Why Does Gittin Precede Kiddushin? A Plea for Divorce Ethics


divorceBy Rabbi Menachem Rosenfeld, Matzav.com

When I was young, I often heard mention of the fact that Gittin precedes Kiddushin in the Shas order. This is unusual, as laws of marriage should actually precede the laws of divorce, not vice-versa. Why is this so?

The response is often that the cure was developed before the illness. I never found this to be humorous and still fail to see how this is an entertaining comment. Divorce is not humorous, and as a Family Law attorney and divorce mediator, I can personally attest to the great pain and anguish that divorce has brought to American society. However, is there not some insight we can glean from the fact that Gittin does indeed precede Kiddushin in the Talmudic order?

I would like to propose a possible answer. It is reported that when the Netziv closed the Volozhin Yeshiva (due to undue interference by the Russian government), he stated that one who opens a yeshiva must also be prepared to know when it is time to close the yeshiva. Perhaps the lesson of the Gittin/Kiddushin quandary is that one can only enter into a marriage governed by halachic norms and behaviors if he/she is likewise prepared to dissolve such a union, if need be, within the acceptable parameters of halachic behavior and practices.

In light of the above, I pose the question as to whether such behavior is now taking place when our community’s couples, young and old alike, choose to end their marriages and enter into divorce, r”l. I will answer the question in the course of this article. I would first like to present two case studies from the mediation work I have done with divorcing couples. (Although both discussions are actual reports on the conclusion of a mediation process, neither discussion involves members of our community.)

Mediation #1

I worked with a couple who had worked out many details of their divorce agreement in advance of our meeting. Good preparation makes any meeting go smoothly and this was no exception.  The agreements were presented methodically, they were well-thought out, and the dialogue was positive and quite productive. We accomplished in one session what I normally accomplish in 3 or 4 sessions. It was obvious that we might likely conclude the entire agreement in just one more session. (Often, 4-6 sessions are needed.) At the conclusion of the session, I stated the following: “I have just one question for you.” One of the parties quickly provided the question I was pondering, i.e. “Why are we getting divorced?”

I nodded in a manner that indicated this was indeed my question. The response was one I quote often:

“We are really good friends. We are just a lousy husband and wife.”

I cite this often because I see no contradiction between a couple being friends, choosing to remain as friends, and yet deciding that their marriage is no longer productive. Such a conclusion can be an indication of a couple who have chosen to close the door on their marriage, yet refrain from slamming the door shut. This is especially important when the couple has a common child and will need to co-parent their child and to share in years of decision-making and joint effort.

Mediation #1 clearly had a “happy ending.”


A couple had been referred to me by a judge. They had agreed on virtually nothing and were not able to utilize their legal representation towards a proper divorce agreement. The judge obviously recognized that mediation needs to be a voluntary process and was not about to order successful completion of mediation. He therefore issued a modest order. The couple needed to attempt mediation and would show compliance by spending no less than one hour in mediation.

The husband, unlike the wife, came with a hostile attitude. In his opening statement he informed me that I was not to believe anything his wife said, as she was a deep-seated liar and a scoundrel. He then underscored his belligerence by making a show of looking at his watch every 5-10 minutes. As the hour wound down (we achieved one small token agreement, but no more), I turned to the husband and asked him a direct question. If he chose not to cooperate in mediation, and could not achieve positive results through his attorney, was he not concerned that he might achieve little else than pauperizing himself through the divorce process, with little to show for it?

The husband actually agreed with my thoughts and told me that he had already pauperized himself to the tune of $40,000 and had nothing to show for it.

I then asked my final question: “So why are you doing this?”

His answer was succinct: “I am doing this for principle.”

To this day, I fail to see what principle underlies a decision to pauperize onesself and have nothing positive to show for it. However, I do acknowledge that many parties act this way in their divorce proceedings.

What causes such self-destructive behavior? I believe that the answer might appear in the Sefer Shmuel Bais.

In Shmuel Bais (13:16), we read of the reaction of Amnon after he ravished his sister Tamar. The Novi tells us that Amnon had a greater hatred for Tamar than was his previous love for her.  In Tanach we see many incidents where love can quickly become transformed into hatred. Many acts of national rebellion can be understood in this context. There is no stronger bond than that which exists between husband and love. In like fashion, when a marriage dissolves, the bond of love becomes replaced, at times, with a bond of enmity that equals or surpasses the initial attraction. What is the result of such a transformation? Couples then fight for “principle,” while enriching no one other than the hired legal professionals, who are rarely trained in what is commonly known as Alternate Dispute Resolution. In such a scenario, there are no winners, only losers. Who are the greatest losers of all? Sadly, it is often the truly innocent by-standers, i.e. the couple’s children. Studies continue to show how the harm to these loved ones is often felt throughout the balance of their lives. And all for principle!

