May Alienated Fathers Withhold a Get?

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By Rabbi Yair Hoffman for 5tjt.com

There are numerous women out there who halachically may not remarry – because their halachic husbands have not given them a Get.  Most of the time, these men do not issue the Get because they feel that they are, have been, or could be alienated from their children on account of their mothers.

THREE GROUPS OF RABBIS

The question is whether this is a justifiable position – to indefinitely withhold a Get under such circumstances.  There are Rabbis on all sides of the spectrum. We can divide these Rabbis into three groups:

Group A Rabbis:  A man may never withhold a Get from his wife when they are living separately from each other and they have irreconcilable differences.

Group B Rabbis:  There are some circumstances where a man may withhold a Get from his wife, even for a protracted period of time.

Group C Rabbis:  It is always justifiable for a man to withhold a Get from his wife if he feels any degree of alienation or possible alienation from his children on the part of the mother of the children.  This is true even for a protracted period of time.

BEING SENSITIVE TO THE PLIGHTS

Most people are already sensitized to how horrible it is to withhold a Get from an ex-wife.  It causes needless pain and suffering, not to mention major Chilul Hashem, a desecration of the Divine Name.  We are perhaps not sufficiently sensitized to the plight of an alienated father who sincerely wishes to see and spend time with his children.

The sources that will be cited below do back up either the Group A Rabbis or the Group B Rabbis.  We will, b’Ezras Hashem, try to interview some of the Group C Rabbis to ascertain their position in light of the sources cited below.  Below is a discussion

A number of years ago, this author posed the following question to a well-respected Posaik who can be categorized as in Group B:  He preferred not to be identified at the time:  “Is it ever permitted for a husband who is no longer living with his wife to withhold the giving of a Get to his wife?”

The Posaik responded, “It is never permitted to withhold a Get in order to try to negotiate better divorce terms, but it is permitted to do so in response to false legal accusations that are still causing a continuing negation of the father’s rights to see his children.”  The Posaik claimed that when a false report has been filed against a husband and the husband is not allowed to see his children as a direct result of the false report, he may, with the permission of a reliable Posaik, withhold the get as leverage to ensure that the situation be rectified.

The Posaik elaborated that the reason behind the ruling is not, heaven forbid, to punish her, but rather to effectuate the relief of an untenable and ongoing situation.  “Halachically, this dispensation is a form of the Talmudic concept discussed by Rav Nachman in Bava Kamma (27b) cited  by the Bais Yoseph (Choshain Mishpat 4).-  “avid inesh dina lenafshay, a person may under certain and specific circumstances effectuate unilateral action.”

When asked who should be the arbiter as to whether these accusations are true or false, the Posaik responded that it definitely cannot and should not be the husband.  It must rather be the ruling of a competent Rav or Bais Din, and only after a forensic evaluation has been conducted, where both parties had been spoken to, and after the determination that there doesn’t exist any corroborating evidence.

This author asked, “Who is to choose the Rav or Bais Din who will rule on the case?”

The Posaik responded, “It should not be the wife, because she may choose Rabbis or Dayanim that are biased and on her side.  It cannot be the husband, because he will choose people that are biased toward him.  And, in a society where there are no longer any Kehilos to speak of, it is very difficult to come up with a nation-wide A-List of competent and reliable Rabbonim and or Batei Dinim.

TWO VERY REPULSIVE BEHAVIORS

As a society, we have become more tolerant and accepting of repulsive behaviors that were once anathema to all decent people. This is a most unfortunate state-of-affairs that must be changed. A person who pursues false criminal allegations against a spouse resulting in arrest and legal consequences where the other parent cannot see the children, has crossed a horrifying and abominable line in conduct, and has placed their very own Olam haba in jeopardy (see Rambam Hilchos Chovel UMazik 8:9 regarding the repercussions of Mesirah where there is no Pikuach Nefesh involved).   The further prohibitions of Motzi Shaim Rah, and lying are also not inconsequential.

Several lawyers have informed this author of the unfortunate reality – false accusations abound in contemporary divorces.

The need for resolving this quandary of making sure that we do not create Agunos and at the same time ensuring that false accusations are not made against a spouse is most acute.  Both scenarios are very serious, for just as causing an arrest on false abuse charges jeopardizes Olam HaBah, so too does the notion of making Agunos.

CHEZKUNI

The Chezkuni (Bereishis 3:16) cites a Midrash and writes that if someone is betrothed to a woman and leaves her stuck as an agunah, then he is a denier of the World to Come. Consequently, he loses his share in Olam Ha’Ba — the world to come. The Baalei HaTosfos cite the same exposition and come to the very same conclusion.  Making an Agunah causes one to lose Olam Habah.

