סמכות רבנית כרך ה, סוף דברRabbinic Authority V, Epilogue
א׳
1In the wake of rabbi or a beit din’s inability to persuade a husband to give a get to his wife, there are various techniques, one of them dating back to early thirteenth century Ashkenaz, which empower halakhic authorities under certain conditions to free a wife to remarry without the issuance of a get by her husband.1See this monograph and this writer’s Rabbinic Authority: The Vision and the Reality, vol. 3, 134–176, 231–269, 294–333; vol. 4, 143–297. Yet as we have noted elsewhere,2Rabbinic Authority, vol. 3 supra n. 1, 14–16, 134, 140, n. 8. there are decisors who are reluctant to void a marriage.
ב׳
2Addressing a situation of an agunah who requests that her marriage be voided due to the fact that both witnesses during the kiddushin were invalid, as they violated the Shabbat and committed other sins, following implicitly earlier rulings, Rabbi Aharon Walkin, who resided in Pinsk-Karlin, Ukraine, responds to such a petition in the most trenchant terms:3Teshuvot Zekan Aharon 1:81.
ג׳
3It is improper in my eyes to adopt this path, to criticize the act of kiddushin eight years after the wedding. . . . You must understand that such advice can destroy the purity of Israel . . . to multiply mamzerim in the midst of a holy nation; the marital bond from now will not be sustained. . . . And the stringency of being married will be nullified. . . . Therefore, eight years after the wedding . . . we should not inquire for guidance to void the marriage. . . .
ד׳
4His view is by far not one of “a lone ranger”. Concerned about “the slippery slope,” Rabbi Hayyim Berlin, the son of the renowned Rabbi Naftali Tzvi Berlin, lambasts those arbiters who engage in voiding a marriage (bittul kiddushin) via invoking a clear expectation (umdana de’mukha), by stating the following:4Teshuvot Nishmat Hayyim 87. See also Teshuvot Nishmat Hayyim 128–129. For other arbiters who advances the same argument for opposing the implementation of a clear expectation as a means to void a marriage, see Teshuvot Helkat Ya’akov EH 85; Teshuvot Meil Tzadakah 4; Teshuvot Matteh Aharon 1:41.
ה׳
5One cannot imagine the damage and the breaches that can emerge from this in our dissolute generation . . . they will begin comparing one matter to another one – in the beginning, they will permit based upon umdanot (assessed expectations) . . . they will permit (to remarry) every wife whose husband who has traveled overseas to America or Africa. . . . And afterwards they will permit . . . if a person will promise a certain amount of nedunya (dowry) and subsequently it will be discovered . . . that he cannot keep his promise, they will say, “in her mind she would not have submitted to this marriage” . . . and mamzerim will multiply in Israel.
ו׳
6Finally, in situations where a husband fails to disclose to his prospective spouse prior to the marriage that he possesses a major defect, such as being impotent or being gay, these authorities will direct the husband to give a get on rabbinic grounds lest people would err, thinking that a married woman leaves her husband without the execution of a get.5Ketuvot 73b; Lehem Mishneh, MT, Ishut 4:10; Teshuvot Ahiezer 1, EH 27; Teshuvot Ein Yitzhak 1, EH 24. In other words, they will not know that the voiding of the marriage in the particular case was due to an error and therefore that execution of a get is otherwise required. Clearly, based upon this line of reasoning, some decisors may equally oppose utilizing the techniques of the double doubt as well as “a clear expectation” (umdana de’mukha) of the wife to void a marriage involving a get recalcitrant husband.
ז׳
7In the wake of this strident opposition to voiding marriages, it is unsurprising to encounter today numerous rabbis and rabbinical courts throughout the world that endorse this halakhic tradition, and staunchly refuse to void marriages. The net result is that there are many women, whether they are Orthodox, Conservative, Reform or unaffiliated Jews, who remain victims of get recalcitrance. Though many of these women remain committed to their values and continue to live for years exhibiting fidelity to their estranged spouses, regretfully others become irreligious and engage in promiscuity.
ח׳
8In light of the Orthodox rabbis and rabbinic courts who adopt the posture that voiding a marriage is not an option for addressing the plight of the agunah, what can be done to deal with the plight of the agunah? As we will see, both the rabbis as well as the rabbinical courts may be capable of improving the state of affairs, namely, the husband’s willingness to give the get or the wife’s readiness to receive a get without deliberating as to whether there is a possibility to void a marriage.
ט׳
9For many years, we have observed situations where a recalcitrant spouse chooses to condition the giving or the acceptance of a get upon a prior resolution of all end of marriage matters such as dividing marital assets, parenting and custody arrangements, child support and the execution of a civil divorce. Regretfully, on at least two occasions, there is one beit din located in Monsey, New York which has allegedly given the dispensation of 100 rabbis (heter me’ah rabbanim) enabling a get recalcitrant husband to marry a second wife. In both situations, a get has been deposited at the beit din and would be given to the wife on the condition that the husband’s demands regarding custody and renumeration of hundreds of thousands dollars would be met. Given that in both cases, the wife wants to receive her get, in accordance with the views of Rabbis Elyashiv and Feinstein one cannot place any obstacles in her receiving her sought after get and consequently there is no basis for such a dispensation.6Yi’sa Yosef, EH 8; Iggerot Moshe EH 4:3. Such conduct raises a variety of halakhic issues which we will address here in the context of get recalcitrance on the part of the husband.
י׳
10To understand the ramifications of conditioning the giving of a get, let me share a few cases that I have encountered in recent years in my work as a dayan (a rabbinic arbitrator).
י״א
11A couple has been separated for over eighteen years. Approximately a dozen years ago, a civil divorce was executed. To this day, the defendant has made the giving of a get conditional upon the withdrawal of the plaintiff’s threat to file a claim in civil court for the defendant’s failure to pay alimony by executing a post-divorce agreement that states that the parties mutually agreed that all of their end of marriage matters have been resolved. Given that the plaintiff refuses to accede to his request, she remained an agunah until we recently freed her. Such egregious conduct is not an isolated incident. In another case, after ten years of litigation in civil court followed by the subsequent issuance of a civil divorce, the wife then received her get. The delay in resolving the end of marriage matters such as the division of marital assets and alimony was due to the fact that on numerous occasions, the husband changed his attorney. In other scenarios, albeit very common ones, from the time of the onset of litigation in a civil court, the process generally takes one to two years to be completed before a civil divorce has been executed, and only then does the wife receive her get.
י״ב
12During this period of litigation, many American rabbinical courts do not address whether there is a duty of the husband to give a get to his wife. Halakhah recognizes two distinct grounds for obligating a get. Firstly, as we know, whether a husband is obligated to give a get, generally speaking, hinges upon whether there exists an ilat gerushin, a ground for divorce which would require a man to give a get. These grounds for divorce may be subdivided into two categories. One category is a wife’s physical defect such as the inability to conduct conjugal relations with her husband, such as being afflicted by a contagious and/or dangerous disease or by dint of her revulsion of his body odor which is linked to his occupation.7Ketuvot 77a; Yevamot 65b. On the other hand, a husband’s inappropriate behavior may serve as a justification for divorce. For example, spousal rape, refusal to cohabitate with his wife, physical and/or emotional divorce of his wife, or refusal to financially support her may serve under certain conditions as a claim for coercing or obligating a husband to give a get.8SA EH 76:1, 154:1, 6; Rema SA EH 154:3. Secondly, according to various decisors, a get ought to be given in the wake of a couple being separated for over a year or eighteen months where there are no prospects for marital reconciliation (shalom bayit).9Rabbeinu Yeruham, Sefer Meisharim Netiv 23, Helek 8; Teshuvot Radakh, Bayit 3, s.v. u’le’ravha; Teshuvot Hayyim ve-Shalom 2:112; Teshuvot Shem Aryeh EH 8; Teshuvot Iggerot Moshe YD 4:15 (2). Should a beit din obligate a get based upon a marital separation of one year or eighteen months and should a husband fail to comply with the ruling or a divorce judgment based upon one of the grounds for divorce, the wife is to be identified as a mesurevet get and therefore a chained woman (an agunah). In such a situation, the identification of the woman as an agunah may serve as grounds to compel or obligate a husband to give a get. See this writer’s, Rabbinic Authority, vol. 3, 328–333.