I will return to my previous discussion. What happens when I see frum couples in divorce mediation? It rarely leads to what I saw in Mediation #1. Couples do not leave marriage as friends. Our sons and daughters, fathers and mothers, know how to fight for principle! I see little compassion in their speech and deeds, but I do see much stridency and confrontation.

Perhaps it is time we spoke out as a community and stated that such behavior is no longer acceptable. Let us learn a potential lesson from the placement of Gittin before Kiddushin. If we marry as bnei Torah, can we not also divorce as bnei Torah? There is a section of Gemara dedicated to laws of divorce because we need to divorce and conduct our lives as bnei Torah. I have not seen signs that we have reached this level of halachic behavior as of yet.

Can we not do something about this before the epidemic of divorce worsens and wreaks more havoc? Is this asking too much? I think not.

Rabbi Menachem Rosenfeld is a family attorney and divorce mediator on both the NY and NJ rosters of mediators.

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  1. Well said and well phrased!!!

    Many divorces HAD potential to end smoothly…If only pple would allow it. But in our community pple dont want to have a “DIVORCEE” so they would rather twist the situation then let it just be over. FOr example, I know this couple that was getting divorced-and like you said- they had all arrangements done prior to the meeting…But once word got out of their separation, all the (TOO MANY!!) mentors, shalom bayis askonim, and rabbanim got involved to see if things can be worked out….


    Now, 5 months later, instead of a what-would-have-been a pleasant yet unfortunate ending, turned into a never-ending bicker/fight/inhuman/uncalled for…etc plight!

    We have to come to terms with the fact that divorce was created by HASHEM and unfortunately must sometimes take place. If only we can help let the spouces move on for their second chace and NOT keep them bound to try and work it out….

  2. Some people fit their vort into the Torah, others twist the Torah until it fits into their vort. You did the latter. Now that you voiced your Agenda, Do you want to hear the emes? Most of Kiddushin discusses when it follows a Get.
    Have a good day!
    Keep up the good work
    Shalom IS the answer.

  3. Very well written article. When these “selfish” parents get divorced, the children suffer the most! Each of their immature parents will have to give a Din Vicheshbon after 120, big time! These baby’s should of NEVER gotten married & had children to begin with! “Those who get married for the wrong reasons, get divorced for the right reasons”!

  4. There’ a big issue – fighting for the sake of fighting. Lets face the reality, often times, if the parties were prepared to take a step back then they wouldn’t be getting divorced! The y want to fight because fighting is “fun”.

    I saw a beautiful vort/explanation attributed Rav Nossan Wachtfogal ZT”L. He asked, what is the logical explanation of the enamerateion of professional sports? Just from a purely logical perspective. Consider that on any given winter Sunday you have over forty million Americans completely engrossed in football. (Same with all other sports.) All the money that people are willing to pay for it.. etc.

    He explained: Hashem created us as fighters. We must fight. We must fight our Yetzer Hora, which is here from the moment we are born. Hashem created us fighters so we can “fight”/battle to do what’s right and then be richly rewarded without any embarrassment. However, if we don’t chose to fight our Yetzer Hora [completely] then the fighting must find expression in other venues. That’s where sports comes in. (And it is the best of the alternatives!)

    Same with the quarreling divorces. People sometimes fight without any logic. If they would wage battle to become better people of serve Hashem they’d stop fighting.

    I am divorced and my ex and family are still fighting me illogically and blowing lots of money while at it. Worst part is the kids suffer to no end

  5. It’s true that the rishonim do discuss why the tractates of mishnah appear in the order that they do.

    However, looking at a list of the tractates and the number of their chapters, it’s clear that the ordering is based on a descending number of chapters.

    Once one acknowledges that the three “Babas” were once one, and Sanhedrin and Makkot were once together, this explanation works quite well. The first half of Zeraim doesn’t fit, and neither does Tamid, but every other tractate fits the pattern.

    Here’s a chart from which you can verify what I’ve just written:


  6. He writes, “I see no contradiction between a couple being friends, choosing to remain as friends, and yet deciding that their marriage is no longer productive.”

    Productive? What does that mean? They are really good friends and can’t remain married? Sounds idiotic. If there are children involved, it’s an avla.

  7. Although this article correctly pleads for divorce ethics, the problem that divorcing Orthodox Jews face is that civil divorce and halachic divorce are usually far apart in asset distribution, support and custody. When there are two venues out there, one party will always feel aggrieved by using the other venue within those acceptable and ethical parameters. It is only when both sides are willing to compromise for the sake of the children that progress can be made. It is rare that compromising couples actually divorce. They more often than not build a successful relationship. You are pleading to the strongly principled individuals! The proper time to plead and educate the principled to compromise would be before Kiddushin, not at the stage of Gittin.

