Shabbat Parashat Shoftim 5771

P'ninat Mishpat: Cursing As Grounds for Divorce

Case:   A couple has been living “separately” under one roof for years. Among other claims, the husband (=pl) has recordings of extreme name-calling and bad wishes that the wife (=def) made against him but especially against his mother. She refuses to have a full marriage until he breaks contact with his mother. Def says that this was done only at times where pl or his mother put her under great stress. Pl wants to give a get and not pay her ketuba; def wants to stay married, and says that he is proscribed due to Cherem D’Rabbaeinu Gershom from divorcing her.

Ruling:   The mishna (Ketubot 72a) lists a woman who curses her husband’s forebears in his presence under the category of a wife who is overet al dat (one who violates basic religious norms), which is grounds for divorce without the payment of a ketuba. There is sufficient evidence that def did so. However there are several doubts as to whether that rule can be applied in this case:

1. Some say that only if the curses are a full violation of the prohibition to curse, in which Hashem’s Name is invoked, is it grounds for divorce.

2. Some say using vulgar descriptions about a person without wishing bad things to happen to them is not the type of “cursing” which the mishna considers grounds for divorce.

3. The Rashba says that the sanctions are not imposed against a woman who curses her for understandable reasons, such as if he or his mother is abusive. There is even a minority opinion (Tiferet Yisrael, Ketubot 7:29; see language of Shulchan Aruch, Even Haezer 115:4) that says that only cursing of a father-in-law is punishable, but since it is common for daughters-in-law and mothers-in-law to have bad relationships (Yevamot 117a), she cannot be so strongly sanctioned for cursing her.

4. The Shulchan Aruch (ibid.) says that sanctions against an overet al dat can be imposed only if she was warned before witnesses. The Rama (ad loc.) says they are only for cases of continual violation. However, the Chelkat Mechokek (ad loc. 11) says that in a case where she has been warned, even a single serious violation is grounds for the sanctions. While there are different opinions on the matter, in a case where there was not a violation of formal cursing but just inappropriate speech, all might agree that we need proof that she was warned, which pl has not presented.

5. The Terumat Hadeshen says that not keeping oaths, which was once a sign of a morally unacceptable wife was no longer a good indication in his time, as it became too commonplace. The Divrei Malkiel (III, 145) and, more recently, the Tzitz Eliezer, say that nowadays cursing is too common to sanction a wife in the way she once was. Rabbi Akiva Eiger pointed out that the violation must be one that people of the time see as a sign of extreme behavior. Thus, batei din rarely employ the sanctions.

In this case, it is certainly a mitzva for the two to agree to divorce since they have not been living as husband and wife for years and there is no sign of reconciliation in the foreseeable future. However, beit din cannot outright obligate her to accept a get.

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