Refusing to take a get.

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  • #1450418

    David111
    Participant

    In Israel, the beis din have the power to sentence a husband to prison to compel him to grant his wife a get.

    In חוץ לארץ there is no such laws in place.
    Why don’t we make every man and woman sign a legal document before getting married that they commit to giving/accepting a get (subject to Beis Dins agreement) and it should be legally binding that if (in an unfortunate situation) a get is needed that one can face legal action for refusing a get ?

    Can this be implemented?

    #1451278

    CTLAWYER
    Participant

    @david111
    Legally binding under what court system and subject to whose penalties?

    In the USA, due to First Amendment Considerations…secular courts would be loathe to enforce a religious contract and could not fine or imprison a party to such a contract for non-performance.

    In my area of CT, I am a Family Law Attorney and in the past 20+ years I have got Superior Court judges to approve divorce settlement language that states which party shall pay for the Beis Din/Get, but not language to require a Get be issued. They accepted my argument that the payment is merely contract law, not religious law. A party found in contempt is then subject to penalties as permitted by secular law.

    #1451296

    iacisrmma
    Participant
    #1451376

    mentsch1
    Participant

    Without getting into the specifics of the RCA prenup (I’ve written bf about its blatant one sidedness, and rabbis do a better job of discussing Halacha)
    There is a very real issue of Jews using goyish courts. There is a famous Rashi in the beginning of mishpatim where Rashi (and others) point out that even if the goyish court has fair (similar) rules , the money awarded should be considered stolen.

    #1452013

    apushatayid
    Participant

    “Why don’t we make every man and woman sign a legal document before getting married that they commit to giving/accepting a get (subject to Beis Dins agreement)”

    The chasson already stupulates under the chuppa that he is marrying the woman subject to “das moshe viyisroel”. this statement is witnessed often by several hundred people, including two who are designated as witnesses specifically by the chosson. I wonder when a beis din with some teeth (sadly, there is no such beis din which has given rise to the questionable practices of prenups, etc) would tell either party, you are not acting in accordance with “das moshe viyisroel” and we are going to annul your kiddushin retroactively since you violated the condition. that would create quite a stir, but sometimes you gotta do what you gotta do.

    #1452024

    Joseph
    Participant

    Why are you assuming that the wife has to accept a Get? The wife has the right to refuse to accept a Get if she doesn’t want the marriage to end, even if her husband wants to divorce her. Rabbeinu Gershom gave this right to all Ashkenazic women. Are we smarter than Rabbeinu Gershom or trying to overrule this edict he issued?

    Similarly a man has the right to refuse to give a Get if he wishes the marriage to continue. Whereas the wife’s’s right was given to her by Rabbeinu Gershom, the husband’s right is explicitly given to him by the Torah.

    #1452217

    Joseph
    Participant

    “would tell either party, you are not acting in accordance with “das moshe viyisroel” and we are going to annul your kiddushin retroactively since you violated the condition.”

    The liberal feminists have advocated this for years. In fact they even started “beit dins” doing exactly this. First was Rackman and more recently is Krause.

    #1452476

    apushatayid
    Participant

    Real batei din should do it.

    #1452610

    Joseph
    Participant

    “Real batei din should do it.”

    Real batei din don’t do it because it can’t be done. Your chiddush isn’t a chiddush to them that they haven’t yet considered over the past 75 years.

    #1452783

    MTAB
    Participant

    because you could create mamzerim that way, the Torah says the husband has to give the get willingly, otherwise the get isn’t valid and they still are married, only in extreme cases can you force him and his not making enough money and the like isn’t a good enough reason

    let us spend our energies making marriages better and giving people right values for living

    #1453039

    The little I know
    Participant

    MTAB

    Your statement is inaccurate. You wrote: :because you could create mamzerim that way, the Torah says the husband has to give the get willingly, otherwise the get isn’t valid and they still are married, ”

    That is not true. A get may be given against the will of the woman. It was a תקנת רבינו גרשם to disallow this practice. That does not invalidate the get, which על פי דין תורה is valid. Perhaps he instituted a consequence of cheirem in order to put teeth into this תקנה, since invalidating the get is not possible. Regardless, these is no issue of mamzeirus if a get was given forcibly.