Some contend that even if a particular get that was received by the wife poses certain halakhic issues and the husband demands money from his wife in order to execute a second get, since there is a fear that she will be without a get “many days,” she is to be labeled an agunah. See Teshuvot Pnei Yehoshua EH 80; Teshuvot Simhat Yom Tov 12; Teshuvot Maharsham 3:251 (1). In other words, the absence of having a get for a short period of time may label the woman as an agunah. In other words, though the absence of having a get for a short period of time may label the woman as an agunah, nevertheless it is a label bereft of any halakhic consequences regarding leniency. Numerous contemporary Israeli rabbinical courts adopt this position.10Piskei Din Rabbanayim (hereinafter: PDR) 7:112–113, 11:364, 12:193–203, 13:267, 14:183, 194; 19:52; File no. 4276-63, Beit Din ha-Rabbani ha-Gadol, November 11, 2003; File no. 3599-22-1, Tiberias Regional Beit Din, Plonit v. Ploni, November 24, 2004 (R. Yoezer Ariel’s opinion); File No. 7479-21-1, Tel Aviv-Yaffo Regional Beit Din, November 18, 2007; File no. 8801-21-1, Tel Aviv Regional Beit Din, June 24, 2009; File no. 289477/1, Netanya Regional Beit Din, December 28, 2010; File no. 842462/1, Netanya Regional Beit Din, January 16, 2012; File no. 248769/3, Netanya Regional Beit Din, Ploni v. Plonit, May 16, 2012; File no. 587739-6, Haifa Regional Beit Din, July 17, 2012; File no. 289799-1, Netanya Regional Beit Din, Ploni v. Plonit, January 2, 2013; File no. 862233-1, Tiberias Regional Beit Din, Plonit v. Ploni, January 8, 2013; File no. 901912/1, Haifa Regional Beit Din, May 7, 2013; File no. 8426111, Ashdod Regional Beit Din, Plonit v. Ploni, June 10, 2013 (R. Avraham Atiyah’s opinion); File no. 284462-9, Netanya Regional Beit Din, May 14, 2014; File no. 764231-6, Haifa Regional Beit Din, May 25, 2014; File no. 869531/2, Netanya Regional Beit Din, July 31, 2014; File no. 849440/19, Tel Aviv-Yaffo Regional Beit Din, July 14, 2015; File no. 847350/3, Beit Din ha-Rabbani ha-Gadol, July 27, 2015; File no. 146033/11, Beit Din ha-Rabbani ha-Gadol, June 21, 2016; File no. 1066559/1, Yerushalayim Regional Beit Din, October 30, 2016; File no. 1043346/1, Tel Aviv-Yaffo Regional Beit Din, May 8, 2017; File no. 865704/1, Tzfat Regional Beit Din, May 8, 2017; File no. 1011050/3, Tel Aviv-Yaffo Regional Beit Din, October 24, 2017; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018; File no. 1063300/10, Beit Din ha-Rabbani ha-Gadol, April 13, 2018; File no. 905329/1, Tel Aviv-Yaffo Regional Beit Din, March 31, 2019; Teshuvot Yabia Omer 3, EH 18 (13); Teshuvot Ateret Devorah 2, EH 89. Clearly, these American rabbinical courts may be espousing the opinion of others who argue that “a dead marriage” per se will not serve as grounds for obligating the husband to deliver a get to his wife.11Teshuvot Divrei Malkiel 3:144–145; Teshuvot Divrei Shmuel 3:145; Teshuvot ha-Gaon Avraham Herzog EH 154; A. Herzog, Pesakim u-Ketavim 7:133–134; Teshuvot Tzitz Eliezer 6:42, 17:52; Teshuvot Shema Shlomo 3, EH 19; PDR 1:162, 4:112, 7:108–109, 112–113, 9:200, 211–212, 10:173, 11:362, 364; 12:206, 13:360, 14:183, 193; File no. 4827-21-2, Beit Din ha-Rabbani ha-Gadol, (R. Izirer’s opinion), July 3, 2005; File no. 172-21-1, Beit Din ha-Rabbani ha-Gadol, February 18, 2009; File no. 1750-21-1, Beit Din ha-Rabbani ha-Gadol, (R. Izirer’s opinion), May 5, 2009; File no. 290506/1, Netanya Regional Beit Din, November 21, 2010; File no. 77890/5, Be’air Sheva Regional Beit Din, May 29, 2014; File no. 698719/15, Yerushalayim Regional Beit Din, July 26, 2015; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018 (a supporting argument); File no. 1147208/2, Beit Din ha-Rabbani ha-Gadol, July 2, 2018. As such, they generally refrain from issuing a divorce judgment based upon irretrievable marital breakdown. Yet, generally they equally refrain from rendering a divorce decision stemming from a ground for divorce.
Some contend that even if a particular get that was received by the wife poses certain halakhic issues and the husband demands money from his wife in order to execute a second get, since there is a fear that she will be without a get “many days,” she is to be labeled an agunah. See Teshuvot Pnei Yehoshua EH 80; Teshuvot Simhat Yom Tov 12; Teshuvot Maharsham 3:251 (1). In other words, the absence of having a get for a short period of time may label the woman as an agunah. In other words, though the absence of having a get for a short period of time may label the woman as an agunah, nevertheless it is a label bereft of any halakhic consequences regarding leniency. Numerous contemporary Israeli rabbinical courts adopt this position.10Piskei Din Rabbanayim (hereinafter: PDR) 7:112–113, 11:364, 12:193–203, 13:267, 14:183, 194; 19:52; File no. 4276-63, Beit Din ha-Rabbani ha-Gadol, November 11, 2003; File no. 3599-22-1, Tiberias Regional Beit Din, Plonit v. Ploni, November 24, 2004 (R. Yoezer Ariel’s opinion); File No. 7479-21-1, Tel Aviv-Yaffo Regional Beit Din, November 18, 2007; File no. 8801-21-1, Tel Aviv Regional Beit Din, June 24, 2009; File no. 289477/1, Netanya Regional Beit Din, December 28, 2010; File no. 842462/1, Netanya Regional Beit Din, January 16, 2012; File no. 248769/3, Netanya Regional Beit Din, Ploni v. Plonit, May 16, 2012; File no. 587739-6, Haifa Regional Beit Din, July 17, 2012; File no. 289799-1, Netanya Regional Beit Din, Ploni v. Plonit, January 2, 2013; File no. 862233-1, Tiberias Regional Beit Din, Plonit v. Ploni, January 8, 2013; File no. 901912/1, Haifa Regional Beit Din, May 7, 2013; File no. 8426111, Ashdod Regional Beit Din, Plonit v. Ploni, June 10, 2013 (R. Avraham Atiyah’s opinion); File no. 284462-9, Netanya Regional Beit Din, May 14, 2014; File no. 764231-6, Haifa Regional Beit Din, May 25, 2014; File no. 869531/2, Netanya Regional Beit Din, July 31, 2014; File no. 849440/19, Tel Aviv-Yaffo Regional Beit Din, July 14, 2015; File no. 847350/3, Beit Din ha-Rabbani ha-Gadol, July 27, 2015; File no. 146033/11, Beit Din ha-Rabbani ha-Gadol, June 21, 2016; File no. 1066559/1, Yerushalayim Regional Beit Din, October 30, 2016; File no. 1043346/1, Tel Aviv-Yaffo Regional Beit Din, May 8, 2017; File no. 865704/1, Tzfat Regional Beit Din, May 8, 2017; File no. 1011050/3, Tel Aviv-Yaffo Regional Beit Din, October 24, 2017; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018; File no. 1063300/10, Beit Din ha-Rabbani ha-Gadol, April 13, 2018; File no. 905329/1, Tel Aviv-Yaffo Regional Beit Din, March 31, 2019; Teshuvot Yabia Omer 3, EH 18 (13); Teshuvot Ateret Devorah 2, EH 89. Clearly, these American rabbinical courts may be espousing the opinion of others who argue that “a dead marriage” per se will not serve as grounds for obligating the husband to deliver a get to his wife.11Teshuvot Divrei Malkiel 3:144–145; Teshuvot Divrei Shmuel 3:145; Teshuvot ha-Gaon Avraham Herzog EH 154; A. Herzog, Pesakim u-Ketavim 7:133–134; Teshuvot Tzitz Eliezer 6:42, 17:52; Teshuvot Shema Shlomo 3, EH 19; PDR 1:162, 4:112, 7:108–109, 112–113, 9:200, 211–212, 10:173, 11:362, 364; 12:206, 13:360, 14:183, 193; File no. 4827-21-2, Beit Din ha-Rabbani ha-Gadol, (R. Izirer’s opinion), July 3, 2005; File no. 172-21-1, Beit Din ha-Rabbani ha-Gadol, February 18, 2009; File no. 1750-21-1, Beit Din ha-Rabbani ha-Gadol, (R. Izirer’s opinion), May 5, 2009; File no. 290506/1, Netanya Regional Beit Din, November 21, 2010; File no. 77890/5, Be’air Sheva Regional Beit Din, May 29, 2014; File no. 698719/15, Yerushalayim Regional Beit Din, July 26, 2015; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018 (a supporting argument); File no. 1147208/2, Beit Din ha-Rabbani ha-Gadol, July 2, 2018. As such, they generally refrain from issuing a divorce judgment based upon irretrievable marital breakdown. Yet, generally they equally refrain from rendering a divorce decision stemming from a ground for divorce.
