Volume 23 Number 78
Produced: Fri Apr 26 6:36:42 1996
Subjects Discussed In This Issue:
Forced Get (2)
[Carl & Adina Sherer, Michael J Broyde]
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From: Carl & Adina Sherer <sherer@...>
Date: Thu, 18 Apr 1996 23:33:37 +0000
Subject: Forced Get
Avraham Husarsky writes:
> it is my humble opinion that the whole agunah business is getting
> blown out of proportion. a true blue agunah is a woman who turns
> to the bais din with good grounds for divorce and the husband then
> runs away or refuses to give a get. in any other case, especially
> where the secular court system gets invloved, it all becomes a
> matter of negotiation, as the court system is clearly stacked in
> favor of mothers. people need to be aware of how long a civil
> case can take before they embark on such a procedure, without the
> authority of a heter meah rabbanim, as is required by halachah.
It is my humble opinion that we *have* an aguna problem precisely
because of the attitudes reflected by Mr. Husarsky in the post above.
The implication of the sentence >"a true blue agunah is a woman who
turns to the bais din with good grounds for divorce and the husband then
runs away or refuses to give a get"< is that there are times when a
woman is entitled to a get and there are times when she is not entitled
to a get. But the Gemara never discusses whether or not a woman is
entitled to get - the underlying assumption is that if the marriage is
over she is *always* entitled to a get. What the Gemara discusses in
various places is the circumstances under which a woman is entitled to
her ksuva money, including, for example, if she wants to move to Israel
and the husband does not (Ksuvos 111), if she discovers that the husband
has a mum (defect), if she finds she cannot tolerate the body odor
resultant from her husband's occupation, and many other instances in
which the Gemara discusses whether or not the wife is entitled to her
ksuva when she has in effect initiated the divorce. But at *no point*
that I know of does the Gemara ever question that the wife is entitled
to the get. Thus a "true blue aguna" is a woman whose marriage is over
and who does not have a get - plain and simple.
Moreoever, the implication of the "true blue agunah" argument is that
there are some excuses that are valid for terminating a marriage and
some that are not. This also seems to go against the Mishna at the end
of Masechta Gittin. The Mishna brings an argument (Gittin 90A) between
Beis Shammai, Beis Hillel and Rabbi Akiva regarding when a husband is
entitled to divorce his wife. Beis Shammai requires that the husband
find an ervas davar (a matter relating to an illicit relationship) to
divorce his wife, Beis Hillel says that he may divorce her even if
"hikdicha tavshilo" (she burned his food) and Rabbi Akiva says that even
if "matza acheres na'a heimena" (he found a better wife). The Halacha
is like Beis Shammai as aginst Beis Hillel in *very* limited
circumstances - this isn't one of them. If the husband doesn't need a
justification to divorce his wife - the implication of the Gemara when
discussing Beis Hillel's standard - there is no reason to assume that
Chazal intended otherwise for the wife to be entitled to receive a get
from the husband. Because many of Chazal's takanos (for example the
requirement that a woman not be divorced against her will) were designed
to *protect* the wife, it is clear that Chazal intended to protect the
wife and not make it more difficult for her to obtain a divorce.
To state, as Mr. Husarsky does, that the system is stacked in favor of
mothers (and I assume he means the system in Israel) is, to say the
least, inaccurate. I am an attorney here in Israel, and although I do
not practice family law I did have to know a little bit about it for my
Bar Exams. The *first* thing we were told in the course about family
law was, "if you represent the wife, file in civil court, if you
represent the husband file in Rabbani". This is so for two reasons.
First, if the proceeding in Rabbani gets dragged out (as is often the
case when the husband demands "shalom bayis" - that the couple attempt
to work out the marital problems *after* the wife has already filed for
divorce), the civil court is much more likely to order that the husband
pay something for the wife's support in the interim. This puts pressure
on the husband to grant the get more quickly. Second, the civil court
is much more reasonable in orders for child support. A typical award in
the Rabbani, even where the husband makes significantly more income than
the wife and the wife has custody of the children is $300 per month.
