The Hated Wife

Hate is an emotion, but the Bible and other ancient texts use the term “hate” to express a legal point. For instance, in the case of divorce and remarriage, Deuteronomy distinguishes between the reason for first and second divorce:^[1]

^{דברים כד:א} כִּי יִקַּח אִישׁ אִשָּׁה וּבְעָלָהּ וְהָיָה אִם לֹא תִמְצָא חֵן בְּעֵינָיו כִּי מָצָא בָהּ עֶרְוַת דָּבָר וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ.

^{Deut 24:1} A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house.

^{דברים כד:ב} וְיָצְאָה מִבֵּיתוֹ וְהָלְכָה וְהָיְתָה לְאִישׁ אַחֵר. ^כד:ג וּשְׂנֵאָהּ הָאִישׁ הָאַחֲרוֹן וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ אוֹ כִי יָמוּת הָאִישׁ הָאַחֲרוֹן אֲשֶׁר לְקָחָהּ לוֹ לְאִשָּׁה.

^{Deut 24:2} She leaves his household and becomes the wife of another man; ^24:3 And (if) the second husband hates her, writes out for her a bill of divorce, puts it in her hand, and sends her away from his house, or if the second husband who took her as a wife dies…^[2]

While the first husband divorces the woman for ʿervat davar, a negative term implying that she is at fault for something, the second husband’s divorce is because he “hates” ש.נ.א her, i.e., without grounds.^[3] The parallel case in the verse is that the second husband passes away, i.e., in both, the woman is not at fault. We see here that men could divorce their wives with grounds or without grounds;^[4] the latter, divorce for “hate,” is what we now call a no-fault divorce.

Elephantine Ketubot: No Fault Divorce

The ending or renegotiating of a marriage because of hate appears in the legal clauses of several Aramaic marriage contracts—ancient versions of a ketubah—found among the remains of the fifth century B.C.E. Jewish colony on the island of Elephantine in Egypt. One such contract (TAD B3.8; Kraeling 7) details the arrangements in the marriage of Ananiah to Jehoishma daughter of Anani and Tamet.^[5]

The contract begins with the date, Tishrei, year 4 of Darius, and Ananiah’s declaration that Jehoishma is his wife ואנא בעלה מן יומא זנה עד עלם “and I am her husband from this day until forever.” The contract then states the mohar, “brideprice,” that Ananiah paid, and lists the many items Jehoishma brought in with her and their values. At this point, it turns to consider what to do should one spouse hate the other:^[6]

מחר או יום אחרן יקום ענניה בעדה ויאמר שנית לאנתתי יהוישמע לא תהוה לי אנתת כסף שנ[א]ה בראשה כל זי הנעלת בביתה ינתן לה תכונתה ולבשיה דמי כסף כרשן שבעא ש[קלן תמניה חלרן /// /]/ ושארת נכסיה זי כתיבן ינתן לה ביום / בכף | [ו]תהך [לה מנה] אן [זי צבי]ת.

Tomorrow or (the) next day, should Ananiah stand up in an assembly and say: “I hate my wife Jehoishma; she shall not be to me a wife,” silver of hatred is on his head. All that she brought in into his house he shall give her—her money and her garments, valued (in) silver (at) seven karsh, [eight] sh[ekels] 5 [hallurs], and the rest of the goods which are written (above). He shall give her on 1 day at 1 stroke [and] she may go [away from him] where[ever] she [desires].

והן יהוישמע תשנא לבעלה ענניה ותאמר לה שניתך לא אהוה לך אנתת כסף שנאה בראשה מהרה יאבד תתב על מוזנא ותנתן לבעלה ענניה כסף שקלן /// ///\ ר[//] ותנפק מנה עם שארת תכונתה ונכסיה קנינה דמי כסף כרשן /// /// שקלן //|/ /// /\ ח/// // ושארת כנ זי כתיבן ינתן לה בי[ום /] בכף / ותהך לבית אבוה.