י״ג
13Even assuming a beit din would hand down a divorce decision that obligates a husband to give a get, and, assuming the husband readily agrees, can a get be properly executed while resolution of other end of marriage matters are still pending? In other words, the emerging issue is whether all the end of marriage issues, such as awarding the value of the ketubah, parenting arrangements, child support and the division of marital assets must be resolved prior to the execution of the get.12For a lively exchange regarding this matter, see R. Menashe Klein and R. Shimon Ya’acobi, “The giving of a get and financial arrangements: which precedes the other?” (Hebrew), 22 Tehumin (5762), 157–183. Many American rabbinical courts (battei din), as well as American Orthodox rabbis, will counsel their clientele and constituency respectively that a get must be given only after all end of marriage issues have been resolved and/or a civil divorce has been executed. Consequently, it is unsurprising to encounter situations such as the ones described above in which a wife remains halakhically married to her spouse despite the fact that there has been longstanding marital breakdown and separation, a period marked by the absence of conjugal relations, no spousal support, and no prospects for marital reconciliation accompanied by years of divorce litigation. Yet, relying upon the aforesaid rabbinic counsel under such circumstances, the woman has no realistic expectation that the get will be forthcoming in an expeditious fashion.
י״ד
14The question is whether there is a basis for such a halakhic posture. Relying upon Mahari Mintz’s guidelines for executing a get, Rema states:13Rema SA EH 154, Seder ha-Get 81.
ט״ו
15And the scholar who is preparing the execution of the get says to her: “Please know that you will be divorced with this get from your husband.” And the rabbi will inquire after the ketubah (the husband paying the value of the ketubah – AYW) that the husband will return the (value of the – AYW) ketubah or she will waive her right to it lest they start quarrelling due to the (value of the – AYW) ketubah with the result that the husband will say, “on this condition I didn’t divorce her.”
ט״ז
16As such, given that that the get was given in error (a get mut’eh – AYW), the consequence will be a retroactive annulment of the get. Other authorities, albeit only a few, agree with this position.14Teshuvot Maharam of Lublin 122; Mishkenot Ya’akov EH 34; Levush EH 123–125; Teshuvot Amek Sheilah EH 116; Teshuvot Helkat Yoav EH 25.
Other decisors adopt this approach on the condition that the husband was misled prior to the giving the get and he was under the impression at that time that everything was to materialize as mutually agreed upon. See Teshuvot Noda be-Yehudah, Mahadura Kama, EH 11; Teshuvot Helkat Yo’av EH 25; Erekh Shai EH 134; Teshuvot Malbushei Yom Tov 2 EH 7; Teshuvot Hesed le-Avraham, Mahadura Kama EH 42.
Other decisors adopt this approach on the condition that the husband was misled prior to the giving the get and he was under the impression at that time that everything was to materialize as mutually agreed upon. See Teshuvot Noda be-Yehudah, Mahadura Kama, EH 11; Teshuvot Helkat Yo’av EH 25; Erekh Shai EH 134; Teshuvot Malbushei Yom Tov 2 EH 7; Teshuvot Hesed le-Avraham, Mahadura Kama EH 42.
י״ז
17Addressing this minority view, Taz notes that it was rejected:15Taz, SA EH 145:6.
י״ח
18And it is not on the side of truth and that nearly all rabbis have already disagreed with it, and forcefully rejected it.
י״ט
19Explaining this view, Rabbi Ya’akov Ettlinger writes:16Teshuvot Binyan Tzion 144.
כ׳
20Since not everyone is versed in Halakhah, Rabbi Mintz argues that there will always be slander if the husband shouts that he divorced her in error and therefore the get is null and her children will be halakhic bastards (mamzerim), even though the truth is otherwise.
כ״א
21Based upon the fear of a wrongful get, we can understand the position that all end of marriage issues ought to be resolved prior to executing a get.
כ״ב
22However, the majority of authorities argue, explicitly or implicitly, that the get procedure (the seder ha-get) entails a husband’s nullification of all prior conditions (bittul moda’ot).17Beit Shmuel, SA EH 145:16; Teshuvot Ma’sat Binyamin 76; Teshuvot Bah ha-Hadashot 90–91; Sema and Levush, Bah ha-Hadashot, ibid. Teshuvot Tzemah Tzedek EH 290:1; Noda be-Yehudah, supra n. 14; Beit Meir EH 145:9; Avnei Mi’luim 10:2; Teshuvot Mahariz Enzel 81; Teshuvot Divrei Hayyim 1:84; Arukh ha-Shulhan EH 145:30; Teshuvot Oneg Yom Tov 154. For additional decisors who ascribe to this position, see Teshuvot Ateret Devorah 2:86.
For the requirement of nullifying all pre-existing conditions prior to a husband’s giving of the get, see SA EH 134:1–3; Rema ad locum.
Absent a clear stipulation during this procedure that the get is conditional upon a wife’s compliance of a particular condition(s), a husband is preempted from contending that it was an erroneous divorce due to the fact that his wife reneged on an earlier commitment concretized in a divorce agreement, or that had he known that a particular matter which was resolved after the execution of a get was to his detriment, he never would have divorced her. See Tosafot Gittin 46a; Teshuvot ha-Rivash ha-Hadashot 10; Teshuvot Maharam Alsheikh 78; Teshuvot Maharshal 25; Teshuvot Ein Yitzhak EH 2:37 (4); Teshuvot Ridvaz 1:83; Teshuvot Maharit EH 13. Cf. Teshuvot Maharam of Lublin 122; Teshuvot Mishkenot Ya’akov EH 34. Consequently, there is no basis for a husband claiming that it was an erroneous divorce due to the fact that his wife reneged on an earlier commitment concretized in a divorce agreement, or that had he known that a particular matter which was resolved after the execution of a get was to his detriment, he never would have divorced her.
For the requirement of nullifying all pre-existing conditions prior to a husband’s giving of the get, see SA EH 134:1–3; Rema ad locum.
Absent a clear stipulation during this procedure that the get is conditional upon a wife’s compliance of a particular condition(s), a husband is preempted from contending that it was an erroneous divorce due to the fact that his wife reneged on an earlier commitment concretized in a divorce agreement, or that had he known that a particular matter which was resolved after the execution of a get was to his detriment, he never would have divorced her. See Tosafot Gittin 46a; Teshuvot ha-Rivash ha-Hadashot 10; Teshuvot Maharam Alsheikh 78; Teshuvot Maharshal 25; Teshuvot Ein Yitzhak EH 2:37 (4); Teshuvot Ridvaz 1:83; Teshuvot Maharit EH 13. Cf. Teshuvot Maharam of Lublin 122; Teshuvot Mishkenot Ya’akov EH 34. Consequently, there is no basis for a husband claiming that it was an erroneous divorce due to the fact that his wife reneged on an earlier commitment concretized in a divorce agreement, or that had he known that a particular matter which was resolved after the execution of a get was to his detriment, he never would have divorced her.
כ״ג
23Even if one adopts the majority opinion that opposes the retroactive annulment of a get due to a breach of the divorce agreement or the resolution of a matter to the husband’s detriment after the execution of the get, there is an additional reason that all matters must be resolved before the giving of a get. One arbiter states that with the advent of the execution of a Jewish divorce, “the husband and wife should not be bound by any connection or condition in the world,”18Teshuvot Mahari Mintz 123. which has been understood to mean that neither spouse should file any claim after the execution of the get, lest the couple remain susceptible to committing a sexual prohibition.19Ketuvot 27b; MT, Issurei Bi’ah 21:2, 27, Rabbi Menashe Klein, supra n. 12, 171; Teshuvot Mishneh Halakhot, Mahadura Tinyana 357.
כ״ד
24Upon a closer scrutiny of the Halakhah, we encounter a more nuanced approach to how a divorced couple ought to conduct themselves. On one hand, to avoid the engagement in intimate relations or even a suspicion thereof, an ex-husband shall refrain from living with her in the same courtyard, and to avoid social interaction, the couple ought not to proceed to a beit din proceeding together.20SA EH 119:7, 9; Beit Shmuel, ad locum 17. Nevertheless, if the husband appoints an agent to pursue a particular claim, no prohibition has been violated. See Rema, SA EH 119:8.
For the prohibition of a divorced couple to reside in the same apartment or home, see Tur EH 119 and SA EH 119:7–11. However, according to certain opinions, should he enter a home or her house by chance there is no prohibition, since he is not living there or interacting with her. And some adopt a stricter opinion, lest such meetings lead to the engagement in prohibitions.21Beit Yosef, Tur EH 119, Taz, SA EH 119:19. For decisors who sanction a divorcee’s entry into his ex-wife’s home for two or three hours for the purpose of discussing business matters, see Teshuvot Terumat ha-Deshen 243; Rema, supra n. 20; Helkat Mehokeik, SA EH 119:24; Pri Hadesh EH 119:22. Some interpret Rema’s position that such entry is contingent upon the presence of the wife’s new husband or other people. See Mahazit ha-Shekel, SA EH 119, Arukh ha-Shulhan EH 119:31, and Teshuvot Ranah 91.