This seems to be almost without variation from people I have spoken with
who are involved in divorce cases. It's not enough to pay half the rent
in many cities in Israel. If the wife is willing to wait for a judgment
from the civil court she can often get significantly more money although
many women are so anxious to receive their get they will often forego
the extra money. The fact that women feel obligated to turn to the
civil courts as a counterbalance to the Rabbani courts is IMHO a
*tremendous* chilul Hashem and a scourge on our generation, and the type
of thinking reflected in Mr. Husarsky's post is the same type of
thinking that permeates the Rabbinical court system here IMHO (or at
least a good portion of it). I would hardly call the Rabbinical courts
here biased in favor of wives (or mothers). If anything, the opposite
is true.
I also fail to understand what the "length of time" that civil court
here in Israel supposedly takes has to do with the rest of the arguments
in the paragraph.
> to answer the specific question as to when a bais din can order a
> get; there are situations listed in shulchan aruch and these are
> the requirements a bais din should follow. even if a situation is
> beyond all hope of repair, as the long as neither of the parties
> violated one of these situations listed in the halachah, there is
> no basis for calling one of them agunah/agun if the other party
> says they don't want a halachic divorce until an agreement/court
> judgement is finalized.
I am not aware of any place in Shulchan Aruch where it says that only in
specific instances is a wife entitled to a get. The fact that, as Rabbi
Broyde pointed out, the Beis Din may only *force* a get under limited
circumstances, does not mean that the wife is not *entitled* to a get.
If someone could point out to me where in Shulchan Aruch it says
otherwise I would be grateful.
Moreover, in Shulchan Aruch EH 154:21, the Rama lists a number of
remedies that may be used even where physical force may not be used.
Although cherem may also not be used in such instances, the Rama says
that the Beis Din may make a decree prohibiting all Jews from doing
favors or business with him, or from circumcising or R"L burying his
children, until he grants his wife a divorce. It seems to me that
Chazal were not seeking by any stretch to limit the wife's ability to
obtain a get.
> > BTW, the minchas yitzchak (dayan weiss) ruled that in a case where
> > a woman who goes to the "ercaos" (civil courts) and then receives
> > a get, the get is meusa.
I spoke to my father in law who for many years was the sofer (scribe) of
the Beis Din in a major American city and wrote many of the Gittin in
that city for many years. He was not aware of such a tshuva (again, does
anyone have a cite?), and told me that before a husband delivers a get
specific steps are taken to preclude a later claim of meusa. These
steps are taken whether or not the wife has previously turned to civil
court.
> rav moshe argued on this claiming that child support
> is a halachic obligation anyhow so by forcing the father to pay in
> court, it's not meusah.
I did an admittedly quick search in the Yad Moshe on this and did not
find this exact tshuva either. I did find a tshuva on forcing a woman
to accept a get after she has already received a civil divorce (Iggros
Moshe EH 1:115).
> note that in the USA the couple must go to the
> court anyhow, so this may be part of rav moshe's logic. i'm not
> sure he would have applied this to israel where the rabbinical
> court has the same authority as the family courts.
Someone else on the list referred me to Iggros Moshe EH 3:44. If that
was the Tshuva that Mr. Husarsky was citing, I think he misrepresented
it. That tshuva, if I understood it correctly, dealt with a situation
where after an abusive husband had signed a settlement decree (in an
Australian secular court), he came before the Beis Din and, when asked
if he was divorcing his wife of his own free will, he said "it's part of
the settlement agreement". Rav Moshe zt"l said that since the husband
had voluntarily appeared at the Beis Din at the appropriate time, his
reference to the settlement agreement could be viewed as a statement of
fact and not as an indication of being compelled to grant the get. Rav
Moshe does not discuss in that tshuva the propriety or impropriety of
the wife turning to secular court when she thinks that the secular court
will give her a better deal, nor does he give any impression that the
wife's turning to secular court would *automatically* make the get
meuseh (coerced) as Mr. Husarsky's argument seems to imply. Again, if
anyone has another cite....
I believe Rav Moshe zt"l would not penalize a woman who turned to the
secular courts by nullifying her basic right to receive a get, whether
or not he would have condoned her turning to those courts in the first
place.