  8. A major issue which the writer left out is the fact that no divorce happens in a vacuum. There are always parents, family, friends and other bystanders to give advice, scream with indignation, say “How could you let him/her get away with that!” and so forth.

    I have known several couples who have gotten divorced in the last few years, and I make it a practice to mind my own business. I don’t ask questions, give opinions or otherwise stick my nose in. At most I will ask if they’re seeing a rabbi/counselor, and recommend that they do so if they’re not already going. No outsider can know what goes on in a couple’s private life, or give good, impartial advice. Let the professionals – rabbis and counselors – do the job.

  9. I appreciate all comments. While I agree with some comments and disagree with others, I feel this topic requires much discussion in our communities. To that extent, I thank the editors for publishing this article and I thank those who commented.

    The problem of divorce in our community is growing; it is not going to go away. We remain silent, on this issue, at our own risk. And I need to add one thing; in mediation I have seen many couples decide that whatever happened in the past, they will make the divorce civil and cooperative. This course is Win-Win. If a couple fails to choose the route of civility, there will be many parties who will be harmed in the process. For a starter, try Googling articles on “Divorce and Children”. The impact on children, is first and foremost, the strongest argument for demanding the highest ethical behavior, even as the trauma of divorce unfolds. However, there are many other reasons for opting for civil behavior in the divorce process. As I stated in the article, if we expect our children to marry as Bnai Torah, let us demand that if they must divorce, they also do so as Bnai Torah.

  10. although i see no reason why after a divorse there has to be such fighting but on the other hand if there isnt fighting they shouldnt get divorsed for the childrens sake

  11. This whole article is ridiculous! I must say that I did not read the article. I just read the introduction with the p’shat in why Gittin is before Kidushin. The author says that a possible explanation is because the Torah is hinting that sometimes a marriage should be broken up. First of all, I fail to see how he sees this hint in the reverse order of the mesechtos. But more importantly, if he would hae only looked in the Rambam’s Commentary on Mishnayos where he explains the order of the mesechtos, he say that the reason the order is switched from the expected, is so people should understand that it’s NOT a logical progression of Kiddushin followed by Gittin. Rather, it is an aberation to normal life! I’m happy to point out that this is the exact opposite of what the author claims to be true. Someone going into a marriage should be aware that marriage is for keeps, and they should not have the expectation that in case it doesn’t work out, there’s an emergency escape available called divorce. Please, if someone wants to argue on the Rambam, please do it on another site. I’m not going to go into a whole shmuess about our generation and divorce, bemoaning where we are holding and trying to pinpoint the causes. I just think that the Torah should be accorded a little respect.

  12. I agree 100%.
    My daughter recently got divorced. I told my ex mechutan let’s just do it quietly and no one will know why and each will go his way. All the Rabonim involved realized that’s the best way but no, my mechutan didn’t want to have a divorce even though my daughter wasn’t coming back. She was abused and the boy had other problems I do not want to mention. Suffice to say, that a divorce was the only solution. There was no money involved and no kids. But this great Talmud chacham decided that if my daughter wants a get, it will cost me good money. It was bargained down to $15,000 and he made sure that I be mochel him before the get was given. So extortion is now considered normal, with some people even advising how to get more money out of it and there are cases where people hold back gitten just to hurt the other party.
    I paid the money and he is still bad mouthing me. Any ideas to get him to be quiet?

  13. There has to be education in the high school system about marriage – the sholom bayis part. There is so much drilling in high school and seminary about marrying a learning boy, about how it is so important. there is hardly any mention of the idea that marriage is an avodah – not just the romanticism that girls pick up off the street (even very very frum ones). If they see things are not so great between their parents, they think when I get married it will be different
    It has to be taught that although marriage is beautiful, it is only acquired through hard work and avodah of middos. there will be arguments, there will be differences of opinion but we are building a mikdash etc.. Kallah classes for starry eyed kallahs who think their chosson could do no wrong just isn’t enough. In fact it goes right over many kallahs’ heads.

    My point is that it needs to be drilled in for YEARS and YEARS with examples and stories. The young wife struggling with issues will know it’s normal and not that “she married the wrong person” and not that “he is so difficult” and not that “if only”. Once these negative seeds are planted, they are very hard to eradicate. But if she was trained for many years she will view struggles in a somewhat neutral way that will allow for growth to take place.

    I am speaking from personal experience and I am sure many women agree with me.

    The boys also must be trained in bais medrash years (after 18) not just a few weeks before they get married.

    This of course excludes any drastic situations like abuse, addiction etc…..

  14. Divorce can be civil but in many cases the wife falsely accuses her exhusband abuse of the children as a way to get even with him. It makes matters worse when parents finacially support such vicious slander which results in huge expenses for the husband to refute either in bais din or in court. After that how can a get be civil when the wife fails to acknowledge and apologize for her malicious actions.