For the prohibition of a divorced couple to reside in the same apartment or home, see Tur EH 119 and SA EH 119:7–11. However, according to certain opinions, should he enter a home or her house by chance there is no prohibition, since he is not living there or interacting with her. And some adopt a stricter opinion, lest such meetings lead to the engagement in prohibitions.21Beit Yosef, Tur EH 119, Taz, SA EH 119:19. For decisors who sanction a divorcee’s entry into his ex-wife’s home for two or three hours for the purpose of discussing business matters, see Teshuvot Terumat ha-Deshen 243; Rema, supra n. 20; Helkat Mehokeik, SA EH 119:24; Pri Hadesh EH 119:22. Some interpret Rema’s position that such entry is contingent upon the presence of the wife’s new husband or other people. See Mahazit ha-Shekel, SA EH 119, Arukh ha-Shulhan EH 119:31, and Teshuvot Ranah 91.
כ״ה
25On the other hand, to minimize interaction with one’s ex-spouse, should a wife have lent money to her ex-husband, she should appoint an agent to demand its return.22SA and Rema, SA EH 119:8. Similarly, an ex-husband may support his ex-wife on the condition that he refrains from interaction with her and that he appoints an agent to implement support measures.23Rema, SA EH 119:8.
כ״ו
26Consequently, it is unsurprising that there will be instances when the value of the ketubah will be paid to the wife after the get has been executed. As we know, accompanying a decision to obligate a get there is a judgment to obligate the husband to pay the value of the ketubah.24Teshuvot ha-Rashba 1:1192; Hiddushei ha-Ritva, Ketuvot 76a; Teshuvot ha-Rivash 127; Teshuvot Tashbetz 1:1; Rema SA EH 154:21; Teshuvot Maharalbah 33; Teshuvot Maharit 1:113; Teshuvot Maharbil 3:102; Bi’ur ha-Gra SA EH 154:69; Teshuvot Beit Meir 39. Though numerous legists argue that the value of the ketubah ought to be paid prior to executing the get,25Teshuvot ha-Rashba 1:1192, 1254; Teshuvot Tashbetz 1:1, 3:227; Rema, SA EH 154:21; Beit Shmuel SA EH 100:24, 119:6; Helkat Mehokeik SA EH 119:5; Pri Hadash SA EH 119:6; Teshuvot Yismah Lev EH 25 in the name of 26 authorities; Hazon Ish EH 69:13. there are decisors who allow the ketubah to remain a debt which can be paid by the husband after the get is executed.26Teshuvot ha-Rosh 42:1; Beit Yosef, Bedek ha-Bayit, Tur EH 119; Rema SA EH 119:6. Others argue that if the husband is giving the get voluntarily then the value of the ketubah must be paid prior to the divorce. However, if the beit din is obligating him to give a get then the value of the ketubah may be paid after the execution of the get.27Teshuvot ha-Tashbetz 4, Hut ha-Meshullash 1:4; Yad Aharon, ha-Gahot Beit Yosef 4; Helkat Mehokeik SA EH 119:5; Get Pashut 119:18; Pri Hadash, EH 119:6(8); Arukh ha-Shulhan EH 119:11–13; Teshuvot Yabia Omer 5, EH 1. Cf. Beit Shmuel SA EH 119:6. Finally, in a situation of a second marriage of spouses who despise each other, when there are no prospects for marital reconciliation and each one wants to be divorced, one may rely upon those authorities who argue that divorce ought to occur immediately and the value of the ketubah may be paid after the couple is halakhically divorced.28Beit Shmuel SA EH 119:6; Teshuvot ha-Ridvaz 3:566; Torot Emet 119:6; Teshuvot Lev Meivin EH 116; Teshuvot va-Yomeir Yitzhak EH 179. In sum, under certain circumstances a husband may pay the value of the ketubah after the execution of the get.
כ״ז
27In contemporary times, a cursory review of some of the rabbinical court judgments handed down by the courts under the Israeli Chief Rabbinate will show that in fact divorce judgments are rendered without being contingent upon a prior resolution of the outstanding financial issues and parenting arrangements of the divorcing couples. Regardless of whether the claims are being dealt with in beit din or in civil court, the beit din issued decisions which recommend, obligate or coerce the giving of the get.29Collection of the Rabbinical Court Decisions of the Chief Rabbinate in Israel, ed. Z. Warhaftig, 97; PDR 1:129, 4:68, 9:94; File no. 61/82, Beit Din ha-Rabbani ha-Gadol, 18 Sivan 5762 (unpublished decision); File no. 1-21-5035, Tel Aviv-Yaffo Regional Beit Din, January 21, 2005; File no. 1-21043387083, Tiberias Regional Beit Din, 28 Iyar 5764 (unpublished decision); File no. 1-21-022290027, Beit Din ha-Rabbani ha-Gadol, 12 Ellul 5764 (unpublished decision); File no. 47126/9, Ashkelon Regional Beit Din, June 18, 2012; File no. 289160/5, Netanya Regional Beit Din, September 19, 2012; File no. 901912/1, Haifa Regional Beit Din, May 7, 2013; File no. 927170/1, Tel Aviv-Yaffo Regional Beit Din, July 11, 2014; File no. 965579/2, Netanya Regional Beit Din, July 23, 2015; File no. 514847/9, Haifa Regional Beit Din, December 28, 2015; File no. 1097040/10, Haifa Regional Beit Din, November 6, 2017; File no. 8293/5, Ashdod Regional Beit Din, February 18, 2018; File no. 1103694/2, Yerushalayim Regional Beit Din, January 6, 2019; File no. 905329/1, supra n. 10; File no. 220814/10, Petah Tikva Regional Beit Din, March 27, 2019; File no. 1201519/5, Beit Din ha-Rabbani ha-Gadol, April 7, 2019; File no. 1150841/6. Haifa Regional Beit Din, July 3, 2019. For additional Israeli rabbinic court rulings, see this writer’s Rabbinic Authority, vol. 3, 61, n. 19.
For understanding these different types of divorce judgments, see infra n. 36. In fact, on January 26, 2020, I was invited to listen to five divorce cases at the Yerushalayim Regional Beit Din. In the midst of one of the cases where the parties were exchanging arguments regarding an end of a marriage issue, the beit din allotted time to execute the get procedure (seder haget) for this couple. By the end of the session, the discussion of the end of marriage matter by the parties was finished and the get had been given to the wife.
For understanding these different types of divorce judgments, see infra n. 36. In fact, on January 26, 2020, I was invited to listen to five divorce cases at the Yerushalayim Regional Beit Din. In the midst of one of the cases where the parties were exchanging arguments regarding an end of a marriage issue, the beit din allotted time to execute the get procedure (seder haget) for this couple. By the end of the session, the discussion of the end of marriage matter by the parties was finished and the get had been given to the wife.
כ״ח
28Rather than advising divorcing couples that the arrangement of the get may await the resolution of all their monetary issues either in a beit din or in civil court (halakhically sanctioned – heter ar’kaot) and the issuance of a civil divorce, American rabbinical courts and rabbis ought to follow the approach that once it is clear that there is a halakhic basis to give a get, its execution ought to transpire, and that any financial matters and parenting arrangements will be addressed afterwards.30See the addendum. Various contemporary dayanim have aptly noted that parenting arrangements that entail a third party’s interest, namely those of a child, and consequently may not serve as a reason to delay the execution of a get which focuses upon claims which directly relate to a divorcing spouse, such as the value of the ketubah and the division of marital assets. See S. Landesman, “Can a husband who is obligated to grant a divorce impose conditions?” (Hebrew), 2 Divrei Mishpat 145, 151–152; S. Daichovsky, “A husband who makes the granting of a divorce contingent on cancellation of his previous obligations,” (Hebrew), 26 Tehumin 149, 157 (2005); File no. 029612306-68-1, Beit Din ha-Rabbani ha-Gadol, July 17, 2007, ha-Din veha-Dayan, gilyon 19, 4–5; File no. 863382/4, Beit Din ha-Rabbani ha-Gadol, unpublished decision, November 9, 2013.
For an extensive analysis of the propriety of a conditional divorce in the wake of a beit din obligating a get, see this writer’s Rabbinic Authority, vol. 3, 55–81. See also Iggerot Moshe YD 4:15. In recent years, Rabbi Feinstein’s posture has been subscribed to by numerous Israeli rabbinical court decisions. For one of the most recent endorsements, see File no. 975408/1, Netanya Regional Beit Din, April 28, 2019.
For an extensive analysis of the propriety of a conditional divorce in the wake of a beit din obligating a get, see this writer’s Rabbinic Authority, vol. 3, 55–81. See also Iggerot Moshe YD 4:15. In recent years, Rabbi Feinstein’s posture has been subscribed to by numerous Israeli rabbinical court decisions. For one of the most recent endorsements, see File no. 975408/1, Netanya Regional Beit Din, April 28, 2019.
כ״ט
29In effect, the American Orthodox rabbinic network ought to adopt the protocols employed by Israel’s Chief Rabbinate rabbinical court which has been described in the following fashion:31Rabbi Shimon Ya’acobi, supra n. 12, 160.
ל׳
30The common practice in the rabbinical courts in Israel is that before the giving of a get, the beit din which executes the get (the mesadeir ha-get – AYW) informs the husband that he should know that there is no connection between the financial matters which were resolved and concretized in an agreement which was signed and reviewed by the beit din . . . and the get. And the husband should be aware that if the wife breaches the entire agreement or portions of it, he still is giving the get voluntarily . . . unconditionally and he cannot say (due to the breach – AYW) I have not divorced her . . . Only after he understands and affirms his agreement, the beit din executes the get.