And if Jehoishm[a] hate her husband Ananiah, and say to him: “I hated you; I will not be your wife,” silver of hatred upon her head (and) her mohar (brideprice) will be forfeit. She shall place upon the balance scale and give her husband Ananiah silver, 7 shekels, [2] q(uarters), and go out from him with the rest of her money and her goods and her property, [valued] (in) silver (at) 6 karsh, 8 [shekels], 5 h(allurs), and the rest of her goods which are written (above). He shall give her on [1] da[y] at 1 stroke and she may go to her father’s house.[7]

In this marriage contract, the hatred of either spouse for the other is more than just a feeling, but a declaration that brings with it a required payment, and freedom of the woman to leave and return to her father’s house. Alejandro Botta interprets the documents to be about divorce; declaring that one hates one’s spouse is akin to demanding the dissolution of the marriage.^[8]

In contrast, Zvi Szubin and Bezalel Porten suggest that the term for “hate” here indicates a demotion for a woman from first-ranking wife to second-ranking wife; and that she receives compensation for this if it is based on his request, and he receives compensation if it is based on hers.^[9]

Ranking Wives

When a man had more than one wife in the ancient Near East, he typically considered one to be his wife of first rank, and he had the liberty of promoting and demoting his wives as he chose. To be first-ranking wife typically meant having more privileges than any other wife in the household: more rations and resources, better living arrangements, more frequent interactions (social and sexual) with the husband, and sometimes more privileges for her children.^[10] A Babylonian marriage agreement from the Persian period reveals the husband’s rights in this regard.^[11]

(Three brothers) voluntarily gave their sister Nabê-ḫinnī to Aqrâ as a wife. As for the children that Nabê-ḫinnī bears for Aqrâ, the male children will go with Aqrâ to his father's house.... If he takes a second wife, Nabê-ḫinnī is (still) the first-ranking wife.

The contract includes a special provision to ensure that Nabê-ḫinnī will retain her status of first rank even if Aqrâ decides to marry a second wife. Without this provision, Aqrâ could indeed demote Nabê-ḫinnī if he so desired.^[12]

The Demotion of Leah?

The ranking of wives explains what the Torah means by Leah being “hated.” She began as Jacob’s only wife but is demoted only a week later, without grounds, when Jacob marries her sister Rachel:

^{בראשית כט:ל} וַיָּבֹא גַּם אֶל רָחֵל וַיֶּאֱהַב גַּם אֶת רָחֵל מִלֵּאָה... ^כט:לא וַיַּרְא יְ־הוָה כִּי שְׂנוּאָה לֵאָה... ^כט:לב וַתַּהַר לֵאָה וַתֵּלֶד בֵּן וַתִּקְרָא שְׁמוֹ רְאוּבֵן כִּי אָמְרָה כִּי רָאָה יְ־הוָה בְּעָנְיִי כִּי עַתָּה יֶאֱהָבַנִי אִישִׁי. ^כט:לג וַתַּהַר עוֹד וַתֵּלֶד בֵּן וַתֹּאמֶר כִּי שָׁמַע יְ־הוָה כִּי שְׂנוּאָה אָנֹכִי וַיִּתֶּן לִי גַּם אֶת זֶה וַתִּקְרָא שְׁמוֹ שִׁמְעוֹן.

^{Gen 29:30} So he went in to Rachel also, and he loved Rachel more than Leah… ^29:31 And YHWH saw that Leah was the hated one… ^29:32 And Leah conceived and bore a son, and she named him Reuben. For she said, “Because YHWH saw my affliction. Surely now, my husband will love me.” ^29:33 And she once again conceived and bore a son. And she said, “Because YHWH heard that I am the hated one, he gave this son to me as well.” And she named him Simeon.

When Leah says, “Surely now, my husband will love me,” she expects that she will regain the status of first rank as the loved wife.^[13] And when she gives birth to Simeon, she openly acknowledges that she still occupies the position of the demoted wife, the “hated one.”