There, in the Midrash, the status of the agunah began at the very very beginning of a marriage–upon halachic betrothal. The contemporary Agunah is, of course, after marriage.  Nonetheless, the idea is the same–these Rishonim hold that the husbands have lost their share in Olam Ha’Bah. Their fate and future no longer lie with Abraham, Isaac, and Jacob and their grandparents and great-grandparents for generations. Rather, the fate of these husbands is with the likes of the evil Bilaam and Gechazi.

WHEN THE WOMAN IS AT FAULT

But what if it was the woman who caused the marriage to fall apart? Is there then a rationale to hold back the Get?

There is a fascinating Chasam Sofer (Nedarim 29) that even in an extreme case where a wife sinned with an extramarital relationship,  “Ein lanu le’agein osa–we are not to make her into an agunah.” The Chasam Sofer continues that this is both obvious and clear.

HOW SHOULD WE REACT WHEN WE SEE AN AGUNAH?

What should our reaction be when we see an Agunah? The Responsa Yeshuas Malko (EH #54) by Rabbi Yisroel Yehoshua Trunk (Poland 1920-1893) writes, “All of Israel is obligated in trying to help such a woman.”

RAV SHTERNBUCH’S POSITION

Rav Moshe Shternbuch of the Eida HaChareidis in Jerusalem (Teshuvos v’Hanhagos Vol. V #44) writes regarding someone who is refusing to give a get to his wife, it is “permitted and proper to publicize” that “no one should have anything to do with him.”  The Posaik mentioned in the very beginning of this article would qualify this ruling of Rav Shternbuch as applicable only when the husband is not trying to get the spouse to remove false charges, and only when the charges have not been accompanied with corroborating evidence.

THE VILNA GAON’S INSIGHT – OUR COMMUNAL RESPONSIBILITY

The Shulchan Aruch (Even HaEzer 1:11) rules that it is proper to enact laws and stipulations regarding marrying an additional wife (this was according to those that had not adopted the ban of Rabbeinu Gershom on polygamy). The Vilna Gaon explains that the Shulchan Aruch writes this in order to avoid situations which may cause or tempt the husband to make his first wife an agunah.

We can make two observations regarding this explanation of the Vilna Gaon. The first is that the notion of husbands making their wives into Agunos as a means of retaliation is certainly not new. The second observation is that we see clearly that steps should be taken to avoid this tragic reality of Agunos from coming about.  It is our communal responsibility.

RAV FEINSTEIN’S VIEW

Rav Moshe Feinstein, zt’l (Igros Moshe YD Vol. IV #15) in a letter to Rabbi Chanina Simcha Posner written in the summer of 1976, writes categorically that no one party has the right to be me’agein the other party for financial purposes. (Me’agein is the verb form of making someone into an agunah.)

JAILING SUCH A HUSBAND

Elsewhere, the Shulchan Aruch rules that it is generally forbidden to judge on Shabbos (Orech Chaim 339:1). The Remah adds that even if someone needs to be punished it is forbidden to place him in jail so that he not run away. The Mishnah Berurah (329:14), written by the saintly Chofetz Chaim, rules that this ruling of the Remah does not apply to husbands who are refusing to give their wife a get. He writes that one is allowed to put such a husband in jail over Shabbos so that he will not run away and will thus be present on motzaei Shabbos to give a get to his wife.

LOSS OF OLAM HABAH

Not one of these sources is denying the right of a husband to present his side of the story to a beis din. What these sources all do, however, is demonstrate that the refusal to come to the table and the withholding of a get to inflict psychological harm or pressure to capitulate in other matters is an abominable form of behavior that causes people to lose their share in the World to Come and justifies jailing them on the Sabbath itself.

WHAT JUSTIFICATION?

The only justification to withhold a get, according to the Posaik, is if the wife has falsely accused and filed charges against the husband and the husband is suffering legal repercussions on account of the filed charges.  And even then, it is only if there is a Rabbinic finding that the charges are false.

In a further discussion, the Posaik delineated one other situation wherein the husband would be justified in withholding the Get and that was when the wife had vindictively kidnapped the children without his assent and began living far away from the husband.  This too, however, may only be done under the advisement of a Posaik or Bais Din and only after rigorous investigation that the facts are correct.

WE NEED A PROTOCOL

What we do need to do, however, is figure out a protocol where neither party is in charge of figuring out which Rabbis or which Bais Din will determine whether the charges are real or false and whether the facts of the vindictive relocation are true as well.  Until then, we should carefully warn both parties that both filing false accusations and causing a wife to be an Agunah are actions that cause the violator to lose his or her share in the world to come.