The rabbinical courts make every effort to persuade the parties to resolve all the monetary issues and children (parenting arrangements – AYW) prior to the get. However, there are instances where it is impossible (to finalize these matters – AYW). . . . In such cases, the beit din agrees that each party shall retain its right to file a claim, and they warn the husband that he is giving the get unconditionally even if it emerges that he erred. Namely, a claim that he intended to submit against his wife was ultimately rejected in a proceeding which took place after the get, or a claim was advanced by the wife which he thought she would never succeed according to Halakhah (or secular law if the claim is occurring in a civil court – AYW), yet she won the suit. . . .
This “etched in stone” (“nehe’retzet” – AYW) determination that all financial matters are to be completed prior to the get is a stringency that may potentially lead to a leniency. . . . Delaying the arrangement of the get by a beit din when the parties are agreeable in order to wait until the monetary claims and children are completed . . . will cause many stumbling-blocks of remaining a married woman (potential of incestuous relationships – AYW) and God forbid the proliferation of bastards. And this is when the beit din is the one that delays the get, while the husband stands and screams that he is willing to give a get unconditionally.
The rabbinical courts make every effort to persuade the parties to resolve all the monetary issues and children (parenting arrangements – AYW) prior to the get. However, there are instances where it is impossible (to finalize these matters – AYW). . . . In such cases, the beit din agrees that each party shall retain its right to file a claim, and they warn the husband that he is giving the get unconditionally even if it emerges that he erred. Namely, a claim that he intended to submit against his wife was ultimately rejected in a proceeding which took place after the get, or a claim was advanced by the wife which he thought she would never succeed according to Halakhah (or secular law if the claim is occurring in a civil court – AYW), yet she won the suit. . . .
This “etched in stone” (“nehe’retzet” – AYW) determination that all financial matters are to be completed prior to the get is a stringency that may potentially lead to a leniency. . . . Delaying the arrangement of the get by a beit din when the parties are agreeable in order to wait until the monetary claims and children are completed . . . will cause many stumbling-blocks of remaining a married woman (potential of incestuous relationships – AYW) and God forbid the proliferation of bastards. And this is when the beit din is the one that delays the get, while the husband stands and screams that he is willing to give a get unconditionally.
ל״א
31In the aforementioned case of the couple who was separated for eighteen years,32See supra chapter 4E. the husband was a secular Jew, who was only willing to give a get conditional upon the withdrawal of the plaintiff’s financial claims in the civil court. The fact that he was separated from his wife since 1998 and a civil divorce was executed in 2006 did not propel him to date to give a get to his wife. Since he is irreligious, he had no interest in having the matter of the get adjudicated in a beit din setting. Regretfully, even some divorcing husbands who identify themselves as being members of the Torah-observant Jewish community have equally refused to accede to their wives’ requests to address the matter of the get even after a civil divorce has been executed. As such, we need to execute the get prior to resolving the end of marriage issues lest we continue to experience get recalcitrance even after the execution of a civil divorce!
ל״ב
32Invoking a Mishnah and a Talmud passage found in Tractate Ketuvot,33Ketuvot 108b-109a. post-Talmudic arbiters have endorsed this position, namely that end of marriage issues may be resolved after the giving of a get. As we know, halakhic engagement (kiddushin) entails a promise between a Jewish man and a Jewess to contract a marriage. One of the consequences of this engagement is the establishment of a personal status which remains until the death of either spouse or their divorce. As such, should the marriage fail to materialize, a divorce is mandated.34SA EH 26:3.
ל״ג
33That being said, if one promises money to his son-in-law as a dowry and then he defaulted, the Rabbis argue that he may leave her in the state of engagement until the father-in-law redeems his pledge. However, Admon contends that the groom must marry her without the dowry or divorce her. In other words, according to Admon, the issue of the nonpayment of the dowry has no impact upon the giving of the get. And many authorities endorse Admon’s view.35MT Ishut 23:16; Tur EH 52; SA EH 52:1; Teshuvot Divrei Ribot 191; Teshuvot Maharashdam EH 64. Cf. Bah, Tur EH 52; Rema, SA EH 52:1.
In a different factual context, some arbiters reached the same conclusion. See Teshuvot ha-Rivash 317; Teshuvot Maharik, shoresh 72.
In a different factual context, some arbiters reached the same conclusion. See Teshuvot ha-Rivash 317; Teshuvot Maharik, shoresh 72.
ל״ד
34Based upon the foregoing, we have shown that there is a persuasive and strident halakhic tradition of resolving financial issues and parenting arrangements after a get has been given. As such, both the American Orthodox rabbinate as well as the American battei din ought to insist that a husband address the matter of the get even prior to the resolution of end of marriage issues. Following their Israeli counterpart, American rabbinical courts ought to be willing and ready to recommend the giving of a get, issue a judgment of “mitzvah to divorce,” or obligate a get unconditionally to a divorcing couple who consent to their jurisdiction and will hopefully heed their rulings.36Whereas coercing a get (kofin le-garesh) by a beit din may entail imprisonment or flogging, rendering a decision of obligating a get (hiyuv le-garesh) involves verbal persuasion such as labeling the get recalcitrant husband as a sinner. See Sefer ha-Yashar, Teshuvot 24; Teshuvot Tashbetz 2:8; Rema SA EH 154:21. Cf. Piskei ha-Rosh Yevamot 6:11 who contends that the consequence of a failure to adhere to a ruling of obligating a get may result in a social ban (niddui). Notwithstanding the Rosh’s posture, the level of sanctions differs when a beit din obligates a get rather than compels a get. Yet, there is a minority of authorities who argue that rendering a judgment to obligate the giving of a get, similar to coercing a get, runs afoul of the strictures of a coerced get (a get me’useh). See Hazon Ish EH 99:2; Teshuvot Yabia Omer 2 EH 10; Shlomo Karelitz, Teshuvot Ateret Shlomo 1:32 (6) in the name of Rashba and Rivash; PDR 7:201, 204 (Rabbi Elyashiv in the name of Rosh); File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018. See the addendum. Therefore, in certain instances a beit din may choose to advise the husband to fulfill the divine imperative to give a get or recommend the giving of it rather than obligate a get.
In pursuance to the majority of decisors, the consequence of a coerced get is that on a Torah level, the get is null and void. See this writer’s Rabbinic Authority, vol. 3, 30, n. 11. Whereas in Israel, the battei din are empowered to coerce a get, in the United States the rabbinical courts are legally authorized to obligate/recommend a get or to counsel that there is a divine commandment to give a get.
In contradistinction to the get compulsion and obligating orders, and in the wake of the concern for avoiding the specter of a coerced get, some American rabbinical courts may choose either to recommend a get or direct the husband that there is a divine commandment to give a get rather than obligate a get. See Teshuvot Yabia Omer 2, EH 10; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018. The divine commandment to give a get has been understood as a directive of rabbinic advice for the husband to give the get. See Rabbeinu Yonah, Shittah Mekubetzet, Ketuvot 64a; Tashbetz, op. cit. To state it differently, whereas, the consequence of failing to comply with the divorce decree of “a religious duty” to give a get labels a husband a sinner with certain ramifications such as his ineligibility to serve as a witness in a beit din, should a husband fail to heed a beit din decree of recommending a divorce he is not following the mandate of Torah scholars rather being classified as a sinner.
In other words, whereas the issuance of a get compulsion order and the rendering of a judgment of obligating a get are predicated upon a husband’s physical defects such as sterility or behavior that potentially may destroy the family unit such as engaging in illicit affairs, the handing down of a decision to be duty bound to give a get or recommend a divorce is related respectively, to the husband being a sinner or a spouse receiving counsel to heed the words the instruction of a Torah scholar. See Teshuvot Mishpatekha le-Ya’akov 6:4 (12).
Alternatively, in a case of an agunah, some rabbinic courts may decide to hand down a judgment directing the husband that there is a divine commandment to be divorced (mitzvah le-garesh). See Teshuvot Terumat ha-Deshen, Pesakim u-Ketavim 58; Beit Yosef Tur EH 134 in the name of Tashbetz; Teshuvot Ma’amar Mordekhai 2, EH 11.
Cf. Teshuvot ha-Rashbash 411 who contends that the issuance of a beit din directive that under certain conditions there is a commandment to be divorced is employed regarding a wife who is a sinner.
Once a beit din obligates a get, the giving of the get must be performed unconditionally. In other words, a husband cannot argue that the giving of a get is contingent upon the resolution of certain end of marriage issues such as dividing marital assets and/or parenting arrangements. The execution of the get must be done immediately. See this writer’s Rabbinic Authority, vol. 3, 55–81.