The Firstborn Son of a “Hated” Wife

The hated wife is also found in the context of the laws of inheritance:

^{דברים כא:טו} כִּי תִהְיֶיןָ לְאִישׁ שְׁתֵּי נָשִׁים הָאַחַת אֲהוּבָה וְהָאַחַת שְׂנוּאָה וְיָלְדוּ לוֹ בָנִים הָאֲהוּבָה וְהַשְּׂנוּאָה וְהָיָה הַבֵּן הַבְּכוֹר לַשְּׂנִיאָה. ^כא:טז וְהָיָה בְּיוֹם הַנְחִילוֹ אֶת בָּנָיו אֵת אֲשֶׁר יִהְיֶה לוֹ לֹא יוּכַל לְבַכֵּר אֶת בֶּן הָאֲהוּבָה עַל פְּנֵי בֶן הַשְּׂנוּאָה הַבְּכֹר. ^כא:יז כִּי אֶת הַבְּכֹר בֶּן הַשְּׂנוּאָה יַכִּיר לָתֶת לוֹ פִּי שְׁנַיִם בְּכֹל אֲשֶׁר יִמָּצֵא לוֹ כִּי הוּא רֵאשִׁית אֹנוֹ לוֹ מִשְׁפַּט הַבְּכֹרָה.

^{Deut 21:15} If a man has two wives, one loved and one hated, and the loved and hated wife both bear sons for him, and the firstborn son is that of the hated one, ^21:16 then on the day when he bequeaths his goods to his sons, he shall not be able to make the son of the loved wife the firstborn in place of the son of the hated wife, the (true) firstborn. ^21:17 For he must treat the son of the hated wife as the firstborn, giving him a double share of all that he has. Because he is the first of his virility, the right of the firstborn is his.^[14]

Deuteronomy’s law is in conversation with ancient Near East practice, which, despite the default practice of granting the eldest son a larger inheritance portion—twice that of his younger brothers^[15]—gave fathers the right to divide their property among their heirs however they saw fit.^[16] In other words, they could designate a younger son as “the eldest” or “firstborn.”

In a will from the site of Nuzi in northern Iraq,^[17] a man named Zigi, who already has sons, marries a new wife, Šuwarḫepa, and promises that her first son will become Zigi’s primary heir:

Thus says Zigi: “If Šuwarḫepa bears sons, then the oldest son of Šuwarḫepa will take an inheritance share as my oldest son. He will take a double share. The other sons of Šuwarḫepa will take an inheritance share together with the other sons of Zigi according to their rank.”

Regarding the law in Deuteronomy, the late Isaac Mendelsohn of Columbia University, writing in 1938, argued that “the innovation in this law is the abrogation of the arbitrary power of the father to choose a firstborn.”^[18] Similarly, Tikva Frymer-Kensky (1943–2006) of Reconstructionist Rabbinical College and the University of Chicago, interpreted the text as “prohibit[ing] a man from making the first-born of his favored wife his first-born; instead, it demands that the first to be born be made the first-born.”^[19]

These interpretations, however, read the description of “loved” and “hated” wife as if the authors are merely painting the narrative picture of why the man wishes to change which son inherits double. I suggest, however, that these terms are being used in their legal and specific sense, that the law is penalizing a man who “hates,” i.e., demotes his wife.

Penalty for Hating

In the ancient Near East, acting based on “hatred” could come with a penalty. For example, the Laws of Eshnunna deal with a man who has been away from the city for a long time and his wife, in the meantime, married another man. If he is forced to leave the city, he gets her back, but if he leaves the city because “he hates it,” he is at fault, and loses the privilege of keeping his wife:

^{LE §29} If a man should be captured or abducted during a raiding expedition or while on patrol, even should he reside in a foreign land for a long time, should someone else marry his wife and even she should bear a child, whenever he returns, he shall take back his wife. ^§30 If a man hates (izērma) his city and his lord and flees, and another marries his wife, when he returns, he shall not have a claim to his wife.