    #1453066

    Joseph
    Participant

    TLIK, MTAB is talking about the husband being forced to give a Get unwillingly (Get Me’usa) while you’re confusing his comment with the wife being forced to accept a Get unwillingly. The Torah explicitly says that a husband doesn’t have to give a Get unless he wants to. If he’s forced to it’s a Get Me’usa, which has a large section in Shulchan Aruch devoted to such invalid Gittin.

    #1453284

    Disillusioned
    Participant

    Joseph: it is important that people get the facts straight. A Mamzer is born only in a case of a Torah forbidden relationship that has Death as a punishment. In a case where two unmarried individuals have children they are not Mamzerim. When annulling a marriage on the basis of Daas Moshe V’yisroel, you are nullifying the original marriage. The issue with this: the many negative prohibitions that the unmarried man & woman have now retroactively transgressed due to the past unmarried relationship. This is not to be trifled with. (Gemara Gittin 3a)

    #1453313

    BaltimoreMaven
    Participant

    Disillusioned; Joseph is talking about a case where the husband is forced to give a Get, not a case where the marriage is annulled (which is extremely rare).

    #1453320

    Disillusioned
    Participant

    “would tell either party, you are not acting in accordance with “das moshe viyisroel” and we are going to annul your kiddushin retroactively…..

    This has issues

    #1455076

    justsmile613
    Participant

    Because its a ridiculous law! I know a story of an American man who got imprisoned in EY bc his wife kvetched to the Israeli courts when he happened to be in EY, and he is a decent guy who is just trying to get visitation with his kids..Its a foolish law bc alot of the time it isnt warranted

    #1493711

    Frank from NY
    Participant

    Joseph, trust me, your statement is totally 100% inacurrate… “Similarly a man has the right to refuse to give a Get if he wishes the marriage to continue.” The Beis Din will just say your wife has checked out of the marriage and it would be cruel not to give her the Get. Unfortunatley, the religious Jewish world has “gone divorce on demand.” Same as secular. The Jewish Press quoted a sage as to why Jews exchange gifts on Channukkah; which wasn’t our custom. The sage said because when you live with Christians for 1,000+ years, you adopt some of their customs. Same with our divorces I’m afraid. It’s definitely divorce on demand.

    #1493729

    MTAB
    Participant

    There are very few real agunos. Nearly every case of get refusal involves a woman tossing a man out of a house, denying visitation, harassing him with police, taking him to secular courts. This ‘crisis’ is a crisis of the RCA buying into feminism. The way the Torah works is marriage is forever except in extreme cases. Many times that’s challenging but such is life. These people just can’t deal with the Torah way. Most marriages can be made to work. But if you live for olam hazeh, it’s much more difficult.

    #1493731

    Joseph
    Participant

    Frank & Disillusioned: I’m simply speaking from Halacha. According to Jewish law if a man does not wish to divorce, he is not required to. And if he’s forced to give a Get under those circumstances, the Get that’s given is deemed by Halacha to be a Get Me’usa, an invalid Get. Even if he was incorrectly forced to give it by a beis din. (Let alone if he’s forced to give it by thugs threatening him.) All this is written in the Shulchan Aruch. So he’s still married to his wife according to Halacha even though he gave her a Get (Me’usa.) Therefore if she remarries she’s committing adultery and any future children are mamzerim since she’s still halachicly married to her first husband.

    Of course there are a very limited number of circumstances that Halacha permits a Beis Din (and only a B”D) forcing a husband to give a Get against his will. But the only such circumstances that it’s permitted according to Halacha are the small number of precisely described circumstances that Chazal permit it (i.e. he has a physical deformity, or he habitually hits her and has been warned to stop and there’s proof he continues). Any other circumstance where he’s forced to give it, that aren’t one of the circumstances that Chazal described, the result is a Get Me’usa, per the Shulchan Aruch.

    Similarly, Rabbeinu Gershom gave Ashkenazic wives the right to choose to refuse to accept a divorce that her husband wants to give her, if she wishes to remain married to him despite his desire to divorce her.