On one hand, a divorce judgment of obligating a get precludes a husband from advancing a condition(s) prior to giving a get since such an order is grounded in rabbinic legislation. On the other hand, should a beit din either render a decision that there is a divine commandment to be divorced (mitzvah le-garesh – see Teshuvot ha-Rashbash 208, 383; Teshuvot Tashbetz, Hut ha-Meshullash, Tur 1, 6; Teshuvot Nofet Tzufim EH 129) or to recommend the giving of a get, such a ruling is not based upon rabbinic legislation. Consequently, a husband may advance a condition(s) prior to giving a get provided that the wife may easily fulfill the condition(s). See Teshuvot ha-Rashba 4:256; Bedek ha-Bayit on Beit Yosef, Tur EH 143 in the name of Rashba; Teshuvot ha-Rashbash 208; Tashbetz, Teshuvot Hut ha-Meshullah 1:6; Teshuvot Nofet Tzufim EH 129; Teshuvot Maharsham 5:60.
Nonetheless, upon a beit din issuing a decision that there is a divine imperative to give a get or to recommend a get in order to pre-empt the possibility of the wife becoming an agunah, should the husband continue to refuse to give a get and/or advance preconditions (prior to giving the get) which are irrational and impossible to fulfill, then the community can be directed to implement isolating measures (known as Harhakot de-Rabbeinu Tam) vis-à-vis the get recalcitrant husband. See written communications dated February 10, 2019 and December 21, 2019 (on file with author) from Rabbi Uriel Lavi, Presiding Dayan of Yerushalayim Regional Beit Din; Rabbi U. Lavi, “The Obligation of divorce in a plea of repulsion or only a duty to divorce,” (Hebrew), Kenes ha-Dayanim, 5776, 311; Teshuvot Ateret Devorah 2:80. The foregoing is based upon the application of halakhic logic (sevara). As we know, there are lacunae (matters which are left unaddressed) in the Halakhic legal system. Consequently, the system mandates that under certain conditions we may employ halakhic logic in order to resolve these issues. See Bava Batra 130b; Teshuvot ha-Ri Megas 114; Teshuvot ha-Rambam 66; Sefer ha-Yashar, Teshuvot 8; Ramban, Commentary on the Torah, Vayikra 19:2, Devarim 6:18; Teshuvot ha-Rosh 20:27, 55:9, 78:3; Teshuvot ha-Rashba 2:9; Teshuvot Maharil 109; Sedei Hemed ha-Shalem, Kelalim, Ma’arekhet sameakh, 63. For additional decisors who have addressed this matter, see Rabbi E. Shochetman, “On analogy in decision making in Jewish Law and the Foundations of Law Act,” (Hebrew) 13 Shenaton Ha-Mishpat Ha-Ivri 307, 315–350 (1988).
For the authoritativeness of invoking halakhic logic in decision making in twentieth-century writings, see Rabbi Menahem Kasher, Mefaneah Tzefunot, Yerushalayim 5736, Rabbi E. Berkovits, Not in Heaven: The Nature and Function of Halakha, NY: 1983, chapter 1, and this writer’s Rabbinic Authority, vol. 1, 53–57.
For a brief discussion of these isolating measures, see this writer’s Rabbinic Authority, vol. 3, 291–293.
Based upon the foregoing, there are four different levels of divorce enforcement: recommending a get, being duty bound to give a get, obligating a get and coercing a get. On one hand, issuing a divorce judgment without identifying the ground(s) for the divorce (ilat gerushin), the divorce is valid. See Gittin 90a; Hiddushei Hatam Sofer, Gittin 90b. On the other hand, pursuant to numerous decisors, a prohibition has been transgressed. See Rashi Gittin 90b, s.v. im she’nuah; Teshuvot ha-Rashba 1:18; Teshuvot ha-Ran 17; Teshuvot ha-Rivash 127; Teshuvot Rashbash 411; Bah, Tur EH 119; Beit Shmuel SA EH 119:2. Compare others who contend that invoking one of the above mentioned grounds entails a recommendation rather than an infraction of a prohibition. See Bahag, Gittin, Beit ha-Behirah, Gittin 90a; Arukh ha-Shulhan EH 119:5; Teshuvot Maharam Lublin 123. See further, Y. Sharabi, “Marital reconciliation: Intervention in the resolution of marital crises and their avoidance in Halakhah and Law,” (Hebrew), Doctoral thesis submitted to Bar Ilan University, Kislev 5773, 207–209.
In pursuance to the majority of decisors, the consequence of a coerced get is that on a Torah level, the get is null and void. See this writer’s Rabbinic Authority, vol. 3, 30, n. 11. Whereas in Israel, the battei din are empowered to coerce a get, in the United States the rabbinical courts are legally authorized to obligate/recommend a get or to counsel that there is a divine commandment to give a get.
In contradistinction to the get compulsion and obligating orders, and in the wake of the concern for avoiding the specter of a coerced get, some American rabbinical courts may choose either to recommend a get or direct the husband that there is a divine commandment to give a get rather than obligate a get. See Teshuvot Yabia Omer 2, EH 10; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018. The divine commandment to give a get has been understood as a directive of rabbinic advice for the husband to give the get. See Rabbeinu Yonah, Shittah Mekubetzet, Ketuvot 64a; Tashbetz, op. cit. To state it differently, whereas, the consequence of failing to comply with the divorce decree of “a religious duty” to give a get labels a husband a sinner with certain ramifications such as his ineligibility to serve as a witness in a beit din, should a husband fail to heed a beit din decree of recommending a divorce he is not following the mandate of Torah scholars rather being classified as a sinner.
In other words, whereas the issuance of a get compulsion order and the rendering of a judgment of obligating a get are predicated upon a husband’s physical defects such as sterility or behavior that potentially may destroy the family unit such as engaging in illicit affairs, the handing down of a decision to be duty bound to give a get or recommend a divorce is related respectively, to the husband being a sinner or a spouse receiving counsel to heed the words the instruction of a Torah scholar. See Teshuvot Mishpatekha le-Ya’akov 6:4 (12).
Alternatively, in a case of an agunah, some rabbinic courts may decide to hand down a judgment directing the husband that there is a divine commandment to be divorced (mitzvah le-garesh). See Teshuvot Terumat ha-Deshen, Pesakim u-Ketavim 58; Beit Yosef Tur EH 134 in the name of Tashbetz; Teshuvot Ma’amar Mordekhai 2, EH 11.
Cf. Teshuvot ha-Rashbash 411 who contends that the issuance of a beit din directive that under certain conditions there is a commandment to be divorced is employed regarding a wife who is a sinner.
Once a beit din obligates a get, the giving of the get must be performed unconditionally. In other words, a husband cannot argue that the giving of a get is contingent upon the resolution of certain end of marriage issues such as dividing marital assets and/or parenting arrangements. The execution of the get must be done immediately. See this writer’s Rabbinic Authority, vol. 3, 55–81.
On one hand, a divorce judgment of obligating a get precludes a husband from advancing a condition(s) prior to giving a get since such an order is grounded in rabbinic legislation. On the other hand, should a beit din either render a decision that there is a divine commandment to be divorced (mitzvah le-garesh – see Teshuvot ha-Rashbash 208, 383; Teshuvot Tashbetz, Hut ha-Meshullash, Tur 1, 6; Teshuvot Nofet Tzufim EH 129) or to recommend the giving of a get, such a ruling is not based upon rabbinic legislation. Consequently, a husband may advance a condition(s) prior to giving a get provided that the wife may easily fulfill the condition(s). See Teshuvot ha-Rashba 4:256; Bedek ha-Bayit on Beit Yosef, Tur EH 143 in the name of Rashba; Teshuvot ha-Rashbash 208; Tashbetz, Teshuvot Hut ha-Meshullah 1:6; Teshuvot Nofet Tzufim EH 129; Teshuvot Maharsham 5:60.
Nonetheless, upon a beit din issuing a decision that there is a divine imperative to give a get or to recommend a get in order to pre-empt the possibility of the wife becoming an agunah, should the husband continue to refuse to give a get and/or advance preconditions (prior to giving the get) which are irrational and impossible to fulfill, then the community can be directed to implement isolating measures (known as Harhakot de-Rabbeinu Tam) vis-à-vis the get recalcitrant husband. See written communications dated February 10, 2019 and December 21, 2019 (on file with author) from Rabbi Uriel Lavi, Presiding Dayan of Yerushalayim Regional Beit Din; Rabbi U. Lavi, “The Obligation of divorce in a plea of repulsion or only a duty to divorce,” (Hebrew), Kenes ha-Dayanim, 5776, 311; Teshuvot Ateret Devorah 2:80. The foregoing is based upon the application of halakhic logic (sevara). As we know, there are lacunae (matters which are left unaddressed) in the Halakhic legal system. Consequently, the system mandates that under certain conditions we may employ halakhic logic in order to resolve these issues. See Bava Batra 130b; Teshuvot ha-Ri Megas 114; Teshuvot ha-Rambam 66; Sefer ha-Yashar, Teshuvot 8; Ramban, Commentary on the Torah, Vayikra 19:2, Devarim 6:18; Teshuvot ha-Rosh 20:27, 55:9, 78:3; Teshuvot ha-Rashba 2:9; Teshuvot Maharil 109; Sedei Hemed ha-Shalem, Kelalim, Ma’arekhet sameakh, 63. For additional decisors who have addressed this matter, see Rabbi E. Shochetman, “On analogy in decision making in Jewish Law and the Foundations of Law Act,” (Hebrew) 13 Shenaton Ha-Mishpat Ha-Ivri 307, 315–350 (1988).