The same law appears in Hammurabi:

^{LH §135} If a man should be captured and there are not sufficient provisions in his house, before his return his wife enters another’s house and bears children, and afterwards her husband returns and gets back to his city, that woman shall return to her first husband; the children shall inherit from their father. ^§136 If a man deserts his city and flees, and after his departure his wife enters another’s house—if that man then should return and seize his wife, because he hated (izēruma) his city and fled, the wife of the deserter will not return to her husband.

Thus, we see that abandoning one’s wife out of hate—in this case, hate for the city—ends in a penalty clause, loss of the privilege to have her back when he returns.

Penalty for False Charges Due to Hate

Another example of a penalty clause for a man who hates his wife is the law of the newly married husband who brings false charges against his new wife for no reason:

^{דברים כב:יג} כִּי יִקַּח אִישׁ אִשָּׁה וּבָא אֵלֶיהָ וּשְׂנֵאָהּ. ^כב:יד וְשָׂם לָהּ עֲלִילֹת דְּבָרִים וְהוֹצִא עָלֶיהָ שֵׁם רָע וְאָמַר אֶת הָאִשָּׁה הַזֹּאת לָקַחְתִּי וָאֶקְרַב אֵלֶיהָ וְלֹא מָצָאתִי לָהּ בְּתוּלִים.

^{Deut 22:13} If a man takes a wife and sleeps with her, but then hates her ^22:14 and brings charges against her and causes an evil name to come upon her, saying, “I married this woman, but when I approached her, I did not find in her the signs of virginity.”

The charges are fabricated, however, as the parents prove by bringing the evidence of virginity in the to the town elders (v. 15). Then the father states for the record that the real problem is that the man hates his daughter:

^{דברים כב:טז} וְאָמַר אֲבִי (הנער) [הַנַּעֲרָה] אֶל הַזְּקֵנִים אֶת בִּתִּי נָתַתִּי לָאִישׁ הַזֶּה לְאִשָּׁה וַיִּשְׂנָאֶהָ.

^{Deut 22:16} The father of the young woman shall say to the elders: “I gave my daughter in marriage to this man, but he hates her…

The parents then prove that the charges are false (v. 17), and the elders then punish the man with a fine. In addition, they take away his right to ever divorce this woman:

^{דברים כב:יח} וְלָקְחוּ זִקְנֵי הָעִיר הַהִוא אֶת הָאִישׁ וְיִסְּרוּ אֹתוֹ. ^כב:יט וְעָנְשׁוּ אֹתוֹ מֵאָה כֶסֶף וְנָתְנוּ לַאֲבִי הַנַּעֲרָה כִּי הוֹצִיא שֵׁם רָע עַל בְּתוּלַת יִשְׂרָאֵל וְלוֹ תִהְיֶה לְאִשָּׁה לֹא יוּכַל לְשַׁלְּחָהּ כָּל יָמָיו.

^{Deut 22:18} The elders of that town shall take the man and punish him; ^22:19 they shall fine him one hundred shekels of silver (which they shall give to the young woman’s father) because he has slandered a virgin of Israel. She shall remain his wife; he shall not be permitted to divorce her as long as he lives.

The man did not have a legitimate claim against the woman but pretended that he did. Because his claim was baseless, the biblical text can say that the man “hated” his wife. As a consequence, he loses his right to divorce.

Penalty for No-Fault Demotion

As noted, the term “hate” in Deuteronomy’s law of inheritance refers to a no-fault demotion. Just as husbands who “hated” and divorced their wives forfeit their right to the dowry in the Elephantine marriage contracts,^[20] the husband who demotes his wife without grounds in Deuteronomy forfeits the right to give the status of firstborn to a younger son. Elevating a younger son would thereby demote the eldest son, without any justification, to a lower status—thereby limiting his inheritance to a much smaller share of the estate than he was originally entitled to.^[21]

Logically, then, if a man has not arbitrarily demoted a wife, he is free to choose a younger son of any wife as his primary heir. The man is allowed to either demote his wife or demote his son; he can’t do both.