    #1493756

    Frank from NY
    Participant

    Joseph, unfortunately, you’re 100% wrong about how divorce works in modern times. Just look at the religious pre-nups they’re requiring couples to sign before marriage these days. The pre-nup just says once the couple is no longer living as man and wife, the parties have to give each other a Get or financial penalties kick in. There is absolutely no “precisely described circumstances” as you’re stating. Under these religiously required pre-nups, the reason for the wife wanting the divorce is absolutely irrelevant. Unfortunately, from a practical standpoint, there’s no difference between Jewish and secular divorce these days. Both are divorce on demand.

    #1493775

    Joseph
    Participant

    Frank: Rav Elyashiv, Rav Shternbuch and other gedolei poskim ruled that the prenups cause a Get Me’usa, for exactly the reason you mention, and as such may not be used.

    And they’re virtually unheard of and unused in Chareidi weddings. (Chareidim are three quarters of the Orthodox community.) It is almost exclusively an MO thing, and even by the MO it is a minority that actually use them.

    #1493932

    Frank from NY
    Participant

    Joseph, good point… “divorce on demand” and pre-nups may be more Modern Orthodox than Charedi. I do know whenever there’s news reports of a recalitrant husband, the story generally doesn’t say the husbands’s reasons for not giving the Get. Is it b/c he wants to stay in the marriage? Or did he break one of the major marriage rules? Just because a Beis Din orders the Get doesn’t mean anything. Because the Beis Din can order the Get for any reason including the wife just doesn’t want to be married anymore.

    #1494080

    The little I know
    Participant

    Frank:

    The word “Agunah” is borrowed from the situation in which there is inadequate evidence that a man who is missing has died. The status of “eishes ish” remains until either there is verification of his death or he reappears and grants a get. The circumstances of a couple where there is refusal to grant or receive a get are unfortunate (for someone for sure), but this is not the true agunah.

    Much of the time, when we encounter the contemporary agunah, there is no get for any of a wife variety of reasons. And anyone can be at fault. It is unfair and inaccurate to generalize this as all the man’s fault or all the woman’s fault. each case is different, and should be judged on its own merit (and full collection of facts).

    There is frequently difficulty in reaching an agreement for the divorce. Issues can include terms of custodial rights, visitation, child support, division of assets, and similar matters that should all be decided before the get. It is a fact (sorry feminists) that the man has the control to withhold the get. This is frequently used as leverage. However, the woman tends to have the upper hand (not always legally, but practically) regarding the children. This game occupies a great proportion of the deliberations that precede the get. And the contentious get is probably more common than the peaceful one. Regardless, the delay between the separation with the initiation of the plans for the get and the final culmination of that process can linger with the mediation/litigation process.

    Divorce is a process that elicits the most negative personality traits one has. This can include revenge, greed, control, cruelty, etc. It is a shame that people get swallowed up by those traits, and feel that the expense of time and money is worth all the aggravation. Divorce has become an industry, and includes toanim, batei din, lawyers, and various professionals (therapists, counselors, mediators, etc.) I would love to see something change that streamlines the process, making it less expensive and agonizing. Meanwhile, it is often said that, “Marriage is grand. Divorce is a hundred grand.”

    #1497976

    fruminnj
    Participant

    In Israel and NY State, it doesn’t matter the reason for the wife wanting out of the marriage. The husband has to give a Get or else the consequences are quite severe. We’re no longer living in Biblical times. Nowadays, women have the right to demand a divorce. The Rebbeim and butei dinim will almost always back us up. It doesn’t matter if the husband is cruel or even at fault or if the wife just has no interest in the marriage continuing. What matters is the woman is not considered some man’s property anymore.

    #1497986

    ☕ DaasYochid ☕
    Participant

    We’re no longer living in Biblical times.

    I’m not sure what that means. It sounds like you’re saying that we don’t need to follow the Torah anymore, chas v’shalom?

