Volume 23 Number 85
Produced: Mon May 6 23:16:19 1996
Subjects Discussed In This Issue:
Forced Get (2)
[Carl & Adina Sherer, Jeremy Nussbaum]
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From: Carl & Adina Sherer <sherer@...>
Date: Thu, 25 Apr 1996 22:29:13 +0000
Subject: Forced Get
Avraham Husarsky writes:
> 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,
I think there's a mistaken assumption here - the assumption that the get
is somehow connected to the financial settlement. One should have
nothing to do with the other. The halachic prescription in a divorce
case is that the husband must pay to the wife the value of the Ksuva.
The typical ksuva is worth a lot more than the present value of the
stream of child support payments that a husband typically pays his wife
on divorce today. If anything, going to court to determine the support
payments is for the *husband's* benefit - he's the one trying to excape
from a contract. Given that premise, it seems that the least the
husband could do is not to use the get as a club over his wife's head to
ensure that the financial settlement is negligible. The get and the
financial settlement shoudl have nothing to do with each other.
> 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.
I keep reading about these "numerous sources" which so far have
consisted of a Minchas Yitzchak that IMHO Rabbi Broyde did a pretty good
job of proving had been misrepresented. Perhaps the poster could give
us one cite to any *published* tshuva which indicates that any of the
following are correct:
1. A wife's turning to a secular court automatically renders the get
meuseh.
2. Making a divorce settlement in a secular court automatically
renders the get meuseh.
3. Adjudicating any issue related to the divorce other than the get
itself in secular court automatically renders the get meuseh.
> 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.
What are you defining as "refusing to adjudicate in the Beit Din? Are
you trying to say that a woman who turns to a secular court to
adjudicate a financial settlement is automatically never to be
considered an aguna? Do you have any sources to back up such a broad
statement?
And what does "aguna status" entitle her to anyway? As far as I can
tell, all it entitles her to is a lot of misery.
-- Carl Sherer
Carl and Adina Sherer
<sherer@...>
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From: <jeremy@...> (Jeremy Nussbaum)
Date: Fri, 26 Apr 96 12:28:47 EDT
Subject: Forced Get
> From: Carl & Adina Sherer <sherer@...>
> 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.
I am confused here. Are you making the argument that in cases where the
wife is entitled to divorce her husband and receive her ketubah, that
the court can force the husband to give a get? My understanding is
that she is entitled to receive her ketuba, and is not required to
live with him. Even if she refuses to live with him before the
get is granted, she does not acquire the status of a "rebellious wife"
who does not collect her ketuba.
I have not heard of cases in which an aguna problem stems from the fact
that the rabbinical court advised the husband against granting a get.
Perhaps there are such cases. I have heard of cases in which the wife
requested a get and the husband did not agree, and the rabbinical
court counseled the wife to find a way to patch up the relationship or
threw up its hands. Greater sensitivity can certainly be shown to the
plight of the women in abusive relationships. It is not clear to me
what the extent of halachic precedent is for various types of pressure
that the rabbinical court can exert on the husband under different
circumstances. This is separate from the issue of the court or
community exerting moral pressure on a husband to divorce his wife if
the relationship is broken. Tied in on the side here is a general
discouragement of divorce unless it is necessary, together with the
difficulty of determining when it is truly necessary.
> 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.
I don't understand the leap of "just because the husband doesn't need
a justification to divorce his wife [by voluntariy giving her a get]
.... there is no reason to assum that chazal intended otherwise for
the wife to be entitled to receive a get from her husband [by coercing
her husband into giving her a get]. Please point out any responsa or
other halachic material in which this point of view is actually taken,
from any period. I am not claiming that I have done any research on
the existence of such responsa; I just have not heard the citation
which I think is necessary to justify the above assertion. For better
and for worse, the legal perogatives of men and women in divorce and
other cases in halacha is not the same. Whether this is good or bad,
fair or unfair etc is another question.
> 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.
What do you mean by entitled to a get? Are you trying to state that
in cases where a wife requests a divorce for her own reasons, that the
court should make a decree against the husband? It is not obvious to
me that chazal wished to enable women to initial divorce proceedings
arbitrarily. Though we rule according to the "lenient" opinion and
allow men to initiate a divorce for arbitrary reasons [and obligate
them to pay the ketubah to the wife], there were serious reservations
about allowing him to do so in all but the most obvious cases of
breakdown of the marriage.
As I've said before, the issue of involvement of courts in divorce
proceedings is more complicated that it might seem at first. If you
wish to make halachic divorce on demand available to womem in the same
way it is available to men through some legal means, I think that
would be interesting; it would at least level the playing field. I
sympathize with those people who are stuck with an abusive spouse, and
for whom the rabbinical courts seem at best impotent, and at times
hostile. I also sympathize with the many children who are deprived of
growing up with their mother and father together. It is not clear to
me what the long term impact of the rising number of children raised
in single parent families will be. While this may be an improvement
for some, it certainly does not compare to growing up in an loving
intact family. How it is compared to the "average" case of a not
always so loving family I don't know. As such it is not clear to me
if it is in the long term best interests of the community to level the
playing field, and even if so, if we want to level it by making
divorce easier or harder. Regardless of which path is taken, there
will be people who suffer and deserves sympathy and whatever remedies
are available.
Jeremy Nussbaum (<jeremy@...>)
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End of Volume 23 Issue 85