For the authoritativeness of invoking halakhic logic in decision making in twentieth-century writings, see Rabbi Menahem Kasher, Mefaneah Tzefunot, Yerushalayim 5736, Rabbi E. Berkovits, Not in Heaven: The Nature and Function of Halakha, NY: 1983, chapter 1, and this writer’s Rabbinic Authority, vol. 1, 53–57.
For a brief discussion of these isolating measures, see this writer’s Rabbinic Authority, vol. 3, 291–293.
Based upon the foregoing, there are four different levels of divorce enforcement: recommending a get, being duty bound to give a get, obligating a get and coercing a get. On one hand, issuing a divorce judgment without identifying the ground(s) for the divorce (ilat gerushin), the divorce is valid. See Gittin 90a; Hiddushei Hatam Sofer, Gittin 90b. On the other hand, pursuant to numerous decisors, a prohibition has been transgressed. See Rashi Gittin 90b, s.v. im she’nuah; Teshuvot ha-Rashba 1:18; Teshuvot ha-Ran 17; Teshuvot ha-Rivash 127; Teshuvot Rashbash 411; Bah, Tur EH 119; Beit Shmuel SA EH 119:2. Compare others who contend that invoking one of the above mentioned grounds entails a recommendation rather than an infraction of a prohibition. See Bahag, Gittin, Beit ha-Behirah, Gittin 90a; Arukh ha-Shulhan EH 119:5; Teshuvot Maharam Lublin 123. See further, Y. Sharabi, “Marital reconciliation: Intervention in the resolution of marital crises and their avoidance in Halakhah and Law,” (Hebrew), Doctoral thesis submitted to Bar Ilan University, Kislev 5773, 207–209.
ל״ה
35Should a beit din fail to summon the husband to a hearing regarding the matter of the get, American orthodox rabbis ought to function as arbiters of prohibitions and permissibility (“mo’reih hora’ah”), and rabbinic courts ought to function as arbiters of prohibitions and permissibility, addressing the wife’s inquiry as to whether there are grounds to give a get.37In other words, one may resolve this question of whether a husband is obligated to give a get to his wife or for that matter voiding a marriage, as these are “halakhot of prohibitions and permissibility” (“issur ve-heter”), in the absence of the husband (i.e. either a husband who was summoned to a hearing but refuses to appear, or one who was not summoned to the hearing) while being in the presence of one individual Jew, one rabbi or three rabbis functioning as arbiters of these halakhot. See Ketzot ha-Hoshen, HM 3:1–2; Netivot ha-Mishpat, HM 3:1; Teshuvot Yehuda (Gordin), EH 51:2; Teshuvot Hatam Sofer, OH 51, EH 2:64; Pithei Teshuvah, SA EH Seder ha-Get 6, 8; PDR 6:265, 269; File 957-61, Beit Din Yerushalayim for Monetary Matters and Yuhasin, vol. 7, 515; File no. 448866/3, Tel-Aviv-Yaffo Regional Beit Din, July 11, 2013; File no. 1086123/1, Be’er Sheva Regional Beit Din, December 20. 2018.
Whether the individual Jew must be knowledgeable in Halakhah is subject to controversy. See Yam shel Shlomo, Bava Kama 3:9; Teshuvot Ma’aseh Hiyah, 24; Ketzot ha-Hoshen HM 3:1; File no. 448866/3, op.cit. Should the arbiter determine that there is a ground(s) for the husband to give a get, and if upon notification of that determination to the husband he refuses to give one, the beit din ought to direct the community to religiously, socially and economically isolate him, measures known in rabbinic parlance as “harhakot of Rabbeinu Tam.”38Sefer ha-Yashar 24; Teshuvot Maharik, shoresh 133, 166; Rema SA EH 154:21.
Whether there is a precondition for a beit din to issue a get compulsion order or a judgment of obligating a get rather than a ruling that there is a commandment to give a get prior to directing the community to isolate a get recalcitrant husband is subject to debate. See File no. 8455-64-1, Beit Din ha-Rabbani ha-Gadol, September 17, 2008; File no. 862233/1, Tiberias Regional Beit Din, January 8, 2013.
For the authority of a beit din to direct the community to isolate the get recalcitrant husband, see Rema SA EH 154:21; Levush 77:3, 134:4; Seder Eliyahu 13; Teshuvot Yabia Omer EH 7:23.
Though this power does not entail excommunication (niddui), the same empowerment is delegated to a beit din concerning excommunication. See Rema SA YD 334:6. For beit din authorization in other communal matters, see Rema SA HM 15:5, 358:5.
Whether the individual Jew must be knowledgeable in Halakhah is subject to controversy. See Yam shel Shlomo, Bava Kama 3:9; Teshuvot Ma’aseh Hiyah, 24; Ketzot ha-Hoshen HM 3:1; File no. 448866/3, op.cit. Should the arbiter determine that there is a ground(s) for the husband to give a get, and if upon notification of that determination to the husband he refuses to give one, the beit din ought to direct the community to religiously, socially and economically isolate him, measures known in rabbinic parlance as “harhakot of Rabbeinu Tam.”38Sefer ha-Yashar 24; Teshuvot Maharik, shoresh 133, 166; Rema SA EH 154:21.
Whether there is a precondition for a beit din to issue a get compulsion order or a judgment of obligating a get rather than a ruling that there is a commandment to give a get prior to directing the community to isolate a get recalcitrant husband is subject to debate. See File no. 8455-64-1, Beit Din ha-Rabbani ha-Gadol, September 17, 2008; File no. 862233/1, Tiberias Regional Beit Din, January 8, 2013.
For the authority of a beit din to direct the community to isolate the get recalcitrant husband, see Rema SA EH 154:21; Levush 77:3, 134:4; Seder Eliyahu 13; Teshuvot Yabia Omer EH 7:23.
Though this power does not entail excommunication (niddui), the same empowerment is delegated to a beit din concerning excommunication. See Rema SA YD 334:6. For beit din authorization in other communal matters, see Rema SA HM 15:5, 358:5.
ל״ו
36Furthermore, in the event that the beit din renders a judgment that he is obligated to give his wife a get and he refuses to give one, the husband remains obligated to support his wife.39Bava Metzia 12b; Teshuvot Maharit 1:113; Teshuvot Re’em 30; SA EH 160:4; PDR 7:290, 294, 10:94. On the other hand, some argue that the wife’s entitlement to support is contingent upon the fact that a beit din issues a divorce judgment. See PDR 12:257.
Even if the wife is earning a salary under these circumstances that a get has not been forthcoming from the husband, according to most authorities, the husband must continue to support her as a penalty for refusing to give her a get. See File no. 833000/12, Netanya Regional Beit Din, July 28, 2014. Cf. Ha’sagot ha-Ra’vad, Ketuvot 63a. As such, a wife may advance a claim for this maintenance in the beit din should her spouse fail to pay her.40File no. 819158/3, Beit Din ha-Rabbani ha-Gadol, October 5, 2011; File no. 965171/1, Netanya Regional Beit Din, October 28, 2014. In effect, the imposition of this support duty is a means to pressure the husband to give a get, a claim which does not run afoul of the strictures of “a coerced get” (a get me’useh).41We are dealing with “coercion by way of choice” (kefiyah be-derekh bereirah). In other words, the husband must choose whether to give the get or to pay spousal support. Such a decision is an example of indirect coercion and therefore halakhically does not constitute coercion and consequently under such circumstances the subsequent execution of the get is valid. See Teshuvot ha-Rivash 1227; Teshuvot Tashbetz 1:1; Teshuvot Ranah 1:63; Rema, SA EH 154:21. See further, this writer’s Rabbinic Authority, vol. 1, 142–156.
Even if the wife is earning a salary under these circumstances that a get has not been forthcoming from the husband, according to most authorities, the husband must continue to support her as a penalty for refusing to give her a get. See File no. 833000/12, Netanya Regional Beit Din, July 28, 2014. Cf. Ha’sagot ha-Ra’vad, Ketuvot 63a. As such, a wife may advance a claim for this maintenance in the beit din should her spouse fail to pay her.40File no. 819158/3, Beit Din ha-Rabbani ha-Gadol, October 5, 2011; File no. 965171/1, Netanya Regional Beit Din, October 28, 2014. In effect, the imposition of this support duty is a means to pressure the husband to give a get, a claim which does not run afoul of the strictures of “a coerced get” (a get me’useh).41We are dealing with “coercion by way of choice” (kefiyah be-derekh bereirah). In other words, the husband must choose whether to give the get or to pay spousal support. Such a decision is an example of indirect coercion and therefore halakhically does not constitute coercion and consequently under such circumstances the subsequent execution of the get is valid. See Teshuvot ha-Rivash 1227; Teshuvot Tashbetz 1:1; Teshuvot Ranah 1:63; Rema, SA EH 154:21. See further, this writer’s Rabbinic Authority, vol. 1, 142–156.