    #1497988

    Joseph
    Participant

    fruminnj: According to the Shulchan Aruch, Halacha (Jewish Law) is that if the husband gives a Get because he’s required to under New York State law or Israeli law rather than because he wants to, Halacha clearly deems that Get to be what Jewish Law calls a “Get Me’usa” (an “invalid Get”) and it isn’t worth the parchment it’s written on. It is halachicly exactly as if he didn’t give any Get at all and the wife remains an eishes ish (a married woman) in the eyes of Jewish Law.

    The Torah directly and Halacha clearly state that in order for a Get to be valid it must be given completely and totally voluntarily because the husband desires to give it and not because a secular force, third-party or national law pressured him to give it.

    #1497989

    MTAB
    Participant

    tell me fruminnj are the children her property? is his house her property, if you want to leave, then leave, but you want to kick him out like he is a piece of wood, does that strike you as fair, do you care? probably not, because you are not really interested in justice, you just want to do what you want to do

    #1497994

    Little Froggie
    Participant

    What matters to some “FrumInNJ” doesn’t really matter to any other Frum, Torah oriented Jew. If a (Jewish) woman is married, she is her husband’s Kinan. Whether she likes it or not. And if she didn’t intend to, she was never married in the first place.

    I like that line… someone who labels him/herself quote frum endquote: ” We’re no longer living in Biblical times”…. Hu?!?

    Having a (Bibical) Passover this year or something?

    #1497997

    JJ2020
    Participant

    Has anyone ever met a mamzer? Because with all the forced and gets there most be quite a few around.

    #1497998

    fruminnj
    Participant

    Joseph, the Shulchan Aruch is guidance. The Rebbeim consider this important guidance but it’s not the final word. I have experience and have advocated in this area. As long as the wife states the husband is controlling, verbally abusive, short-tempered, curses at her, prone to violence and/or cheap, the Rebbeim and butei dinim will not turn the wife’s request down. The husband will be ordered to provide a Get along with adequate financial support. The husband can deny any and all charges until he’s blue in the face. It doesn’t matter. It’s not going to change the outcome. I know what you’re saying. It’s not fair to the husband who isn’t all that bad and not doing any of these bad things. The goal is to alleviate the wife’s suffering. She’s suffering in a marriage she doesn’t want to be in. It’s not some man’s job to tell her it’s not the husband’s fault. These men can’t force a wife to stay in a relationship she feels is abusive.

    #1498004

    ☕ DaasYochid ☕
    Participant

    the Shulchan Aruch is guidance

    No, the Shulchan Aruch is binding. Either try to make a case that the cases you witnessed do conform to the Shulchan Aruch, or that the batei din you refer to are performing sham gittin, but don’t try to pretend that contemporary batei din can validate a get consideted invalid by the Shulchan Aruch.

    #1498006

    Joseph
    Participant

    Shulchan Aruch is merely “guidance” and people who call themselves a rabbi can make themselves the “final word” against the Shulchan Aruch?! You have “experience and have advocated in this area and as long as the wife states” a claim even without evidence that the husband desires your beit din will order an involuntary divorce against the clear Biblical Law as enumerated in the Torah and Shulchan Aruch which clearly and unambiguously rules that without evidence on a claim denied by the husband/defendent it can’t be accepted and a divorce cannot be ordered?

    Did you say you’re affiliated with a non-Orthodox stream? Because what you’re writing is clearly against Torah Law.

    #1498008

    Joseph
    Participant

    JJ2020: Which “all the forced” Gets? Where have you seen many of those?

    #1498009

    JJ2020
    Participant

    Fruminnj- how about the women who abuse men? Will the beis din force her to accept the get? Will they force her to pay him financial support?

    #1498025

    JJ2020
    Participant

    Joseph a few years ago a bunch of Rabbis from Lakewood went to jail for beating people up to give gets. In Israel they through men in jail. As the poster above writes, if a woman goes to beis din and say my husband hurt my feeling they push him to give a get.