THE WITHHOLDING JUST FURTHERS THE ALIENATION

This author’s view is that the whole tactic is misguided in the first place.  Withholding a Get just serves to foster alienation.  Has anyone ever heard of a case where a husband refused to give his wife a Get after a protracted period of time – and the children all responded, “Wow, I am so happy that Dad made Mom suffer because now we have such love and respect for Dad..”?

May Hashem relieve the suffering of all parties involved — especially the children caught in the middle.

The author can be reached at [email protected]




16 COMMENTS

  1. Get refusal is never okay. I understand that parental alienation is a problem but get-refusal isn’t the way to rectify that problem.
    If any of the rabbis who find get-refusal justified found their daughters the victim of such abuse I wonder if their position would stay the same….my guess is no.

  2. The way to have an enforceable protocol would be for the community to offer to pay the legal fees in the goyim’s courts for whichever party (typically the wife) accepts the decision of the Beis Din, thereby making it very awkward for the party who rejects the Din Torah (since in effect they would be a normal person, fighting someone with deep pockets).

  3. Luna, why is get refusal not okay? Neither a husband nor a wife is ever entitled to a get just because they want one. Only in unusual cases where there are specific reasons why a get is necessary can a husband be ordered to give a get, or a wife to accept one. In most cases the party demanding a get is NOT an agun/aguna but rather a mored/moredes and is not entitled to anything at all.

  4. This entire article has the wrong heading. The correct heading is:- “May a custodial parent ever withhold parenting time from the non-custodial parent?”

  5. Rav Zalman Nechemiah Goldberg poskens that the get is just another tool that can be used during the divorce negotiations. If the wife demands a divorce with terms that are unfavorable to the husband, the husband can say that he won’t give the get until the terms are favorable. If this stalemate existed for some time, there is no reason to call the woman an “agunah” except for political and feminist purposes.

  6. The premise of this journalist’s article is completely wrong. The Torah directly and Halacha specifically (Shulchan Aruch et al) clearly and unambiguously state that a husband does not have any obligation to divorce unless he wants to. Full stop.

    Unless there’s very unusual extenuating circumstances where there’s “Halachic Cause”, something there’s very few circumstances that fit into (and are specifically listed in the Gemora and Shulchan Aruch) and is infrequently seen, the Torah, Halacha, law is that he does not have to give a Gett.

    Please bring up this above point in your discussions with the poskim you plan to speak with.

    And regarding the cited Chasam Sofer, a wife who engaged in a sinful relations that is a capital crime under Halacha, is one of the rare circumstances where he has to give a Gett. So it isn’t a proof to what you’re bringing it for.

  7. Luna Lovegood: You’re ignorant of Halacha on gittin. A divorce is most emphatically NOT a right in Judaism. Judaism often does require one remain in marriage even if one spouse world rather not.

    Everything Milhouse posted is 100% halachicly correct.

  8. Joseph
    I am not ignorant. In fact, as someone who has worked with agunot and studied this topic extensively I have quite a bit of experience.

    According to Rambam, Hilkhot Ishut 14:8, “If she says “I am repulsed by him, and I will not have relations with him,” they force him to divorce her immediately.” So divorce IS a right. If a woman is repulsed by her husband, a beit can force the husband to divorce her. Rambam, Hilkhot Gerushin 2:20 states, “One whom the law declares that we force him to divorce his wife, and he does not want to divorce, a Jewish court in any place and any time may beat him until he says “I want to,” he will write a get, and it is a proper get.” Shulchan Arukh EH 154:21 agrees with this position.

    Marriage is a contract, not slavery. Just because someone agreed to marriage doesn’t mean they can be trapped in that marriage for the rest of their life. That’s abuse.

  9. I humbly have to ask a few questions.
    How many cases has there been where the wife was being treated like a queen in marriage and her husband was honoring her more then himself ( like the rambam says) and she decided she Still wants a Gett
    And if she still wants a Gett in such a situation which husband in his right mind still wants to stay married to such a lady
    I never understood this topic of withholding a Gett does the husband not want to get married also (והמבין יבין )
    I think someone should share data from people who are very involved in divorce and maybe it will shed light on everyone opinion
    I have a lot more to say on this topic
    But would like to hear some feedback

  10. Luna: I didn’t say you are ignorant. I only said you’re ignorant of Hilchos Gittin; something I’m sure you’ll readily acknowledge you do not know in depth. And it is very intricate.

