuck for life.

18 comments:

Manny said...

I don't get it. Since when is there a "halachic imperative" for how non-Jews are supposed to conduct their lives, apart from the Sheva Mitzvot B'nai Noach? The issue of divorce certainly doesn't seem to fall under any category of sexual prohibition for non-Jews. And it seems to me that establishing the formal procedures for divorce would fall under the rubric of setting up courts to administer justice.

bluke said...

Non-Jews are prohibited from having relations with someone elses wife. The question is once a woman is someone's wife how is that status changed. For Jews the Torah gives us a procedure, a get, for non-Jews it doesn't and therefore some maintain that here is no way out.

Anonymous said...

What if the man dies? Does that permit the woman to marry someone else? The Gemara learns it for Jews from a gezeira shava from divorce, i believe?

bluke said...

That is exactly the Pnei Yehoshua's point that the death of the husband is a chiddush as well and therefore doesn't apply to non-Jews. Everyone else seems to argue on the Pnei Yehoshua.

Anonymous said...

What do you do with the gemara in sanhedrin 58b?

I suppose that is a typo, did you mean the ran on 58b.

How does the ran understand this gemara (I dont have any seforim here).

Bill Selliger said...

How can a divorce for goyim be necessary if there is no kiddushin? If there is no formal "aquisition", how can there be a need for, or even a possibility of, a "relinquishment"?

bluke said...

Bill,

It is a fact that there is a din of eishes ish for a ben noach. Somehow a non-Jewish can get the status of a married woman with all it's implications for arayos. Now the question becomes how does she change her status from married to non-married? By Jews the Torah was mechadesh a Get, by non-Jews it was not and therefore some hold that there is no way for her to change her status from married to unmarried.

bluke said...

You are right it is 58b.

Anonymous said...

whats the concept - that the gemara in sanhedrin only applies to slaves, but not nonjews generally?
that gemara would appear to allow nonjews to divorce simply by walking out (essentially)

bluke said...

That Gemara is brought as a proof for the Rambam. Those who argue would seem to hold as you say that it applies applies to shifcha. Alternatively, the Yerushalmi may argue on the Bavli.

Bill Selliger said...

Mi ikah midi d'liyrael muttar u'lakum assur?

We are clearly being maikil on Jews here (for those that don't hold like the Rambam)?

bluke said...

Sort of but not in the classical sense. Both Jews and non-Jews have a concept of a married women with all of it's prohibitions. Jews have a way of changing that status non-Jews don't. I don't think that would violate Mi ikah midi d'liyrael muttar u'lakum assur, non-Jews have no additional prohibitions.

Bill Selliger said...

Bluke:

A Jewish widow may have relations, a Gentile widow may not (according to the P"Y).

bluke said...

Yes but that is not a new issur, it is just that her married status continues which means that she has the status of a married woman even after the husband dies. In other words the criteria for starting and ending a marraige are different for the 2 groups.

Let me ask you the following. If 2 non-Jews get together in private and decide that they want to live together they are married. If 2 Jews do the same thing with no witnesses and no kiddushin they are not married. We could say here also that the non-Jew has an issur that the jew doesn't have.

The answer is that the basic issur is the same for both, a married woman is prohibited. the details of how she becomes a married woman and becomes an unmarried woman are different.

Bill Selliger said...

Git gizukked. Excellent.

Anonymous said...

"Those who argue would seem to hold as you say that it applies applies to shifcha. Alternatively, the Yerushalmi may argue on the Bavli."

R Margolis says that the proof from the yerushalmi is not so clear; he says that lo yichad hkb"h shmo al hagirushin ela l'yisroel bilvad is just for girushin b'ksav, not girushin generally.

If you look at the midrash, it's pretty clear that *she* can be m'garesh him, the question is whether he can be m'garesh her or if v'davak b'ishto precludes him from doing that. The midrash also gives further proof for R Margolis' reasoning, as the discussion of the posuk in malachi comes later (unless you learn that this is a new din, but that's difficult).

bluke said...

I looked at the Ran again. Rabbenu Dovid that he quotes who holds there is no divorce explains the gemara (Sanhedrin 58b) that it is referring specfically to a shifcha and not to a regular non-Jewish married woman.

Anonymous said...

thank you.

I found the margolis hayam convincing, esp in light of the midrash not seeming to accord w/ rabbenu dovid's reading.