DESERTION:

By: Louis Ginzberg, David Werner Amram

Leaving husband or wife with the intention of not returning. It must be premised that, if the husband deserted his wife and went beyond the jurisdiction of the court, he could not be compelled to give her a bill of divorce; and if he remained away and was never heard of again, the wife was never free from the bond of matrimony (see 'Agunah), because it was always the husband who was presumed to grant a divorce, even though at the suit of the wife, under the order of the court.

There is no proceeding known in Jewish law analogous to a modern suit for divorce on the ground of the husband's desertion, in which the divorce is granted judicially in the absence of the husband and without his consent. Further, in Jewish law there is no presumption of death from absence. Therefore the woman who was deserted by her husband remained his wife until she received a bill of divorce from him, or until his death was legally proved.

There are cases in Jewish law which may technically be deemed cases of desertion, in which the wife was entitled to receive a bill of divorce from her husband before he left the jurisdiction of the court. If a wife living in a foreign country desired to remove to Palestine, or if, living in Palestine, she desired to remove to the city of Jerusalem, and if her husband refused to accompany her or to allow her to remove, he was at her instance compelled by the court to give her a bill of divorce. If she was living in Jerusalem and he desired her to remove to a foreign country or even some other city in Palestine, or, if living elsewhere in Palestine, he desired her to remove to some foreign country, she had a right to refuse to accompany him, because she was not obliged to expatriate herself (Ket. 110b; compare Domicil). If she feared that he would then desert her, she could appeal to the court, and her husband would be compelled before leaving to give her a bill of divorce for the time being (Shulḥan 'Aruk, Eben ha-'Ezer, 154, 8).

This divorce for desertion was granted only in the above cases, and did not apply to countries other than Palestine or to cities other than Jerusalem; and the reason for this is to be found in the special favor with which the people looked upon the Holy Land and the Holy City. They were deemed to be dwelling-places par excellence of the Jews, and this fact established the right of the wife to refuse to follow her husband in case he desired her to remove. Many authorities are therefore of the opinion that these rules did not apply after the destruction of the Temple (compare Asher ben Jehiel to Ket. 110b).

Under the later law the principle was extended; and if a man was about to leave the jurisdiction of the court of any country to go to another country, he was either placed under oath not to desert his wife, or, if he insisted upon going, was compelled to grant her a bill of divorce (Shulḥan 'Aruk, Eben ha-'Ezer, 154, 8, 9).

Desertion by the wife occurred either if she actually abandoned her husband's domicil, or if she refused to follow her husband to another domicil. She was obliged to follow him only from one place to another in the same country, or from any other country into Palestine, or to Jerusalem from any other place in Palestine. For such desertion the husband could give her a bill of divorce, and she lost all of her property rights under the marriage contract (Ket. 110b).

An exception to this rule may be noted. If a man dwelling in one country married a woman dwelling in another, she was obliged to follow him to hisdomicil; for that was an implied condition of the marriage, or perhaps may have been an expressed condition in the marriage contract. In case of her refusal to follow him, she was technically deemed guilty of desertion; and her husband could divorce her, she losing her property rights under the marriage contract. Compare Domicil.