ל״ז
37This “etched in stone” (“nehe’retzet” – AYW) determination that all financial matters are to be completed prior to the get is a stringency that may potentially lead to a leniency. . . . Failure to follow such a procedure to address the enforcement of the get in beit din accompanied by mandating support due to get recalcitrance has and only will continue to exacerbate the suffering of women whose delivery of their divorces (gittin) are delayed, to pose “many stumbling-blocks of remaining a married woman (potential of incestuous relationships – AYW) and God forbid the proliferation of bastards” as well as potentially promote a husband’s engagement in illicit affairs.42See supra n. 12 text accompanying n. 33.
ל״ח
38On the other hand, those who invoke all or some of the techniques to void a marriage are well aware that “the conditions of the time” mandate such action. Distinguishing between the period of the Talmud and contemporary times, Rabbi Tzvi Pesach Frank observes:43Teshuvot Har Tzvi EH 2:181. See also Teshuvot Dvar Eliyahu 48; Teshuvot Iggerot Moshe EH 1:79.
ל״ט
39During the time of the Talmud there were Jewish arbiters who were empowered to coerce him (a husband to give a get- AYW) and today where we are not authorized to coerce him, we may say that it is a transaction in error.
מ׳
40Moreover, in the wake of the absence to mete out get coercion, the empowerment to void a marriage under certain conditions is not based only upon “a marriage in error” (kiddushei ta’ut) but as Rabbi Frank argues is equally upon utilizing “the wife’s clear expectation of the marriage” (umdana de’mukha).44Teshuvot Har Tzvi EH 1:133. See also, Teshuvot Shoeil u-Meishiv, Mahadura Kama, 198.
מ״א
41Finally, the fear “lest that the daughters of Yisrael may succumb to licentiousness” (shema tetzena benot Yisrael le’tarbut ra’ah) due to their husband’s recalcitrance in giving a get has propelled authorities throughout the ages to find solutions for both the classical agunah whose husband has disappeared as well as the modern day agunah whose husband refuses to give a get.45Teshuvot ha-Mabit 1:149, 3:54; Teshuvot ha-Ridvaz 4:1331; Teshuvot Shevut Ya’akov 3:110; Teshuvot Re’em 37; Teshuvot Hayyim ve-Shalom 2:1; Rabbi Sternfeld, Teshuvot Sha’arei Tzion 3:14; Teshuvot Yabia Omer 9, EH 16(8). As recently noted,46For a woman’s promiscuity, see Yevamot 25a, 65a; Ketuvot 63b; Nedarim 90b–91a; Tosafot, Nedarim 90b; Hiddushei ha-Rashba, Nedarim 90b; Hiddushei ha-Rashba, Gittin 32a; Mordekhai, Kiddushin 542 in the name of Maharam; Teshuvot Yakhin u-Boaz 1:179; Rema SA EH 17:2; Teshuvot Maharbil 3:102; Teshuvot Shevut Ya’akov 1:101; Teshuvot Ezrat Kohen EH 44; Teshuvot Iggerot Moshe EH 1:139, 4:83. Whether later generations are promiscuous compared to earlier generations dating back to the time of the Talmud is subject to debate. See Teshuvot Yabia Omer 4, EH 11.
For contemporary studies noting the existence of promiscuity in the American orthodox Jewish community, see S. Grossman, “Resolving the debate over human pappiloma virus vaccination for cancer prevention in the religious world,” 51 Tradition 50, 67–68 (2019).
Clearly, there are get recalcitrant husbands who identify with the American Orthodox Jewish community who engage in illicit affairs and/or sire a child (children) from the relationship. Whereas, offspring sired by a wife from an illicit affair results in halakhic bastardy, a child sired from a husband from an act of licentiousness does not create a halakhic bastard. As such, halakhic opposition regarding voiding marriages may promote promiscuity among husbands and mamzerut as well as licentiousness amongst wives. a husband or wife engaging in illicit affair(s) is a prevalent phenomenon today in the world of orthodox Jewry. As such, the fear of promiscuity may emerge in a case of get recalcitrance (igun). And in the over 155 cases that I have dealt with during the span of over six years, unfortunately licentiousness does exist in all segments of the orthodox Jewish community and has transpired either when the couple is living together and/or when a couple is separated and no get has been forthcoming. Though in the past, this fear has driven arbiters in Israel to coerce a get under such conditions,47Teshuvot Yabia Omer 3, EH 18:13, 20:34; Teshuvot Tzitz Eliezer 4:21, 5:26; File no. 464539/2, Tel Aviv-Yaffo Regional Beit Din, February 18, 2017; File no. 846913/2, Haifa Regional Beit Din, June 12, 2017; File no. 1157365/1, Beit Din ha-Rabbani ha-Gadol, July 30, 2019. today in the Diaspora such an option fails to exist and as we mentioned earlier we are instructed by our decisors that under such conditions we may void marriages.
For contemporary studies noting the existence of promiscuity in the American orthodox Jewish community, see S. Grossman, “Resolving the debate over human pappiloma virus vaccination for cancer prevention in the religious world,” 51 Tradition 50, 67–68 (2019).
Clearly, there are get recalcitrant husbands who identify with the American Orthodox Jewish community who engage in illicit affairs and/or sire a child (children) from the relationship. Whereas, offspring sired by a wife from an illicit affair results in halakhic bastardy, a child sired from a husband from an act of licentiousness does not create a halakhic bastard. As such, halakhic opposition regarding voiding marriages may promote promiscuity among husbands and mamzerut as well as licentiousness amongst wives. a husband or wife engaging in illicit affair(s) is a prevalent phenomenon today in the world of orthodox Jewry. As such, the fear of promiscuity may emerge in a case of get recalcitrance (igun). And in the over 155 cases that I have dealt with during the span of over six years, unfortunately licentiousness does exist in all segments of the orthodox Jewish community and has transpired either when the couple is living together and/or when a couple is separated and no get has been forthcoming. Though in the past, this fear has driven arbiters in Israel to coerce a get under such conditions,47Teshuvot Yabia Omer 3, EH 18:13, 20:34; Teshuvot Tzitz Eliezer 4:21, 5:26; File no. 464539/2, Tel Aviv-Yaffo Regional Beit Din, February 18, 2017; File no. 846913/2, Haifa Regional Beit Din, June 12, 2017; File no. 1157365/1, Beit Din ha-Rabbani ha-Gadol, July 30, 2019. today in the Diaspora such an option fails to exist and as we mentioned earlier we are instructed by our decisors that under such conditions we may void marriages.
מ״ב
42Whereas others who refuse to void a marriage are being lenient regarding the prohibition of halakhic bastardy (mamzerut) since a husband’s get recalcitrance may and has resulted in the wife engaging in an illicit affair(s) and/or the siring of offspring from this relationship, there are those rabbinic arbitrators (dayanim) or arbiters of prohibitions and permissibility (“morei hora’ah”) who are being stringent regarding this prohibition by invoking under certain conditions various techniques to free the wife without a get lest promiscuity and/or halakhic bastardy transpire.48For the pitfalls of staking out a position of unnecessary stringent rulings which may result in “the breach of the wall of religious observance”, see Taz, SA YD 293:4; Rabbi A. Kook, Teshuvot Orah Mishpat, OH 112. See this writer’s Rabbinic Authority, vol. 3, 16–17.
The common denominator between those who are endorsing under certain conditions to void a particular marriage and those who reject such an avenue to address the plight of the agunah is the concern to avoid bastardy in order to prevent a future marriage between bastards and individuals of legitimate birth. See Teshuvot Helkat Ya’akov, 2:16; Teshuvot Iggerot Moshe 3 EH 5.
Addressing the debate regarding the scope of the prohibition to bake bread with milk, lest the dairy bread might be eaten together with meat, Rabbi Yosef Karo citing Sha’arei Durah states: “Both interpretations are halakhically valid, since both are logically sound” (Beit Yosef, Tur YD 97).
Analogously, despite the fact that the halakhic propriety of voiding a marriage is open to controversy; nevertheless both positions are logically persuasive, namely the concern for avoiding mamzerut.
The common denominator between those who are endorsing under certain conditions to void a particular marriage and those who reject such an avenue to address the plight of the agunah is the concern to avoid bastardy in order to prevent a future marriage between bastards and individuals of legitimate birth. See Teshuvot Helkat Ya’akov, 2:16; Teshuvot Iggerot Moshe 3 EH 5.
Addressing the debate regarding the scope of the prohibition to bake bread with milk, lest the dairy bread might be eaten together with meat, Rabbi Yosef Karo citing Sha’arei Durah states: “Both interpretations are halakhically valid, since both are logically sound” (Beit Yosef, Tur YD 97).
Analogously, despite the fact that the halakhic propriety of voiding a marriage is open to controversy; nevertheless both positions are logically persuasive, namely the concern for avoiding mamzerut.
