Response to a Beth Din Ostracizing a Husband for Not Giving an Immediate GET
Rabbi Dovid E. Eidensohn Musmach Geonim Rav Moshe Feinstein and Rav Yosef Shalom Elyashev
1. The Beth Din of Chicago ruled that a husband must give his wife a GET. The husband plans to give his wife a GET but wants certain things to be worked out and arranged. But the Beth Din has ruled that as long as he refuses to give the GET soon he is to be humiliated and ostracized by the entire community. The husband has asked me my opinion and I reply that the Beth Din is completely wrong, and the GET if given under these circumstances is a coerced GET and invalid. Furthermore, a Beth Din that coerces a GET under these circumstances loses the status of Beth Din and all Gittin that it gives are not accepted. I heard this myself from the Gaon Rav Yosef Shalom Elyashev zt”l, when I spoke to him at length about these issues when he gave me semicha to lead a Gittin Beth Din in his name.
2. See also the Sefer Mishptei Yisroel with signed letters from Gedolim of this and the past generation about the terrible sin and mamzerim because of Gittin produced with humiliation, and the sin of going to such a Beth Din and accepting their Gittin. (Letter signed by Rav Chaim Kanievsky, Rav Shmuel HaLevi Wosner, Reb Nissim Karelitz, Rav Noson Kupshitz and many others.)
3. Again, any woman divorced by this Beth Din is not considered divorced, and if she remarries it will be considered a sin and her children perhaps mamzerim. She needs a GET from a kosher Beth Din.
4. Where does it say in Shulchan Aruch that a husband who refuses to divorce his wife may be treated this way?
5. The Shulchan Aruch Even Hoezer has three categories of women who demand a GET. The first level is when the husband is commanded by the Talmud to divorce his wife, and Beth Din is commanded to coerce him even with a beating, if he refuses. For example, a man marries a mother or a daughter.
6. The next level of coercion is when a man is commanded by the Talmud to divorce his wife, and he is considered a sinner if he does not do this, but beating him or any serious coercion such as hitting him or putting him in the state of Niduh, is forbidden. Humiliation is considered a major coercion and forbidden for such a man. (Rashbo VII:414 Radvaz IV:118, Chazon Ish EH 108:12)
7. The next level is when a woman demands a GET from a husband simply because she despises him completely. In such a case the Shulchan Aruch rules that no coercion at all is permitted. This is based on the Rashbo VII:414 and it is quoted in the Shulchan Aruch, Ramo, Beis Shmuel, Chelkas Mechokake and Gro in Even Hoezer 77 paragraphs 2 and 3.
8. Most Gittin are in this latter category, where no coercion is permitted. This category is not even discussed in the Laws of Gittin Even Hoezer. It is discussed in the Laws of Kesubose, because we want the marriage to continue and refuse the wife the right to coerce her husband to divorce her.
9. When the Ramo discusses the right of ostracizing a husband, he does this in the Laws of Gittin 154:21 and only permits it when the husband is specifically commanded by the Talmud to give his wife a GET. But when discussing the wife who demands a GET Ramo does not mention any kind of coercion that is permitted. See EH 77 par 2 and 3.
10. Therefore, this Beth Din that demanded a GET and coerces it defies the Shulchan Aruch.
11. The fact that the Beth Din decreed upon the husband to give a GET was wrong. And the Chazon Ish says that if the husband obeys the Beth Din and gives a GET when there was no right to coerce him, this is a forced GET and the GET is invalid, for two reasons, by the teaching of the Torah. The children born from such a GET are thus mamzerim. EH 99:2
12. The Beth Din in Chicago decreed that the husband be ostracized and humiliated.
13. The Chazon Ish 108:12 brings the Beis Yosef that humiliation is forbidden even for a person commanded by the Talmud to divorce.. Therefore, says the Chazon Ish, it is forbidden to do harchoko of Rabbeinu Tam as this is a humiliation. Surely in our case humiliation is forbidden.
14. Senior poskim forbid Harchoko of Rabbeinu Tam unless a person is married to his mother or daughter and such hideous circumstances. These are the Shach end of Gevoras Anoshim, Chazon Ish EH 108:12, and the rebbe of the Beis Yosef Reb Yosef ben Leib who says we never heard of anyone doing the Harchoko of Rabbeinu Tam because it is considered a very serious coercion similar to a beating.
15. The Gro EH 154:67 and others hold that Harchoko of Rabbeinu Tam is only permitted if the husband can leave his city and find peace. But today, communications are such that it is very unlikely that this will happen. Furthermore, today, people don’t know the laws of Harchoko, that only passive ostracizing is permitted. So once demonized, husbands are threatened with very serious coercions, leading to a definite problem of an invalid and coerced GET. Thus in the Chicago Beth Din letter all of the shulls must announce at the end of Shabbos dovening that the husband is in violation of the Beth Din order to give a GET. This is active, not passive, and it is humiliation, not ostracizing.
16. I once had a discussion with Rabbi Gedaliah Schwartz, the Av Beth Din of Chicago, who signed on this ostracizing of the above mentioned husband.. What happened was that a man came to a prominent Rov in a large city and said he was interested in remarrying. The Rov asked him if he had a GET from his first wife. The man replied he did not, because he and his wife had gone to Rabbi Gedaliah Schwartz for a GET, and he told them they had no need for a GET and sent them away. I called up Rabbi Schwartz and asked how a couple who was married with Orthodox Chupah and Kiddushin in front of kosher witnesses can remarry without a GET. He told me that there was no Biah, as the couple lived alone for a month without Biah. I asked him how he knew that there was no Biah. He said the doctor said that. I asked him how a doctor knows this, as Biah can be without tearing anything. He had no answer. But the main problem is that the poskim and the Shulchan Aruch are filled with stories of boys and girls making Kiddushin in the street, and the poskim consider that if there was a chance that they meant it and there were witnesses, then they are married and need a GET. There was no Biah in these cases. See Marsham Volume VI:158. Furthermore, the Rambam (Ishuse III:1 and 3) and Shulchan Aruch EH 26:4 “A woman can be married in three ways: money [an object of value such as a ring], a document and biah.” It does not say that without Biah money and a document are not valid. Thus Kiddushin without Biah makes a married couple that requires a GET. If Rabbi Schwartz disagrees, he disagrees with the Torah. And he does disagree with the Torah. Therefore, what he and his Beth Din rule is worthless.
17. The recent scandal with Rabbi Schwartz’s National New York Beth Din whereby the FBI obtained from that Beth Din a letter condemning a husband who didn’t exist should alert us to the fact that Rabbi Schwartz’s Beth Din has no status of a Beth Din at all and their Gittin are worthless. Nonetheless, if a kosher Beth Din checks over the giving of the GET, the Sofer, etc., and rules that the GET is kosher, then it is kosher.
18. Rabbeinu Yona in Shaarei Teshuva writes (#139) “the pain of humiliation is worse than death.” Surely humiliation is a very serious coercion, and it renders a GET invalid.
19. The above husband should give his wife a kosher GET, not a coerced GET that is invalid.
20. The Beth Din should calm things down and allow the husband to approach divorce without a feeling that he is among enemies.
21. The husband has surely given me the understanding that he wants a divorce, but he doesn’t want to be coerced into it before he has satisfied himself about certain matters that every husband has a right to be concerned about.