    As far as the Rambam you cited above, the Shulchan Aruch paskens against it and rules that in the case that Rambam discusses, the husband is NOT halachicly obligated to give a Gett. And since the time the Shulchan Aruch has become accepted by Klal Yisroel, this has been the accepted psak across the entire Torah world, including among Ashkenazim (as concurred by the Rema) and Sephardim (as written by the Mechaber.) All that I just pointed is uncontroversial and everyone acknowledges we pasken against that Rambam. It isn’t even a machlokes since the time the Shulchan Aruch paskened as such on this issue and is accepted across the board.

    Now as far as the Shulchan Aruch you cited. S”A does pasken, as you said, that Beis Din can force, including with corporal punishment if necessary, a husband who Halacha requires to give a Gett to give it if he refuses. But that qualification of “who Halacha requires to give a Gett” is critical. And the S”A said, as I pointed out, that when a wife claims to being repulsed requests a Gett, the husband is NOT obligated to give it. (The S”A reasoning is because we don’t know whether her real motivation to divorce is because she wants to marry someone else, in which case the Gemora unambiguously says she cannot demand a divorce for.)

    Two of the very few examples where a Gett is halachicly required to be given is if the husband beats his wife and another is if he has a specific physical deformity. In both cases Shulchan Aruch requires it be testified in Beis Din to be true by two witnesses who saw it. And in the first example, Shulchan Aruch requires that Beis Din warn him to stop and then, and only then, can require he give a Gett if he continued to be violent again in front of witnesses. (Beis Din can put witnesses in their home after he was warned.)

    So in summation, there is absolutely no right for a spouse to get a divorce on demand because they so desire. In fact, the default in Halacha is that a divorce is not required to be given unless there’s a provable “cause” that’s one of the few listed acceptable causes in the Gemora and Shulchan Aruch, and that cause is proven to exist in Beis Din.

    And Shulchan Aruch gives a number of examples when a Gett was requested that Beis Din denies the request and tells the couple to remain married.

  11. Entitled? Divorce is not a privilege, but a right. Judaism does not force people to stay married against their will.

    Luna, you are wrong. Judaism does exactly that. The Torah says marriage is binding on the wife for life, and under no circumstances is she ever entitled to leave it without her husband’s consent. Chazal said that under certain unusual circumstances the husband can be ordered to give that consent. Rabbenu Gershom extended the same restriction to husbands as well, i.e. they too are bound forever to their marriage and cannot leave it without their wife’s consent, with the same limited exceptions that Chazal instituted. But outside those limited exceptions, for Ashkenazim both parties are required by Judaism to stay married unless they can persuade their partner to release them. If the partner has demands, either fulfill them or stay married.

    Marriage is a binding commitment to the other party, and (at least for Ashkenazim) NEITHER party has any right to leave it. There are certain exceptions

  12. Luna, even the Rambam says this only when she claims to have developed a physical repulsion from him, i.e. she simply cannot bring herself to have relations with him. Not when the dispute is for some other reason. Rabbenu Tam points out that she may be lying, and we should not be so naive as to believe her just because she says so.

    And even so the Rambam calls such a woman a MOREDES — she is rebelling, which means she has no right to act as she is. Marriage is a contract, and a contract is binding. You can’t get out of a contract just because you don’t like it any more.

    However he says that since she is unfortunately acting that way she can receive her get but she must leave with absolutely nothing. Not a penny. How much more so must she not get custody of the children. If these women would agree to such terms 99.99% of the husbands would not only agree to the get but would even give them more than they’re entitled to.

    The problem in most of these cases is that the women want to have it both ways. They want to go to court and get as much as they can there, and to go to beis din only for a get. It doesn’t work like that.

    In any case, Ashkenazi poskim follow Rabbenu Tam’s opinion, not the Rambam’s.

  13. Many women, myself included, have become wary of marriage and want safeguards (like a prenup) in place to prevent this abuse of the system.
    I can live a full life on my own so why on earth would I enter into a relationship that I can never leave? Like I said above, that’s slavery and it’s inhuman.

  14. Luna, I am sorry to hear that. Many more women are interested in marriages, most of which, I believe, are fulfilling. As has been pointed, for Ashkenazim, any Sevara goes both ways. Are many men also leery of marriage for the reasons you laid out?

    I humbly suggest that many of the above comments are not germane to the article, in which a husband has absolutely decided to divorce, and is no longer living with his wife (or children). The question is whether or not a husband in such a situation may – or should – withhold a Get as a negotiating ploy, not because he wishes to remain in the marriage.