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5.1.3 Divorce
5.1.3.1 Form
Marriage was (in theory) dissoluble at will by a unilateral declara-
tion. One exception, where the court could bar divorce, is men-
tioned in the law codes; if the wife was stricken with a chronic
disease (LL 28; LH 148). The formula of the declaration was “You
are not my wife(/husband).” There is also reference in a few docu-
ments to “cutting the hem” of the wife. This act may have sym-
bolized divorce in addition to or instead of the formula, or it may
have referred to some collateral issue, such as marital property.^82
Where a husband married a second wife while his first was incar-
cerated for debt, it seems to have been regarded as constructive
divorce, although the report may have omitted mention of the for-
malities (RA91, 135–45).5.1.3.2 Consequences
Although no grounds were necessary for divorce, the consequences
differed, depending upon (a) justification, (b) whether there were chil-
dren of the marriage, and (c) the terms of the marriage contract. If
there were no children and a husband divorced his wife without
grounds, he had to return her dowry plus a sum equal to her ter¢atum
(LH 138). If no ter¢atum had been paid, a sum of sixty shekels for
an awìlumor twenty for a mu“kènumwas set (139). In practice, how-
ever, the marriage contract would contain a penal clause fixing the
amount of the divorce payment (uzubbûm). If there were children, LE
59 rules that the husband forfeits all his property and is expelled
from the house. LH 137, considering a polygamous marriage, awards
the divorced wife one half of her husband’s property together with
return of the dowry. She must leave the house but has custody of
the children, for whose upbringing the financial award is intended
to provide.
If the husband had good grounds (which obviously would involve
proof in court), he could expel the wife without compensation and
even keep her dowry. Justification could be adultery, if the husband
chose to forego his right to a harsher penalty (see 8.3.1.1 below)(^82) CT 45 86; Greengus, Ischali 25; Meissner BAP 91; Newell 1900; VAS 8 9–10.
See Westbrook, Marriage Law.. ., 69–71; Malul, Symbolism, 197–208.
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