One other minor point. In Volume 23 #56, another poster wrote:
>While the matter is in dispute
>between Rambam and Rabbenu Tam, the Shulchan Aruch EH 154 is quite
>clear that coercion is permitted only in certain very limited
>situations where halacha recognizes that divorce is either mandatory
>or a mitzvah. Thus, if the husband is impotent, or beats his wife or
>frequents prostitutes, a beit din will order a get, and if the husband
>does not cooperate, the beit din can use force.
Actually the Shulchan Aruch (EH 154:21) does not use the term "impotent"
- it says "eino mekayem ona" (one who does not fulfill his obligation to
live with his wife). In such a case, the Shulchan Aruch says, the Beis
Din may place the husband in Cherem until he either fulfills his
obligation of ona or divorces his wife. It seems to me that the
Shulchan Aruch's language would include a case where the husband is
*voluntarily refusing* to fulfill the obligation of ona. If anyone has
seen any tshuvos (responsa) that so indicate, I would be interested in
seeing them.
-- Carl Sherer
Carl and Adina Sherer
<sherer@...>
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From: Michael J Broyde <relmb@...>
Date: Mon, 22 Apr 1996 19:52:16 -0400 (EDT)
Subject: Re: Forced Get
I wrote in a posting that:
> > In sum, a woman who turns to beit din for a get, and receives an
> >order from beit din mandating that she recieve a get (which is not
> >given) is not only an agunah, but is allowed to use remediees that include
> >coercion to FORCE the giving of a get. Others, who do not turn to beit
> >din, may NOT use coercion and if they do, such produces a get me'useh, a
> >void coerced get and is also behaving improperly.
> > However, a wealth of halachic sources can be put forward
> >to support the proposition that any time the marriage is over and the
> >couple has no interest in remaining married, a get should be written and
> >the couple divorced. One who withholds a get when they have no hope of
> >reconcilation is behaving improperly.
One writer wrote in reply that:
> Paragraph A contradicts Paragraph B. one can only be considered
> "withholding" if they are ordered to by a beit din. this will only
> happen if the woman turns to a beit din. basically what you are saying
> in the second paragraph is that in a case where a woman turns to the
> secular court the husband, acc. to certain halachic sources, should be a
> nice guy and give the get anyways b/c the marriage is dead, and should
> do this despite the possibility of a long protracted court case which
> will certainly take the guts out of both parties, BUT that according to
> other sources, this get is meusah. the only way out of reasoning this
> conclusion is to claim that pressure from the secular court system
> doesn't render it meusah. there are numerous poskim to the contrary.
This writer misses the point that I am trying to make. In the
words of Rav Moshe Feinstein "it is not good for a man to be married to
a woman when there is no maritial relationship" (Iggrot Moshe EH 3:44,
at page 489b). When the marriage is over, one can find a wealth of
poskim who maintain that the proper thing to do is to issue a get, so
that both sides can have a legal status that reflects the true status --
the marriage is over. What is in dispute is whether and what type of
force or coercion my be used to direct the husband or wife to to that
which the halacha thinks is proper.
To the best of my knowledge there are no sources that maintian
that when the husband genuinely wishes to divorce his wife, the fact
that she has filed for divorce in civil court does not make the
resulting get meuseh -- indeed, the famous chazon ish (EH 99:5, I think)
asserts that even when the husband is under a court order to divorce, if
we know that he really wishes to be divorced, the get is not a get
meuseh. However, this has absolutel nothing to do with whether there is
an ethical duty on a person to issue a get and end a marriage when it is
clear that the marriage is over. Indeed, it is worth noting that the
basis of the various prenuptual agreements designed to prevent agunot is
predicated on this approach, which to the best of my knowledge no one
disagrees with.
The writer concludes:
> basically, IMHO, if a woman turns to the secular courts and refuses to
> adjudicate in the beit din, as long as the husband wants to do it in the
> beit din she can't claim agunah status, even if the marriage is dead
> from a relationship perspective.
This is without any halachic support. Indeed, the classical talmudic
igun case, where the husband simply disappears, should incline one to
question this. Rav Henkin, Rav Moshe Feinstein, and many others
explictly disagree with this.
Michael Broyde
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End of Volume 23 Issue 78