    #1498026

    fruminnj
    Participant

    JJ2020, no one is being “forced” to do anything. That would create a Get Me’usa (invalid Get). The men are freely giving the Gittin (Gets) because they want to. Yes, if they don’t, there’s penalties. Yes, to escape the penalties, they’re giving the Gittin voluntarily. It’s halachic. Holding the man over of vat of boiling oil would be cruel and unusual and not halachic. But the sages have ruled financial incentives make the arrangement voluntary and willful. Women have more discretion to refuse the Get. At least in the cases I’ve been involved with, I can only speak from personal experience, it’s usually the women who want the divorce; not the men.

    #1498039

    fruminnj
    Participant

    Joseph, the Rebbeim are not going against the Shulchan Aruch. They cannot do such a thing. What the Rebbeim can do, and what they are doing, is they’re alleviating the suffering amongst the eshet chayil (eishes chayil). The days of needing witnesses to prove a claim for spousal abuse are no longer valid. A husband can act one way in shul and in public and can turn around and be a total monster in the privacy of his home when no one is looking. As long as the woman is credible, her word alone is sufficient. Also, the man is not actually being punished for any allegations so there’s no need for witnesses. No one is being stoned to death. All the husband is required to do is provide a Get. And yes, this is all Orthodox. The point I’m making is today the evidence is halachically required as it’s always been required. That hasn’t changed. The ability to address the evidence requirement has merely been updatd to no longer require third-party eye-witness accounts. And this accomodation is needed because so much abuse can occur behind closed doors.

    #1498065

    ☕ DaasYochid ☕
    Participant

    The ability to address the evidence requirement has merely been updatd to no longer require third-party eye-witness accounts.

    Do these updates conform to Shulchan Aruch?

    #1498064

    Joseph
    Participant

    fruminnj: Virtually every point in all your comments are directly contradicted in the Shulchan Aruch. Point by point.

    “Yes, if they don’t, there’s penalties.”

    The S”A clearly states that Beis Din is prohibited from penalizing the husband into giving a Get in the run of the mill divorce case where there’s no fault on the part of the husband. And the only time aB”D is halachicly permitted to penalize him into giving a Get is when he both a) is at “fault” with a specifically given fault by Chazal as a valid cause for divorce *and* b) there’s eyewitness evidence that he’s at fault (if he denies it.)

    “But the sages have ruled financial incentives make the arrangement voluntary and willful.”

    The SA specifically rules that creating a financial penalty to facilitate him giving the Get invalidates the Get even if he gives it to avoid said penalties.

    “Women have more discretion to refuse the Get.”

    Umm, Gittin 101 that’s taught to every Mesivta kid and up and is written all over the Mishna, Gemorah and SA and everything in between is exactly the opposite.

    “At least in the cases I’ve been involved with, I can only speak from personal experience, it’s usually the women who want the divorce; not the men.”

    Here you’re actually correct. Which is the reason the Torah gave the decision whether to divorce to the husband. To, exactly, discourage too many divorces.

    “The days of needing witnesses to prove a claim for spousal abuse are no longer valid… As long as the woman is credible, her word alone is sufficient. Also, the man is not actually being punished for any allegations so there’s no need for witnesses. No one is being stoned to death. All the husband is required to do is provide a Get. ”

    Halacha doesn’t change with each new century. This comment is utterly the opposite of the Halacha. The SA very very clearly says that Beis Din cannot mandate he divorce her if he doesn’t want to if there isn’t the eyewitness testimony of two witnesses corroborating her claims. And her claims can only be from the very limited specifically defined circumstances specified by Chazal that allow a Beis Din to mandate a Get.

    Furthermore, the Shulchan Aruch rules that if a Beis Din orders the husband to give a Get when halachicly the Beis Din had no right to order him so, then the Get he gave is a Get Me’usa.

    #1498095

    MTAB
    Participant

    joseph, you making all the right points but they aren’t going to listen. You are dealing with people who aren’t really frum. They don’t get the concept of Torah m’sinai and mesorah. They don’t get the concept of Hashem is One, which means no matter how things seem, it’s for the best. This includes the Halacha. They want the Halacha to match the modern world. And they have such a hatred for Charedim – in part due to some of the articles on this site – that they come to hate the Torah which the Charedim tend to keep with more faithfulness. Put your arguments out there. It’s a good deed. But it’s an enervating task for you I’m sure.

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